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200799: Work Health and Safety Law

Autumn 2021

Module 4 Work Health and Safety Regulatory Framework in Australia Readings: Text: Johnstone: Chapter 3 Case List: • Work Health Authority v Outback Ballooning Pty Ltd & Anor [2019] HCA 2 http://eresources.hcourt.gov.au/showCase/2019/HCA/2 • Roads Corp v Morris Gerkens (unreported, Supreme Court of Victoria, 28 May 1993) [3.315] Legislation • Work Health and Safety Act 2011 (NSW) • Work Health and Safety Act 2011 (Cth) ss 4 and 12 • Safety, Rehabilitation and Compensation Act 1988 (Cth) • Rail Safety National Law (NSW) / Rail Safety (Adoption of National Law) Act 2013 (NSW) • Crimes Act 1900 (NSW) Pt 1A • Building and Construction Commission (Improving Productivity) Act 2016 (Cth) ss 5, 6 and 43* • Building and Construction Industry (Improving Productivity) (Accreditation Scheme) Rules 2019 (Cth) Pts 2 and 3 in particular [We will only be considering the basic structure of these Statutes] *This law was formerly the Fair Work (Building Industry) Act 2012 (Cth).

1 OVERVIEW

In this module, we will look at the work health and safety framework in Australia. As we have previously canvassed, Australia presently has over nine principal workplace safety statutes (at least one in each jurisdiction). We will consider how the differences in these laws influence decisions of businesses in their management of workplace safety. We also closely consider the process of harmonisation in Australia. 2 THE FRAMEWORK IN AUSTRALIA

The effect of the Robens model was to consolidate workplace safety duties into a single piece of legislation. To a large extent, this has been achieved through principal legislation in each state and territory. Despite this, there are additional statutes in each state and territory that impose additional obligations in particularly risk-prone industries such as mining and the transportation of dangerous goods.

2.1 State and Territory legislation – overview

While each jurisdiction has its own separate principal workplace safety legislation, the differences from jurisdiction-to-jurisdiction have been minimised through the introduction of the Model Work Health and Safety Act (the Model Act) in most jurisdictions. The current key statutes of the state and territories in Australia are as follows:

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Jurisdiction

Legislation

Commonwealth of Australia* Australian Capital Territory*

Work Health and Safety Act 2011 (Cth) Work Health and Safety Act 2011 (ACT)

New South Wales* Northern Territory* Queensland*

Work Health and Safety Act 2011 (NSW) Work Health and Safety (National Uniform Legislation) Act 2011 (NT) Work Health and Safety Act 2011 (Qld)

South Australia*

Work Health and Safety Act 2012 (SA)

Tasmania* Victoria

Work Health and Safety Act 2012 (Tas) Occupational Health and Safety Act 2004 (Vic)

Western Australia*

Occupational Safety and Health Act 1984 (WA), but transitioning to the Work Health and Safety Act 2020 (WA).

*Indicates that the jurisdiction has enacted the Model Act. The following table lists the predecessor legislation in those jurisdictions which have enacted the Model Act: Jurisdiction

Legislation

Commonwealth of Australia Australian Capital Territory

Occupational Health and Safety Act 1991 (Cth) Work Safety Act 2008 (ACT)

New South Wales Northern Territory

Occupational Health and Safety Act 2000 (NSW) Workplace Health and Safety Act 2007 (NT)

Queensland South Australia

Workplace Health and Safety Act 1995 (Qld) Occupational Health Safety and Welfare Act 1986 (SA)

Tasmania

Workplace Health and Safety Act 1995 (Tas)

2.2 New South Wales

The first Robens-based workplace safety statute in New South Wales was the Occupational Health and Safety Act 1983 (NSW). One of the specified objectives in that statute in s 5 was to replace "progressively" the myriad of existing workplace safety laws that existed in NSW (for example, the Construction Safety Act 1920 (NSW)). This was achieved with the Occupational Health and Safety Act 2000 (NSW). New South Wales is now a Model Act jurisdiction after it enacted the Work Health and Safety Act 2011 (NSW) (the NSW Act). The NSW Act provides at s 132 that associated WHS legislation is to be observed in addition to the NSW Act and its regulations. To the extent of any inconsistency, the NSW Act will prevail. Section 132 also contains a double-jeopardy provision in that a person who commits an offence under two or more WHS statutes in NSW cannot be punished twice in respect of the same matter. In NSW, the related WHS legislation includes: • • • •

the Dangerous Goods (Road and Rail Transport) Act 2008 (NSW); the Explosives Act 2003 (NSW); the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW); the Rail Safety National Law (NSW) / Rail Safety (Adoption of National Law) Act 2012 (NSW);

•

the Heavy Vehicle National Law (NSW) / Heavy Vehicle (Adoption of National Law) Act 2013 (NSW); and the Point-to-Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) Part 2.

•

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Most work health and safety law laws in New South Wales are enforced by SafeWork New South Wales (SafeWork NSW), formerly the WorkCover Authority of New South Wales. Other laws are enforced by the Department of Planning, Industry and Environment (which is also called the NSW Resources Regulator), the Independent Transport Safety Regulator, and NSW Roads and Maritime Services (which is part of Transport for NSW). The related WHS legislation often imposes industry-specific regulation or accreditation schemes. In addition to additional statutes, the Work Health and Safety Regulation 2017 (NSW) imposes specific obligations to particular industries and to particular kinds of work such as construction and hazardous substances. The rail safety regime is a peculiar one in that the statute is an enactment of South Australia. New South Wales, under the Rail Safety (Adoption of National Law) Act 2012 (NSW) (the Adoption Act) has adopted the Rail Safety National Law (the RSNL) into law. Hence, while the source of law is South Australia (that is, where the law is written), it is the law of New South Wales that actually makes it law in New South Wales. To put it differently, the RSNL would cease to apply if New South Wales repealed the Adoption Act. A similar arrangement applies in relation to the Heavy Vehicle National Law (NSW), which was adopted in New South Wales under the Heavy Vehicle (Adoption of National Law) Act 2013 (NSW). While it may appear the intent of the Robens model has been undermined by the extent of other laws governing workplace safety, these pieces of legislation merely provide additional obligations. That is, the obligations of persons conducting a business or undertaking under the NSW Act are not diminished or confined because of the other legislation. For example, consider the Rail Safety National Law (NSW): 48 Relationship between this Law and OHS legislation (1) If a provision of the occupational health and safety legislation applies to railway operations, that provision continues to apply, and must be observed, in addition to this Law. (2) If a provision of this Law is inconsistent with a provision of the occupational health and safety legislation, the provision of the occupational health and safety legislation prevails to the extent of any inconsistency. Note. For example, if a provision of this Law deals with a certain matter and a provision of the occupational health and safety legislation deals with the same matter and it is impossible to comply with both provisions, a person must comply with the occupational health and safety legislation and not with this Law. If provisions of both this Law and the occupational health and safety legislation deal with the same matter but it is possible to comply with both provisions, a person must comply with both.

(3) Compliance with this Law or with any requirement imposed under this Law is not in itself a defence in any proceedings for an offence against the occupational health and safety legislation. (4) Evidence of a relevant contravention of this Law is admissible in any proceedings for an offence against the occupational health and safety legislation. 49 No double jeopardy Where an act or omission constitutes an offence— (a) under this Law; and (b) under the occupational health and safety legislation,

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the offender is not liable to be punished twice in respect of the offence. If a provision of the work health and safety legislation applies to railway operations, that provision continues to apply, and must be observed, in addition to this Act and the regulations made under this Act.

Regulation 4 of the Rail Safety National Law Regulations 2012 defines occupational health and safety legislation to include the NSW Act.

3 THE COMMONWEALTH 3.1 The Commonwealth's powers

The Commonwealth requires legislative power under the Commonwealth Constitution to enact its legislation. This may be distinguished from state parliaments which are said to possess (although perhaps not entirely accurately) ‘plenary power’. Most of the Commonwealth’s powers are found in s 51 of the Constitution. The Commonwealth does not possess any express powers with respect to workplace safety. However, as we have seen with areas such as workplace relations, the Commonwealth can use its powers under s 51 broadly to legislate in fields that are ancillary to those powers. A classic example is the corporations power, which has been used to facilitate the passing of Commonwealth industrial legislation that covers “national system employers”. Other provisions of the Constitution may also give power to the Commonwealth to make laws regarding safety law. Some of the provisions that could potentially apply to workplace safety include: 51 Powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i.) Trade and commerce with other countries, and among the States: (ii.) Taxation; but so as not to discriminate between States or parts of States: ... (v.) Postal, telegraphic, telephonic, and other like services: (vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth. (vii.) Lighthouses, lightships, beacons and buoys: ... (ix.) Quarantine: (x.) Fisheries in Australian waters beyond territorial limits: ... (xiv.) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned: ... The Law of Workplace Safety (Seminar Guide)

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(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth: ... (xiiiA.) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances: ... (xxix.) External Affairs: ... (xxxii.) The control of railways with respect to transport for the naval and military purposes of the Commonwealth: ... (xxxiv.) Railway construction and extension in any State with the consent of that State: (xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State: ... (xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law: (xxxviii.) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:

52 Exclusive Powers of the Commonwealth

The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:... (ii.) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government or the Commonwealth:

98

The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.

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122

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. Some of the specific heads of power have meant that the Commonwealth has been able to enact WHS laws relating specifically to particular industries such as seafarers (the Seafarers Rehabilitation and Compensation Act 1992 (Cth)). With legislation such as the Fair Work Act 2009 (Cth) (the FWA), there is potential for state WHS laws to be deemed inconsistent under s 109 of the Constitution. The FWA at s 26 excludes state workplace laws from the operation where they apply to corporations and other FWA employers. However, s 27 provides for the continuation of state and territory laws:

27 State and Territory laws that are not excluded by section 26

... (1) Section 26 does not apply to a law of a State or Territory so far as: (b) the law is prescribed by the regulations as a law to which section 26 does not apply; (c) the law deals with any non-excluded matters; or (d) the law deals with rights or remedies incidental to: (i) any law referred to in subsection (1A); or (ii) any matter dealt with by a law to which paragraph (b) applies; or (iii) any non-excluded matters. Note: Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers.)

(2) The non-excluded matters are as follows: ... (b) workers compensation; (c) occupational health and safety; ... 2.2 Commonwealth WHS scheme

Despite each state and territory having its own WHS law, the Commonwealth has also adopted the Model Work Health and Safety Act, the Work Health and Safety Act 2011 (Cth) (the Cth WHS Act). To better The Law of Workplace Safety (Seminar Guide)

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understand the Commonwealth WHS scheme, it is important to consider the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) further. 4 Interpretation

Com omm m on onw w ea l th a u th ori ority ty means: (a)

a body corporate that is incorporated for a public purpose by a law of the Commonwealth, other than a body declared by the Minister, by legislative instrument, to be a body corporate to which this Act does not apply; or

(b)

a body corporate that is incorporated for a public purpose by a law of a Territory (other than an ACT enactment or a law of the Northern Territory) and is declared by the Minister, by legislative instrument, to be a body corporate to which this Act applies; or

(c)

a body corporate: (i) that is incorporated under a law of the Commonwealth or a law in force in a State or Territory; (ii) in which: (A) the Commonwealth has a controlling or substantial interest; or (B) a Territory (other than the Australian Capital Territory or the Northern Territory) or a body corporate referred to in paragraph (a) or (b) has a controlling interest; and (iii) that is declared by the Minister, by legislative instrument, to be a body corporate to which this Act applies; or

(d)

a body corporate: (i) (ii)

(e)

in which a body corporate declared under paragraph (c) has a controlling interest; and that is declared by the Minister, by legislative instrument, to be a body corporate to which this Act applies; or

if a declaration is in force under section 4A, the Australian Capital Territory.

Part VIII of the SRC Act is annexed to this chapter. It contains the criteria that a corporation may adopt to obtain a licence under the SRC Act. The effect of this is to exclude state WHS laws (discussed below) in addition to operating under a different worker’s compensation scheme. Corporations that are granted a licence are referred to as non-Commonwealth licensees. The Rudd Government in 2007 announced a moratorium on the granting of such licences until a national review of the worker’s compensation scheme was undertaken.

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Under s 4 of the Cth WHS Act, a non-Commonwealth licensee means a non-Commonwealth licensee under the former Occupational Health and Safety Act 1991 (Cth) [Repealed]. That legislation defined a nonCommonwealth licensee to mean a body which has been granted a licence under Part VIII of the SRC Act (whether it is suspended or not). Accordingly, where an employer is a non-Commonwealth licensee, it will be covered by the Cth WHS Act. This imposes the same obligations as a Commonwealth employer. 2.3 Exclusion of State and Territory laws

(a) The Commonwealth and non-Commonwealth licensees If a person conducting a business or undertaking falls within the Commonwealth scheme, then it would face the added burden of having to comply with two sets of duties (Commonwealth and State). To avoid this, the Cth WHS Act excludes the operation of what are termed 'corresponding WHS laws' (namely, the WHS legislation of states and territories). While licences have been granted to corporations for a significant period for reasons relating to workers’ compensation, in 2006, the predecessor to the Cth WHS Act was amended to cover include non-Commonwealth licensees. Originally that Act was the Commonwealth Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth). Following the changes in the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2006 (Cth), the legislation was renamed to the Occupational Health and Safety Act 1991 (Cth). The legislation has now been repealed following the Commonwealth WHS Act.

12 Scope

The Commonwealth and public authorities (1) This Act applies in relation to each of the following: (a) if the Commonwealth is conducting a business or undertaking: (i) the Commonwealth; and (ii) an officer of the Commonwealth; (b) if a public authority is conducting a business or undertaking: (i) the public authority; and (ii) an officer of the public authority; (c) to the extent that a person is a worker and carries out work in any capacity for a business or undertaking conducted by the Commonwealth or a public...