2 million self-employed
Their interests are our interest
It's your contract: Take control of it!
We say you should control your contract. Here's how. Check for clauses that are:
Red for Stop
Amber for Caution
Green for Go
You can also make use of our Contract Template to design your contract.

Matrixes and template are available here (ICA members only). Not a member? Join here for as little as $55.
You and Your Contract
Charter of Contractual Fairness.

Debate: Suck it up?

Contract problems?
Fixing business disputes
There's lots happening for new dispute resolution services for small business people. The Small Business Commissioner (SBC) model is being rolled out across Australia. Explanation of developments.
Watching: The new world of work
We track and discuss what's happening with work.
The new Cuban revolution.
Watching: The coordinated attack against self-employed in Australia
Do unions hate the self-employed?
Federal tax attack
Sham contracting small problem
Watching: New Technology
Opportunities and new threats for self-employed people
Left versus right: the great debate
Ken Phillips (ICA) and Peter Strong (COSBOA) debate "The Future (or Death) of Employment". Vids are here.
Our Campaigning
We need unfair contract protections
Defend contractor tax laws
Watching: Your Super
We're monitoring superannuation
Watching: Work Safety Laws
Harmonised laws have big problems.
Watching: Government Contracts
Military Aircraft (JSF)

National Broadband Network
Watching: Fair Work Act
We're watching

What the AIG wants
Handy ATO Links
Filing your tax return:
A member's problem
ATO advice

Handy ATO tax links:
ATO debt collection: overview
ATO debt collection: 'Products'
Guide to managing your debt
Not-for-profit tax guide
Lodge your BAS online
PAYG withholding tax tables
New tax form: Taxpayer Statement of Account
New tax form: Notice of Assessment
Mortgage scams
Small business support
Payment arrangement calculator
Want an ATO visit?
ATO Help for small business
ABN eligibility rules
Self managing your tax debt

Handy Super links:
ATO SMSF compliance
ATO free seminars.
SMSF Admin advice
New Super clearing house
Tax on SMSF loans
Watching Global Economies
Watching Global Economies
Watching the USA
Watching China
Central Banks on Debt
Watching Housing Bubbles
Ken Phillips on the debt equation

Model Occupational Health and Safety Laws:
A Summary
27 September 2009

Background
The Federal government, together with all the States and Territories, have committed to harmonizing Australia's occupational health and safety (OHS) laws. OHS laws are created, enforced and administered by each State and Territory government and the Commonwealth. There are some major and many differences in OHS laws between each jurisdiction which lead to confusion and difficulty complying with work safety laws. All governments have agreed to create identical, or at least similar, OHS laws as a key part of the effort to improve work safety across the nation.

The process, as ICA understands it, is that the Commonwealth will pass a model OHS Act. Each State and Territory will then amend or pass new OHS laws identical with, or similar to, the Commonwealth's model OHS Act.

On 25 September 2009, the State, Territory and Federal government Workplace Relations Ministers agreed to a model Act and released it for public comment.

We have summarized the Act below.

Links here are to: (Note: the documents are labeled as 'confidential' but were released to the public on 25 September)


Summary of model OHS laws

 Everyone is responsible
Everyone in the work situation has shared responsibility to ensure work safety to the extent it is reasonable and practicable for them to do so.

This responsibility includes:
  • Employers
  • Employees
  • Contractors and subcontractors
  • Self employed persons
  • Persons controlling workplaces
  • Suppliers and importers
  • Designers, manufacturers and installers of equipment
  • Officer of corporations, trusts, partnerships, government entities and so on.
Excluded from responsibility are volunteers and elected officials.

** A worker has a right to refuse to do unsafe work.

Compulsory worker consultation
  • Controllers/managers of worksites are required to consult with workers on OHS
  • Workers may request the election of a safety representative and the controller/manager of a worksite must ensure a safety representative is elected.
  • The safety representative has wide powers to stop unsafe work, issue improvement notices on unsafe machinery or practices
  • Safety committees to be established at worksites.
Union entry rights
Unions have the right to enter worksites but only if a union official
  • Is trained, ticketed and authorized.
  • Gives required notice.
  • Does not cause disruption to the work.
To be authorized a union official must be a fit and proper person.

Managers of worksites can apply to have the union officials authorization revoked.

Regulator
The regulator
  • Has wide powers to investigate, obtain search warrants, order improvements and prosecute.
  • May enter work premises but not private homes.
  • Note: Only the regulator can prosecute not unions or anyone else.
People being investigated for possible breaches do not have the right to silence. Legal privilege is maintained.

Codes of practice
Regulators may establish codes of practice which can be used as evidence to assist determination of what is 'reasonable and practicable'.


Excerpts from the Model OHS laws

 In this section we have cut and pasted the sections which we believe are of most importance or will be of general interest. (The numbers included are the clause numbers in the model Act)

7 Meaning of worker
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work:
    (a) as an employee;
    (b) as a contractor or sub-contractor;
    (c) as an employee of a contractor or sub-contractor
16 The principle of risk management
A duty imposed on a person to ensure health or safety requires the person:
    (a) to eliminate hazards, and risks to health and safety, so far as is reasonably practicable; and
    (b) if it is not reasonably practicable to eliminate hazards and risks to health and safety, to minimise those hazards and risks so far as is reasonably practicable.
[ICA comment: The important issue here is that the requirement to eliminate risk is only to the extent that it is 'reasonable and practicable' to do so. This is the big difference to current laws in NSW which do not have 'reasonable and practicable'.]

17 Determining what is reasonably practicable in ensuring health and safety
In determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety, regard must be had and appropriate weight given to all relevant matters including:
    (a) the likelihood of the hazard or the risk concerned occurring;
    (b) the degree of harm that might result from the hazard or the risk;
    (c) what the person concerned knows, or ought reasonably to know, about
      (i) the hazard and the risk;
      (ii) ways of eliminating or minimising the hazard or the risk;
    (d) the availability and suitability of ways to eliminate or minimise the hazard or the risk;
    (e) the cost of eliminating or minimising the hazard or the risk.
18 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
    (a) workers engaged, or caused to be engaged by the person; and
    (b) workers whose activities in carrying out work are influenced or directed by the person; and
    (c) workers of a prescribed class,
while the workers are engaged at work in the business or undertaking.

(2) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while engaged at work in a business or undertaking.

(3) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

19 Duty of person with management or control of workplace
(2) The person who has management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are safe and without risks to the health of any person.

26 Duty of officers
If a person other than an individual (the body) has a duty under this Act, an officer of that body must exercise due diligence to ensure that the body complies with that duty.

27 Duties of workers
While at work, a worker must:
    (a) take reasonable care for his or her own health and safety; and
    (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
    (c) co-operate with any reasonable instruction given by the person conducting the business or undertaking to comply with this Act.
45 Duty to consult
The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking about matters affecting or likely to affect their health and safety at work.

48 Request for election of health and safety representative
A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for one or more health and safety representatives to represent workers who carry out work for the business or undertaking.

53 Election of health and safety representatives to be held
The person to whom the request is made under section 48 must facilitate an election for health and safety representatives

62 Functions of health and safety representatives
(1) The functions of a health and safety representative for a work group are:
    (a) to represent the workers in the work group in matters relating to health and safety at work;
    (b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person's representative in compliance with this Act;
    (c) to investigate complaints from members of the work group relating to occupational health and safety;
    (d) to inquire into anything that appears to be a risk to the health and safety of workers in the work group, arising from the conduct of the business or undertaking.
(2) In performing a function, the health and safety representative may:
    (a) inspect the workplace or any part of the workplace at which a worker in the work group works:
      (i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace; and
      (ii) immediately in the event of an incident or any situation involving an immediate or imminent risk to the health or safety of any person;
68 Health and safety committees
(1) The person conducting a business or undertaking at a workplace must establish a health and safety committee for the workplace or part of the workplace

(2) A person conducting a business or undertaking at a workplace may establish a health and safety committee for the workplace or part of the workplace on the person's own initiative.

75 Right of worker to cease unsafe work
(1) A worker may cease work if he or she has reasonable grounds to believe that to continue to work would expose him or her to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard.

(2) The worker must as soon as possible inform the person conducting the business or undertaking for whom the worker is carrying out work.

76 health and safety representative may direct that unsafe work cease
(1) A health and safety representative may give a direction to cease work to a worker in a work group that he or he represents f the health and safety representative believes on reasonable grounds that there exists a serious risk to the health or safety of the worker emanating from an immediate or imminent exposure to a hazard.

80 Provisional improvement notices
(1) If a health and safety representative believes on reasonable grounds that a person:
    (a) is contravening a provision of this Act; or
    (b) has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated,
the health and safety representative may issue to the person a provisional improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention.

106 Notice of entry
[ICA comment: this relates to unions]

(1) An OHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to:
    (a) the person conducting the relevant business or undertaking; and
    (b) the person with management or control of the workplace.
110 Contravening OHS entry permit conditions
The OHS entry permit holder must not contravene a condition imposed on the OHS entry permit.

111 OHS entry permit holder must also hold permit under other law
An OHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or [the relevant State or Territory industrial law].

113A OHS entry permit holder must not cause disruption
An OHS entry permit holder must ensure that the entry causes no undue disruption to work at the workplace.

122 Fit and proper person
In deciding whether an official of a union is a fit and proper person for the issue of an OHS entry permit, the authorising authority must take into account the following matters:
    (a) whether the official has received appropriate prescribed training about the rights and responsibilities of an OHS entry permit holder; and
    (b) whether the official has ever been convicted of an offence against an OHS law; and
    (c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:
      (i) entry onto premises; or
      (ii) fraud or dishonesty; or
      (iii) intentional use of violence against another person or intentional damage or destruction of property;
127 Application for revocation of OHS entry permit
(1) The following persons may apply to the authorising authority for an OHS entry permit held by a person to be revoked:
    (a) the regulator;
    (b) a person conducting a business or undertaking in relation to which the OHS entry permit holder has exercised powers under this Part;
    (c) a person with management or control of a workplace in relation to which the OHS entry permit holder has exercised powers under this Part.
(2) The grounds for an application for revocation of an OHS entry permit are that the permit holder has:
    (a) ceased to satisfy the requirements for the issue of an OHS entry permit or other entry permit under another OHS law, or the Fair Work Act or the [relevant State or Territory industrial law];
    (b) contravened any conditions of the OHS entry permit;
    (c) acted or purported to act in an improper manner in the exercise of any power under this Act;
    (d) in exercising or purporting to exercise a right under this Part, intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace during working hours; or
    (e) ceased to be a fit and proper person to hold an OHS entry permit.
140 Functions of regulator
The regulator has the following functions:
    (a) to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act;
    (b) to monitor and enforce compliance with this Act;
    (c) to provide advice and information on occupational health and safety to duty holders under this Act and to the community;
    (d) to collect, analyse and publish statistics relating to occupational health and safety;
    (e) to foster a co-operative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to occupational health and safety matters;
    (f) to promote and support education and training on matters relating to occupational health and safety;
    (g) to engage in, promote and co-ordinate the sharing of information to achieve the objects of this Act, including the sharing of information with a corresponding regulator;
144 Appointment of inspectors
(1) The regulator may, by instrument, appoint any of the following as an inspector:
    (a) a public servant;
    (b) an employee of a public authority;
    (c) the holder of a statutory office;
    (d) a person who is appointed as an inspector under a corresponding OHS law;
156 Search warrants
(1) An inspector may apply to a magistrate for a search warrant for a place.

159 Places used for residential purposes
Despite anything else in this Division, the powers of an inspector under this Division in relation to entering a place are not exercisable in respect of any part of a place that is used only for residential purposes except:...

175 Abrogation of privilege against self-incrimination
(1) A person is not excused from answering a question or providing a document or information under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

(2) However, the answer to a question or information or a document provided by an individual is not admissible in evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.

222 Proceedings may be brought by the regulator or inspectors
(1) Proceedings for an offence against this Act may be brought only by:
    (a) the regulator; or
    (b) an inspector with the written authorisation of the regulator (either generally or in a particular case).
233 Compensation orders
The court may make an order requiring the person to pay compensation to a person who suffered loss

240 Act does not affect legal professional privilege
Nothing in this Act requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege.

241 Immunity from liability
(1) An inspector, or other person engaged in the administration of this Act, incurs no civil or criminal liability for an act or omission, done or omitted to be done in good faith and in the execution or purported execution of powers and functions under this Act.

243 No contracting out
A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act is void.

245 Codes of practice
(1) The Minister may approve a code of practice for the purposes of this Act.

246 Use of codes of practice in proceedings
(1) This section applies in a proceeding for an offence against this Act.

(2) The court may:
    (a) have regard to an approved code of practice as evidence of what is known about a particular hazard or risk or risk control to which the code relates; and
    (b) may rely on that code, in conjunction with other evidence, in determining what is reasonably practicable in the circumstances to which the code relates.
(4) A failure to comply with a code of practice does not of itself give rise to any civil or criminal liability.