Draft OHS legislation opens business up to legal action, law expert warns

The Government’s draft of the new universal occupational health and safety laws contains loopholes that could open up businesses to civil litigation claims, an industry expert has warned.

Deacons’ partner Michael Tooma, who focuses on OHS matters, says the new laws do not reflect many of the recommendations made to the Government during the submissions process.

“If this draft became law as it is now, there would be some significant problems. The potential broad application of matters such as public safety is one issue that would lend itself to civil liability claims. The devil is in the detail, and as it turns out, the detail has the devil crawling all over it.”

Tooma warns of a number of different shortfalls in the draft, including terms that define a business’s duty of care.

“One aspect of the new laws that is important is the duty of care provisions are cast in very broad terms. In the recommendations given to the Government, it was said duty of care should only be limited to OHS matters, but there is nothing in the draft that reflects this.”

Tooma says this means duty of care will now extend to issues of public safety, including visitors, passers by and even trespassers, which could open businesses up to civil litigation claims from people who aren’t even employees of a business.

“Additionally, in some jurisdictions such as Victoria and New South Wales, the laws do not replicate protection from litigation on the basis of OHS laws. This means businesses are open to litigation from members of the public who have been injured by something that happened in the workplace.”

“This could be someone just walking past a construction site, someone walking past a factory, someone being affected in an office from emissions, noise, airborne particles, and so on.”

Tooma says the laws allow a member of the public to sue a workplace based on a breach of statutory duty, rather than a negligence claim, which often carries a higher penalty and is more difficult to defend in court.

Additionally, Tooma says the draft legislation is ambiguous that it doesn’t even outline what the maximum penalties will be for breaking any of the laws.

“The legislation seems to be littered with provisions that allow jurisdictions to put in their own drafting on some issues. In some cases that’s a benign decision that makes sense, like the name of an authority for giving jurisdiction, but on some fundamental issues it allows differences from state to state.”

“Alarmingly, in relation to the issue of penalties, the legislation doesn’t include any penalties and goes so far as to say that each jurisdiction will decide whether there will be a maximum penalty and what that will be, and each jurisdiction does that itself. If that allows them to differ on the question of maximum penalties, it makes a mockery of harmonised penalties.”

Tooma says that while the legislation is a good start, it has many shortfalls and needs to be put through a rigorous drafting process before it can be ready to pass through Parliament.

“Overall you’d have to say it’s a good start to what the legislation ought to look like, but some things need to be tidied up. It may be that the Government is trying to cater for drafting differences, or that everyone agrees what penalties will be, but WA has already expressed dissatisfaction with the new scheme and given the opportunity to amend certain things in the laws, it may be that they would.”