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Response to the Exposure Draft Model Act for Occupational Health and Safety, Discussion Paper

9 November 2009

1. Background

Independent Contractors Australia (ICA) has been an active contributor to the work safety debate for a considerable period. We support the concept of national harmonized OHS laws.

In July 2008, we made a submission to the federal review into national harmonized laws.

In our submission we expressed support for OHS laws where:
  • Everyone involved in work is held responsible for safety.
  • Responsibility is based on what each person reasonably and practically controls.
The principle of 'reasonable and practicable control' is the core of the international OHS law. It is the core understanding that creates commonality of OHS laws across Australia, except for New South Wales.

We further proposed that the historical dependency of OHS legislation on employer-employee language to describe and identify responsibilities corrupts OHS principles. We suggested the use of language not dependent on employment terminology. After all, work safety is about 'people' keeping 'people' safe.

2. General Response to the model OHS laws

Independent Contractors Australia supports the model OHS laws. They are a positive movement in the right direction. We are particularly pleased that the laws:
  • Place OHS responsibilities within the context of what is 'reasonable and practicable'.
  • Have used non-employer-employee language to identify safety responsibilities.
The discussion paper requests responses to a range of questions. Our response to a selection of the questions is below. However, there is one issue not covered in the questions which we also address. All our comments and suggestions are intended to further strengthen the model laws.

3. Objects of the model laws: the self-employed

ICA has a particular focus on the specific needs of the 2,031,000 self-employed people in Australia. Constituting 19 per cent of the workforce, it is necessary to ensure that the self-employed are adequately embraced within the design of the laws. Self-employed people have responsibilities for safety and must also be kept safe. The model laws do cover them.

We believe, however, that the self-employed should be specifically referenced in the objects of the Act. The objects of the model Act currently read (in part):

3 Objects
(1) The main objects of this Act are:
    (a) to protect workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of hazards and risks arising from work [or from specified types of substances or plant];

    (b) to provide for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to occupational health and safety;

    (c) to encourage unions and employer organisations to take a constructive role in promoting improvements in occupational health, safety and welfare practices and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment;

    (d) to promote the provision of advice, information, education and training in relation to occupational health and safety;
We suggest the following additional clause:
  • 'to assist and encourage self-employed people to eliminate or minimise hazards to themselves or others in the conduct of their work.'
Our reason for the suggested inclusion is that self-employed people receive comparatively little attention in the national work safety effort. Safety authorities have traditionally been focused on the employer-employee relationship. Self-employed people have been a difficult-to-deal-with 'after-thought' in safety programmes. But with self-employed people constituting almost one-fifth of the workforce, this is a big gap in the national work safety effort. The Inclusion of our suggested clause (or something of a similar nature) would provide a legislative direction to work safety authorities to formally include self-employed people in safety programmes and efforts. Self-employed people have particular and unique profiling that requires specific attention if work safety is to be constantly improved.

4. Responses to questions

Q 11. Is the proposed scope of the primary duty appropriate?

The scope of the primary duty is appropriate because it allocates responsibility given what is 'reasonable and practicable'. However, we are puzzled as to why the word 'control' does not accompany 'reasonable and practicable'.

In reading the discussion papers, the report into the national harmonized laws, the COAG undertakings and the documents accompanying the model laws, no adequate or comprehensive explanation appears as to the reason for not using the word 'control'. This would surely not be an oversight. In most jurisdictions 'reasonable and practicable control' underpins OHS legislation, as it does with the international principles. To not have the word 'control' presents a potential significant deviation from the existing, dominant core understandings of work safety laws. There must be a reason but it seems not to be expressed.

We suggest that the word 'control' should be inserted as follows: To include the words 'over matters they control' under 16 (a) as shown below in red and underlined.
    16 The principle of risk management
      A duty imposed on a person to ensure health or safety requires the person:
        (a) to eliminate hazards, and risks to health and safety,over matters they control so far as is reasonably practicable; and

        (b) if it is not reasonably practicable to eliminate hazards and risks to health and safety, to minimise those hazards and risks so far as is reasonably practicable.
We believe that the word 'control' is important not just for consistency, but because it sends a comprehensive legislative signal to everyone involved in work about their personal responsibilities for safety at work. Work safety has parallels to road safety. The challenge is to have everyone focused on safety at all times. When people drive a car they are conscious that they are in 'control' and can be held criminally liable if they fail to exercise proper control. Work safety legislation needs to send the same message with great clarity. The word 'control' is THE word that achieves that clarity. It focuses every person at work on the fact that they personally can be held liable for their actions or failures. This is the sort of focus that is required.

Q 15 In determining whether a worker failed to take reasonable care, should regard be had to what the worker knew about the relevant circumstances?


Q 19 The intention is that all contraventions of the model Act be criminal offences. Is this appropriate or should some non-duty of care offences be subject to civil sanctions e.g. failure to display a list of HSRs at the workplace, offences relating to right of entry?

Conceptually there could be a mix of both criminal and civil sanctions. The difficulty is in applying this in practice and deciding where the cut-off point should be between civil and criminal. Because work safety is so important, a consistent message needs to be sent that any breaches are serious and consideration of criminality sends that message. Further, because the model Act proposes three levels of criminal sanctions, apparent minor breaches are perhaps best handled through the lower level of sanctions in the model Act.

Q 21 Is the proposed scope of duty to consult workers appropriate?

A specific provision should be included requiring consultation with self-employed persons.

Q 34 Should the model Act contain a specific authorisation process for an OHS entry permit or can it rely on authorisation obtained under other acts such as the Fair Work Act?

Authorisation should entirely be a matter under OHS law with control of authorisation under the same jurisdiction. There should be no OHS authorisation awarded through industrial relations jurisdictions or processes. For too long there have been instances where work safety has been used as a mask for industrial relations activity. This significantly diminishes the effectiveness of work safety processes due to the creation of 'the boy who cried wolf' syndrome. When OHS and industrial relations jurisdictions cross over this encourages and potentially sanctifies inappropriate behaviour, thus threatening safety. By keeping all authorisation matters entirely within the OHS jurisdiction, clarity is assisted on safety issues.

Q35 Should contraventions of this Part attract criminal or civil sanctions? If civil sanctions are considered appropriate, should penalty levels reflect those that apply under the Fair Work Act?

Sanctions should be criminal. See our response to question 19. Entry permit-holders should have no doubt that their actions and behaviours at worksites are within the scope of every other person who is involved in the work. Penalty levels should not reflect the Fair Work Act but reflect the appropriate OHS Act. In particular, an entry permit holder's authorisation and their behaviour should be specifically subject to clause 28 of the model Act which reads:
    28 Duties of other persons at the workplace
      A person at a workplace (other than a person who has another duty under this Part) must---

      (a) take reasonable care for his or her own health and safety; and

      (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

      (c) co-operate with any reasonable instruction given by the person conducting the business or undertaking to comply with this Act.
Nothing in the model Act should suggest or imply that entry permit-holders have in any way lesser responsibilities to safety than any 'other persons at the workplace'.

Q 36 The right of entry provisions have been drafted to be generally consistent with the Fair Work Act. Do these provisions appropriately apply to the role of a union representative when entering the workplace in relation to OHS, rather than in relation to workplace relations?

Consistent with our answers to questions 34 and 35, right of entry provisions should not be drafted from the Fair Work Act. Industrial relations law and work safety laws have different objectives and should both stand alone. Having the two cross over creates the impression that work safety is an industrial relations matter. This may be part of the history of work safety but, in moving forward, industrial relations processes (which are dispute-based) should not be allowed to complicate, confuse or contort work safety objectives and processes.

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