After more than 18 months and at least three attempts, South Australia has finally passed new work safety (OHS) laws. Originally the ‘harmonised’ OHS model was to have been implemented in full. ICA campaigned hard against this because the harmonised model laws have big flaws. We explained why the harmonised laws should not proceed.
The legislation has now gone ahead but with major changes.
Control: Key protection inserted
Under the harmonised model laws, people who did not have control of work situations faced the risk of being prosecuted/convicted for OHS incidents over which they did not have control. The SA (Darley) amendments have inserted the word ‘control’ into a relevant section of the Bill. This clarifies that a person who does not have control of a workplace situation will not face the risk of prosecution/conviction for an OHS incident.
Removes volunteers from prosecution/conviction risk
Under the harmonised model laws, volunteers are subject to prosecution/conviction under the Act. The SA (Darley) amendments ensure that volunteers who do work:
a) for not-for-profit organizations
b) as body corporate officers (eg) apartment blocks etc
will not face the risk of prosecution/conviction.
OHS Representatives (usual union reps) powers
The harmonised laws give union OHS representatives wide and almost unlimited powers. A series of SA amendments places limitations on what the OHS rep can do including:
- Not being able to interview people not associated with the workplace.
- Detailing how they must issue notices and what documents they may inspect.
Reinsertion of the right to silence and protection from self-incrimination
The harmonised model laws remove the right to silence and protection from self-incrimination that is available under normal criminal law. OHS law is a form of criminal law. The SA (Darley/Lib) amendments reinsert the right to silence and protection from self-incrimination.
Codes of Practice—Small Business Commissioner Role
In a significant development for small business, the SA (Darley) amendments create a real role for the SA Small Business Commissioner in reviewing Codes of Conduct as they may impact on small business people.
Act to be reviewed in 2014 and 2017
The operation of the Act is to be reviewed after one year and then again after another 3 years. This will give a potential opportunity for further amendments.
What’s not addressed: Meaning of “Person Conducting a Business or Undertaking (PCBU)”
The harmonised laws introduce a new and legally untested concept of who is responsible for OHS. Who/what is a PCBU is confusing to say the least. The SA amendments address the confusion to an extent by removing volunteers. But still the PCBU meaning is unclear and will take considerable legal testing to be made clear. Hopefully this aspect will be a key part of the review in 2014.
SA-OHS (Darley and others) Amendments Nov 2012
Below are the important amendments in the new Act.
Note that (Darley) refers to John Darley, the independent in the SA Upper House who negotiated most of the amendments with the government.
The amendments or additions to the harmonised model laws are shown in red.
17—Management of risks
(1) A duty imposed on a person to ensure health and safety requires the person—
(a) to eliminate risks to health and safety, so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
(2) A person must comply with subsection (1) to the extent to which the person has the capacity to influence and control the matter or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity
(1) To avoid doubt, an officer of a prescribed strata/community titles corporation who is a volunteer does not commit an offence for a failure to comply with a duty under section 27 (but may be liable for a failure to comply with another duty under this Act).
(2) A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.
An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act.
(a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27; and
(b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.
(4) In this section— prescribed strata/community titles corporation means—
(a) a body corporate established under the Strata Titles Act 1988 or the Community Titles Act 1996; or
(b) a company that holds land for the purposes of a building unit scheme consisting of 2 or more properties designed for separate occupation where the buildings comprising the scheme were erected before 22 February 1968.
Union OHS Reps powers (Lucas)
68—Powers and functions of health and safety representatives
In exercising a power or performing a function, the health and safety representative may—
(g) whenever necessary, request the assistance of any person
Subsection (2)(g) does not extend beyond
(a) a person who works at the workplace; or
(b) a person who is involved in the management of the relevant business or undertaking; or
(c) a consultant who has been approved by
(i) the Advisory Council; or
(ii) a health and safety committee that has responsibilities in relation to the work
group that the health and safety representative represents; or
(iii) the person conducting the business or undertaking at the workplace or the persons’ representative
Right of Entry (Darley)
Relating to the right of entry that a WHS permit holder (union official) has, great specifity applied in the issuing of notices, to the owner/manager of a business entry, obtaining of documents etc.
Right to silence and protection from self-incrimination restored (Darley & Lucas)
172—Abrogation of privilege against self-incrimination
(1) A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.
(2) However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.
Clause 172 Delete this clause and substitute:
172 Protection against self-‐incrimination A person is excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.
Codes of Practice—Small Business Commissioner (Darley)
274—Approved codes of practice
(1) The Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice.
(2) The Minister may only approve, vary or revoke a code of practice under subsection (1) if that code of practice, variation or revocation was developed by a process that involved consultation between—
(a) the Governments of the Commonwealth and each State and Territory; and
(b) unions; and
(c) employer organisations.
(2a) In connection with the operation of subsections (1) and (2)
(a) the Small Business Commissioner must be consulted before a code of practice is submitted to the Minister under this section so that the Commissioner may assess whether the code of practice would affect small business if implemented and, if so, provide any comments or advice that the Commissioner considers to be appropriate in the circumstances (including that the code be varied); and
(b) if the Small Business Commissioner recommends that a code of practice be varied, the Minister may make such a variation without the need to adopt the process envisaged by subsection (2) (but may undertake such consultation in relation to the matter as the Minister thinks
Review of the Act after 1 year (new section)
(1)The Minister must cause a review of the operation of this Act to be conducted as soon as practicable after the expiry of 1 year from its commencement.
(2)The review under subsection (1) must include a specific report on the extent to which inspectors have attended at workplaces under section 117 and an assessment of the operation and effectiveness of the policy established by the Executive Director under that section.
(3)The Minister must then cause a second review of the operation of this Act to be conducted as soon as practicable after the expiry of 3 years from its commencement.
(4)The results of a review under this section must be embodied in a written report.
(5)The Minister must, within 6 sitting days after receiving a report under subsection (4), cause a copy of the report to be laid before both Houses of Parliament.