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Safeguard Magazine

Legal Viewpoint—New model caution

MICHAEL TOOMA advises caution should New Zealand decide to adopt the new Australian health and safety legislation.

A key recommendation of the report by the Independent Taskforce on Workplace Health and Safety is the adoption of Australia’s Model Work Health and Safety laws. But before implementing the recommendation, the Taskforce should consider the lived experience of the Australian Model Laws and avoid repeating some of the same mistakes.

Underpinning the recommendation to adopt Australia’s Model Laws is a belief that they provide the most recent articulation of the 1972 Robens Report. Lord Robens recommended a shift in approach from legislation that set out specific safeguards that had to be adopted for each particular hazard, to the imposition of general health and safety duties on employers and other stakeholders. This shift was necessary to recognise the rapidly changing technological/industrial environments and the re-organisation of labour in the market. In an effort to encourage self-regulation, Robens also recommended increased participation of employees and other workers in improving the health and safety outcomes of an organisation.

While many of those features have been adopted uncritically in safety legislation since the 1970s, the same drivers that led to these reforms require a rethinking of the approach.

The legislators of today continue to face the same core challenge as the legislators of the Robens era – that is, the practical implementation of legislative frameworks so as to be apt for the dramatic industrial, economic and technological changes in the workplace. While many of the principles of the Robens Report remain sound, Australia’s Model Laws have struggled to adequately adapt to the changing workplace in a number of respects. This primarily arises from the practical implementation of the following features of Australia’s Model Laws:

  • • 
    the definition of the primary duty holder as a “person conducting a business or undertaking”;
  • • 
    the expanded definition of worker; and
  • • 
    the worker participation regime.

Definition of PCBU

The Australian Model Laws attempt to adopt a broad approach by imposing a primary duty of care on “persons conducting a business or undertaking” (PCBU), rather than on employers. At least in a partial sense, this goes some way towards recognising modern work arrangements outside of the traditional employment relationship, such as principal contractors, head contractors, contractors and sub-contractors, franchisors and franchisees and labour hire agencies. But the terminology has been the single greatest cause of confusion, with many believing “person” to mean an individual when more often than not it will not be an individual, but rather a corporation.

Legislative anomalies have also arisen because the legislators merely replicated pre-Model Laws provisions and replaced the term “employer” with the term “PCBU”. That is, the specific duties going beyond the duty of care fail to properly develop the broad concept of a PCBU beyond an “employer”. Furthermore, there is little or no accountability for workers beyond their duty of care. One of the key lessons from Pike River was the need for improvements within the system both in terms of worker participation but also accountability.

Definition of “worker”

Similar issues arise in relation to the definition of “worker”. In essence, the approach by drafters of the Australian Model Laws was to substitute the term “employee” under predecessor legislation with the term “workers”. In doing so, the intention of the legislature was to categorically state that the primary duty of care in respect of work health and safety is owed to a variety of people involved in work – not just employees. Under Australia’s Model Laws, protection regarding work health and safety is afforded to employees of contractors and subcontractors, labour hire employees, outworkers, students, apprentices and volunteers because they are deemed to be “workers”. But the term is used well beyond the duty of care.

The “find and replace” approach of the legislature is problematic because it does not address the operation of other duties to workers, such as vertical consultation and protection against victimisation. Given the expanded definition of workers, it is proving impractical to consult with each category of persons who may fall within the definitions of worker. Such challenges are particularly apparent in considering temporary work arrangements or remote work arrangements.

The worker participation regime

The mechanisms under the Australian Model Laws envisage centralised health and safety committees and centralised health and safety representatives. While this approach may be useful for some workplaces, it is insufficient to address contemporary workplaces which are often spread out geographically, non-permanent and associated with a varying and diverse workforce. The centralised approach does not capture these elements of the workforce and as such, forfeits valuable contributions from chunks of the workforce. The approach fails to capture technological advances such as smart phones and tablets that have revolutionised communication.

MICHAEL TOOMA is a partner in the Sydney office of law firm Norton Rose Fulbright, where he is the head of the firm’s Asia Pacific occupational health, safety and security practice.

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