State Parliament has finally passed the harmonised safety laws, after the government reached an agreement with key Upper House independent the Hon John Harley.
The new laws, based on the national safety model, will come into effect from 1 January 2013. Key changes include:
- Person Conducting a Business or Undertaking (PCBU): the primary duty of care to ensure the safety of workers will be imposed upon a PCBU, which may be an individual or a company.
- The definition of "worker": a broad definition of worker is used, which extends beyond the traditional employment relationship to contractors and others whose work environment a PCBU has the capacity to control.
- All officers now responsible: a "responsible officer" will no longer be required, with all directors and senior managers of the PCBU personally responsible for ensuring compliance with the new safety laws.
- Consultation: more extensive consultation obligations will be introduced, including where more than one PCBU has an obligation toward a worker.
- Right of entry for health and safety purposes: a first in South Australia.
- Obligations on directors and senior managers expose leaders to personal liability for health and safety breaches of up to $600,000 or 5 years imprisonment.
- Penalties: higher fines with an increase in the maximum penalty for a PCBU's contravention of safety laws to $3m for a first offence.
Business groups and the State Opposition had previously expressed concern about several aspects of the national model safety laws, including the control test, union right of entry and the size of penalties. But the amendments agreed between the government and the Hon John Darley largely address these concerns.
Key amendments include:
- Risk management: clarification that a person’s health and safety duty only applies to the extent to which that person has the capacity to control the matter.
- Protection against self-incrimination: an explicit protection to address a concern that the model safety laws would have removed this protection, which currently excuses a person from providing information that may expose them to a penalty.
- Right of entry: amendments placing additional restrictions on the use of permits by union officials address business concerns that right of entry for health and safety purposes has been abused in other States.
- Small business: the Small Business Commissioner may recommend variations to the application of codes of practice on small business.
- Ministerial review: the operation of the national safety laws will be reviewed after its first year and again after three years.
Amendments were also made regarding working at heights and training provisions for health and safety representatives.
South Australia joins Tasmania with an operative date for the new national model safety laws of 1 January 2013. Western Australia and Victoria are still yet to pass them.
Implications for employers:
- The new model safety laws will impose more onerous duties on a broader range of individuals and companies who are involved in a business or undertaking
- Officers, managers and other employees will need to be provided with appropriate education about the laws.
- Now is the time to audit current policies and procedures in order to be prepared for the laws' commencement.
