Luật học - Chapter 23: Work health and safety law

This is the prescribed textbook for your course.Available NOW at your campus bookstore!Work health and safety lawChapter 23Learning objectives At the end of this chapter you should be able to:explain the key features of Australian work health and safety (WHS) lawidentify the sources of Australian WHS lawsummarise the statutory design of WHS lawexplain the move to harmonise WHS law throughout Australia by the introduction of model legislationlist the major legal duties of a person conducting a business or undertaking (PCBU) and a worker under WHS lawLearning objectives (cont.) recognise the relationship between WHS law and common, criminal and workplace relations lawdiscuss the legal concept of a duty of care and how that duty can be metappreciate the different functions of WHS legislation, regulations and codes of practicedistinguish WHS and workers’ compensations laws from other laws governing safety and injury compensationidentify national WHS policy and law-making bodies and their roles and functionsIntroductionWork health and safety (WHS) law is one of the principal sub-sets of employment law in Australia.The term WHS law replaced occupational health and safety (OHS) law with the introduction in many Australian jurisdictions of model WHS legislation in January 2012.This body of law defines the rights and obligations of persons conducting a business or undertaking, workers and third parties relating to health and safety in workplaces.Development of work health and safety lawWHS law has developed from the foundation of the common law duty of care and the moral duty of care owed by an employer to an employee to protect the health and safety of employees.Approximately 140 000 workplace injuries and 300 traumatic deaths occur each year. This does not include disease-related illness and death. WHS is clearly a major community and industrial issue.WHS law now forces managers and workers in workplaces to treat WHS as a core business issue which requires constant attention.Statutory design of work health and safety lawStatute-based lawThe Constitution does not confer a specific power upon the Commonwealth, so primary responsibility lies with the state parliaments. Prior to the adoption of the model WHS Act this resulted in nine separate OHS systems.This created confusion for both employers and employees as there were many differences between jurisdictions.Work health and safety law reformIn July 2008, an intergovernmental agreement was signed by the Council of Australian Governments (COAG) where all Australian governments agreed to the implementation of uniform WHS legislation.COAG agreed that all governments should work together to achieve model WHS legislation to achieve harmonisation of WHS laws within Australia.The intended effect is that all Australian workers will be entitled to the same WHS rights wherever they work. Relationship of WHS law with other lawsCommon lawContract and tort law are related to WHS law.Criminal lawMany statutes create offences in relation to conduct that renders an offender liable to prosecution by the state.The model WHS Act contains criminal offences for certain breaches.Employment and workplace relations lawWHS law regulates one aspect of the relationship between PCBUs and workers and is a sub-set of employment and workplace relations law.Creation and role of Safe Work AustraliaSafe Work Australia is an independent statutory body jointly funded by all governments which is centrally involved in the development of model WHS legislation.Safe Work Australia has been operational since November 2009.It is charged with the responsibility for improving WHS and workers’ compensation arrangements throughout Australia. It does not make or administer laws but develops policy, educates, researches, informs and makes policy recommendations to stakeholders.Functions of Safe Work AustraliaTo develop national policy relating to WHS and workers’ compensation.To prepare a model Act and regulations relating to WHS.To prepare model codes of practice relating to WHS.To monitor adoption by the Commonwealth, states and territories of the model legislation and codes of practice.To collect, analyse and publish data and information relating to WHS and workers’ compensation.Objects of harmonising WHS law through a model frameworkTo protect the health and safety of workers.To improve safety outcomes in the workplace.To reduce compliance costs for businesses.To improve efficiency for regulators.Implementation of model WHS legislationThe Commonwealth, New South Wales, Queensland, the Australian Capital Territory and the Northern Territory all implemented the model WHS legislation on 1 January 2012.South Australia and Tasmania implemented the model WHS legislation on 1 January 2013.Western Australia has not yet introduced the model WHS legislation but intends to do so.Victoria has not introduced the model WHS legislation and does not intend to do so.Major features of model WHS ActPrimary duty on persons conducting a business or undertaking (PCBUs), so far as is reasonably practicable to ensure the health and safety of workers and others who may be affected by the carrying out of work.Duties of care are owed by persons to workers by those who influence the way work is carried out and for the integrity of products used.Officers must exercise due diligence to ensure compliance with legislation.Reporting requirements are imposed for notifiable incidents such as death and serious injury arising out of the conduct of a business or undertaking.Major features of model WHS Act (cont.)For persons engaged in high risk work, a framework to establish a general scheme for authorisations such as licences, permits and registrations.Provision for consultation on WHS matters and participation and representation provisions.Provision for resolving WHS issues.Protection against discrimination for those who exercise powers or functions under the Act.An entry permit scheme that gives authorised permit holders certain rights.Enforcement and compliance provisions.Purpose of model WHS ActSection 3 of the WHS Act states that the general principle of the Act is to provide a framework to protect the health, safety and welfare of all workers at work and other people who might be affected by work.The term ‘health’ is defined very broadly in the WHS to include psychological and physical health.More specific aims of model WHS ActTo protect the health and safety of workers and other people by eliminating and minimising risks arising from work or the workplace.To ensure effective and fair representation and co-operation to identify, address and resolve health and safety issues in the workplace.To assist both workers and businesses to achieve a healthier and safer work environment.To provide information, education and training on WHS.To provide effective compliance and enforcement measures.To encourage employer organisations and unions to take a constructive role in improving work health and safety practices.WHS RegulationsEach jurisdiction can enact WHS regulations.Regulations can specify the way in which some duties under the WHS Act can be met.Regulations also prescribe the administrative requirements to support the WHS Act.Who is covered by the WHS Act?Principal duty to ensure the health and safety of workers is imposed on a person conducting a business or undertaking.PCBU is a new concept in Australian WHS law and replaces.PCBU may be a person who conducts a business alone or with others, or for profit or gain or not.A duty is also imposed upon officers, unincorporated associations, government departments, public authorities such as locals councils, workers and others at a workplace.Meaning of a worker in the WHS ActThe term ‘worker’ is a key term and is used instead of the term ‘employee’.This is deliberate and is intended to recognise the changing nature of work relationships and extend WHS protection to all types of workers.A ‘worker’ includes a person who carries out work for a PCBU in any capacity including employees, contractors, subcontractors, self-employed persons, outworkers, apprentices, work experience students and volunteers.This list is not intended to be exhaustive.Meaning of ‘workplace’ in the WHS ActA workplace is defined broadly by the WHS Act to mean ‘a place where work is carried out for a business or undertaking’.It includes places where a worker goes or is likely to be while at work.It includes the whole of the work environment, including air quality and noise.Primary WHS duties of a PCBUSection 19 of the WHS Act provides that the primary duty imposed on a PCBU is to ensure so far as is reasonably practicable, the health and safety of:workers engaged, or caused to be engaged by the person; and(b) workers whose activities in carrying out work are influenced or directed by that person, while the workers are at work in the business or undertaking.Specific WHS duties of a PCBUSection 9(3) of the WHS Act provides a PCBU must ensure as far as is reasonably practicable:the provision and maintenance of a working environment that is safe and without risks to health, including safe access to and exit from the workplacethe provision and maintenance of plant structure and systems of work are safe and do not pose health risksthe safe use, handling, storage and transport of plant, structure and substancesthe provision of adequate facilities for the welfare of workers at workSpecific WHS duties of a PCBU (cont.)the provision of information, instruction, training or supervision of workers needed for them to work without risk to their health and safetymonitoring the health of workers and the conditions of the workplace to prevent injury or illness arising out of the conduct of the business or undertakingmaintenance of any accommodation owned or under the management and control to ensure the health and safety of workers occupying the premises.Definition of ‘reasonably practicable’Reasonably practicable means what could reasonably be done, at a particular time to ensure health and safety measures are in place, taking into account and weighing up all relevant matters including those matters listed in s.18 such as:the likelihood of the hazard or risk occurringthe degree of harm that might result from the hazard or riskwhat the person concerned knows or ought reasonably to know about the hazard or risk, and the ways of eliminating or minimising the riskthe availability and suitability of ways to eliminate or minimise the risk and after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the costs associated with the available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.Multiple or shared dutiesA person may owe more than one duty under the WHS Act if they fulfil more than one role in the workplace. For example both as a director of and as a worker in the company.It is possible that more than one person has the same duty. For example, if a labour hire company hires workers to company X to carry out work for them, both the labour hire company and company X owe a duty of care to the workers.It is not possible for parties to contract out of their responsibilities under the WHS legislation.Duties of ‘upstream’ PCBUsDesigners, manufacturers, importers, suppliers and installers of plant, structures or substances can influence the safety of products used ‘downstream’ in the workplace.These upstream duty holders have an obligation to ensure, as far as is reasonably practicable that the products are made without risk to the health and safety of people who use them downstream in the workplace.Duties of officersSection 27 of the WHS Act imposes a duty of due diligence upon officers of corporations and other organisations to ensure the PCBU runs its business operations to comply with their WHS Act obligations.The officer amongst other steps should ensure they:acquire and keep up to date with knowledge of WHS mattersensure the PCBU has and implements processes for complying with duties and obligations under the Actverifies the provision and use of relevant resources and processes.Active steps PCBUs should take to meet their dutiesRegularly conduct risk assessments of all workplacesRegularly conduct hazard identification assessmentsRegularly check plant, machinery and substances for proper maintenance guards, warning signs, etc.Educate and train workers in WHS policies and procedures—review, refresh, repeat as necessary.Consult workers and their representatives on health and safety issues.Prepare and maintain policies and procedures.Duty of workersSection 28 of the WHS Act imposes a positive duty on workers to take reasonable care of their own health and safety and that of others who may be affected by their acts or omissions.Workers must comply with any reasonable instruction that is given by the PCBU to allow it to comply with the WHS Act and regulations.Workers must cooperate with any reasonable policy or procedure of the PCBU in relation to health and safety of which they have been notified.Duty of other persons at workplaceThe Act imposes duties on any persons at a workplace to take reasonable care for their own health and safety and that of others who may be affected by their acts or omissions.This can include visitors, customers and volunteers.Such people also have a duty to comply as far as they are reasonably able, with any reasonable instruction that is given by a PCBU with respect to WHS laws.Incident notification imposed by WHS ActA PCBU must report notifiable incidents to the regulator in each jurisdiction.A notifiable incident is an incident involving:the death of a personserious injury or illnessa dangerous incidentThis enables the regulator to investigate serious incidents and potential work health and safety contraventions.All reasonable steps must be taken to preserve the incident site until an inspector arrives.Consultation with workers and representation by workersThe WHS imposes an obligation on PCBUs to consult with their workers and the workers’ representatives on health and safety matters in a collaborative process.The WHS Act entitles workers to:elect a health and safety representativerequest the formation of a health and safety committeecease unsafe work in certain circumstanceshave health and safety issues at the workplace resolved in accordance with an agreed issue resolution procedurenot to be discriminated against for raising health and safety issues. Role of the regulatorUnder the model WHS Act each state and territory retains its own regulator with functions including:providing advice and information to duty holders and the public, and promoting awareness of WHS mattersfostering good and collaborative relationships between duty holders and the people to whom they owe dutiespromoting and supporting WHS training and educationpromoting and coordinating the sharing of WHS informationconducting and defending legal proceedings under the WHS ActMonitoring enforcement and compliance with the WHS ActCollecting analysing and publishing WHS statisticsPowers of WHS inspectorsTo provide information and advice about how to comply with the WHS Act and regulations.To assist in the resolution of WHS issues at workplaces.To review disputed provisional improvement notices (PINS).To issue notices that require compliance with the Act.To investigate and prosecute offences.To attend coronial inquests regarding work related deaths and to examine witnesses.General power of entry to a workplace with or without consent of the PCBU.To seize dangerous things such as plant, substance and structures at a workplace in certain circumstances.Enforcement measures in the WHS ActImprovement noticesProhibition noticesNon-disturbance noticesDisplay of noticesApplication of an injunctionRemedial actionEnforceable undertakingsOffencesCategory 1—where a duty holder without reasonable excuse, engages in conduct that recklessly exposes a person to a risk of death, serious illness or injuryCategory 2—where a duty holder fails to comply with a health and safety duty that exposes a person to risk of death, serious injury or illnessCategory 3—when a duty holder fails to comply with a health and safety duty.Range of penalties for offences CategoryCorporationIndividual as PCBU or officerIndividualCategory 1$3 million$600 000, five years in jail or both$300 000, five years in jail or bothCategory 2$1.5 million$300 000$150 000Category 3$500 000$100 000$50 000AuthorisationsThe WHS Regulations require certain workplaces carrying out very high risk operations to be authorised.Before work can be carried out a licence, permit or registration is required by the PCBU.A PCBU is not permitted to direct or allow a worker to carry out work if it is required to be done by an authorised person and the worker is not authorised.The regulations specify such work which includes scaffolding, dogging and rigging, forklift operations, crane and hoist operations and pressure equipment.Model codes of practiceCodes of practice are practical guides to achieving standards of WHS required under the WHS legislation in a particular jurisdiction.To have legal effect a code must be approved as a code of practice in that jurisdiction.An approved code of practice will apply to anyone who has a duty of care in the circumstances and complying with the code will mean compliance with their duties under the WHS Act.Model codes of practice already implemented can be found at the websites of the various regulators.