Page 3944 - Week 09 - Thursday, 25 August 2011
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The harmonised laws will ensure the recognition of permits, licences and training qualifications across state and territory borders. This means that workers’ safety-related qualifications and training will be recognised wherever they work in Australia, assisting in the mobility of individual workers and the Australian workforce as a whole.
The bill will remove Crown immunity, meaning that ACT government employers face the same sanctions as employers in the private sector should they not comply with the requirements of the legislation. This brings the ACT into line with the rest of Australia. It reinforces the government’s view that all workers should be afforded the same level of safety at work, and that all employers must provide the same duty of care to their employees no matter where they are working.
The bill removes the right of industrial organisations and employer groups to have a statutory right to bring proceedings for an offence if the work health and safety laws are not in accordance with the majority of jurisdictions and was not agreed during the process of developing the model bill. Whilst the ACT argued for its retention, the argument was lost on majority vote.
Notwithstanding this, this does not change the common law right to initiate a prosecution that exists for all citizens in the ACT. Whilst this is not an automatic right, it will continue to exist for those persons who can attain standing before a court. The bill also allows a person to make a written request for a prosecution to be brought in a matter where there appears to have been a serious breach of the workplace health and safety laws at any time up to six months following the alleged breach if WorkSafe ACT has not investigated and commenced proceedings.
The bill includes a right for unions to enter a workplace for the purpose of consulting and advising workers on work, health and safety matters but protects the rights of businesses by requiring that prior notice be given before the union enters the workplace. It retains the rights that exist now in the Work Safety Act for a union to enter a workplace without notice where there is a suspected breach of the act.
The importance of the union movement in workers’ safety is not diminished in any way by this bill. UnionsACT nominate four representatives to the Work Safety Council and those members play an important role in occupational health and safety in the territory. The maximum custodial sentence under the Work Health and Safety Bill will be five years, a reduction from the seven that exists under the current Work Safety Act 2008. However, the bill imposes significantly higher monetary penalties for a breach.
Three categories of penalty are introduced based on the degree of culpability, risk and harm in each circumstance. The highest category of offence involving proven recklessness attracts a maximum fine of $3 million for bodies corporate and for individuals, a maximum fine of $300,000 or a maximum of five years imprisonment or both.
The penalties are higher than those currently in place in the ACT and demonstrate the government’s commitment to punish the very small minority of employers and
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