Overview of OHS system

18.9 Employers’ duties to address OHS risks that arise as a result of family violence, like other OHS duties, are governed by common law duties and Commonwealth, state and territory legislation and regulations.

18.10 In line with the general practice in most comparable jurisdictions, Australia’s OHS legislation avoids detailed requirements in favour of broadly-formulated duties that allow employers discretion as to how to achieve compliance.^[6]

18.11 Regulations and Codes of Practice supplement these general duties by providing detail relevant to particular topics such as: specific settings—for example, construction sites; specific hazards—for example, asbestos; and procedures related to unions or licensing.

18.12 The key elements of the Commonwealth framework governing OHS are:

• Occupational Health and Safety Act 1991 (Cth) (OHS Act);

• Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) (OHS Maritime Industry Act);

• Safe Work Australia Act 2008 (Cth) (SWA Act);

• Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth) (OHS Regulations 1991);

• Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (OHS Regulations 1994);and

• Occupational Health and Safety Code of Practice 2008 (Cth) (OHS Code).

18.13 The OHS Regulations outline processes and outcomes that duty holders must follow or achieve to meet their duties under the OHS Act. Unlike the OHS Act and OHS Regulations, the OHS Code does not stipulate mandatory obligations but rather provides practical guidance on safe work practices and risk assessment. The OHS Code may be used in court as evidence of the standards of health and safety that employers should achieve.^[7]

18.14 The Safety, Rehabilitation and Compensation Act 1988 (Cth) outlines a workers’ compensation scheme and establishes two bodies responsible for its implementation and maintenance—Comcare and the Safety, Rehabilitation and Compensation Commission (the SRCC).^[8] The OHS Act also charges these bodies with ensuring compliance with OHS standards, advising employers and employees on health and safety matters, and formulating policies related to OHS.^[9] In addition, Comcare and the SRCC publish supplementary guidance material.

National OHS Strategy 2002–2012

18.15 In addition, in 2002, all Australian governments, the Australian Chamber of Commerce and Industry (ACCI) and the Australian Council of Trade Unions (ACTU) agreed to the National OHS Strategy 2002–2012 (National Strategy).^[10] The National Strategy was reviewed by the Workplace Relations Ministers Council (WRMC) in 2004–2005. The five priorities identified by the National Strategy are to:

• reduce the impact of risks at work;

• improve the capacity of business operators and workers to manage OHS effectively;

• prevent occupational disease more effectively;

• eliminate hazards at the design state; and

• strengthen the capacity of government to influence OHS outcomes.

18.16 One of the functions of Safe Work Australia (SWA) is to revise and further develop the National Strategy.^[11] One area of attention in 2011–2012 is developing a National Work Health and Safety Strategy to replace the current National Strategy.^[12]

Review and harmonisation of OHS law

Background

18.17 Since 2008, occupational health and safety law in Australia has been the focus of significant legislative and policy developments. In July 2011 the Australian Government introduced the Work Health and Safety Bill 2011 (Cth) as part of a harmonisation process to introduce model OHS legislation across Australia.^[13]

18.18 By way of background, national uniformity in OHS laws arose as an issue on the Council of Australian Governments’ (COAG) reform agenda and, in 2008, the WRMC ‘agreed that the use of model legislation is the most effective way to achieve harmonisation of OHS laws’.^[14] Subsequently, the Commonwealth, states and territories signed the Intergovernmental Agreement for Regulatory and Operational Reform in OHS (IGA). Under the IGA, the Commonwealth, along with states and territories, committed to establishing a national independent body (which became SWA) and adoption and implementation of model legislation in each jurisdiction by December 2011.^[15]

18.19 The National Review into Model Occupational Health and Safety Laws (National OHS Review) was completed in January 2009. It made a range of recommendations with respect to the development of model legislation aimed at improving safety outcomes, reducing compliance costs and improving regulatory efficiency.^[16]

18.20 In response to the recommendations made in the context of the National OHS Review, the WRMC requested that SWA develop model legislation. In September 2009, SWA released an exposure draft of the Model Bill and the WRMC agreed to the provisions of the Model Bill in December 2009. The model legislation, regulations and codes of practice include:

• the Model Bill;^[17]

• Model Work Health and Safety Regulations (Model Regulations);^[18] and

• Model Codes of Practice, relevantly including ‘How to Manage Work Health and Safety Risks’, ‘How to Consult on Work Health and Safety’ and ‘Managing the Work Environment and Facilities’.^[19]

18.21 However, the Model Bill does not contain all detailed provisions required to give effect to legislation of this kind, leaving some matters to the relevant jurisdiction.

18.22 The Terms of Reference require the ALRC to review current Commonwealth law.^[20] However, as the Model Bill, Model Regulations and Model Codes of Practice form the basis for the legislation to be enacted in each jurisdiction, and have Commonwealth, state and territory support,^[21] the discussion below focuses on the content of the model provisions.

Safe Work Australia

18.23 Safe Work Australia was established in 2009 as a statutory agency to ‘improve occupational health and safety outcomes and workers’ compensation arrangements in Australia’.^[22] The functions of SWA include coordinating and developing national policy relating to OHS and workers’ compensation; developing model OHS legislation and codes of practice; undertaking research, and collecting, analysing and publishing data. SWA also plays a role in the development and promotion of strategies to raise awareness of OHS and workers’ compensation.^[23]

Purposes of the OHS system

18.24 The objects of the OHS Act are:

(a) to secure the health, safety and welfare at work of employees of the Commonwealth, of Commonwealth authorities and of non-Commonwealth licensees; and

(b) to protect persons at or near workplaces from risks to health and safety arising out of the activities of such employees at work; and

(c) to ensure that expert advice is available on occupational health and safety matters affecting employers, employees and contractors; and

(d) to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and

(e) to foster a co-operative consultative relationship between employers and employees on the health, safety and welfare of such employees at work; and

(f) to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and

(g) to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.^[24]

18.25 The main object of the Model Bill is to ‘provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces’ by, among other things:

1(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

…

(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

…

(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.

2 In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work [or from specified types of substances or plant] as is reasonably practicable.^[25]

18.26 Implicit in the objects of both the OHS Act and the Model Bill is the preventative focus of the OHS system.

18.27 Significantly, the purposes of the OHS system in protecting workers and other persons against harm to their health, safety and welfare, mirror the focus of the ALRC’s Terms of Reference to reform legal frameworks to protect the safety of victims of family violence. Accordingly, to the extent that the OHS system is achieving its purposes, this should be synonymous with the protection of workers experiencing family violence where it poses a risk to their health, safety or welfare in a work context. Further, the ALRC considers that the reforms proposed in this chapter align with the objective of the Model Bill to provide a framework for continuous improvement and progressively higher standards of work health and safety.