Occupational Health and Safety

Contributors: Jennifer Fisher, Megan Knight and Tara Munro-Mobbs

Currency of information: June 2008

Introduction

An array of legislation, regulations and codes of practice regulate the health and safety of workers at a given workplace. Some of this regulation is industry specific, other aspects of the regulation concern particular activities undertaken at the workplace.

Principal legislation

The principal legislation that contains the key obligations regulating the health and safety of workers in the ACT are:

• the Occupational Health and Safety Act 1989 (ACT) ('the ACT OHS Act'); or
• the Occupational Health and Safety Act 1991 (Cth) ('the Commonwealth OHS Act') (This Act was formerly called the Occupational Health and Safety (Commonwealth Employees) Act 1991 (Cth) - its name was changed on 15 March 2007).

The ACT OHS Act is expressed to apply generally in relation to ACT employees.

However, the health and safety of Commonwealth public servants is governed by the provisions of the Commonwealth OHS Act. The Commonwealth OHS Act excludes State and Territory OHS legislation from applying to Commonwealth employers (see Application).

As a practical matter, a significant proportion of persons who live and work in the ACT comprise Commonwealth public servants and contractors, the latter also, being regulated by the Commonwealth OHS Act, rather than the ACT OHS Act. Some large companies that self-insure under the Comcare scheme for workers' compensation, are also covered by the Commonwealth OHS Act rather than the ACT OHS Act.

The principal health and safety legislation that applies to places of work in New South Wales is the Occupational Health and Safety Act 2000 (NSW). Other States and Territories regulate the occupational health and safety in respect of workplaces within their jurisdiction.

State-based systems

The mix of laws in place in each of the States and the Territories has led to calls for a harmonisation of laws across all Australian jurisdictions. For further information see the 1995 Industry Commission inquiry report Work, Health and Safety at www.pc.gov.au/ic/inquiry/47workhe.

In recent years large private sector employers have contended that the differences between the various State based systems has caused business organisations to incur unnecessary costs of compliance.

There has also been a general call to harmonise OHS laws across Australia to prevent situations where a worker in one State is afforded greater protection of their health and safety, as compared to the protection afforded to a worker in another State.

Under the umbrella of the Council of Australian Governments, the Workplace Relations Ministers of the States and the Commonwealth have recently met to consider uniform Australian OHS laws.

Other Legislation

In addition to the principal OHS Acts that apply to ACT workers, other legislation, regulations and codes of practice regulate particular industry or activities. Some examples of other important legislation in the arena of OHS (not covered by this chapter) are:

• the Dangerous Substances Act 2004 (ACT);
• the Machinery Act 1949 (ACT);
• the Electricity Safety Act 1971 (ACT);
• the Scaffolding and Lifts Act 1912 (ACT); and
• the Smoking (Prohibition in enclosed Public Spaces) Act 2003 (ACT).

This material is available on line at www.comcare.gov.au/WHS/whs_laws/codes (Cth) and : www.worksafety.act.gov.au/dangerous_substances/codes_of_practice (ACT).

Application

Commonwealth OHS Act

The Commonwealth OHS Act applies generally in relation to the workplaces of Commonwealth employees.

The Act imposes various obligations in relation to Commonwealth employers, Commonwealth employees, Commonwealth contractors, suppliers and manufacturers of materials used by Commonwealth employees. (The key definitions of these terms are set out in ss 5, 9and 9A of the Commonwealth OHS Act).

The Act also extends its operation to those employees who are licensed to self insure under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Employers eligible to obtain a licence under the SRC Act are those who operate a business in competition with a Commonwealth authority (for example, freight companies in competition with Australia Post) or a privatised Commonwealth government business enterprise (for example, telecommunication carriers in competition with Telstra Corporation).

Conflict of law

The Commonwealth OHS Act is expressed to exclude the operation of any State or Territory OHS law, which would otherwise apply to the jurisdiction of the Commonwealth OHS Act, subject to contrary provision in the regulations (s 4). The regulations do not presently exclude a State or Territory law from the operation of this provision.

Consequently, to the extent that the Commonwealth OHS Act applies to a person living and working in the ACT, the ACT OHS Act does not apply.

Application to the Crown

The Commonwealth OHS Act is expressed to bind the Crown in right of State. However, s 11 of the Commonwealth OHS Act makes it clear that subject to some exceptions (nominated in Schedule 2 to the Act) the Commonwealth is not liable to be prosecuted for an offence, nor liable to pay fines levied pursuant to the Act. This immunity does not extend to Commonwealth employees or government business enterprises (s 11).

Objects of the Principal Legislation

The objects of the ACT OHS Act and the Commonwealth OHS Act are closely aligned. Both Acts state that their objects include:

• securing the health, safety and welfare at work of employees;
• the protection of persons at or near workplaces from risks to health and safety;
• the promotion of an occupational environment that is adapted to the needs of employees and that fosters a consultative relationship between employees and employers on issues of health safety and welfare

(s 3 Commonwealth OHS Act, s 2 ACT OHS Act).

General Duties

Employers

Both the Commonwealth OHS Act and the ACT OHS Act impose similar obligations on employers to maintain safe systems of work.

An employer is required to take all reasonably practicable steps to protect employee health and safety at work (s 16 Commonwealth OHS Act; s 37 ACT OHS Act).

An employer will have contravened the primary duty owed to employees, where the employer has failed to:

• provide and maintain a working environment that:

o is safe for employees without risk to their health, and

o provides facilities for employee welfare at work;

• ensure safety and the absence of risks in connection with use, handling and storage of plant and substances;
• develop in consultation with employees, written arrangements and policies to enable effective cooperation to promote OHS at work;
• make OHS information available to employees;
• take reasonably practicable steps to:

o monitor the health and safety of employees at work;

o maintain records on employee health and safety; and

o provide appropriate medical and first aid services.

A. Reasonably practicable steps

For the purpose of determining whether an employer has complied with its primary duty under the Commonwealth OHS Act, an employer is considered to have taken reasonably practicable steps to ensure a safe system of work, where:

• the employer has taken reasonable steps to ensure that the use of plant or a substance is consistent with information provided by the manufacturer or supplier and it was reasonable for the employer to rely on that information (s 22(1));
• in connection with the erection or installation of plant, the employer took reasonable steps to ensure that the use of plant or a substance was consistent with information provided by the manufacturer or supplier and it was reasonable for the employer to rely on that information (s 22(2));
• in connection with the research and testing of the use of a plant or substance, the employer took reasonable steps to ensure that the use of plant or a substance was consistent with safe use as endorsed by independent testing or research (s 22(3)).

For the purpose of determining whether an employer has complied with its obligations under the ACT OHS Act to take reasonably practicable steps to ensure a safe system of work, regard may be had to codes of practice applicable to the relevant workplace (s 37(4)).

B. Independent contractors

Under the Commonwealth OHS Act, the obligations owed by an employer to an employee, also extend to contractors, where, the employer has (actual or ostensible) control over the activities of the contractor (s 16(4)).

Under the Commonwealth OHS Act, additional duties are imposed on employers in respect of obligations to obtain a licence to operate a major hazard facility (s 23A).

Both the Commonwealth OHS Act and the ACT OHS Act prescribe that an employer has limited obligations to third parties to ensure those persons are not exposed to risks to health and safety arising from the employer's day to day activities (s 17 Commonwealth OHS Act; s 38 ACT OHS Act).

C. Consultation

Employers have other duties under the principal legislation concerning employee consultation (discussed further below).

Under the Commonwealth OHS Act, employers are required to establish health and safety committees in circumstances where the employer employs 50 or more employees (s 34). The functions of a health and safety committee include assisting the employer to develop and implement measures to protect the health and safety of employees (s 35 Commonwealth OHS Act; s 86 ACT OHS Act). The employer must make available to the committee, information concerning risks to the health and safety of employees (s 36 Commonwealth OHS Act; s 87 ACT OHS Act).

Under the ACT OHS Act, it is compulsory for all employers of 10 or more employees, to establish a designated work group within fourteen days of becoming an employer (s 53). The work groups must be established in a manner that most conveniently represents the health and safety interests of employees and that facilitates employee access to the group.

Employees

The Commonwealth OHS Act and the ACT OHS Act impose similar obligations on employees while at work. Those obligations require employees to take reasonably practicable steps to:

• minimise risk to the health or safety of other employees or persons;
• cooperate with the employer to assist the employer to comply with its obligations;
• use equipment, consistent with its safe and proper use

(s 21 Commonwealth OHS Act; s 40 ACT OHS Act).

Manufacturers and suppliers

Both of the principal Acts impose obligations on manufacturers and suppliers in respect of the safety and welfare of employees. Sections 18 and 19 of the Commonwealth OHS Act and ss 42 and 43 of the ACT OHS Act provide that the manufacturers and suppliers of plant or substances should take reasonably practicable steps to:

• ensure that plant or substances in use are designed, such that when properly used, it is safe to employees and their health;
• test and examine plant or substances used in the workplace, to discover, eliminate and minimise any risks to the health and safety of employees;
• make available to the employer, information regarding design, use (including conditions for use) and testing of the plant or substances used in the workplace.

Where the manufacturer does not reside in the jurisdiction, the relevant provisions of the legislation apply to the importer of plant or substance (s 18(3) Commonwealth OHS Act; s 42(3) ACT OHS Act). The obligation applies to both actual and ostensible suppliers (see s 19(2) Commonwealth OHS Act; s 43(2) ACT OHS Act). Additional duties apply in respect of persons installing or erecting plant in a workplace (s 20 Commonwealth OHS Act; s 44 ACT OHS Act).

Consultation and Representation

While the primary duties owed to employees and third parties are similar under the ACT OHS Act and the Commonwealth OHS Act, there are some significant differences between the two Acts in the field of representation and consultation.

Health and safety management arrangements - Commonwealth OHS Act

Under s 16(3) of the Commonwealth OHS Act, an employer is required to develop in consultation with employees, a written health and safety management arrangement. The arrangement can cover a range of topics including: OHS policy; risk management; OHS consultation and training on OHS issues.

In the course of the development of any health and safety management arrangements, the employer is required to have regard to advice received from the Safety Rehabilitation and Compensation Commission (SRCC) (s 16A).

In any consultation concerning a health and safety management arrangement, an employee is entitled to be represented by another employee or an employee representative (s 16A). The Act prescribes a process by which and employment representative can apply for, and Comcare can issue, a conclusive certificate that the employee representative represents one or more employees in consultations with the employer (s 16B).

The requirement to develop a documented policy or arrangement relating to health and safety is expressed slightly differently in the ACT OHS Act. By s 16(2) of the ACT OHS Act, an employer will be taken to have contravened its primary duty to its employees unless the employer has taken reasonably practicable steps to develop and maintain an OHS policy that promotes measures which ensure the health and safety of employees at work.

Designated work groups

The ACT OHS Act and the Commonwealth OHS Act both make provision for the establishment of designated work groups to consider and consult on health and safety issues.

Under s 24 of the Commonwealth OHS Act, an employee may request an employer to establish a designated work group, with a view to representing and safeguarding the health and safety interests of employees. Once the request is made by an employee, an employer is required to consult on the question of whether to establish the work group or whether to vary the work group.

In contrast, the ACT OHS Act provides that it is compulsory for all employers of ten or more employees, to establish a designated work group within fourteen days of becoming an employer.

Under both Acts, once established, the work group is entitled to select an employee as its health and safety representative (s 25 Commonwealth OHS Act; s 56 ACT OHS Act). The health and safety representative of a designated work group has special powers under the Act (see Role of Health and Safety Representatives).

The principal Acts (and regulations) prescribe the process for selection and election of health and safety representatives. The employer is required to maintain a list of health and safety representatives for all designated work groups (s 25B Commonwealth OHS Act; s 58 ACT OHS Act).

An employer is required to consult with a health and safety representative on changes to a work place that will affect the health and safety of employees and on the development, implementation and review of health and safety measures (s 30 Commonwealth OHS Act; s 61 ACT OHS Act).

An employer can, in limited circumstances, apply to have a health and safety representative disqualified (s 32 Commonwealth OHS Act; s 64 ACT OHS Act).

Authorised organisations - ACT OHS Act

One of the key differences between the Commonwealth OHS Act and the ACT OHS Act, is in the field of representation and consultation, relating to the role of authorised organisations.

Under the ACT OHS Act, a registered organisation (for example, a union registered under the Workplace Relations Act) is entitled to authorise a representative who is either an employee or an office holder of the registered organisation (who has undertaken the requisite training) to enter the premises to investigate a contravention of the Act where the authorised representative has a reasonable basis for suspecting that a contravention of the Act has occurred or is likely to occur (s 77).

The authorised representative may exercise powers to:

• inspect work;
• interview members of the registered organisation (and in some cases, those eligible to join the organisation);
• require production of documents relating to health and safety issues; and
• request assistance from the employer and employees to facilitate the representatives function (s 80).

If the authorised representative causes damage in the exercise of its powers under the Act, a person can claim compensation in respect of that damage by bringing proceedings against the organisation in the Courts (s 82).

It is a strict liability offence to obstruct an authorised representative in the exercise of their powers under the ACT OHS Act (s 85).

The Commonwealth OHS Act does not confer a similar role on registered organisations.

Investigation and Action

Regulatory agencies

The key bodies involved in the administration of the principal Acts are:

• in the case of the Commonwealth OHS Act - Comcare and the SRCC;
• in the case of the ACT OHS Act - the chief executive and the Occupational Health and Safety Review Authority.

Role of health and safety representatives

The Commonwealth OHS Act and the ACT OHS Act confer similar powers and responsibilities on appointed health and safety representatives.

A. Powers

Under the Commonwealth OHS Act and the ACT OHS Act, employees appointed to the position of health and safety representative, have the right to exercise powers including the following (s 28 Commonwealth OHS Act; s 59 ACT OHS Act):

• to inspect any part of the workplace, in the event of either, an accident or dangerous occurrence or on reasonable notice being provided to the employer;
• to request that the representative accompany an investigator during the course of the investigation;
• to represent employees in consultation with the employer on OHS issues in particular circumstances;
• to examine the records of any health and safety committee;
• to investigate complaints received from employees about OHS issues;
• to be present during an interview of an employee undertaken by an investigator or employer, in circumstances where the employee consents to that course;
• to obtain access to information held by the employer relating to OHS.

Additionally, under the Commonwealth OHS Act, a health and safety representative also has the power to request that an investigator, SRCC or Comcare investigate an incident.

B. Provisional improvement notices

Under both schemes, health and safety representatives have the power to issue provisional improvement notices (s 29 Commonwealth OHS Act; s 67 ACT OHS Act) in particular circumstances.

Under the ACT OHS Act, the representative may issue a provisional improvement notice where:

• the representative has reasonable grounds to believe that the person is contravening the Act or is likely to contravene the Act;
• the representative has made reasonable attempts to consult with the responsible person about rectification; and
• any further steps are unlikely to result in rectification.

The equivalent provision under the Commonwealth OHS Act, is slightly different in that the representative may issue a provisional improvement notice only where:

• the representative has reasonable grounds to believe that the person is contravening the Act or is likely to contravene the Act or the regulations (the relevant regulations at time of writing are the Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth) and the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth));
• the representative has engaged in consultation with the person supervising the work in an attempt to reach agreement on measures to rectify the breach or prevent future breaches; and
• within a reasonable time, agreement has not been reached on the measures to be employed.

A valid provisional improvement notice must identify the breach of the OHS provision that has occurred or is likely to occur and must require the person receiving the notice to take action within a specified period (not greater than a week), to prevent a future breach. In the case of the ACT OHS Act, the representative must provide a copy of the notice to the chief executive. The representative may further extend the period of the notice.

The recipient of a provisional improvement notice can request that there be an investigation in to the subject of the provisional improvement notice and the notice shall be suspended during the period of any such investigation.

In the case of the Commonwealth OHS Act, if the representative forms the opinion that the provisional improvement notice has not been complied with, the representative may also request that there be an investigation in to the subject matter of the notice.

The investigating authority has the power to cancel, vary or revoke the notice.

C. Stop work orders

In emergency situations (s 37 Commonwealth OHS Act; s 72 ACT OHS Act), the health and safety representative also has the power to inform supervisors of an immediate threat to employee health and safety.

Where a supervisor cannot be contacted immediately - the representative can direct employees to stop work in respect of the activity that poses a risk to health and safety.

Where a supervisor is contacted and there is a dispute as between the representative and the supervisor concerning the necessary action, the disagreement can be referred to an investigator for determination.

Where a representative directs an employee to cease work, the employer may direct the employee to undertake alternate work (s 38 Commonwealth OHS Act; s 73 ACT OHS Act).

Investigations

Under the Commonwealth OHS Act, Comcare may appoint persons to the position of investigator. Under the ACT OHS Act, the chief executive may appoint persons to the position of inspector.

Investigators and inspectors fulfil related functions under the respective Acts.

A. Investigators, improvement and prohibition notices

The powers conferred by the Commonwealth OHS Act on investigators include the following:

• to search and inspect a workplace. The Commonwealth OHS Act specifies certain controls on the power of an investigator to exercise their search powers (s 42);
• to test and take measurements, and to take photographs;
• to require persons to render reasonable assistance, to answer questions and to provide documents relevant to an investigation (s 43). The failure to provide such assistance is an offence which may render a person liable to civil action or criminal prosecution;
• to take possession of plant and take samples of substances, subject to complying with requirements of giving notice to the employer and/or the owner of the plant or substance (s 44);
• to issue a direction (and the reasons for that direction) that a workplace not be disturbed (ss 45-46). An employer that does not comply with such a direction, may render the employer liable to civil action or criminal prosecution. The direction may be later revoked or varied by the investigator.

Additionally, investigators have the power to issue:

• prohibition notices, in circumstances where, having conducted an investigation, the investigator forms the view that there is an immediate threat to the safety of any person (s 46);
• improvement notices, where having conducted an investigation, the investigator forms the view that a person is breaching OHS law or is likely to breach OHS law (s 47). The form of the notice is prescribed by Part 4 of the Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth).

The investigator may also vary or revoke notices or substitute a first notice with a second notice. The notice must specify the activity said to be a threat to safety and direct the employer that the activity is not to be engaged in. The notice must be provided to the health and safety representative and the notice must be prominently displayed. If an employer does not comply with a notice, the employer may be liable to civil action or criminal prosecution. It is also an offence to tamper with a notice (s 50).

Investigators are not liable in respect of acts done in good faith (s 49).

At the conclusion of the investigation, the investigator is required to provide a written report to the SRCC (s 53). Certain decisions made by an investigator are subject to appeal (s 48). The class of decisions that may be reviewed concern: prohibition and improvement notices; taking possession of plant; and ordering that a workplace not be disturbed. A decision of an investigator binds the affected person until the appeal is determined.

In some circumstances, the report of an investigation in relation to the Commonwealth, may need to be provided to the Minister (s 53).

The SRCC has the power to conduct a public inquiry following the receipt of an investigator's report (s 55). At any such inquiry the SRCC may summon witnesses, take evidence and administer the oath. It is an offence to fail to appear as a witness before the SRCC. The findings of an SRCC inquiry may be provided to the Minister (s 65).

B Inspectors, improvement and prohibition notices

The powers conferred by the ACT OHS Act on inspectors include the following (ss 90, 96, 99, 102, 103):

• to search and inspect a workplace, including vehicles. Inspectors are also permitted to enter premises (not being residential premises) including on immediate entry in circumstances that are sufficiently urgent;
• to examine anything located on premises, including taking copies or extracts of documents, conducting tests, operating plant, taking samples for analysis (Part 6 Division 6.4 regulates the analysis of samples);
• to require anyone on the premises to answer questions or produce documents in order to facilitate the inspectors function;
• in case of imminent risk, to take action including by entering a workplace using necessary assistance and force (in which case the inspector must provide a report to the occupier concerning the action taken);
• to seize property in circumstances where the property is connected to an offence and the seizure is necessary to prevent the loss or concealment of the property (Part 6 Division 6.4 regulates the seizure of property generally);
• to direct an occupier of premises to destroy unsafe property, or alternatively to seize and destroy the property where it poses a risk to health and safety;
• to obtain the name and address of persons suspected of committing (or likely to commit) an offence.

Additionally, under the ACT OHS Act, inspectors may apply to a magistrate for a search warrant to enter premises (s 105). The application may be made by telephone, fax, radio or other form of communication, in urgent circumstances.

Inspectors also have the power to issue:

• prohibition notices, in circumstances where the inspector, on reasonable grounds, believes that a person is breaching the ACT OHS Act or is likely to breach the ACT OHS Act, and that the notice is necessary to prevent or minimise risk of serious harm at the workplace (s 155);
• improvement notices, where the inspector on reasonable grounds believes that a person is breaching the ACT OHS Act or is likely to breach the ACT OHS Act (s 146).

The inspector may vary or revoke notices. The notice must specify the activity said to be a threat to safety and direct the employer that the activity is not to be engaged in. The notice must be prominently displayed. Contravention of a notice, is a strict liability offence. It is also an offence to tamper with a notice (ss 159-160, 165).

A person who suffers loss consequent upon the issue of a prohibition notice, may apply to the Minister for compensation (ss 166-167). More generally, a person affected by the exercise of an inspector's powers, may claim compensation from the Territory. A Court may order payment of reasonable compensation where it considers it just to do so (s 132).

Certain decisions undertaken by inspectors are subject to internal review to be considered by the chief executive (s 185). The types of decisions subject to internal review include: the seizure of property; the issue, variation or revocation of an improvement or a prohibition notice (see Part 1.1 Schedule 1).

Compliance measures

An additional feature of the ACT OHS Act (absent from the Commonwealth OHS Act)) is Part 7: Compliance Measures.

Under Part 7 Division 7.2, the chief executive may require persons (that the chief executive believes reasonably, may have contravened the Act) to attend before the chief executive to answer questions or produce documents relevant to an alleged contravention (s 134).

It is an offence if a person fails to attend before the chief executive or if a person fails to produce documents as requested by the chief executive. Section 138 of the ACT OHS Act provides that a person cannot refuse to answer questions from the chief executive on the basis of self-incrimination, but those answers shall not be admissible in civil action or criminal proceedings.

A. Compliance agreements

Under Part 7 Division 7.2, an inspector may request a person (not being an employee) to enter into a compliance agreement, in circumstances where the inspector reasonably believes that the ACT OHS Act has been contravened (s 140).

If the relevant person agrees to enter into the compliance agreement, the agreement must set out the terms of the contravention and specify the measures taken to ensure compliance.

A compliance agreement is not taken to be an admission of fault in respect of compliance with the Act (s 142) but the responsible person party to the agreement is required to tell each person whose work is affected by the agreement, of the nature of the agreement and to provide a copy of the agreement to the person in control of the affected workplace (s 143).

A decision of an inspector revoking or refusing to revoke a compliance agreement is subject to internal review by the chief executive.

B. Undertakings

Under Part 7 Division 7.6, a person, accused by the chief executive of having contravened the Act, may volunteer to provide the chief executive with an undertaking relating to the alleged contravention (s 169).

On acceptance by the chief executive, the undertaking becomes enforceable, contravention of which gives the chief executive the right to apply to the Magistrates Court for orders including an order that the person pay an amount equal to the benefit derived from the contravention of the undertaking (ss 170, 174).

Review of decisions

A further additional feature of the ACT OHS Act (again, absent from the Commonwealth OHS Act) is the process for external review of particular categories of decision.

Certain decisions made by the chief executive under the ACT OHS Act are subject to review by the Occupational Health and Safety Review Authority (OHSRA). The types of decisions subject to external review include: disqualifying a health and safety representative; refusing to accept an undertaking; and refusing to reconsider a decision (see Schedule 1, Part 1.2).

A person party to a proceeding before the OHSRA is entitled to be represented (s 189). A hearing before the OHSRA is to be in public (s 192). Any question of law to be determined by the OHSRA may be referred to the Supreme Court (s 193). A party to a proceeding before OHSRA may appeal a decision of OHSRA on a question of law (s 194). The review authority has the same protection and immunity as a judge of the Supreme Court (s 200).

Enforcement and Legal Action

A difference between the Commonwealth OHS Act and the ACT OHS Act is the approach to contraventions of the legislation.

The ACT OHS Act (in addition to compliance measures) makes provision for the prosecution of various offences under the Act. A contravention of the Act (unless expressly stated to contrary), does not confer rights to bring civil action (s 223).

In contrast, the Commonwealth OHS Act contains a regime where Comcare or an investigator can, in certain circumstances, take civil action or prosecute offences. As noted above, there are significant limitations on the action that may be taken where the Commonwealth has contravened the Commonwealth OHS Act.

Commonwealth OHS Act - Action taken by Comcare or an investigator

The Commonwealth OHS Act provides that Comcare or an investigator may institute proceedings for breach of the Act or the regulations (s 77 - the relevant regulations at time of writing are the Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth) and the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth)). However, beyond the Schedule 2 matters referred to in the Act, the Commonwealth OHS Act does not confer a right of action in civil proceedings (s 79 - with the exception of proceedings involving an employee who has committed an offence under the Act (s 80)).

A health and safety representative may request Comcare to institute proceedings in circumstances where proceedings were not commenced within six months of an incident. It is then open to Comcare to determine whether to institute proceedings. Civil action proceedings may only be commenced within six years of an incident.

Schedule 2 to the Commonwealth OHS Act nominates the contraventions which can be subject of civil action and criminal prosecution under the Act. Part 1 of Schedule 2 concerns civil actions and Part 2 of Schedule 2 addressed criminal prosecutions.

Under Part 1 of Schedule 2 an investigator or Comcare can seek injunctions, remedial orders, undertakings, declarations and civil penalty orders. In the most serious of cases, persons may be subject to civil penalty orders requiring payment of an amount equivalent to 2,200 penalty units.

Part 2 of Schedule 2 to the Act specifies that only certain serious offences may be subject to criminal prosecution. The offences largely relate to those which result in death of serious bodily injury, or offences that result in a substantial risk of serious injury, and offences concerning the failure to appear as a witness in an inquiry and to render assistance in an investigation. The maximum penalties are up to an amount equal to 4,500 penalty units, and in some cases, can result in six months imprisonment.

Under s 78 of the Act, where it is necessary to establish that state of mind of a person it is sufficient to show that a director, servant or agent of that person had the relevant state of mind.

ACT OHS Act - Action taken by the chief executive or interested persons

A. Injunctions

Under the ACT OHS Act the chief executive or any interested person may institute proceedings where a person has or is likely to commit an offence under the Act (s 175).

Unlike the Commonwealth OHS Act, the ACT OHS Act does not create civil rights or actions (save for the limited circumstances noted above in respect to damage caused by authorised representatives and inspectors).

The Magistrates Court has the power to grant an injunction (including an interim injunction) to restrain a contravention of the ACT OHS Act (s 175). The Magistrates Court is vested with the powers of the Supreme Court to enforce injunctions granted pursuant to the Act (s 176).

In circumstances where the chief executive applies to the Magistrates Court for an interim injunction, it is not necessary for the chief executive to provide an undertaking as to damages (s 177).

B. Prosecution of offences

WorkCover (ACT) assumes the role of prosecuting offences of the ACT OHS Act.

Various offences are identified as strict or absolute liability offences for the purpose of the ACT OHS Act. The maximum penalties under the Act are greater than that imposed by the Commonwealth OHS Act.

The following list is a sample of some of the common offences (and the maximum penalty that applies in respect of the offence):

• failure to comply with a safety duty, exposing a person to a substantial risk of serious harm, in circumstances where the person was reckless or negligent in respect of the risk (1,500 penalty units or imprisonment for 5 years or both (s 48));
• failure to comply with a safety duty, causing serious harm in circumstances where the person was reckless or negligent (2,000 penalty units or imprisonment for 7 years or both (s 49));
• failure to establish a designated work group (10 penalty units (s 53));
• failure by employer to provide copy of provisional improvement notice to affected persons or to display the provisional improvement notice (10 penalty units (ss 67, 68));
• to pretend to be an authorised representative (100 penalty units (s 84));
• to obstruct an authorised representative (50 penalty units (s 85));
• to interfere with a thing seized by an inspector (100 penalty units (s 101));
• failure by an occupier to destroy an unsafe thing where directed by an inspector (100 penalty units (s 102));
• failure to appear and produce material to the chief executive (50 penalty units (ss 136, 137));
• failure to comply with an improvement notice (100 penalty units (s 153));
• failure to comply with an prohibition notice (200 penalty units (s 165));
• contravention of an enforceable undertaking (200 penalty units (s 174));
• interference with safety equipment (50 penalty units, imprisonment for 6 months or both (s 208));
• employer levy or charge employees in relation to matter to ensure health safety and welfare (50 penalty units, imprisonment for 6 months or both (s 209));
• employer victimises employee (50 penalty units, imprisonment for 6 months or both (s 210)).

In respect of prosecutions for a failure to comply with a safety duty, it is important to note that if the adjudicator is not satisfied beyond reasonable doubt that the defendant is guilty of an offence but is satisfied beyond reasonable doubt in respect of an alternate offence, the adjudicator may find the defendant guilty of the alternate offence (s 50).

Except in prosecutions where the punishment sought is imprisonment, if it is necessary to prove the state of mind of a defendant, it is sufficient to prove that a representative of the defendant acted within the scope of their authority and that the representative had the requisite state of mind (unless it is established that the defendant took reasonable precautions to avoid the act (s 211).

A Court hearing a prosecution for an offence may make orders for costs including orders relating to the expenses of examining, seizing and testing undertaken in connection with the proceeding (s 217).

Codes of Practice

Under both the ACT OHS Act and the Commonwealth OHS Act, the relevant Minister may approve codes of practice to provide practical guidance to employers on OHS issues (s 70 Commonwealth OHS Act; s 206 ACT OHS Act).

The Occupational Health and Safety Code of Practice 2008 (the OHS Code 2008) has been approved under the Commonwealth OHS Act, effective from 12 June 2008. The new code replaces the previous 27 codes of practice and provides comprehensive guidance on health and safety management across a range of organisations and industries. See www.comcare.gov.au/WHS/whs_laws/codes.

The Commonwealth OHS Act provides that a person that does not observe a code of practice is not liable to civil action or criminal prosecution per se, however evidence of a contravention of a code of practice is relevant in any action brought under the Act (s 71).

Victimisation

Both the ACT OHS Act and the Commonwealth OHS Act prohibit an employer from dismissing or prejudicially treating an employee, or threatening to do so, as a consequence of an employee:

• making a complaint or intending to complain in connection with an OHS issue;
• providing or intending to provide assistance in connection with an investigation;
• stopping work in response to a direction from a health and safety representative, or in response to a notice that requires the employee to stop work.

The Commonwealth OHS Act provides than an employer who contravenes a victimisation provision will be liable to civil action (s 76). In contrast, the ACT OHS Act provides than an employer who contravenes a victimisation provision will have committed an offence liable up to a penalty equivalent to an amount of 50 penalty units or 6 months imprisonment or both (s 210).

Contacts, Links and Resources

Contacts

Australian Human Rights Commission www.hreoc.gov.au

Australian Maritime Safety Authority www.amsa.gov.au

Australian Safety and Compensation Council www.ascc.gov.au/ascc

ACT Long Service Leave Authority (Construction And Cleaning Industries) www.actlslb.act.gov.au

Comcare Australia www.comcare.gov.au

Commonwealth Rehabilitation Service (CRS) 1800 277 277

Federal Magistrates Court of Ausralia www.fmc.gov.au

National Research Centre for OHS Regulation regnet.anu.edu.au/nrcohsr

Office of the Australian Safety and Compensation Council www.ascc.gov.au/ascc

Safety, Rehabilitation and Compensation Commission www.srcc.gov.au

Welfare Rights and Legal Centre www.welfarerightsact.org

WorkCover (ACT) www.worksafe.act.gov.au/health_safety

WorkCover (New South Wales) www.workcover.nsw.gov.au

Resources

ATOlaw: the ATO Legal Data Base law.ato.gov.au/atolaw

Licence Recognition www.licencerecognition.gov.au