Regulatory framework for occupational health and safety

32.5 Australian occupational health and safety laws seek to prevent workplace injury, disease and death; compensate workers who suffer work-related injury (or their dependents in the case of death); and rehabilitate workers suffering occupational injuries or disease.^[4] The primary focus of the framework is on fostering safe and healthy work environments and safe work systems.^[5] This point was highlighted by the National Research Centre for Occupational Health and Safety Regulation (NRCOHSR) in its submission to the Inquiry:

While the wording of the OHS statutes varies, the principle is the creation of a safe work environment by eliminating or controlling risks rather than selecting workers who are ‘more suited’ to work in intrinsically unsafe conditions, or selecting out those perceived to be susceptible to hazardous exposures. In other words, preference is given to measures that make the work environment safer (safe place controls) over individual measures (safe person measures). The risk management approach underpins the national standards developed by the National Occupational Health and Safety Commission and adopted by the states and territories under OHS legislation.^[6]

Occupational health and safety legislation in Australia

32.6 The Australian Constitution does not contain an express legislative power relating to occupational health and safety or workers’ compensation. The Commonwealth, relying on a range of other heads of power, has enacted some legislation in this area; for example, the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) and the National Occupational Health and Safety Commission Act 1985 (Cth), which establishes NOHSC.^[7] Principal responsibility for making and enforcing laws about workplace health and safety in Australia remains with the States and Territories. Each State and Territory has occupational health and safety legislation that sets out requirements for ensuring health and safety in the workplace.^[8] In addition, industry-specific legislation applies in some jurisdictions.

Employers’ duty of care to employees

32.7 Each occupational health and safety statute imposes a duty on employers to take reasonable care for the health, safety and welfare at work of all employees. Despite differences in wording, the employer’s duty is similar in all Australian jurisdictions except New South Wales and Queensland. The employer must take all reasonably practicable steps to protect the health and safety at work of all employees.^[9]

32.8 In New South Wales, the employer’s duty is not expressly qualified by the practicability of complying with the duty. However, the employer may rely on a defence that it was not reasonably practicable to comply, or that the breach was due to causes over which it had no control and it was impracticable to make provision for such a happening.^[10] In Queensland, the employer must ensure the health and safety of its employees at work, subject to a number of qualifications provided in the statute.^[11]

32.9 Specific duties flow from this duty of care.^[12] These include provision and maintenance of safe plant and systems of work; a safe working environment and adequate welfare facilities; information and instruction on workplace hazards and supervision of employees in safe work; monitoring the health of employees; and monitoring conditions at the workplace.

Employers’ duty of care to third persons

32.10 In most jurisdictions, occupational health and safety legislation also imposes a duty of care on employers to persons other than employees, including persons not working for the employer but present at the workplace—for example, police, fire fighters, inspectors, clients, visitors and trespassers. The duty also extends to persons outside the workplace who are affected by the conduct of operations at the workplace.^[13]

Employees’ duties

32.11 In most jurisdictions, employees have a duty to take care for their own health and safety while at work. All jurisdictions impose a general duty on employees to take care for the health and safety of others at the workplace. Some jurisdictions impose a duty on employees to co-operate with the employer in the interests of workplace health and safety. In addition, some jurisdictions impose a duty on persons within workplaces not to wilfully or recklessly place at risk the health or safety of another at the workplace.^[14]

Regulations, standards and codes of practice

32.12 While occupational health and safety legislation imposes general duties regarding workplace health and safety, regulations, standards and codes of practice provide more detailed regulation and guidance, often in relation to specific hazards.

32.13 NOHSC develops and declares national standards dealing with specific workplace hazards or hazardous environments. These standards set out essential requirements for inclusion in the occupational health and safety legislation in each jurisdiction. NOHSC also declares national codes of practice to advise employers and workers on acceptable ways of meeting the national standards. Commonwealth, state and territory governments also issue codes of practice to advise on acceptable ways of complying with their occupational health and safety legislation.

32.14 Under all NOHSC standards and codes, employers have a duty to impose a systematic process of hazard identification, risk assessment, risk control and review in the workplace; to make sure that employees receive appropriate training, instruction and supervision; to obtain and provide appropriate information; to consult with employees likely to be exposed to risks, and with their health and safety representatives; and to keep appropriate records.^[15] Additional or more specific requirements apply in some areas, for example, in relation to particular hazardous substances.

32.15 In addition, NOHSC has developed the National OHS Strategy 2002–2012 which provides for five national priorities underpinned by action plans.^[16] The five national priorities are as follows:

• reduce high-incidence and high-severity risks;

• develop the capacity of business operators and workers to manage occupational health and safety effectively;

• prevent occupational disease more effectively;

• eliminate hazards at the design stage; and

• strengthen the capacity of government to influence occupational health and safety outcomes.

32.16 On 16 October 2002 NOHSC agreed to a set of National Priority Action Plans (NPAPs) for the period 2002–2005 for the five national priorities identified in the Strategy. These NPAPs are the first in a series of three year national action plans to be developed to cover the ten year period of the Strategy. The NPAPs were endorsed by the Workplace Relations Ministers’ Council at its 8 November 2002 meeting. NOHSC, in approving the NPAPs, noted that the plans will be regularly updated to reflect any changes in emphasis or direction that are needed to meet the goals of the Strategy.

Common law principles

32.17 While occupational health and safety is primarily regulated by legislation, common law principles continue to have some application in certain jurisdictions. For example, employers may have a duty arising from implied terms in the common law employment contract to take reasonable care for the safety of their employees, breach of which may give rise to a cause of action. Employees may also be able to bring a common law action for damages for negligence where an employer is in breach of its duty to take reasonable care for the health and safety of employees.^[17]

32.18 Common law actions require the employee to prove fault (for example, negligence) on the part of the employer. This contrasts with claims under workers’ compensation legislation, which establish no-fault compensation schemes. These schemes are discussed in Chapter 33.