VTHC on devils in OHS details 1

Victorian Trades Hall Council Public Comment on Draft for Model Act and Stage 1 Model Regulations

The VTHC represents over 50 affiliated union organisations representing approximately 400,000 Victorian union members.

Occupational Health and Safety (OHS) and the protection of workers rights is a core function of unions. The benefit of the efforts of unions is not limited to those who are members of unions but has led to improvements in the work environment which are enjoyed by all workers.

The VTHC and affiliates have significant knowledge and experience in assessing the effectiveness of the operation of OHS legislation in Victoria since 1985 and in the improvements which need to be made to provide Victorian workers with the highest standards of OHS rights and protections.

The VTHC supports the establishment of harmonised national OHS law provided that those laws do not result in any compromise or reduction of protections or standards for Victorian workers and their health and safety representatives.

As proposed the Model law does not achieve its aim of the highest OHS standards but will lead to a diminution of current rights and protections that have been a core feature of our Act since 1985. These rights were recognised and strengthened by the Maxwell Review and are provided for in our current OHS Act.

Elected health and safety representatives (HSRs) are at the core of the Victorian system. Our main concerns with the proposed Model relate to the diminution of current rights and protections HSRs have had since 1985.

The VTHC comment contains 2 elements. The first is a list of our comments on significant issues from the Model Act and regulations and the second is comment on the specific questions raised in the Discussion Paper.

Issue 1 Health and Safety Reps have rights and powers

The Act gives health and safety representatives rights and powers. It is misleading and incorrect to in any way suggest that these are
‘functions’, or describe them as such, as this could suggest that elected HSRs therefore have ‘duties’ to ‘perform’ these ‘functions’.

HSRs take on this role on the clear understanding that they have no extra duties of care (other than as employees, or ‘workers’ under S28). They are not paid (nor should they be), for that role and consequently cannot have ‘functions’.

The term ‘function/s’ must be deleted throughout the Act (particularly in s59, 60, 61, 62, etc and Part 5) and replaced with ‘powers and rights’ and consequently these provisions must refer to ‘exercising a power’ not ‘performing a function.’

This has been well-established in Victoria since the introduction of the first such OHS Act in 1985 and is supported in the Model Act at s62(3):
“Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.”
Issue 2 Election of health and safety representatives
In addition to our comments Q25 the VTHC has concerns with the wording of a number of provisions in this Division. The Division begins by providing that workers ask employers to ‘facilitate elections’ for HSRs, which then triggers negotiations for work groups. This could lead to employers having the view that they have a role in the election process.
In Victoria, it is clear that the members of the work group elect their own HSRs in the manner they decide. There must be a clear division of these two provisions – S48 – 52 should be renamed ‘Establishment of work groups’ with S53 – 57 titled the ‘Election of HSRs’.

The current model does not allow for the workers to be represented in the negotiations. The principle that all workers have the right to be represented must be reflected in the Act that when determining work groups ie any worker or group of workers can authorise someone to represent them in negotiations of work groups. This is currently in the Victorian Act in sections 44(5) and 48(4) and in our Principles at s 4(5).

Comment on the Regs:
ï‚· Regs 4, 5 and 6 must be in the Act
ï‚· Reg 7 is strongly opposed and should be deleted

Issue 3 Disqualification of HSRs

Disqualification by their work group
S 58(2) (d) of the Model Act allows, appropriately, that a HSR can be removed from the ‘position by a majority of members of the work group in accordance with the regulations’. There are no regulations provided. The VTHC consider that the provision should be in the Act as follows:
(d) a majority of the members of the work group resolve that the person should no longer represent them.
Application for disqualification by others
S59 of the Model provides that any person ‘adversely affected by the performance of a function…’ may apply to the Tribunal to have the HSR disqualified. As commented previously HSR do not perform functions but exercise their rights and powers.

The only test for the disqualification of a HSR (other than removal by their work group) is that the HSR in exercising any of their powers had an
intent to cause harm. This is the well established test in OHS law. The proposed provision which extends the scope beyond the employer to
‘any person adversely affected’ and to ‘the regulator’ are strongly opposed. There is NO evidence that these changes are necessary because
of alleged abuses of power by HSRs or that the current provisions have failed. The effect of this proposed provision will be a lessening of numbers of workers willing to put their hands up to become HSRs.

Issue 4 HSR Training
There are significant concerns with these provisions which would result in Vic HSRs having lesser rights than under our current Act.

The Model Regulations provide HSRs with :
(a) an initial course of training of 5 days;
(b) one day’s refresher training each year, with
the first refresher training commencing 1 year after the initial training;
(c) any further training agreed between the worker and the person conducting the business or undertaking.

The Model Act provides that the course:
ï‚· must be approved by the regulator
ï‚· training is limited to that in the Regs
ï‚· chosen by the HSR in consultation with the employer
The PCBU must allow the HSR to attend within a reasonable time after a request is made
ï‚· Pay ‘reasonable’ costs
ï‚· Pay as for ‘normal’ duties
ï‚· If agreement can’t be reached within a ‘reasonable time’ referred to the regulator.
Victorian provisions establish the rights of HSRs to attend training if that training is approved by the Authority. If a HSR requests training
the employer must allow attendance at the approved course of the HSRs choice. The principle which underpins training provisions must be that whenever the regulator approves a course a HSR has an automatic right to attend not that the HSR has to negotiate with the PCBU.
The inclusion of ‘reasonable time’ will lessen current Victorian provisions (see our response at Q26 regarding the clarification of ‘reasonable Victorian Trades Hall Council

The VTHC believes that the intent of establishing a time frame for ensuring that HSRs are not delayed in attending training is best
served, not by the setting of a time frame, but by the inclusion of provisions from the Victorian Act. These provisions provide that the HSR must make a request to attend training at least 14 days before the course is to commence,

These provisions have worked well in Victoria for a number of years. They provide certainty to both HSRs and employers and have significantly reduced the number of disputes which occurred on the past when HSRs were prevented from attending training by their employer.

In addition the inclusion of “reasonable costs’ and ‘normal duties’ opens the whole area of what the employer will pay for to debate – how much travel, costs of course, should they pay for overnight accommodation for regional HSRs etc. These provisions are less than Victorian provision and are not acceptable.

As provided in our current Act, HSRs must receive ‘such pay as he or she would otherwise be entitled to receive from the employer for working during that period’ and the PCBU must ‘pay the costs associated with each health and safety representative’s attendance at the courses’.

Issue 5 Issue Resolution
73(1) applies if an issue about occupational health and safety arises at a workplace or from the conduct of a business or undertaking and the issue is ‘not resolved after consultation between the parties’. The VTHC considers that the sentence could potentially limit the rights of HSRs to raise issues directly with their PCBU. It depends on whether this ‘consultation’ is about the PCBU’s duty to consult or refers more generally. Issue resolution is a two-way process used by HSR to raise issues not just to respond to what the employer consults about.

To avoid possible confusion the VTHC recommends the removal of the phrase referred to above and the inclusion of a provision in the Powers of health and safety representatives similar to Victorian s 58(2)(d):
(d) attempting to resolve (in accordance with section 73) with the employer concerned or its representative any issues concerning the health or safety of members of the designated work group, or of persons mentioned in section 44(1)(e) or
48(1)(e) whom the representative is authorised to represent, that arise at the workplace or workplaces or from the conduct
of the undertaking of the employer.

Comment of the Model Regulations:
The proposed Regulations set out a default procedure and minimum requirements. It is unclear why there are two similar provisions. The Regulations should establish the Issue Resolution Procedure.
Reg 9 (2) must be deleted. Reference to the parties first determining the nature and scope of the issue is ridiculous. As well as creating an
unnecessary level of complexity the result will be that there will be 2 issues – the first being that the parties cannot agree what the issue is and then one about the actual issue. This is a definition of ‘issue’ by default, not agreed by the WRMC, and is unacceptable.
The draft law makes no provision for the reporting of OHS issues, either in the Act or the Regulations. Victorian law has such a procedure at
Reg 2.2.3. which provides that workers must report an issue to their HSR if they have one and that workers may take all reasonable steps to make such a report, including leaving their part of the workplace. It also provides that workers can report matters to their employer if they have no HSR, or as well as to their HSR. These rights have been enjoyed by Victorian workers since 1985.

These two rights are fundamental to Victorian workers. Many employers have policies in place that require workers to report directly to their supervisors, despite the regulations, and workers have reported many cases of being castigated when they report issues to their HSR instead.

Employer objections to this usually moderate when the requirements of the regulation are pointed out to them. It provides a level of protection for workers.

The requirement is also critical because it allows workers to report matters to the HSR with a level of anonymity that does not appear to be
guaranteed anywhere else in the draft laws. It will lead to less reporting, and to HSRs not even being aware potentially that there are issues in their DWG. Finally – the right to leave a work area is crucial for workers to have, and because it can be such a contentious issue in some workplaces, must be a stated not an implied right.

If these Victorian provisions are not restored – Victorian workers will be worse off and less protected from the hazards and risks at their workplaces. We are also concerned that it will make those workers who do report matters to their HSRs at risk of disciplinary and
discriminatory action

The view of the VTHC is that current Victorian Issue Resolution Procedures should replace those in the Model as they provide the best provisions and:

Protect:
ï‚· workers by allowing them to raise issues with their HSR anonymously
ï‚· the rights of HSRs to be involved and not be prevented from exercising the powers
ï‚· rights to representation, when there is not a HSR
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ï‚· HSR and employer rights to representation by their respective organisations.
Allow:
ï‚· Workers to leave their part of the workplace to report
ï‚· Workers to report to their employer

Issue 6 HSRs and right to assistance
It is acknowledged that HSRs are not, and should not be required to be qualified in OHS and thus may need assistance from time to time. The Model Act at s62(2)(f) gives HSRs the right to ‘whenever necessary, request the assistance of any person’
In the view of the VTHC, ‘request’ must be replaced by ‘seek’. In the corresponding obligations at s64((1)(g), the PCBU must:
‘allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable assistance to be provided.’

The VTHC considers that ‘if that is necessary to enable assistance to be provided’ be deleted. If an HSR feels it necessary to seek assistance, then this should not be limited by what could be a subjective view of the PCBU that this assistance is not necessary. This is likely to lead to disputes within a workplace. This right is then qualified by 64(4):
‘Despite subsection (1), the person conducting a business or undertaking is not required to allow a person assisting a health and safety representative for a designated work group to have access to the workplace if the assistant has had his or her OHS entry permit revoked or suspended or is disqualified from holding an OHS entry permit’

This section must be deleted, as it demonstrates a misunderstanding of the HSR’s right to seek the assistance of any person. By including this qualification, the assumption is that the ONLY person an HSR may wish to seek the assistance of is a person with an OHS entry permit or reversely that only OHS permit holders can provide assistance. Many HSRs use this provision to access assistance from within their workplace including assistance from other HSRs.

The VTHC suggests replacing the proposed s64(4) with the Victorian Act provisions:
s. 70(1) Obligation to persons assisting health and safety representatives

1. An employer, any of whose employees are members of a designated work group must allow a person assisting a health and safety
representative access to the workplace unless the employer considers that the person is not a suitable person to assist the representative because of insufficient knowledge of occupational health and safety.

Issue 7 HSRs and Inspectors
1 – S156 in the Model Act requires an inspector to “as soon as reasonably practicable, after entry to a workplace or suspected workplace, take all reasonable steps to notify the following person of the entry and the purpose of the entry.” The VTHC believes that ‘as soon as reasonably practicable’ should be replaced with ‘immediately’ as the notification is already qualified by the phrase ‘all reasonable steps’.
2 – A very important provision has been omitted from the Model Act which is in the Victorian Act, and this is the requirement that the inspector provide an “Entry Report” to both the occupier of the workplace and the HSR for the work group.

From the Victorian Act
103 Report to be given about entry
(1) An inspector who enters a place under Division 3 must give a report concerning the entry when, or as soon as practicable after,
the inspector leaves the place to—
(a) the occupier or apparent occupier for the time being of the place; and
(b) if members of a designated work group work at the workplace, a health and safety representative for the designated work group.

(2) The report must be in writing and include—
(a) the time of the entry and departure; and
(b) the purpose of the entry; and
(c) a description of things done while at the place; and
(d) a summary of the inspector’s observations while at the place; and
(e) the procedure for contacting the Authority and the inspector for further details of the entry; and
(f) the procedure for seeking review of any decision made by the inspector during the entry.

(3) If the inspector takes photographs or makes sketches or recordings under section 99(f), the report must also include a statement that—
(a) the photographs have been taken or sketches or recordings have been made; and
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(b) they are or will be available for inspection at a specified place.
This provision has proved to be extremely important for HSRs as it provides the HSR not only with certainty that he/she has been contacted
and consulted by the inspector who has entered the workplace, but also the basis for understanding why an inspector made (or failed to make)
a decision. WorkSafe has recognised the importance of this and it is now policy that inspectors provide the written Entry Report PRIOR to leaving the workplace wherever possible. Inspectors have laptops to facilitate this. The issue of an Entry Report is crucial for HSRs (and duty holders) to exercise their rights to the review of an inspector’s decision and consequently this provision must be included in the Act.

OTHER SIGNIFICANT ISSUES
The VTHC considers that the Model Act’s Objects, should express clearly what the Act is intending to do. The Model as proposed misses a number of important points which would represent a diminution of Victorian Objects.

Issue 8 Elimination of risks

The Model Act does not include reference to elimination of risks ‘at source’.

The proposed provision s 3 (1)(a)’elimination or minimisation of hazards and risks arising from work’ is a lessening of well established OHS principles reflected in the hierarchy of control. The Model also proposes a Principle of risk management (s16) which does not include reference to elimination ‘at source’
VTHC: ‘at the source’ must be included in the Model objects and in the principle of risk management at s 16

Issue 9 Tripartism
The Model provision s3(1)(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”.

This is much less than what stakeholders currently do, and this is to work with government and the OHS regulator in the development and implementation of OHS regulation, guidance, and so forth.

The Model does not include any provision to establish how this ‘constructive role’ will be achieved. As it stands the provision does not meet ILO Convention 155 Art 4(1) and (7) which enshrines employee and employer organisations in the development of OHS policy. Current Vic provisions, for example provide for “the involvement of employees, employers, and organisations representing those persons, in the formulation
and implementation of health, safety and welfare standards’.

The objects must be amended to ensure the current, proactive role of unions and employer bodies is maintained.

The Model does not include provisions for the establishment of a tripartite forum. The IGA states that the establishment of tripartite mechanism will be left to each jurisdiction to establish – basically that their current arrangements will continue.

The Model Act must include a provision to establish a tripartite structure which allows representative organisations of employees and employers to nominate their representatives.

VTHC comment on the Discussion Paper questions:
Questions
Part 1 – Preliminary Matters
Q1. What is the best title for the model Act?
The VTHC strongly supports the title ‘Occupational Health and Safety Act’ as the most appropriate title for the Model Act –
ï‚· the term ‘occupational health and safety’ is widely used and accepted and is, in fact, used throughout the exposure draft
ï‚· the suggestion that using the term ‘occupational’ as limiting the Act to ‘occupations’ as opposed to ‘work’ is not accepted
ï‚· the Act encompasses much more than ‘safety’. Occupational hazards to health are, unfortunately, too often ignored or not dealt with in
workplaces and this aspect of law need to be continually emphasised
ï‚· the Act is not simply about ‘safe work’ which is what the title suggests
 Naming the Act the Safe Work Act may lead to confusion, as there is already a government body called “SafeWork Australia” with its own Act

Recommendation: That the Act be named the Occupational Health and Safety Act.

Q2. Does the definition of ‘officer’ clearly capture those individuals who should have ‘officer’ duties under the model Act?
In order to consider the appropriateness or otherwise of the definition of officer the VTHC has considered whether the proposed definition captures the appropriate person and then whether it is clear what the duty actually is and how it would be enforced.

The definition of officer is unclear because the drafting of the current definition includes two concepts in brackets – ‘officer of a person (other
than an individual) (the body). s26 Duty of officers appears to suggest that body is to be defined by inclusion in bold and italics:
‘If a person other than an individual (the body) has a duty under this Act, an officer of that body must exercise due diligence to ensure that the body complies with that duty. If body is defined as a body corporate, unincorporated body or association and a partnership and the Crown as a body corporate, then S26 would read

‘If a body has a duty under the Act, an officer of that body must exercise due diligence to ensure that the body complies with that duty.’

The VTHC considers that the relationship between this duty and the Offences and Penalties provisions is not sufficiently clear for an officer to
know or understand what the duty is and what the officer must do to ensure compliance.
In this regard, we are unsure whether current provisions from the Victorian Act which relate to Offences by bodies corporate etc, namely
• s143 Imputing conduct to bodies corporate
• s144 Liability of officers of bodies corporate
and
• s145 Liability of officers of partnerships and unincorporated bodies or associations
have been omitted unintentionally.

The VTHC requires clarification that the s26 duty and the accompanying offence provisions are sufficient and workable to give effect to intent of
the recommendation that officers be required to take proactive steps to ensure that their business or undertaking has systems etc to achieve
compliance with the requirements of the Act and that the test of whether the officer has met their duty is one of due diligence.
In the absence of a definition of due diligence, the VTHC recommends that a guideline on due diligence be released with the new Act.

Q3. There is some overlap between the definitions of ‘plant’ and ‘structure’, as many types of plant have structural attributes, and vice versa.
Should ‘plant’ and ‘structure’ be defined in a way that removes this overlap?
The VTHC does not believe the proposed definitions will create any problems.

Q4. Are there any other types of activities or undertakings that should be specifically included or excluded from application of the model
Act? For example, should residential strata title body corporates be excluded?

The VTHC seeks a guarantee that Police will be covered by the Model Act as currently under the Victorian Act.
The exclusion of persons who engage workers solely for their own private or domestic purposes. The VTHC is concerned that this may relieve
such persons from duties towards workers such as nannies, private cleaners, home carers etc

The VTHC is unclear why residential body corporates would be excluded necessarily. Is it that as residential strata each individual strata holder
would be regarded as ‘domestic’ premises, however if the body corporate engages workers eg to fix a roof wouldn’t they then become a PCBU
and subject to ensure the health and safety of those workers?

Q5. Is the scope of the suppliers’ duty appropriate?
The scope (Section 6) appears to be appropriate.

Q6. Is the scope of the ‘worker’ definition appropriate? Should it cover students gaining work experience?
The VTHC does not believe the current definition of ‘worker’ to be appropriate. See comment at Q16 re volunteers specifically.

All persons affected by the actions of a PCBU must be afforded protections – that is, the PCBU must have a duty of care towards them.
However only paid workers should be able to exercise rights to negotiations for work groups and election of HSRs, etc. The Queensland Act
(on which the PCBU concept is based) does not extend the PCBU concept to other than the duties of care and for all other provisions reverts to
the employer/employee relationship. The VTHC supports the Queensland approach as being appropriate and workable.
Recommendations:
 The definition of ‘worker’ must exclude volunteers and students gaining work experience.
ï‚· The PCBU duty must be separated into the duty owed to workers and that owed to others. This is well covered by the current Section
26 in the Victorian Act (duties of persons who manage or control workplaces to other people). This provision is now at s18(3) of the
model Act.

Q7. Is the definition of ‘workplace’ appropriate?
The VTHC considers that ‘workplace’ must be defined broadly to include any place where work is done. The duty should apply to any place,
whether or not it is a building or structure, where people work. The VTHC believes that attempts to add details of particular places or
circumstances should be avoided.
Our suggestion is that the definition be amended as follows:

Remove ‘and includes any place where a workers goes, or is likely to be, while at work.’, and therefore the definition should be:
‘A workplace is any place, whether or not in a building or structure, where workers work’.

Part 2 – Safety Duties
Q8. Do the principles that apply to the duties of care give clear guidance on what is expected?
The VTHC considers that these provisions should be renamed “Duties of care”, and that this terminology be used throughout the section and
that whenever the term ‘safety’ is used in the duties, it be replaced with ‘health and safety’.
The Principles at 12, 13, 14 and 15 merely confirm what is currently understood and enforced ie that the duties are shared, overlapping and
non-delegable. Whether the principles give clear guidance on what is expected is a different matter.
In particular, it is unclear how the principle at s 15 (3) (c) will operate. The VTHC seeks clarification about how various duties holders will ‘consult, co-operate and co-ordinate activities with all persons who have a duty in relation to the same matter’. It is logical to assume that a PCBU who is a primary duty holder (ie ‘host’ employer) should consult and co-ordinate activities with other PCBUs (ie contractors or labour hire providers). It is also reasonable therefore to assume that those PCBUs would co-operate with the primary duty holder.

However the principle is extremely broad and with the proposed definition of worker and the new duty imposed on other persons the scope of this principle is potentially unworkable.

The VTHC considers that s16 – The principle of risk management does not provide sufficient guidance of what is expected. We also believe that the inclusion of risk management just as a ‘principle’ does not give effect to the Panel’s recommendations on the matter. The First Report
recommended that risk management process should be recognised and reinforced by addressing risk management in a set of principles. The Second Report recommended that requirements for risk management should be placed in the model regulations, with further guidance in a
code of practice.

It has been argued that as risk management is implicit in the definition of ‘reasonably practicable’ there is no need for a specific provision. The
VTHC does not agree with this assertion. In our view it is vital for this implicit approach to OHS management to be explicit in the Model Act.
This approach is supported by the analysis done by Bluff & Johnstone (2005) who looked at how the courts have interpreted the general duties and the extent to which they have required the proactive management of risk and stated that the courts’ interpretation of the general duties qualified by (reasonably) practicable does incorporate a risk management approach, or at Victorian Trades Hall Council least the proactive and systematic assessment of risks.

Rather than arising implicitly as a result of interpretation by the courts, OHS legislation should explicitly require systematic and proactive identification and control of workplace hazards and risks. This is a provision in Queensland, Commonwealth, NT and new ACT OHS Acts.

The VTHC supports the inclusion of a provision similar to S 27A of the Queensland Act which provides that ‘to manage exposure to risks’ in the workplace, a duty holder ‘must identify hazards, assess risks that may result because of the hazards’, must work through a hierarchy of controls
to choose and implement appropriate controls.

27A Managing exposure to risks
(1) To properly manage exposure to risks, a person must–
(a) identify hazards; and
(b) assess risks that may result because of the hazards; and
(c) decide on appropriate control measures to prevent, or minimise the level of, the risks; and
(d) implement control measures; and
(e) monitor and review the effectiveness of the measures.

(2) To properly manage exposure to risks, a person should consider the appropriateness of control measures in the following order–

(a) eliminating the hazard or preventing the risk;

(b) if eliminating the hazard or preventing the risk is not possible, minimising the risk by measures that must be considered in the following order–

(i) substituting the hazard giving rise to the risk with a hazard giving rise to a lesser risk;
(ii) isolating the hazard giving rise to the risk from anyone who may be at risk;
(iii) minimising the risk by engineering means;
(iv) applying administrative measures;
(v) using personal protective equipment.

The VTHC has also made comment that ‘at the source’ be added to the Objects and logically ‘at the source’ should also be added here.

Q9. Is the definition of ‘reasonably practicable’ appropriate in this context?

The definition of reasonably practicable is only appropriate to the duties of care. Although the Report recommended that terms used in the Model Act should have the same definition in each provision that included such terms, the inclusion of the ‘reasonably practicable’ elements in other than the duties of care is irrelevant. To address any potential confusion about what ‘reasonably practicable’ means in different circumstances, the VTHC recommends that the Model continue the approach of the Victorian Act ie that the elements of s17 apply only to the duties of care and that for all other purposes common usage applies.

Q10. Should the definition of ‘reasonably practicable’ be exhaustive i.e. so only matters listed may be considered in determining compliance with the duty?

The VTHC recommends that the definition of ‘reasonably practicable’ be exhaustive. It is our view that the five matters listed cover all the necessary matters which need to be considered in determining compliance. By not making is exhaustive, but inclusive, this will potentially lead to many issues and actions being disputed in workplaces. Although the definition is based on the Victorian provision, in discussion with other jurisdictions there is concern with how appropriate weight is given to ‘cost’.

While the issue of cost is addressed in the Victorian Section 12 guideline, the VTHC agrees with Professor Richard Johnstone that there should be a clearer requirement to weigh up risk (likelihood and gravity of harm) versus the feasibility and cost of measures in the definition. He has proposed that the definition should at minimum specify that the duty holder should assess the risk, and determine feasible measures and that only if time, trouble and cost of measures are grossly disproportionate to the extent of the risk is the measure not reasonably practicable ie cost should only be taken into account in determining whether the measures are grossly disproportionate to the extent of the risk.

VTHC Comments on Appendix 2 – The meaning of ‘reasonably practicable’

This document has been clearly based on the Victorian ‘Section 12’ guideline, which was the subject of a both high level of stakeholder consultation in the development of the draft, and also extensive public comment. It is our view that while this document is broadly consistent with the Victorian guidance, there have been some omissions which would make this a better document.

The VTHC proposes the following Victorian Trades Hall Council amendments:

1. Delete ‘including’ in the opening paragraph (consistent with our view that ‘reasonably practicable’ be exhaustive, not inclusive
2. In the next section (What is ‘reasonably practicable’ is an objective test’) In the following paragraph (beginning with ‘No single matter…’)
amend last sentence to: ‘This must be done with regard to the following:’

3. The paragraph (coming after the discussion of ‘(d) Availability and suitability of ways to eliminate or minimise hazards or risks’) beginning with ‘This ranking is known as the hierarchy of control.’

Delete the sentence ‘Duty holders are expected to find ways to eliminate or minimise risks in this order.’ and replace with ‘The objects of the Act require duty-holders to seek out ways to control risk as close to the top of the hierarchy as is reasonable in the circumstances.’ This is consistent with the VTHC position that the objects of the Act must include reference to eliminating or controlling hazards at source.

4. ‘(e) Cost of eliminating or minimising the hazard or risk’ – the VTHC prefers the order and wording of the Victorian guidance in
preference to the first two paragraphs here, and recommend replacing these paragraphs with:

‘There must be a clear presumption in favour of health and safety. Once the likelihood and degree of harm from a hazard or risk is understood, and the availability and suitability of a relevant safety measure to eliminate or reduce the hazard or risk is established, that safety measure should be implemented unless the cost of doing so is so disproportionate to the benefit (in terms of reducing the severity of the hazard or risk) that it would be clearly unreasonable to justify the expenditure.’

Q11. Is the proposed scope of the primary duty appropriate?
In our view the scope of the proposed duty is more limited than our current provisions and has become too complex and confusing.

There are fundamental problems with:
 the definitions of ‘worker’ and ‘person conducting a business or undertaking’ and the implications of duties owed, etc
 the attempt to combine several duties as they are in, for example, the Victorian Act, of the employer to employees, to ‘others’
 the concept/term of ‘engaged at work’

The VTHC believes that extending the primary duty of care to volunteers and students on work experience as ‘workers’ is too broad and unworkable.

 There must be a separate provision to cover the protection of these groups of people, and ‘others’.
 The general duty of care should be limited to employees and employees of contractors (consistent with our view of definition of ‘worker’)
Specific comments on the provision:
ï‚· 18(1) remove ‘while the workers are engaged in the business or undertaking’
ï‚· 18(2) delete – if a provision for the self employed is necessary then it should be a separate provision. It is illogical that a self-employed
person would be required to provide these specific duties for themselves. However a self employed person should have a duty to other
persons similar to Victorian s 24 ‘A self-employed person must ensure, so far as reasonably practicable, that persons are not exposed
to risks to their health or safety from the conduct of the undertaking of the self-employed person
ï‚· 18(3) delete and make into a separate provision – duty to other persons
ï‚· 18(4)(a) should become the duty ie ‘…….a person conducting a business or undertaking must, so far as reasonably practicable provide
and maintain a safe and healthy working environment’
ï‚· Without risks to health is missing from 18(4)(b) and (c)
ï‚· Absence of risks is missing from 18(4)(d)
ï‚· (f) This could be rectified by a provision that the PCBU should provide necessary information to other persons should be in the duty to
other persons
ï‚· 18(4)(b) remove ‘and’ and replace with ‘or’
ï‚· 18(4)(c) remove ‘and’ and replace with ‘or’
ï‚· 18(4)(d) amend to read ‘ensure the safe use and absence of risks to health in connection with the handling, storage and transport of plant, structures and substances
ï‚· 18(4)(f) replace ‘persons’ with ‘workers’. It is unclear how this provision will work – provide to all persons does this mean beyond
workers? A provisions that the PCBU should provide necessary information to other persons should be in the duty to other persons
ï‚· 18(4)(g) add ‘work related’; after ‘preventing’

Add from Victorian Act:
ï‚· S21(c) Maintain each workplace under the PCBUs management and control in a condition that is safe and without risks to health
ï‚· S22 (c) Provide information to workers (in such languages as appropriate) concerning health and safety at the workplace, including the names of persons to whom a worker may make an enquiry or complaint about health and safety
ï‚· S22(2) A PCBU must, so far as reasonably practicable –
o keep information and records relating to the health and safety of workers of the PCBU and
o (b) employ or engage person who are suitably qualified in relation to occupational health and safety to provide advice to the
PCBU concerning the health and safety of workers.

Q12. The model Act requires the provision of, so far as is reasonably practicable, any information, training and instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work (Clause 18(4)(f)). Should this requirement expressly require that the information etc. be provided in an appropriate language or languages, or provided at a level that can be understood by the workers?
See comment to Q11. The VTHC believes that this provision should be covered separately ie the PCBUs duty to workers (our proposed definition) is the provision of information, training, instruction or supervision. The duty of the PCBU to other persons will necessarily be limited to information and instruction.

The VTHC does not believe it practicable for a PCBU (or employer) to provide such information, training and instruction and supervision to all persons. This would include not only volunteers, students, etc, but members of the public, visitors to the workplace, etc. While in some circumstances provision of information, etc would be appropriate (and would be provided by the PCBU under S18(3), in the scenario of a shopping centre, or a public event, it is difficult to see how this could be possible.

The PCBU’s duty to provide information, training and instruction or supervision should be to workers – not to all persons.

Secondly, given the diversity of Australian workplaces, the VTHC believes that it is crucial that the Act expressly require the information etc. be provided either in an appropriate language or languages, or provided at a level that can be understood by the workers.

Q13. The model Act requires, so far as is reasonably practicable, the provision of adequate facilities for the welfare of workers at work
(Clause 18(4)(e)). Should this provision be drafted to require ‘access to’ such facilities (e.g. to take account of requirements for mobile workplaces)?

No, the Act should not be drafted in such a way as requiring ‘access to’ such facilities. These facilities must be provided. As all the duties are qualified by ‘so far as reasonably practicable’ the reality is that if these facilities cannot be provided or if there are difficulties in providing them, then the fall-back will ensuring that workers at least have ‘access to’ them. Further more specific information on how to comply in general, and how to comply with regard to specific special workplaces such as mobile workplaces can be provided in regulations and codes. However, drafting the provision in the Act in terms of ‘access to’ has the potential to lead to many disputes in workplaces, where PCBUs with the ability to provide such facilities will try to reduce this to providing ‘access to’ other facilities.

Further, we have a concern with the wording at 18(e): ‘in carrying out work for the business or undertaking’

Q14. Is the scope of the duties related to specific activities appropriate?

The VTHC considers that specific activity duties are essential to be included in the Model Act. This will address some gaps in current legislation
where those who design workplaces and things for use in workplaces must have a duty to ensure that they are healthy and safe. However the
detail of the provisions and the amalgamation of some duties eg ‘designer of a substance’ with the ‘designer of plant and structures’ is so
confusing as to be almost unworkable. The VTHC believes that detailed assessment of these provisions necessary to ensure that the intent of
their inclusion is achieved.

The VTHC also considers there should be duties on those who design work environments and work systems as these also impact on the health and safety of workers.

Q15. In determining whether a worker failed to take reasonable care, should regard be had to what the worker knew about the relevant circumstances?

The VTHC agrees that the workers duty should be a subjective test ie limited to what the worker knew about the relevant circumstances.

The Victorian Act is clear: In determining whether a worker failed to take reasonable care, regard must be had to what the worker knew about the relevant circumstances. This provision should be added to the workers duty.
The draft law makes no mention or provision for the payment of wages to workers for the duration of a cessation of work – whether worker or HSR initiated. In Victoria, an Inspector attending to assist with the resolution of a cease work can as well as exercise any of their powers, also issue either a prohibition notice or determine in writing that there was reasonable cause for employees to be concerned about their safety. If either one of these follows from the Inspector, workers are entitled to be paid as if they had worked that time. If there is still an issue, it goes to the Magistrates Court.

It is not acceptable that this provision has been excised from the draft laws, and represents a significant reduction in the protections currently enjoyed by Victorian workers. It is absolutely appropriate for such a provision to appear in the Act – it is a provision of such importance that it must be explicitly stated to avoid doubt. If it is not there – there will be an increase in disputation around these issues and it may result in workers feeling pressured to work in unsafe conditions.

Q16. Is the treatment of volunteers under the model Act appropriate?
See previous comments to Q11.
1. In regard to the treatment of volunteer associations. We understand that once a volunteer association employs someone the association becomes a PCBU and are therefore are required to do all that a PCBU is required to do including consultation, representation arrangements, training and issue resolution for all ‘workers’, that is paid employees and volunteers. We consider that these provisions are unworkable particularly when the volunteer workforce may only ‘work’ at irregular or unpredictable times.
In our view the inclusion of volunteer associations as PCBUs should be limited to duty of care provisions and therefore as a PCBU be subject to the same penalties as other PCBUs.
2. Volunteers as workers. The inclusion of volunteers as workers is problematic for provisions of the Act other than duties of care. Essentially there will be 2 sets of workers (one paid and one unpaid) for the establishment of work groups, election and training of health and safety representatives, issue resolution etc.
How will unpaid volunteers be involved in the processes for consultation and representation etc particularly when they may only ‘work’ at
irregular and unpredictable times and periods.

3. Volunteers and prosecution. The inclusion of volunteers as workers creates a 2 tier penalty system. Why should ‘volunteer’ workers be exempt from prosecution when paid workers working alongside them are not. If volunteers are to be regarded as workers then it follows that if they breach the workers duty they should be treated the same as other workers.
In our view volunteers should not be included in the definition of worker but covered by s28 ie they have the duties of ‘other persons at the workplace’. It is also illogical to us that although volunteers as other persons have a duty under s28, s33 exempts them from prosecution for an offence. If volunteers are to be treated as ‘other persons’ then equally they should not be exempt from prosecution if they breach this duty.
(Note: the other person duty should also be qualified the same as the workers duty ie include a subjective test.)

Q17. Are the range and levels of penalties proposed above appropriate, taking account of the levels set for breaches of duties of care by the WRMC?

The VTHC believes that insufficient rationale has been given in the Exposure Draft Discussion Paper to provide comment on the proposed Category 4 – 7. The list at Appendix 3 is confusing and inaccurate.
For example the maximum penalty for a PCBU obligation to a HSR is $25,000 while the maximum for a PCBU providing medical information is $50,000. The penalty for failing to keep a list of HSRs – $25,000 represents a 10 fold increase in Victoria’s current penalty – as our maximum has essentially increased threefold ($1mill to $3mill) a tenfold increase seems ridiculous. A $25,000 fine for a union not providing information to the regulator when permit holders leave the union or have another permit suspended is also too high for what is essentially an administrative matter.

In our view the proposed penalty structure requires further consideration. As we understand Parliamentary Counsels have not yet considered the proposed legislation and their advice on the appropriateness of the proposed amounts of penalties is critical.
In regard to Categories 1 – 3, the VTHC consider that Cat 1 should be included as a separate provision ie similar to Vic s32 – Duty not to recklessly endanger persons at the workplace. It is unclear how the Cat 2 and 3 provisions would work in practice. Although concepts of ‘serious’ illness and injury and ‘high risk’ are criteria for Cat 2 without some understanding of what these terms would mean in a prosecution our concern is that all offences will be Category 3 and therefore the much-lauded increase in fines would in effect never be imposed.

The VTHC does not agree that the provisions of S226 – Procedure if prosecution is not brought should be limited to Category 1 and 2
offences. There is no such restriction in the Victorian Act (s131) and it should be deleted from the Model.

Q18. What should the maximum penalty be for a contravention of the model regulations?
The VTHC considers that the maximum penalties for contravention of the model Regulations should be consistent with the maximum penalties set out in the Model Act.

Q19. 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?

The VTHC agrees that all contraventions should be criminal offences. However given our comments on the proposed Cat 4 – 7 and the
unsuitability of the size of the fines to the nature of the breach, the VTHC recommends that consideration be given to an additional Category 8
which could be used for administrative breaches eg failure to keep a list of HSRs or failure of union to provide information.

Several OHS Acts have had provisions for Infringement Notices, recently introduced in some jurisdictions. The VTHC considers that it would be more workable and extremely appropriate to deal with some of these ‘administrative’ breaches through issuing Infringement Notices.

Part 3 – Other Obligations
Q20. Is the list of notifiable incidents sufficiently clear and objective, so duty holders easily understand their obligations?

The VTHC has some concern that the list does not adequately cover incidents that may lead to potentially serious illnesses and/or injuries.

These include:

ï‚· Incidents of violence

 Exposure to non-substances – eg radiation, biological contaminants (for example needlestick injuries, or contact with sources of zoonotic disease etc)

 S36(f) – this fails to cover a number of very large pieces of equipment, for example excavators, which do not require either registration or a licence.

The VTHC also believes that the duty to keep records of all incidents notified should be in the Act, and not the Regs and that a provision similar to Victorian Act 38(4), which provides for copies of the record of the incident to be available to the following:

38.Duty to notify of incidents
4)The employer or self-employed person must keep a copy of the record for at least 5 years and make a copy of the record available for inspection by—
(a)an inspector; or
(b) a person, or a representative of a person, injured in the incident or whose health or safety was exposed to immediate risk by
the incident; or
(c) a representative of a person whose death was caused by the incident; or
(d) in the case only of an employer—
(i) if any of the employees of the employer are members of a designated work group, a health and safety representative for
the designated work group; or
(ii) the members of each health and safety committee (if any) established by the employer
must be added.

More soon.
What will unions do?
What will the Brumby Labor government do? Stay tuned…