Overview of the OHS system

Legislative and strategic framework

18.8 Any duties employers may have 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.

18.9 The key elements of the existing Commonwealth framework governing OHS are:

• Occupational Health and Safety Act 1991 (Cth) (OHS Act);
• Safe Work Australia Act 2008 (Cth) (SWA Act);
• Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth) (OHS Regulations 1991) and Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (OHS Regulations 1994);and
• Occupational Health and Safety Code of Practice 2008 (Cth) (OHS Code).

18.10 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.^[4]

18.11 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).^[5] The OHS Act charges these bodies with ensuring compliance with OHS standards, advising employers and employees on health and safety matters, and formulating policies related to OHS.^[6] Comcare and the SRCC also publish supplementary guidance material.

18.12 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).^[7] The National Strategy was reviewed by the Workplace Relations Ministers Council (WRMC) in 2004–2005. One of the functions of Safe Work Australia is to revise and further develop the National Strategy.^[8] One area of attention in 2011–2012 is developing a National Work Health and Safety Strategy to replace the current National Strategy.^[9]

Review and harmonisation of OHS law

Towards national uniformity

18.13 Since 2008, OHS law in Australia has been the focus of significant legislative and policy developments. The Work Health and Safety Bill 2011 (Cth) was introduced in July 2011 as part of a harmonisation process to introduce model OHS legislation across Australia.^[10] Mirror legislation has also been introduced in a number of other Australian jurisdictions.^[11] These reforms ‘represent the most significant reform’ to OHS laws in Australia in the last 30 years.^[12]

18.14 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’.^[13] 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 Safe Work Australia) and the adoption and implementation of model legislation in each jurisdiction.^[14]

18.15 The National Review into Model Occupational Health and Safety Laws (National OHS Review) was completed in January 2009.^[15] 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]

18.16 The model legislation, regulations and codes of practice were released by Safe Work Australia following a detailed process and extensive stakeholder consultation and include:

• the Model Act;^[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’; ‘Managing the Work Environment and Facilities’;^[19] and ‘Preventing and Responding to Workplace Bullying’.^[20]

18.17 However, the Model Act does not contain all detailed provisions required to give effect to legislation of this kind, leaving some matters to the relevant jurisdiction in order to recognise the differing needs of jurisdictions according to their ‘commercial or industrial environment’.^[21]

18.18 The Terms of Reference require the ALRC to review current Commonwealth law.^[22] However, as the Model Act, Model Regulations and Model Codes of Practice form the basis for the legislation that has been or will be enacted in each jurisdiction, have Commonwealth, state and territory support,^[23] and are due to form part of the harmonised OHS regime from 1 January 2012, the discussion below focuses on the content of the model provisions.

Safe Work Australia

18.19 Safe Work Australia was established in 2009 as a statutory agency to ‘improve occupational health and safety outcomes and workers’ compensation arrangements in Australia’.^[24] It is an ‘inclusive, tripartite body comprising 15 members’ including a Chair; the CEO; representatives from the Commonwealth, States and Territories; as well as employee and employer representatives.^[25]

18.20 Safe Work Australia’s functions 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. It also plays a role in the development and promotion of strategies to raise awareness of OHS and workers’ compensation.^[26]

Purposes of the OHS system

18.21 The main object of the Model Act 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.^[27]

18.22 Commentators have noted that ‘these changes put safety at the forefront of corporate decision making’.^[28] Implicit in the objects of the Model Act is the preventative focus of the OHS system.

18.23 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 Act to provide a framework for continuous improvement and progressively higher standards of work health and safety.