About OHS Regulation in Australia
Federal structure
Historical development
Standard setting
State enforcement
Worker Involvement in OHS
Conclusion

References on OHS regulation
References on regulation

About occupational health and safety regulation in Australia

Federal structure

Australia is a federation, with six states and two internal territories, and a federal government. The legislative powers of the Federal Parliament are set out in the Commonwealth Constitution. The Commonwealth Constitution does not give the Commonwealth a general power to legislate for OHS, hence there are ten OHS statutes (six state Acts, two territory Acts, a Commonwealth Act covering Commonwealth employees and employees of certain licensed corporations, and a Commonwealth Act covering the maritime industry). There are also specialist OHS statutes covering the mining industry in some states. In 1985 the federal 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). Unlike the former NOHSC which was established by an Act of Parliament, the new ASCC was established administratively, with functions and powers determined by the government of the day. The ASCC has statutory powers to declare national standards and codes of practice. It is a tripartite body, with members currently representing federal, state and territory governments, the Australian Chamber of Commerce and Industry, and the Australian Council of Trade Unions. National standards and codes declared by ASCC or NOHSC need to be adopted by Commonwealth, state and territory governments before they have any legal force.

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 an OHS statute implementing the traditional British model of OHS 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 OHS 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 OHS by workers and unions.

The Reform of Australian OHS law: 1972–2000

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 OHS legislation 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 OHS 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 OHS 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 OHS inspectorate and employee representatives, an obligation upon employers to develop OHS policies and procedures, and a requirement for Boards of Directors to lodge prescribed OHS 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 OHS statutes. The statutes currently in force in each jurisdiction were enacted in 2004 (Victoria), 1986 (South Australia), 1984-1987 (Western Australia), 1989 (Australian Capital Territory), 1991 (Commonwealth), 1993 (Maritime industry), 1995 (Queensland and Tasmania), 2000 (New South Wales) and 2007 (Northern Territory). All of the statutes are based on the UK Robens model, although some go beyond the Robens model in some respects.

Standard setting

Each of the Australian OHS statutes 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 regulation or general duty provision.

The general duties generally cover employers, the self-employed, occupiers, designers, manufacturers and suppliers of plant and substances, employees and some other duty holders in some jurisdictions. They require the duty holder to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risks to health – although the wording of these provisions differs from jurisdiction to jurisdiction and between duty holders. The big sleeper in the general duty provisions is the duty imposed upon employers and self-employed persons to “others” or non-employees. Initially envisaged by the Robens Report as covering the “public”, recent case law in both Great Britain and Australia makes it clear that the duty covers newly emerging forms of work relationships, from contractors and sub-contractors, to labour hire arrangements, home-based work, and even franchising.

Before the 1990s, most of the OHS 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 OHS regulators have brought all supporting OHS 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 OHS 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. Increasingly OHS regulations are requiring duty holders to document measures they have taken to comply with process-based standards, performance standards and general duty standards. Probably the best example of an Australian documentation requirement is the requirement in the Queensland Workplace Health and Safety Regulations for principal contractors, demolishers, contractors and subcontractors to prepare workplace health and safety work plans prior to commencing certain kinds of construction work. Principal contractors, subcontractors and contractors are required to exchange copies of their own work plans before starting work, and are required to discuss with each other the relevant OHS issues, based on their work plans. The regulation envisages that the work plan requirement operates as a risk assessment tool, and as a mechanism to co-ordinate the OHS measures taken by principal contractors, contractors and subcontractors. Failure to comply with the requirement is an offence.

Codes of practice increasingly provide guidance on hazard identification, risk assessment processes and risk control.

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; occupational 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. Lack of uniformity in Australian standards remains a significant problem and is a priority for the Rudd government, elected in 2007. A National Review into Model OHS Laws was initiated in May 2008.

State enforcement

Most of the Australian OHS inspectorates are now unified, with multi-skilled generalist OHS inspectors, although some jurisdictions have retained specialists in some areas, such as construction and dangerous goods. Some jurisdictions have specialist investigators, whose energies are devoted entirely to the investigation of matters for prosecution.

The trend since the 1980s has been for the inspectorates to move away from a central control model, to a regionalised model, with regional managers as the key decision-makers, and broad policy frameworks being produced by the central offices. Many inspectorates have changed their organisational structures, and have divided their field inspectorates into industry-based teams.

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

All of the Australian OHS statutes 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 and Victoria, inspectorates can also issue infringement notices, although the circumstances under which infringement notices may be issued vary quite markedly. All of the OHS statutes provide that the principal penalty for OHS offences is the fine. The maximum fines in the jurisdictions also vary considerably with the highest in New South Wales and Victoria. In New South Wales, sanctions also include adverse publicity court orders, and a court order that requires the offender to participate in an OHS-related project.

Most of the OHS inspectorates have publicly available enforcement strategies and policies. While there are important differences in enforcement policy and practice there are some common approaches between some jurisdictions and, in recent years, all OHS inspectorates have participated in some nationally coordinated and implemented enforcement initiatives.

Although most of the Australian OHS statutes make provision for the prosecution of culpable managers and directors of corporations in breach of the OHS statutes, most prosecutions are conducted against corporate employers, rather then corporate officers. Enforcement action against designers, manufacturers and suppliers of plant, equipment and substances is rarely initiated. In relation to prosecution, it should also 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 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.

While the general duties owed by employers, other persons coducting an undertaking, and the self-employed to persons other than employees have the potential to cover work relationships outside the employment relationship, the Australian OHS inspectorates have been slow to enforce these obligations outside the area of the traditional employment relationship. Nevertheless, inspectors have begun to investigate and prosecute offences involving sub-contracting and labour hire relationships. The challenge for OHS regulators is to develop regulations, codes of practice and guidance material to cover non-employment work relationships, and to begin to examine hazards arising from these relationships, and to take enforcement action where appropriate.

Worker Involvement in OHS

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

In all jurisdictions the OHS statutes make provision for worker elected health and safety representatives. In Victoria, South Australia, the Commonwealth, the Northern Territory and the ACT, 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 (a default notice in South Australia or notice of safety hazard in the Norther Territory), and the right to order that unsafe work cease (though the provisions vary between the jurisdictions). Western Australia, Queensland and Tasmania give much weaker consultative powers to representatives. The Tasmanian statute codifies the common law right of a worker to refuse to perform dangerous work. Each of the statutes provides for health and safety committees, comprised of employer and employee representatives.

Until new legislation was passed in 2000, in New South Wales worker participation was solely through health and safety committees, although members were given some rights (for example to inspection and information) resembling those given to health and safety representatives. The OHS Act 2000 imposed upon employers a duty to consult with its employees to enable employees to contribute to the making of decisions affecting their OHS. Consultation can take place through health and safety representatives or committees, or through any other arrangement agreed to by employers and employees. If one of the employer’s employees requests, at least one health and safety representative must be elected by employees. The provisions appear to be much weaker than the provisions for health and safety representatives in Victoria.

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

Conclusion

The most notable conclusion that emerges from an overview of the Australian OHS legislation is its lack of uniformity. Even if the analysis is limited to the statute book, the differences in wording of the statutory standards, the differences in sanctions (particularly levels of fines, and use of infringement notices) and the variation in health and safety representative provisions is a matter of great concern. The lack of uniformity is even greater if the analysis extends, as it should, to inspection and enforcement practices. There is an urgent need for OHS regulators in the various jurisdictions to develop uniform enforcement policies and strategies.

A second noteworthy point is the need for OHS regulators to pay greater attention to work relationships outside the traditional employment relationship. With the dramatic changes that are taking place in the Australian labour market, mirroring changes taking place elsewhere in the world, regulators need to develop standards, guidance material, inspection programs and enforcement strategies that accommodate subcontracting, labour hire, home-based work and franchise arrangements. Particularly important is the need to think more flexibly about health and safety representatives. Currently the provisions in most jurisdictions are limited to employees, and exclude sub-contractors and the like. European developments in relation to regional health and safety representatives should be examined.

Third, one notable omission from most of the Australian OHS statutes when compared with their European counterparts is the absence of requirements to promote the use of multi-disciplinary occupational health services by employers. Some of the Australian statutes have mild provisions obliging employers to employ or engage the services of OHS experts in order to discharge their obligations, but there is no systematic attempt to require employers to engage OHS experts. The most successful provision appears to be the Queensland provision requiring an employer to appoint a workplace health and safety officer when there are 30 or more workers normally employed at a prescribed workplace; or, if there are fewer than 30 workers, the employer thinks that it is necessary.

References on OHS regulation