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OHS overhaul in NSW

THE O’Farrell government introduced bills into the New South Wales parliament on Thursday as part of the leap towards a national occupational, health and safety model. The changes also offer coal companies more legal protection than the previous regime in the state.

Blair Price
OHS overhaul in NSW

Of the bills, some of them involve amendments to the existing OHS act, which come into effect immediately.

Other changes will be subject to a second reading in parliament, then a vote in the upper house, where the O’Farrell government also has a majority of seats.

The ultimate commencement of the model Work Health and Safety Bill as part of the national harmonisation of OHS laws is expected on January 1, 2012.

Changes which impact coal companies

Under the legal overhaul, employers in the state will become known as “PCBUs”, which means persons conducting a business or undertaking.

While employers had strict liabilities to ensure health, safety and welfare of its employees under the previous regime, the model legislation proposes that a PCBU must ensure this as far as “reasonably practicable”.

Importantly, this legal test is codified under the bills so employers know the boundaries of what could be deemed reasonably practicable.

Another important change for coal companies is that prosecutors must now prove that defendant employers breached the OHS act beyond a “reasonable doubt”, bringing NSW in line with safety laws in other states.

OHS prosecutions in the state will no longer be under the jurisdiction of the NSW Industrial Relations Commission either, with the state’s criminal court system to hold the jurisdiction for these matters.

While coal companies will benefit from greater fairness under the new model for safety laws in the state, if guilty of safety violations they face potentially larger damages.

Category one offences could cost companies fines of up to $3 million.

But other changes provide greater protection to those employed in statutory roles such as mine managers, undermanagers and electrical engineers.

Greater detail of the proposed changes will be covered in an upcoming story for the June edition of Australian Longwall Magazine.

Business and union reaction

“The new national OHS laws will achieve better health and safety outcomes for workers by reducing red tape and allowing both employers and employees to focus on continuous improvement and best practice rather than simply compliance,” NSW Minerals Council acting chief executive officer Sue-Ern Tan said last week.

“We commend the NSW Government for keeping its word and delivering on its promise to introduce this legislation within its first 100 days. This is a huge step towards the implementation of an historic reform.”

NSW Business Chamber CEO Stephen Cartwright also welcomed the new direction.

“These bills replicate the goals of the Draft Della Bosca Bill of 2006 and sign NSW up to the proposed harmonised system that has been designed by Julia Gillard," he said.

“They recognised, what business has argued for many years, that NSW has a pernicious system which produces safety outcomes lower than the national average.

“No one needs lament the passing of this system – they have failed to produce a co-operative approach to OH&S between business, employees and the unions that occurs in other states.”

He also commented on the key reverse onus of proof change when it comes to prosecutions.

“The current system, also fails the critical test of fairness, and this was attested to by the decision and commentary of the Judges of the High Court in the Kirk case,” Cartwright said.

“The Kirk case exposed the NSW system and the “guilty until proven innocent" nature of the system.

“As importantly, the harmonised system removes the trade union right to prosecute employers. We believe this right should solely rest with WorkCover which has strong legal powers to collect evidence and investigate OH&S failures.”

Unions in the state are disappointed with the new bills.

“The introduction of this legislation without prior consultation does not bode well for this State Government’s attitude to working people and workplace safety,” Unions NSW Secretary Mark Lennon said.

“Moving occupational health and safety breaches to the District Court would weaken the enforcement of workplace safety.

“The Government is rushing to introduce national workplace safety laws ahead of other states, but there’s no prize for attacking NSW’s high standards.”

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