22 May 2009

National OHS laws one step closer with release of framework

In an important and significant step in the progress towards uniform OHS laws across Australia, the Workplace Relations Ministers Council has agreed to a framework for uniform national OHS laws which will now form the basis for Safe Work Australia to draft the model law.

As we have previously reported, the uniform laws aim to address current inconsistent laws across Australia. This will allow for enhanced safety protections for Australian employees and greater certainty for employers. The laws will also provide protections from discrimination, victimisation and coercion over OHS matters beyond what is currently available through anti-discrimination and other laws.

Employers are expected to enjoy many benefits from the proposed laws, such as greater certainty when operating across multiple jurisdictions.

While the framework embodies much of the recommendations of the National Review into the Model OHS Laws, there are some differences. In this Alert we'll look at the major elements of the framework and some of the changes from the Review.

The uniform laws: what duty is imposed?

Enhanced duty of care provisions: These provisions will provide that all persons involved in or materially affected by the performance of work owe a duty of care to all workers and other persons.

Unifying the onus: All persons who operate businesses will be required to do everything that is "reasonable practicable" to ensure a safe workplace. This is in contrast to the current NSW position.

Expansion of the workplace: The duty is not limited to the workplace, but applies to all work activities and work consequences wherever they may occur.

Service providers: The Council rejected the proposal to expand the scope of obligations to include service providers, stating that service providers would fit within the category of a primary duty holder under the current proposals.


Prosecutors will bear the onus of proving an offence, beyond reasonable doubt, in contrast to the NSW and Queensland position.

Under the proposed laws, offences for a breach of duty will continue to be strict liability offences. The laws also provide for a system of appeals to the High Court against a finding of guilt in a prosecution.

Unions will no longer be able to prosecute for breaches of OHS laws.

Domestic premises included in definition of a workplace

The Council disagreed with the Review's recommendations that domestic premises be excluded from the definition of a workplace, instead finding that workers who work in private homes should be subject to OHS protections.

Prosecution methods

The Council rejected the Review's recommendation to have the most serious breaches heard by a jury, noting that this would cause "unwarranted" strain on the criminal law system. Rather, each jurisdiction will be able to decide how prosecutions are to be heard. Effectively, this aspect of the law will not be uniform.

Director liability/Due diligence

While the Council agreed that the laws should place a duty on an officer to exercise due diligence to ensure that the officer's company complies with its duties under the proposed laws, it rejected the Review's suggestion that the concept of due diligence be defined in the model legislation. Rather, the Council agreed that courts continue to evolve the definition.


The Council recognises the importance of consultation in securing safe workplaces by agreeing with the broader consultation requirements which apply between persons conducting a business or undertaking and workers, and also between primary duty-holders and other persons having a duty in respect to the same subject-matter.

Where to from here …

The next key step is the drafting of the model OHS laws by Safe Work Australia Council. Importantly, an exposure draft Bill will be released for public consultation, giving stakeholders a good opportunity to shape the final legislation.

The Council and the Commonwealth have also agreed that the issue of OHS coverage of self-insurers under the Comcare scheme will need to be addressed as part of the OHS harmonisation process. This will be considered at the next Council meeting in June.

Uniform OHS legislation remains scheduled for commencement by 2011.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.