Federal structure

Australia is a federation, with six states and two internal territories, and a Commonwealth government. The legislative powers of the Australian Parliament are set out in the Commonwealth Constitution. The Commonwealth Constitution does not give the Commonwealth a general power to legislate for work health and safety. Hence there are ten general statutes for work health and safety (six state Acts, two territory Acts, a Commonwealth Act covering Commonwealth employees and employees of certain licensed corporations, and Commonwealth Acts covering the maritime, and the offshore petroleum and gas industries). There are also specialist statutes covering the mining industry in some states.

In 1985 the Commonwealth government legislated for the formation of the National Occupational Health and Safety Commission (NOHSC). NOHSC was abolished in 2005 and replaced by the Australian Safety and Compensation Council (ASCC), which was subsequently replaced by Safe Work Australia in 2009. Safe Work Australia was established by an Act of Parliament, with statutory functions established by the Safe Work Australia Act 2008.

Safe Work Australia’s statutory functions include developing national policy relating to work health and safety, and workers’ compensation, for approval by the Council of Australian Governments’ (COAG) Select Council on Workplace Relations (formerly the Workplace Relations Ministers’ Council). Safe Work Australia has prepared and has responsibility for revising, as necessary, a model Act, model regulations and model codes of practice relating to work health and safety. The agency has also developed policy dealing with compliance support and enforcement of work health and safety legislation, to promote a nationally consistent approach on these matters. You can find information about the role of Safe Work Australia, and details of the national model Act, regulations and codes here.

The model Act and regulations have been adopted in the Commonwealth, Queensland, New South Wales, the Australian Capital Territory and the Northern Territory, where they came into operation on 1 January 2012. These jurisdictions are also progressively adopting the national model codes of practice. The model Act and regulations came into operation in South Australia and Tasmania in 2013.

A key development in the legislation in the jurisdictions that have adopted the national model Act and regulations is to establish the ‘person conducting a business or undertaking’ (the PCBU) as the principal duty holder, rather than the ‘employer’. The PCBU concept includes employers but it also includes franchisors, principal contractors, the head parties in supply chains, and others conducting a business or undertaking. Importantly, a PCBU must ensure the health and safety, so far as is reasonably practicable, of all workers engaged or caused to be engaged by the PCBU, or whose activities in carrying out work are influenced or directed by the PCBU. In addition, these seven jurisdictions have the same provisions in relation to the general duties, worker representation and participation, the functions and powers of regulators and inspectors, and sanctions for non-compliance.

Governments in the other two states (Victoria and Western Australia) are still considering the adoption of the national model Act, regulations and codes of practices. In the mean time, the pre-existing Acts, regulations and codes of practice relating to work health and safety apply in those jurisdictions. For information about the work health and safety legislation in each jurisdiction, follow the links to the relevant work health and safety authorities here.

While some progress has been made in harmonising work health and safety legislation, inspection and enforcement, pending the enactment of the national model legislation in all Commonwealth, state and territory jurisdictions, and implementation of a consistent approach to inspection and enforcement in each jurisdiction, there continues to be variation in legal requirements and in enforcement. There is also separate legislation for work health and safety in the mining industry in some states. There is an urgent need for uniform work health and safety legislation, inspection and enforcement across all jurisdictions. Historical development

Historically each Australian state adopted most of the provisions of the 19th century British health and safety legislation (particularly the 1878 Factories Act, and later the 1901 Act), so that by 1970 each of the six states had a work health and safety statute implementing the traditional British model of regulation. This traditional model relied upon detailed specification standards. It was enforced by an independent state inspectorate vested with broad inspection powers, and relying on negotiated compliance utilising informal enforcement methods (advice, education and persuasion) coupled with formal prosecution using the criminal law in the last resort. The great advantage of this traditional, specification standard approach was that duty holders knew exactly what to do, and inspectorates found the legislation relatively easy to enforce.

The weaknesses of this traditional approach are well known. It frequently resulted in a mass of detailed and technical rules, often difficult to understand, and difficult to keep up to date. Standards were developed ad hoc to resolve problems as they arose, and concentrated mainly on factory-based physical hazards, resulting in uneven coverage across workplaces. Specification standards did not encourage or even enable employers to be innovative and to look for cheaper or more cost-efficient solutions. They also ignored the now well-accepted view that many hazards do not arise from the static features of the workplace, but from the way work is organised. The traditional factory legislation created a climate of dependence on state regulation, with little involvement in work health and safety by workers and unions.

Reform of work health and safety law from 1972

By the late 1960s, the weaknesses in this traditional model, based as it was on the British model, coupled with political and economic developments, created a policy environment in which the recommendations of the 1972 British Robens Report appeared attractive. The report proposed a modification of the regulatory model, based on two principal objectives, each of which responded to the criticisms of the traditional model.

The first was the streamlining of the state’s role in the traditional regulatory system, through the “creation of a more unified and integrated system” (Robens Report, para 41). This involved bringing together all of the legislation relating to work health and safety into one umbrella statute, containing broad “general duties” covering a range of parties affecting workplace health and safety, including employers, the self-employed, occupiers, designers, manufacturers and suppliers of plant and substances and employees. The skeleton statutory general duties were to be “fleshed out” with standards in regulations and codes of practice. A unified health and safety inspectorate was to have new administrative sanctions (improvement and prohibition notices) to supplement prosecution. Prosecutions were to be brought against corporate officers, as well as against the corporate employer.

The second objective, recognising the practical limitations of external state regulation, was the creation of “a more effectively self-regulating system” (Robens Report, para 41). “Self-regulation” is a much misunderstood notion, and is often wrongly confused with “deregulation”. To some, self-regulation describes the move away from specification standards, and allows duty holders to choose the means by which they will comply with general duties and process-based and performance-based standards (see below). In the Robens vision, self-regulation involves workers and management, at workplace level, working together to achieve, and improve upon, the health and safety standards prescribed by the state. The most important element in the Robens’ model of self-regulation was that “there should be a statutory duty on every employer to consult with … employees or their representatives at the workplace on measures for promoting safety and health at work, and to provide for the participation of employees in the development of such measures” (Robens Report, para 70). The principal vehicle for employee representation was to be the health and safety representative, who was, in the pure Robens model, to be consulted by employers. Employees were also to be represented on health and safety committees. The Robens model envisaged greater co-operation between the health and safety inspectorate and employee representatives, an obligation upon employers to develop health and safety policies and procedures, and a requirement for Boards of Directors to lodge prescribed information with corporate regulators.

Beginning with South Australia in 1972, Tasmania in 1977, Victoria (1981) and New South Wales (1983), each of the Australian jurisdictions enacted new statutes for work health and safety. The statutes currently in force in each jurisdiction were enacted in 2011 (Australian Capital Territory, Commonwealth, Queensland, New South Wales and the Northern Tertitory), 2004 (Victoria), 1986 (South Australia), 1984-1987 (Western Australia), 1993 (Maritime industry) and 1995 (Tasmania). All of the statutes are based on the UK Robens model although some, especially those enacted in the last decade, go beyond the Robens model in some respects.

Standard setting

Each of the Australian statutes for work health and safety adopts the well-known three tiered approach recommended by the Robens Report – broad, overarching general duties, and more detailed provisions in regulations, and codes of practice. Provisions in regulations have force of law (they are mandatory), whereas codes contain guidance material, which can be used as evidence in a prosecution for an alleged contravention of an applicable provision of the Act or a regulation.

Before the 1990s, most of the health and safety regulations in the Australian jurisdictions were contained in separate instruments, and it was not uncommon for a jurisdiction to have over a dozen sets of regulations, each covering a specific hazard or industry. Since the mid-1990s many of the Australian regulators for work health and safety brought all relevant regulations together in one general regulation or set of consolidated regulations. Beginning in the late 1980s Australian regulations and codes of practice have tended to steer clear of specification standards, and instead rely on general duty requirements, performance standards, process requirements and documentation requirements. Instead of telling duty holders exactly how they are to achieve compliance, performance standards define the duty holder’s duty in terms of goals or outcomes they must achieve, or problems they must solve, and leave it to the initiative of the duty holder to work out the best and most efficient method for achieving the specified standard. Process requirements prescribe a process, or series of steps, that must be followed by a duty holder in managing specific hazards, or work health and safety generally. They are often used when the regulator has difficulty specifying a goal or outcome, but has confidence that the risk of illness or injury will be significantly reduced if the specified process is followed. Most regulations now require the duty holder to identify hazards and assess and control identified risks. Process-based standards have spawned greater reliance on documentation requirements. Some regulations require duty holders to document measures they have taken to comply with process-based standards, performance standards and general duty standards. A good example of an Australian documentation requirement is the requirement for relevant duty holders to prepare health and safety work plans prior to commencing certain kinds of construction work. Failure to comply with such a requirement is an offence.

A notable development in standard setting in Australia during the 1990s was the movement towards national uniformity in standards in regulations and codes of practice. The process was overseen by the former NOHSC, which in 1991 established a tripartite National Uniformity Taskforce, which identified several key first order priorities for achieving national uniformity: plant, certification of users and operators of industrial equipment; workplace hazardous substances; noise; manual handling; major hazardous facilities; and storage and handling of dangerous goods. NOHSC developed standards in the first six of these areas, and the jurisdictions were well on the way towards adopting these standards by the end of 1996, although it should be noted that jurisdictions were quite inconsistent in their adoption, particular in choosing whether to implement the standards in regulations or codes of practice, in their drafting styles and, in some cases, the substance of provisions.

The national uniformity process was not complete when the Howard government came to power in 1996, and that government first significantly down-sized and then abolished NOHSC, with the result that the move towards national uniformity slowed dramatically after mid-1996. The need for uniformity in Australian standards was reaffirmed as a priority by the Labor government, elected in 2007. This government initiated a National Review into Model OHS Laws in May 2008, which culminated in the preparation of a national model Act, regulations and codes of practice (see ‘Federal structure’ above).

State inspection and enforcement

The Australian inspectorates for work health and safety are typically unified, with multi-skilled generalist inspectors, although some jurisdictions have retained specialists in some areas, such as construction, dangerous goods, ergonomics, plant and machinery, and psychosocial hazards. Some jurisdictions have specialist investigators, whose energies are devoted entirely to the investigation of matters for prosecution.

Most jurisdictions now have a balance of proactive and reactive inspections (ie responses to injuries or complaints). Proactive inspections are increasingly centred less on random inspections, and more on targeted programs.

Some inspectorates have trialed the inspection of systematic health and safety management rather than workplace conditions and hardware, and there is more attention being paid to systems of work in inspections than there was in the past. A challenge still facing the inspectorates is whether to adopt the more rigorous inspection strategies championed by the US OSHA and some of the European health and safety regulators, which tend to emphasise the management of health and safety as the focal point of an inspection.

All of the Australian statutes for work health and safety give inspectors broad inspection powers, and empower inspectors to issue improvement and prohibition notices, and to prosecute duty holders found to be in breach of the legislation. In New South Wales, Queensland, Tasmania, the ACT, the Northern Territory, South Australia and Victoria, inspectorates can also issue infringement notices, although the circumstances under which infringement notices may be issued vary quite markedly. The legislation in some jurisdictions also provides for enforceable undertakings. All of the statutes provide that the principal penalty for offences is the fine. In the five jurisdictions that have adopted the national model Act, the courts may also impose different types of orders.

Most of the inspectorates for work health and safety have publicly available enforcement policies and strategies. While there are important differences in enforcement policy and practice there are some common approaches between some jurisdictions and, in recent years, all inspectorates have participated in some nationally coordinated and implemented enforcement initiatives under the auspices of the Heads of Workplace Safety Authorities (HWSA). This body has also developed a series of initiatives to promote consistent administration, inspection and enforcement of work health and safety legislation.

Although most of the Australian statutes for work health and safety make provision for the prosecution of culpable managers and directors of corporations in breach of the statutory requirements, most prosecutions have been conducted against corporate employers, rather then corporate officers. Enforcement action against designers, manufacturers, importers and suppliers of plant, substances and structures is also rare. It should be noted that increasingly the Australian public prosecutors are considering bringing manslaughter prosecutions under the general criminal law where gross negligence causes workplace deaths. There have been a few successful manslaughter prosecutions, one involving a small company in Victoria in 1994, and a couple in Queensland. In Victoria, Queensland and Western Australia there have been proposals to ensure that the legal rules attributing liability to corporations for manslaughter are reformed to make it less difficult to pin liability for manslaughter onto corporations.

The Australian inspectorates have been slow to enforce obligations outside the traditional employer/employee employment relationship. Nevertheless, inspectors have begun to investigate and prosecute offences involving sub-contracting and labour hire relationships. This may increase in the future with the adoption of the national model legislation which requires persons conducting businesses or undertakings (PCBUs) to ensure the health and safety, so far as is reasonably practicable, of all workers engaged or caused to be engaged, or whose activities in carrying out work are influenced or directed by the PCBU.

Worker involvement

All of the Australian statutes for work health and safety make provision for worker representation in health and safety matters, principally through the institutions of health and safety representatives and committees. Once again, the provisions vary between the jurisdictions.

In all jurisdictions the statutes make provision for worker elected health and safety representatives. In all jurisdictions except Western Australia, the powers given to representatives are quite broad, and include rights to training, inspection, consultation, information and similar issues. They include the power to issue a provisional improvement notice, and the right to order that unsafe work cease. Each of the statutes provides for joint management and worker health and safety committees.

There has been very little empirical research done into the operation of either the health and safety representative, or the health and safety committee provisions. What data there is suggests that they work best when the legislation gives them a significant role, and when management adopts a positive attitude to work health and safety and gives representatives and committee members enough time to perform their duties. A further factor in the success of the provisions is union support.

Conclusion

Considerable progress has been made in the harmonisation of Australian work health and safety legislation, particularly in the jurisdictions that have adopted the national model Act and regulations. While the pre-existing legislation continues (in Victoria and Western Australia), and there is separate work health and safety legislation for the mining industry in some states, differences remain in the duty holders, the nature of their obligations, the sanctions for non-compliance, and the provisions relating to worker representation and participation, among other matters. In addition, despite the development of a national compliance and enforcement policy, and other initiatives by health and safety authorities to increase the consistency of administration, inspection and enforcement of the law, there is an ongoing and urgent need for work health and safety regulators to ensure consistency in these areas, across jurisdictions.

A second noteworthy point is the need for work health and safety regulators to pay greater attention to work relationships outside the traditional employment relationship. With the dramatic changes that have taken place in the Australian labour market, mirroring changes elsewhere in the world, regulators need to implement standards, inspection programs and enforcement strategies that accommodate sub-contracting, labour hire, home-based work and franchise arrangements. Particularly important is the need to think more flexibly about worker representation and participation, to ensure that workers who are not ‘employees’ are consulted by those they carry out work for, and have the chance to participate in health and safety matters.

Third, one notable omission from most of the Australian statutes for work health and safety when compared with their European counterparts is the absence of requirements to promote the use of specialist work health and safety services by businesses and undertakings. A successful provision under the 1995 Workplace Health and Safety Act in Queensland, which required employers to appoint a workplace health and safety officer in certain circumstances, was not picked up in the national model Act, and there is no such provision in the health and safety legislation in any jurisdiction.

For a comprehensive text on Australian work health and safety law see R Johnstone, E Bluff and A Clayton, Work Health and Safety Law and Policy, Thomson Reuters, Sydney, 2012.

For additional references on work health and safety legislation, see Further reading on work health and safety regulation or check the Links to work health and safety authorities and legislation.