Health & Safety

OHS

Occupational Health and Safety Legislation

The purpose of the OHS laws is to protect the health, safety and welfare of employees (workers) and other persons who are at, or come in to contact with a workplace.

Australian Occupational Health and Safety (OHS) legislation (the proper term being  Work Health and Safety (WHS)) focuses on the prevention workplace injuries and illnesses. All Australian employers/companies must – by law – comply with  their relevant state, territory or Commonwealth OHS legislation.

Each State or Territory and the Commonwealth has a main Work Health and Safety Act (most states). Western Australia has a principal Occupational Health and Safety Act.

Those WHS /OHS legislation are further supported by relevant Regulations, Standards and Guides and Codes of Practice(s).

OHS and Workers’ Compensation Authorities

Here’s a quick reference to Occupational Health and Safety (OHS or WHS) and WorkCover Authorities to make your life easier.

Legislation Databases

Let’s start with some useful resources and references…

The following sites are also useful for new and repealed (removed/replaced) legislation 

Health and Safety (OHS) Resources

Australian

Victoria (Vic)

All Legislation and Regulations

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The purpose of the OHS laws is to protect the health, safety and welfare of employees and other persons who are at, or come in to contact with a workplace in Victoria. The laws set out various duties that organisations and individuals must comply with in the workplace. The laws are regulated and enforced by a Victorian government authority known as the Victorian Worksafe Authority (WorkSafe). Worksafe may prosecute organisations that breach (do not comply with) the OHS law duties that they are required to comply with.

In Victoria, workplace health and safety is governed by a system of laws, regulations and compliance codes which set out the responsibilities of employers and workers to ensure that safety is maintained at work.

The Act

The Occupational Health and Safety Act 2004 (the Act) is the cornerstone of legislative and administrative measures to improve occupational health and safety in Victoria.

According to WorkSafe victoria, the Act sets out the key principles, duties and rights in relation to occupational health and safety. The general nature of the duties imposed by the Act means that they cover a very wide variety of circumstances, do not readily date and provide considerable flexibility for a duty holder to determine what needs to be done to comply.

The Regulations

The Occupational Health and Safety Regulations 2007 are made under the Act. They specify the ways duties imposed by the Act must be performed, or prescribe procedural or administrative matters to support the Act, such as requiring licenses for specific activities, keeping records, or notifying certain matters.

Guidance

Effective OHS regulation requires that WorkSafe provides clear, accessible advice and guidance about what constitutes compliance with the Act and Regulations. This can be achieved through Compliance Codes, WorkSafe Positions and non-statutory guidance (“the OHS compliance framework”). For a detailed explanation of the OHS compliance framework, see the Victorian Occupational Health and Safety Compliance Framework Handbook.

Policy

Not every term in the legislation is defined or explained in detail. Also, sometimes new circumstances arise (like increases in non-standard forms of employment, such as casual, labour hire and contract work, or completely new industries with new technologies which produce new hazards and risks) which could potentially impact on the reach of the law, or its effective administration by WorkSafe. Therefore, from time to time WorkSafe must make decisions about how it will interpret something that is referred to in legislation, or act on a particular issue, to ensure clarity. In these circumstances, WorkSafe will develop a policy. A policy is a statement of what WorkSafe understands something to mean, or what WorkSafe will do in certain circumstances.

As far as we know OHS in Victoria is currently regulated by the following Acts and Regulations:

Let’s look at The Victorian Occupational Health and Safety Act 2004

The Victorian Occupational Health and Safety Act 2004 goal is basically to:

  • protect the health, safety and welfare of employees (workers) and other persons at work or in the workplace
  • protect the public from the health and safety risks of business/workplace activities
  • abolish/remove workplace risks at the source
  • involve employers, workers and their representing organisations in  putting together and implementing of health and safety standards.

The meaning of ‘health’ within the Act not only refers to physical health, but also refers to psychological health.

The OHS Act 2004 imposes general OHS duties (responsibilities to ensure health and safety in the workplace) on employers, employees (workers) including the the self-employed, manufacturers, suppliers, designers etc.

These general OHS duties require a person to ensure health and safety so far as is reasonably practicable. This requires the person to eliminate risks to health and safety so far as is reasonably practicable; and if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks to far as is reasonably practicable.

What is ‘reasonably practicable’ in a certain situation is to be determined objectively. The duty holder must do what a reasonable person would do in the particular circumstances by putting in place reasonably practicable measures.A duty holder is obviously not expected to do the impossible.

In determining what is ‘reasonably practicable’, courts will looks at  things like the probability of a person being exposed to harm; the potential seriousness of injury or harm; what is known, or ought to be known  about the risk (people responsible for health and safety are required to inform themselves of current and relevant information) and how to remove it; and the availability, suitability and cost of eliminating/removing or reducing the risk.

Only those people at the most senior levels of organisations who are  in a position to prevent breaches of the Act will be held to be ‘officers’ and accountable/liable. The duty of an officer is to exercise reasonable care. They must use the level of “sound judgement, prudent decision-making and taking of action that any reasonable person would, to prevent and reduce hazards and risks to health and safety”. Note however that Officers who are volunteers are not liable.

Without a lawful excuse, it is a serious offence for any person to recklessly engage in conduct that exposes, or may expose, a person at a workplace to the risk of a serious injury.

The bottom line: Nobody is allowed to  put another person in danger at a workplace !

Let’s look at the Occupational Health and Safety Regulations 2007

The Victorian Occupational Heath and Safety Regulations 2007 basically provides a two level or structured approach to enforcement of the requirements in the regulations.

Provisions that are aimed at meeting the duties of care or other specific obligations under the Act have ‘Act compliance’ notes under them. A breach of those provisions will be considered a breach of the OHS Act and will be prosecuted as such. The offender will be exposed to (potentially) very high penalties under the OHS Act.

Administrative requirements, such as those relating to displaying signs, keeping of records, etc. are considered important but not as fundamental to health and safety. Breach of those provisions may result in fines specified in the regulations.

Under the Regulation, the main stress of importance s is on taking steps to identify hazards in the workplace and to control those hazards and their associated risks.

Under the Regulations, there are also specific requirements on how to involve health and safety representatives  in the consultation process. Generally an employer (/company) has certain obligations with regards to its consultation process with health and safety representatives, these include:

  • providing the health and safety representatives with all of the information it proposes providing to workers, and to do so before providing it to the workers, unless that is not reasonably practicable to do so
  • inviting the health and safety representatives to meet, to consult and do so if the health and safety representative accepts the invitation
  • giving the health and safety representatives a reasonable opportunity to express their views
  • taking into account those health and safety representatives’ views when making decisions

A word about Construction Regulations

Employers involved in ‘construction work’ are required to eliminate/remove any risk to health or safety associated with that work, or if that is not reasonably practicable to do so, then to reduce or minimise the risk ‘so far as is reasonably practicable’.

Also, employers involved in ‘high risk construction work’ must – by law- by prepare ‘Safe Work Method Statements’ (SWMS) for that work. (Details of what the SWMS must contain are provided in the regulation)

High risk construction work  includes workplaces where:

  • there is a risk of a fall of more than 2 metres
  • there is demolition work undertaken
  • work involves exposure to asbestos
  • there are structural changes needing support to avoid collapse
  • there is work in confined spaces, tunnels, shafts etc.
  • there is work with explosives, work close to gas or electricity, hazardous chemicals etc
  • there is work involving  pre-cast concrete or tilt up
  • there is work is conducted on or near roads, railways or near mobile plant(s)
  • there is work undertaken in artificial and/or extreme temperatures, and
  • where there is a risk of drowning.

Such high risk construction work is not allowed to be undertaken unless there is a SWMS (Safe Work Method Statements) and should only be done in accordance with the written SWMS. Also, those SWMS must be regularly reviewed, particularly when there is a change to the (way of) work and following any notifiable incident.

There are also specific principal contractor (the principal contractor will be the owner, unless the owner nominates someone else to take this role) obligations outlined where  the construction work  value exceeds $250,000. .

The regulation furthermore contains licensing requirements (by means of a 5 year certificate provided you are ‘competent’) for workers undertaking in work with high risk equipment (for example crane driving, rigging, driving  forklifts, hoists, using scaffolding etc).

Victoria Compliance Codes

Under the Victorian Occupational Health and Safety Act, there are a number (8) of Compliance Codes in force . These Compliance Codes previously known as “Codes of Practice”) basically give practical guidance to those people who have duties or obligations under the OHS Act. If the guidance in these Codes is followed, the duty holder (the person liable) will be deemed to have complied with their obligations under the Act.

These can be viewed and downloaded on WorkSafe Vic’s website

  • Communicating occupational health and safety across languages
  • Workplace amenities and work environment
  • Confined spaces
  • First aid in the workplace
  • Prevention of falls in general construction
  • Foundries
  • Managing asbestos in workplaces
  • Removing asbestos in workplaces

Apart from WorkSafe Vic’s website, a good and detailed overview of the OHS legislation in Victoria can also be found on Don Just | barrister Melbourne website

New South Wales (NSW)

All Legislation and Regulations

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WHS in New South Wales is regulated by the following Act and Regulation:

‘New’ (2012) work health and safety (WHS) laws commenced in NSW on 1 January 2012. The WHS laws replaced the occupational health and safety (OHS) laws in NSW. These (above) WHS laws were developed using the model WHS laws developed by Safe Work Australia.

The WHS Act sets out the legal obligations that must be complied with to provide for the health and safety of workers.

As far as we know, in NSW, 11 harmonised Work Health and Safety Codes of Practice started  on 1 January 2012. A complete list of codes of practice currently in operation in NSW can be found on the Workcover NSW website. These include:

  • Confined spaces
  • Hazardous manual tasks
  • How to manage and control asbestos in the workplace
  • How to manage work health and safety risks
  • Managing the risk of falls at workplaces
  • How to safely remove asbestos
  • Labelling of workplace hazardous chemicals
  • Managing noise and preventing hearing loss at work
  • Managing the work environment and facilities
  • Preparation of safety data sheets for hazardous chemicals
  • Work health and safety consultation, coordination and cooperation

In essence, the Act covers health and safety duties, incident notification, WHS consultation, representation and participation, issue of provisional improvement notices, prohibition of discriminatory, coercive, or misleading conduct, workplace entry provisions for OHS purposes, regulation, compliance, and enforcement provisions, enforceable undertakings, and legal proceedings.

The objectives of the Work Health and Safety Act 2011  are:

…to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:

  1. protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and
  2. providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and
  3. encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and
  4. promoting the provision of advice, information, education and training in relation to work health and safety, and
  5. securing compliance with this Act through effective and appropriate compliance and enforcement measures, and
  6. ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and
  7. providing a framework for continuous improvement and progressively higher standards of work health and safety, and
  8. maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.’

General Health and safety duties

The WHS Act 2011 outlines the range of people who have duties of care. Having a duty means that the duty-holder must, as far as is reasonably practicable, eliminate -or at the very least, minimise- the risks to work health and safety in the workplace.

A ‘Person Conducting a Business or Undertaking (PCBU)’(formerly the term ‘employer’ was used) has a primary duty of care to ensure the health, safety, and welfare of all employees (workers) and other persons who are at a workplace. A PCBU may be an employer, a corporation, an association, a partnership, a sole trader, or a voluntary organisation that employs workers ( not only volunteers). A person is not a PCBU if he/she is engaged solely as a worker or officer.

The PCBU must ensure the safety of all workers, customers (clients) and other visitors to the workplace by eliminating/removing or minimising health and safety risks at/in that workplace. The primary duty of a PCBU is oulined out in section 19 of the Act.

A PCBU has also other duties if engaged in any of the following:

  • managing or controlling a workplace (see section 20 of the Act)
  • managing or controlling fixtures, fittings or plant at a workplace (see section 21 of the act)
  • designing, manufacturing, importing or supplying plant, substances or structures (see sections 22-25 of the act)
  • installing, constructing or commissioning plant or structures for a workplace (see section 26 of the act).

Officers : persons ‘who makes or participate in making decisions that affect the whole or a substantial part of the business or undertaking

An officer is a person ‘who makes or participate in making decisions that affect the whole or a substantial part of the business or undertaking’. This definition includes, but is not restricted to, a director or company secretary.

Any officer of the PCBU who has an obligation under the Act, has a duty to exercise due diligence to make sure that the PCBU complies with its obligations and duties.

Due Diligence

‘Due diligence’ is aabout acquiring and keeping up-to-date knowledge of work health and safety issues, understanding how the business operates and the hazards/risks associated with it, and making sure that the PCBU has, and uses, adequate and appropriate resources and processes to deal with health and safety issues, including  training and providing and aquiring information.

Who is a worker

A ‘worker’ is someone who undertakes work for a PCBU. S/he may be an employee (worker), an independent contractor, subcontractor, labour hire worker, apprentice, work experience student or even a volunteer. A PCBU who undertakes work for the business is also deemed a worker. A sole trader who is a PCBU but undertakes work for another PCBU also becomes a deemed worker for the second PCBU.

The duties of a worker

A worker  must take all reasonable care for his or her own safety at work/in the workplace and make sure that s/he does nothing to negatively affect or endanger the safety of others, including employees (other workers), customers (clients), and visitors (basically any persons at the workplace). This duty also includes the need to comply with any reasonable instructions given (i.e. by supervisor) or any safety policies and procedures.(for example wearing a hard helmet, safety goggles etc).

If more than one person has a duty in relation to the same matter or issue, each person with the duty must, so far as is ‘reasonably practicable’, consult, cooperate, work together and coordinate all/any activities with all other persons with the same duty.

Note: Customers and other visitors to or at the workplace also have similar duties/responsibilities as  those of workers; and they must  also ‘as far as reasonably able’ comply with any reasonable instruction from a PCBU .

What’s a workplace

A ‘workplace’ can basically be any place that a worker attends during the course of working, for example in a vehicle, plane, boat, or any other ‘mobile structure’.

Defences

A duty-holder is required to take action that is ‘reasonably practicable’ to eliminate/remove, minimise or reduce any potential safety hazards, in order to discharge his/her duty. Basically the higher the risk and the greater its potential harm/damage, the more likely it will be reasonably practicable to expect the duty-holder to take action to eliminate/remove/minimise/reduce the hazard/risk.

Reasonably practicable

What is ‘reasonably practicable’ will be viewed by the courts depending on a number of factors and circumstances such as:

  • the likelihood or chance of the hazard(s)/risk(s) occurring/happening
  • the seriousness or degree of harm or damage it could potentially cause
  • what the person knows, or ought reasonably to know, about the hazard/risk and ways to deal with it
  • current state of knowledge about the risk/hazard
  • what the duty-holder actually knows
  • what a ‘reasonable person’ in that position should know.
  • methods available to eliminate/remove/minimise/reduce the hazard/risk
  • cost of tho eliminate/remove/minimise/reduce the hazard/risk methods, and whether it is in line to the degree of risk involved or would cause hardship for a business to pay it.

Remedial/alternative, risk reducing/removing measures and methods are usually viewed as available and appropriate/suitable if they can be obtained on the open market or if it is reasonably possible to manufacture or implement a way to eliminate/minimise/reduce the risk/hazard ; for example  a different work procedure.

in summary, a person has a defence case if he/she can prove that it was not reasonably practicable to comply with the Act or Regulations, or can prove that he/she had no control over the cause of the offence and it was not reasonably practicable to take action that would prevent the risk/hazard from happening.

Notification of an Incident

A ‘notifiable incident’ refers to a death of a person or serious injury or illness, or a ‘dangerous incident’, defined as an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety.

Specific types of risk are defined in section 37 of the Act.

‘Serious injury or illness’ is defined in section 36 of the Act.

A PCBU is required to notify the WorkCover Authority (WorkCover NSW) immediately if such an incident happens. Also, the person in control of the workplace must make sure in so far as it is reasonably practicable to do so, that the workplace site is not disturbed until a (workcover) inspector arrives on site.

Consultation

‘Consultation’ means: sharing relevant information with workers, giving them a reasonable opportunity to express their views, taking those views into account when making decisions, advising them of decisions, and including the HSRs or WHS committee in the process where they exist at a workplace.

The NSW WHS Act mandates employers to consult their employees (workers) about health and safety matters. The  use of health and safety representatives (HSRs) and health and safety committees for this purpose is outlined in the Act.

Of importance is to know that both employees (workers) and employers (company) Consultative methods may be established either by request of employees or the employer’s initiative.

Consultation is required when identifying hazards and assessing risks; making decisions about how to deal with hazards/risks; making decisions about the adequacy of facilities for the welfare, health and safety of workers;
proposing changes that may affect workers’ welfare; making decisions about WHS procedures in general.

All workplaces must also have in place an agreed Issue Resolution procedure. If no such procedure has been put in place, the default procedure in the Work Health and Safety Regulations will apply.

Health and safety representatives

Any worker is allowed request the PCBU to arrange for the election of Health and safety representatives.

The Act outlines procedures for determining the work group that each Health and safety representative will represent and procedures for their election(s). The workers to be represented by Health and safety representative(s) can decide how elections will be undertaken in accordance with any Regulations, and a union can assist in the process.

Health and safety representatives hold office for 3 a period of years and are eligible for re-election.

Their functions are:

  • to represent the work group in issues relating to WHS
  • to monitor and review WHS steps undertaken by the PCBU or his/her representatives
  • to investigate WHS-related complaints made by members of the work group (the Health and safety representative must try to resolve the matter but, if unable to do so, can request an investigation by an inspector)
  • to inquire into any issues that are or appera to be an WHS risk for the work group
  • to inspect the workplace where the work group works, either after giving reasonable notice to a PCBU or immediately if an incident or situation/circumstance that poses a serious potential WHS risk arises
  • to accompany an inspector on a workplace inspection
  • to attend interviews between an inspector and/or PCBU and workers represented by the Health and safety representative
  • to receive information about WHS issues that may affect the work group (without breach of confidential information such as for example medical information of a worker)
  • to request the formation from a health and safety committee
  • Health and safety representatives are also allowed to issue Provisional Improvement Notices (PINs) and directives to make unsafe work stop

Health and safety committees must be established

The PCBU must –within 2 months– establish a Health and Safety Committee  if requested to do so either by an Health and safety representative or by at least 5 workers at the workplace. A PCBU is also allowed also establish a committee on his/her own initiative.

The Health and safety representatives must be a member of the committee, and if there are more than 2 Health and safety representatives at the workplace, at least 1 must be on the committee. Also, at least 50% of the committee members must be people who were not appointed by the PCBU.

The principal functions of a committee are:

  • to facilitate cooperation between the PCBU and workers to start, develop and implement measures to ensure health and safety at work
  • to assist in developing standards, rules and procedures relating to OHS/WHS
  • any other functions agreed between the PCBU and the committee or prescribed by the Regulations
  • Committees do not have the power to issue Provisional Improvement Notices or directions to cease unsafe work.

The committee must meet at least 4 times per year, and at any other reasonable time as requested by at least half its members.

Right to stop work or refuse to perform unsafe work

A worker is allowed stop or refuse to undertake work if he/she has a reasonable concern that the work poses immediate or imminent exposure/risk to a hazard and as such poses a serious risk to health and safety.

A Health and safety representative who  has a reasonable concern that the work poses immediate or imminent exposure/risk to a hazard and as such poses a serious risk to health and safety is also allowed to direct employees (workers) to stop work or to refuse to undertake work. The Health and safety representative is however required to consult first with the PCBU and try to resolve the issue before issuing any such directive, unless the risk is so serious and immediate or imminent that it is not reasonable to do so.

Provisional Improvement Notices (PINs)

Health and safety representatives are allowed to issue a Provisional Improvement Notice (PIN) to a person if they believes the Act is about to be breached, is being breached or has been breached and when  it is likely that the breach will be repeated or ongoing. However, the Health and safety representative must first consult with the person before issuing any notice. A Provisional Improvement Notice requires the person who received it to fix the problem as well as its cause(s).

A Provisional Improvement Notice must obviously be in writing and must also clearly spell out a date by which the matter must be rectified/fixed (this date must be  be at least 8 days after the date of the notice). A Provisional Improvement Notice can also spell out how the matter should be fixed/rectified..

It is an offence not to comply with a PIN.

The PCBU or person who receives the Provisional Improvement Notice is however allowed to ask WorkCover NSW (the workcover authority) to have an inspector appointed for the purpose of reviewing  the PIN. The inspector, in turn, can then confirm, amend or even cancel (dismiss) the Provisional Improvement Notice.

Discrimination, coercion, inducement, and misrepresentation is prohibited

Discrimination, coercion, inducement, and/or misrepresentation that stops or prevents a person from being involved in work health and safety matters is expressly prohibited, and is considered offence in the Act. The types of such conduct includes:

  • sacking a worker or otherwise terminating employment (for example terminating a contractor arrangement)
  • refusing to hire a worker because of ‘WHS involvement’ (‘Being involved in WHS issues’ includes exercising a power or performing a role under the Act (eg being an Health and Safety Representative) or raising concerns about WHS matters.
  • treating a worker less favourably than others, because of his/her WHS involvement
  • subjecting the worker to an employment-related detriment
  • threatening to take any of the above actions

Workplace right of entry provisions

Workplace entry provisions have broadened under the WHS Act, giving access rights to Work Health and Safety (WHS) Entry Permit Holders.

Permit holders

A person must also hold an entry permit issued under either federal or State industrial relations legislation in order to be a permit holder; for example a union official who has completed prescribed training and holds the necessary permit.

A permit holder is not required to give prior notice of intended workplace entry when entry to the workplace is to inquire into a reasonably suspected contravention of the Act. A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace, give notice of the entry and the suspected contravention to the PCBU and the person with management or control of the workplace. The notice must state the reason for requiring workplace entry (eg a suspected breach of the Act). However, notice is not required.

The permit holder has the power to conduct inspections and consult with both the PCBU and workers affected by the OHS issue.

Entry rights only apply to normal working hours and the work areas where either the affected workers or the subject matter of the inspection are located. The permit holder must comply with any conditions that apply to issue of the permit.

If a dispute arises in relation to right of entry or use of a WHS Entry Permit, any party may ask the WorkCover Authority to appoint an inspector to attend the workplace and attempt to resolve the dispute. The NSW Industrial Relations Commission has the ultimate power to resolve disputes.

It is an offence to refuse or delay entry to a permit holder, or to hinder or obstruct one.

Inspectors

Inspectors appointed under the Act have certain powers including:

  • to investigate breaches of the Act and assist with the prosecution of offences
  • to review disputed PINs (as discussed above)
  • to assist in the resolution of WHS disputes, including matters referred by HSRs and disputes over right of entry
    to require compliance with the Act by issuing compliance notices
  • to enter workplaces and conduct inspections (note: permission of the PCBU or person managing/controlling the workplace is not essential, nor is prior notification of entry necessary).
  • Inspectors can issue both improvement and prohibition notices if they believe breaches of the Act have occurred or are occurring. A prohibition notice if he/she reasonably believes that there is a situation that poses or will pose a serious risk to health or safety due to immediate or imminent exposure to a hazard. The notice generally will apply until the inspector is satisfied that the hazard, its cause(s), or the circumstances that raise the possibility of it occurring have been rectified or removed. Until then, performance of the work, or its performance in a specified way, are prohibited. An improvement notice requires its recipient to remedy the contravention and/or its causal factor(s), and prevent contraventions from continuing or re-occurring. The notice may set out methods for remedying the situation and must set a date for it to occur by.
  • An inspector may also issue a non-disturbance notice if he/she reasonably believes that it is necessary to facilitate the exercise of his/her compliance powers

It is an offence not to provide an inspector with reasonable assistance to perform his/her duties. It is also an offence to hinder, obstruct, threaten, intimidate, or attempt to impersonate an inspector.

Enforceable undertakings

The Act also provides for the WorkCover Authority (WorkCover NSW) to accept ‘enforceable undertakings’ as a more positive and less punitive alternative to prosecutions. This basically means that the person makes a written undertaking to remedy/fix or rectify a breach of the Act, in exchange for not being penalised or prosecuted. The person can still be prosecuted for breaching an enforceable undertaking.

Financial and Non-financial sanctions

In addition to fines (penalties), courts can impose non-monetary sanctions on offenders. These include requiring them to publicise the offence (for example in their annual reports) or notify specified people of the offence, its consequences, and the penalties imposed; or undertaking projects either to remedy problems caused by their offence, or to improve work health and safety generally.

 

More information about the health and safety legislation in NSW can be found on the WorkCover NSW website

South Australia (SA)

All Legislation and Regulations

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Work Health and Safety

Work Health and Safety in South Australia is regulated by the below Act and Regulation.

In South Australia, the Work Health and Safety Act 2012  started on 1 January 2013.
The Work Health and Safety Regulation 2013 started on 1 January 2013, in part. Full commencement are expected by 1 January 2015.

Like in other states, SA also has Codes of Practices

The Codes of Practice provide practical information, or guidance, on how to meet the requirements of the regulations. The Codes are not mandatory but provide information to help workplaces achieve safe systems of work.

The SA Codes of Practices can be found on the WorkCover SA website and include the following:

Aims of the WHS Act

The objectives of the Act are:

‘…to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:

  • (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant; and
  • (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety; and
  • (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and
  • (d) promoting the provision of advice, information, education and training in relation to work health and safety; and
  • (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
  • (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and
  • (g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and
  • (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.’

The harmonised SA WHS legislation ( The Work Health and Safety Act 2012 SA) covers covers the following:

  • health and safety duties
  • incident notification
  • WHS consultation, representation and participation
  • issue of provisional improvement notices
  • prohibition of discriminatory, coercive, or misleading conduct
  • workplace entry provisions for OHS purposes
  • regulation, compliance, and enforcement provisions
  • enforceable undertakings, and
  • legal proceedings.

General Health and safety duties

The South Australian WHS Act 2011 did widen the range of people who have duties of care.

Having a duty of care basically  means that the ‘duty-holder’ must, as far as is reasonably practicable to do so, eliminate/remove (or failing that, at least minimise) risks/hazrads to work health and safety (of workers and persons) at the workplace.
The term ‘control’ was also incorporated, meaning for example that a person is obliged to comply with safety duties ‘to the extent to which the person has the capacity to influence and control the matter …’

The term ‘Person Conducting a Business or Undertaking (PCBU)’ is used

Previously the act referred to an ’employer’ having a primary duty of care to ensure the health, safety, and welfare/wellbeing of all employees and other persons who are present at or in a workplace. But since the 2013 changes,  the term ‘Person Conducting a Business or Undertaking (PCBU)’ is now used instead.

A PCBU can be an employer, a corporation, an association, a partnership, a sole trader, or a voluntary organisation that  employs people (not an organisation staffed only by volunteers). A person is not a PCBU if s/he is engaged solely as a worker or an officer.

The duties of a PCBU are basically the same as were the duties of an employer as under the previous legislation. The PCBU has to ensure the safety of all workers, customers and other visitors to the workplace by eliminating/removing or minimising health and safety risks/hazrads at that workplace. The main duty of a PCBU is outlined in section 19 of the Act.

Officers

An officer is a person ‘who makes or participate in making decisions that affect the whole or a substantial part of the business or undertaking’. This definition includes, but is not restricted to, a director or company secretary.

If a PCBU has an obligation under the WHS Act, any officer of the PCBU has a duty to exercise ‘due diligence’ to make sure that the PCBU complies with its duties and obligations.

As previously discussed in other jurisdictions, ‘Due diligence’ basically means acquiring and maintaining up-to-date knowledge of work health and safety issues, understanding how the business operates and the hazards and risks associated with it, and ensuring that the PCBU has, and uses, adequate resources and appropriate processes to deal with health and safety matters.

Workers

Again, a ‘worker’ is a person who performs work for a PCBU. A worker can be an employee (worker), an independent contractor, a subcontractor, a labour hire worker, an apprentice, a work experience student or even a volunteer. A PCBU who undertakes work for the business is both a worker as well as a PCBU. A sole trader who is a PCBU but undertakes work for another PCBU becomes a worker for the second PCBU.

The duties of a worker are the same as those for an ’employee’ as under the previous WHS legislation. A worker must – by law- take reasonable care for his/her own safety at work/in the workplace and make sure that s/he does nothing to adversely affect/endanger the safety of others, including employees (workers), customers, and visitors. The duty of a worker also includes complying with any reasonable instructions or any safety policies and procedures. (For example, wearing safety goggles, hard hat etc.)

If more than one person has a duty in relation to the same matter or issue, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate all activities with all other persons with the same duty.

Customers and other visitors to the workplace must also comply with any reasonable instruction from a PCBU ‘as far as reasonably able’, and they also have similar duties as workers with regards to health and safety.

A ‘workplace’ is essentially any place that a worker attends in the course of their work/working, i.e a vehicle, plane, boat, or other ‘mobile structure’.

Defences

A duty-holder must take action that is ‘reasonably practicable’ to eliminate/remove, minimise, or reduce potential safety hazards/risks, in order to discharge his or her duty.

What is reasonably practicable?

As discussed in other jurisdictions, in essence, the higher the risk and the greater its potential harm/damage, the more likely it will be reasonably practicable to expect the duty-holder to take action to eliminate/minimise/reduce the risk/hazard.

When determining ‘Reasonably practicable’  courts will  take into account certain factors and circumstances including:

  • the person’s current state of knowledge about the risk/hazard
  • what the duty-holder actually knows
  • what a ‘reasonable person’ in that position should know

Notification of Incident(s)

A ‘notifiable incident in SA also’ includes the death of a person or serious injury or illness to a person, or a ‘dangerous incident’, defined as an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety. Specific types of risk are defined in section 37 of the Act. ‘Serious injury or illness’ is defined in section 36 of the Act, and includes for example an injury or illness that requires immediate hospital treatment and medical treatment within 48 hours of exposure to a harmful substance.

Like in other harmonised states, A PCBU is required to notify the workcover authority, in this case SafeWork SA immediately if such an incident occurs. The person with management or actual control of the workplace must also make sure so far as is reasonably practicable, that the site (of the incident) is not disturbed until an inspector (of workcover) arrives at the site.

Consultation

‘Consultation’ means: sharing relevant information with workers, giving them a reasonable opportunity to express their views, taking those views into account when making decisions, advising them of decisions, and including the health and safety representatives (HSRs) or health and safety (WHS) committee in the process where they exist at a workplace.

The Act requires SA employers to consult their employees (workers) about WHS matters/issues. The goal being that employers and employees tailor their consultative arrangements to best suit their organisation. The main consultative provisions relate to the use of health and safety representatives (HSRs) and health and safety committees.

Consultative methods may be established either by request of either employees or the employer’s initiative.

Also, all workplaces must have an agreed Issue Resolution procedure. If no procedure has been established, the default procedure in the Work Health and Safety Regulations will apply automatically.

Health and safety representatives

Any worker is allowed to request the PCBU to arrange for the election of Health and Safety Representatives.

The Act outlines the procedures for determining the work group that each Health and Safety Representative will represent and the procedures for the election of Health and Safety Representatives. The workers to be represented by Health and Safety Representatives can also decide how elections will be conducted (as log as it complies with any Regulations), and a union is also allowed to assist in the process (obviously if a majority of workers are in favour of involving the Union).

Health and Safety Representatives hold office for 3 years and are eligible for re-election.

Health and Safety Representative functions

  • to represent the work group in matters relating to WHS
  • to monitor and review WHS measures undertaken by the PCBU or his/her representatives
  • to investigate WHS-related complaints made by members of the work group (the HSR must attempt to resolve the matter but, if unable to do so, can request an investigation by an inspector)
  • to inquire into any matters that appear to be an WHS risk for the work group
  • to inspect the workplace where the work group works, either after giving reasonable notice to a PCBU or immediately if an incident or situation that poses a serious potential WHS risk arises
  • to accompany an inspector on a workplace inspection
  • to attend interviews between an inspector and/or PCBU and workers that the HSR represents
  • to receive information about WHS matters that may affect the work group (note that if such information reveals personal or medical information about a worker without that worker’s consent, the HSR is not entitled to receive it (privacy)
  • to request the formation of a health and safety committee
  • HSRs can also issue Provisional Improvement Notices and directives that unsafe work cease.

A PCBU has a general obligation under the Act to consult and confer with HSRs, and to make it possible for HSRs to perform their functions and exercise their powers as listed above. If an HSR requests it, the PCBU must also provide suitable training to him/her to perform the HSR role, at the organisation’s expense and including time off work with pay to attend the training.

Health and Safety Committees

Like in all other harmonised states, The PCBU must establish a committee within 2 months if requested to do so either by a Health and Safety Representative (HSR) or by at least 5 workers at the workplace. The PCBU can also establish a committee on his/her own initiative.

The Health and Safety Representatives must be a member of the health and safety committee, and if there are more than 2 Health and Safety Representatives at the workplace, at least 1 has to be on the committee. At least 50% of the committee members must be people who were not appointed by the PCBU.

The functions the WHS committee

  • to facilitate cooperation between the PCBU and workers to instigate, develop and implement measures to ensure health and safety at work
  • to assist in developing standards, rules and procedures relating to work health and safety
  • any other functions agreed between the PCBU and committee or prescribed by Regulations
  • Note: committees do not have the power to issue Provisional Improvement Notices or directions to cease unsafe work.

The committee has to meet at least quarterly, and at any other reasonable time as requested by at least half its members.

Right to cease work or refuse to perform work

Any worker is allowed to stop or refuse to carry out work if s/he has a reasonable concern that the work poses immediate or imminent exposure to a hazard/risk and therefore a serious risk to health and safety.  A Health and Safety Representatives who has the same/similar concerns is allowed to direct employees (workers) to stop work or refuse to carry it out. The Health and Safety Representative is however required to consult with the PCBU first and try to resolve the matter before issuing any directive, that is unless the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.

Provisional Improvement Notices

A Health and Safety Representative can issue a Provisional Improvement Notice (PIN) to a person if s/he believes the Act is about to be breached,  being breached, or has been breached and it is likely that the breach will be repeated or continued. The Health and Safety Representative however must first consult with the person before issuing any notice. The PIN requires the person to fix the problem and its cause(s).

The notice must be in writing and has to specify a date by which the matter/issue must be rectified/fixed/remedied, (which must be at least 8 days after the date of the notice). The PIN can also state how the matter should be rectified.

It is an offence not to comply with a PIN, but the person (or PCBU) can request SafeWork SA to appoint an inspector for the purpose to review the notice. The inspector can then confirm, amend or cancel/dismiss the PIN.

Discrimination, coercion, inducement, and misrepresentation that prevents a person from being involved in OHS/WHS issues is expressly prohibited, and is an offence.

The type of conduct is covered in the Act and includes:

  • dismissing/sacking a worker or otherwise terminating employment (i.e. terminating a contractor arrangement)
  • refusing to hire a worker because of WHS involvement –‘Being involved in WHS issues’ includes exercising a power or performing a role under the Act (eg being an HSR) or raising concerns about WHS issues
  • subjecting the worker to an employment-related detriment
  • treating a worker less favourably than others, because of his/her WHS involvement
  • threatening to take any of the above actions.

Workplace entry

Workplace entry provisions have broadened under the WHS Act, giving access rights to Work Health and Safety (WHS) Entry Permit Holders.

To be a permit holder, a person must also hold an entry permit issued under either federal or State industrial relations legislation ( for example a union official who has completed prescribed training and holds the necessary permit).

Union entry rights are restricted compared to the model WHS Act:

  • a union’s right to inspect or make copies of a document may be over-ruled by an inspector
  • unions may only enter the workplace if the suspected breach of the Act relates to, or affects, a worker who is a member, or is eligible to be a member, of the union whose industrial interests the union is entitled to represent, and the worker works at the workplace.
  • Unions are also required to consider whether it is reasonably practicable to notify SafeWork SA of the suspected contravention before the proposed entry so as to provide an opportunity for an inspector to attend at the workplace at the time of entry.

It is an offence to refuse or delay entry to a permit holder, or to hinder or obstruct the duties of a permit holder.

Right to silence

Interestingly, the SA Act includes a person’s ‘right to silence’ in the investigation of WHS breaches if answering a question, or providing information, or a document may tend to incriminate the person or expose the person to a penalty (section 172 of the Act).

Inspectors

Inspectors appointed under the Act have certain powers including:

  • to investigate breaches of the Act and assist with the prosecution of offences
  • to review disputed PINs (as discussed above)
  • to assist in the resolution of WHS disputes, including matters referred by HSRs and disputes over right of entry
    to require compliance with the Act by issuing compliance notices
  • to enter workplaces and conduct inspections (note: permission of the PCBU or person managing/controlling the workplace is not essential, nor is prior notification of entry necessary).
  • Inspectors can issue both improvement and prohibition notices if they believe breaches of the Act have occurred or are occurring. A prohibition notice if he/she reasonably believes that there is a situation that poses or will pose a serious risk to health or safety due to immediate or imminent exposure to a hazard. The notice generally will apply until the inspector is satisfied that the hazard, its cause(s), or the circumstances that raise the possibility of it occurring have been rectified or removed. Until then, performance of the work, or its performance in a specified way, are prohibited. An improvement notice requires its recipient to remedy the contravention and/or its causal factor(s), and prevent contraventions from continuing or re-occurring. The notice may set out methods for remedying the situation and must set a date for it to occur by.
  • An inspector may also issue a non-disturbance notice if he/she reasonably believes that it is necessary to facilitate the exercise of his/her compliance powers

It is an offence not to provide an inspector with reasonable assistance to perform his/her duties. It is also an offence to hinder, obstruct, threaten, intimidate, or attempt to impersonate an inspector.

Improvement and prohibition notices

Inspectors can issue both improvement and prohibition notices if they believe breaches of the Act have occurred or are occurring.

An improvement notice requires its recipient to remedy (fix) the contravention and/or its causal factor(s), and prevent contraventions from continuing or re-occurring. The notice may set out methods for remedying the situation and must set a date for it to occur by.

An inspector may issue a prohibition notice if he/she reasonably believes that there is a situation that poses or will pose a serious risk to health or safety due to immediate or imminent exposure to a hazard. The notice generally will apply until the inspector is satisfied that the hazard, its cause(s), or the circumstances that raise the possibility of it occurring have been rectified or removed. Until then, performance of the work, or its performance in a specified way, are prohibited.

A prohibition notice may be given verbally but must be confirmed in writing. The notice may set out methods for remedying the situation. If it is not complied with, SafeWork SA may take ‘reasonable action’ to remedy the situation after giving written notice.

An inspector may also issue a non-disturbance notice if he/she reasonably believes that it is necessary to facilitate the exercise of his/her compliance powers.

Enforceable undertakings

The Act also provides for SafeWork SA to accept ‘enforceable undertakings’ as a more positive and less punitive alternative to prosecutions. This means that the person makes a written undertaking to remedy or rectify a breach of the Act, in exchange for not being penalised or prosecuted. However, the person can be prosecuted for breaching an enforceable undertaking.

Non-financial sanctions

In addition to fines (penalties), courts can impose non-monetary sanctions on offenders. These include requiring them to publicise the offence (for example in their annual reports) or notify specified persons of the offence, its consequences, and the penalties imposed; or undertaking projects either to remedy problems caused by their offence, or to improve occupational health and safety generally.

More information about the health and safety legislation in SA can be found on the WorkSafe SA website

Queensland (QLD)

All Legislation and Regulations

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As far as we know, Queensland became the first state to pass harmonised WHS legislation with the passage of the Work Health and Safety Act 2011 on 26 May 2011. It came into effect on 1 January 2012.
At the same time, it also passed the new Safety in Recreational Water Activities Act 2011 (the SRWA Act) to regulate WHS in the recreational diving and snorkelling industry which is not covered in the model WHS Act.

The WHS Act replaces the Workplace Health and Safety Act 1995.

The Act broadens the definition of ‘worker’ (to include labour-hire workers, contractors and subcontractors), removes reverse-onus prosecutions, and enables courts to impose significantly higher penalties for OHS breaches.
The Act also amends the Workers’ Compensation and Rehabilitation Act 2003, to provide for a review of the workers comp scheme every five years, and to protect workers’ entitlements to accrue leave while injured.

As stated on the WorkSafe QLD website (section Work Health and Safety Laws):

Overview of the legislation in QLD

Overview of the Work Health and Safety Act, Safety in Recreational Water Activities Act, Regulations and codes of practice.

Transitional provisions

Transitional provisions are included to smooth the transition to the new requirements which will require some action by business operators in order to comply.

Exemptions to the regulation

The Work Health and Safety Regulation 2011 (WHS Regulation) allows the regulator to grant an exemption from compliance with any provision of the WHS Regulation.

Work Health and Safety and Other Legislation Amendment Bill 2014

The Bill implements findings from the Queensland Government’s review of national model Work Health and Safety laws which commenced in Queensland on 1 January 2012.

Definitions

Definitions under the work health and safety laws.

Duties

Duties under the work health and safety laws.

Due diligence

The Work Health and Safety Act 2011 (the WHS Act 2011) imposes a specific duty on officers of corporations and unincorporated bodies.

Things that don’t apply anymore

Information about what no longer applies under the work health and safety laws.

Consultation

Representation and participation, workgroups and health and safety representatives.

General workplace management

Managing risks, general workplace management, training, information and instruction, general working environment, first aid, emergency plans, personal protective equipment, remote and isolated work, managing risk from contaminants, hazardous atmospheres, storage and ignition sources and falling objects.

Penalties

What are the penalties if you are in breach of the work health and safety laws?

Resources

Information and guidance materials about the work health and safety laws.

and more…

Australian Capital Territory (ACT)

All Legislation and Regulations

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As far as we know, the Australian Capital Territory is the 3d state (after New South Wales and Queensland) to have passed the harmonised Work Health and Safety laws.

The ACT Work Health and Safety Act 2011 was passed without amendments to the model legislation and started on 1 January 2012.

This new legislation sees ACT unions lose their previous right to take third party prosecutions against businesses for WHS breaches. In addition, workers lose their previous right to remain silent when inspectors ask questions at workplaces, and face a fine of up to $10,000 if they do so.

Many employees in the ACT are of course employed by Commonwealth Government and are therefore covered by the Commonwealth legislation.

Everything you possibly want to know about Work Health and Safety Legislation, Regulations, Codes of Practice etc are well explained on the WorkSafe ACT website (section Work Health and Safety Legislation) -incl. guidance material. Pointless copying and pasting it here!

Western Australia (WA)

All Legislation and Regulations

Northern Territory (NT)

All Legislation and Regulations

Tasmania (Tas)

All Legislation and Regulations

Commonwealth (Comcare)

All Legislation and Regulations

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