This Bill to amend the Health and Safety in Employment Act was tabled in Parliament on 31 October 2001. Some of the main changes proposed in the Bill are:
Employee participation The Bill places a new duty on all employers to ensure that employees have reasonable opportunities to participate effectively in the ongoing management of health and safety in the workplace. Employers, employees and any union acting on an employee's behalf must co-operate in good faith to develop and maintain a system that sets out the ways in which employee participation will operate in the workplace. A system may involve electing heath and safety representatives or establishing a health and safety committee. The functions of health and safety representatives will be set out in the Act, which will specifically provide that there can be no discrimination against a health and safety representative. Health and safety representatives will have a statutory entitlement to two days paid leave per annum to attend a Government-approved health and safety training course. A hazard notice may be issued if a trained health and safety representative identifies a workplace hazard and brings it to the attention of their employer and correspondingly the employer refuses either to discuss the hazard or to take steps to deal with the hazard within a reasonable time. The Act sets out the right to refuse work likely to cause serious harm.Stress and fatigue The definitions of "harm" and "hazard" will be extended to confirm that they cover both mental harm and a hazard arising through physical or mental fatigue. A "best practice" document for the effective management of stress and fatigue in the workplace is currently being prepared by OSH.
Protective equipment The Act will be clarified regarding the provision of protective equipment and clothing. It will be amended to state that an employer must provide their employees with such equipment.Enforcement The Bill increases the level of possible fines. For offences likely to cause serious harm the maximum fine level will be increased from $100,000 to $500,000 and the maximum term of imprisonment increased from one to two years. For other offences (when the offender's knowledge is not required to be proved) the maximum fine will be increased from $50,000 to $250,000. The limitation period for bringing an action under the Act will increase to 6 months from the time when the breach became known or should have become known to an inspector. There is also provision to apply to the District Court to extend this time in certain circumstances. This is particularly important in situations of occupational illness where symptoms may appear only some years after exposure. The Crown monopoly on prosecutions will be removed. Private prosecutions (for instance by unions) will now be possible - but only if OSH decides not to take prosecution action itself.
Infringement notices Infringement notices will be introduced as an extra enforcement tool for OSH inspectors. They may be issued only for clear-cut breaches of the Act or regulations. If an infringement notice is issued, there cannot be a prosecution for the same matter by the Crown or anyone else. The fine levels for infringement notices will be applied as follows - $100 to $800 for individuals (including self-employed and employees), and $500 to $4,000 for bodies corporate. Issuing an infringement notice will not create a criminal record.
Insurance It will now be unlawful to insure against fines issued under the Act. Insurance for the cost of defending a prosecution will remain lawful. A test panel (comprising representatives of industry, unions, small to medium enterprise, and a member of the Business Compliance Cost Panel) is being established to advise on minimising the cost of implementing these proposals.
There will be an opportunity for interested parties to make submissions to the select committee early next year.
This article is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely
on this article.
Copyright Phillips Fox, 2001
Author - Stephen Quinn: stephen.quinn@phillipsfox.com
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