Occupational Health and Safety Law in Australia Essay Example
(Insp Ch’ng) 1999 90 IR 432 (Waleters, 2008). Drake Personnel Limited t/a Drake Industry v Workcover Authority NSW Workplace Safety Australia began within 2000 and is the most important National Occupational Health & Safety (OHS) advisory as well as provider of information to Australian organizations. In NSW, the relevant OHS law is the OH& S Act 2000, which obligates the employers to make sure that the employees are not subjected in performing their jobs, to risks to their health, safety as well as welfare. This statutory obligation is unconditional. The OHS law enforces a heavy burden on employers to carry out the provide duties. One, according to common law, the employers are obligated to establish all reasonably foreseeable risks and this is applicable in the case law, for example the case,
In the OHS Act, section 3 (c) provides for the direction of health and this covers the physical as well as psychological element of an employee’s health and safety. The same section, sub section (e) gives out and establishes the risk management strategy needed for handling all OH&S matters. The Victorian law, which is the new OH&S Act 2004, is the hallmark of the Australian OH&S law context. The OH&S Act specifies that it is the responsibility of the employers to make sure that each and every reasonably practicable step is taken in eliminating risks and if it is not possible to eliminate the risks, they are lessened (section 21). On the other hand, section 25 of the Act invokes all the workers to take reasonable care of their health in addition to safety at work. The work health prerequisite covers the physical along with the psychological issues. Furthermore, the Act also stipulates that the employers are obligated to consult in section 35 of the Act and because stress allied to work is an important health and safety matter, both employers and workers and supposed to consider and discuss jointly health and safety matters, for instance, the organization and the management of the work, the working environment as well as workplace stressors from whatsoever source (Waleters, 2008).
OHS Regulatory Background
The duties of the employers to tackle OH&S risks are governed by common law and Commonwealth, state and territory laws and regulations. In line with the common practice within most similar jurisdictions, OH&S Australian law does not have detailed prerequisites within favor of widely-prepared roles that enable employers to maintain discretion regarding how to accomplish compliance. Regulations as well as codes of practice complement these common duties through offering detail applicable to specific subjects like, particular setting such as construction sites, particular risks, such as asbestos in addition to processes allied to unions or licensing. The major aspects of Commonwealth outline administering workplace health and safety in Australia include: Occupational Health and Safety Act 1991 (Cth) (OHS Act), Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) (OHS Maritime Industry Act), Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth) (OHS Regulations 1991), Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (OHS Regulations 1994) in addition to
Occupational Health and Safety Code of Practice 2008 (Cth) (OHS Code) (Waleters, 2008).
On the contrary, while OH&S Act and OH&S regulations stipulate mandatory roles, the OH&S does not lay down obligatory duties. Nonetheless, the OH&S code can be utilized within courts to provide evidence of the standards of health and safety that employers are supposed to accomplish. The Safety, Rehabilitation and Compensation Act 1988 (Cth), gives out an employee’s compensation scheme and identifies two bodies that have the responsibility for implementing and maintaining it and these bodies include, Comcare along with the Safety, Rehabilitation and Compensation Commission (SRCC). The OH&S Act also obligates the two bodies with the duties of making sure that there is conformity with OH&S standards, providing advice to employers and workers regarding health and safety issues as well as preparing policies allied to OH&S> additionally, Comcare and the SRCC make publications of ancillary guidance materials (Waleters, 2008).
Moreover, there is an effort of harmonizing Commonwealth, state and territory OHS legislation in order to enhance safety results, lower conformity costs in addition to improving regulatory efficacy. An element of this effort has encompassed setting up Safe Work Australia (SWA), which is a regulatory body with the responsibility of development of national OHS policy along with preparation of model legislation. From the time it was set up within 2009, Safe Work Australia has published a model Work Health and Safety Bill, model Regulations, as well as model Codes of Practice in several regions. In addition, the Commonwealth and also states and territories, has devoted to the implementation of the ultimate editions of the SWA Bill, SWA Regulations, and SWA Codes of Practice (Waleters, 2008).
Duties of an Employer
All Australian employers are supposed to have an updated employees’ compensation policy that covers all their employees. Under the Occupational Health & Safety Act 2000, employers have duties for their employees and any other individual who might be present at their workplace. In OH&S Act, S 8(1), an employer is supposed to make sure that health, safety and also welfare at work of all the workers of the employer. This entails that the employer should make sure that safety hazards are eradicated or controlled, employees are offered all safety gears required to carry out their jobs, information, training as well as supervision are offered, safety processes are formulated for any machinery or substance being utilized within the workplace, the workplace and also its layout does not put employees at risk and in this case areas that are supposed to be considered include noise, dust, lighting, ventilation, rough or slippery surface, electrical installation and leads, traffic movement as well as common housekeeping. Furthermore, employers should make sure that employees’ facilities, for example kitchen, toilet, washing and also changing facilities if suitable are sufficient (Hopkins, 2010).
Division 2of the Occupational Health & Safety Act 2000 obligates the employers to have consultations with their employees when decisions likely to have an effect on their health and safety are being taken into consideration. Generally, there are three alternatives for the employers to make consultations and they include, OHS committee, OHS representatives along with further arrangements agreed between the employer and employees. OH&S Act S 8(2) obligates employers to makes sure than people other than their employees have no risk of being exposed to workplace risks and these people encompass contractors, clients in addition to visitors (Hopkins, 2010).
When Employers Should Consult their Employees
Employers are obligated to make consultations with their employees during the assessment of the risks within workplace and measures being considered in order to control these risks. This is because it is regularly the employees who are more knowledgeable regarding these risks and they also have ideas for reducing the risks seeing as they work within the workplace more than the employer. The employers are also supposed to consult the employees when changes to workplace are being considered, buying new machines or materials for the workplace and also during consideration of sufficiency of workplace amenities (Roughton, 2002).
All employers are obligated to pay basic employees compensation payments. For example, NSW Workers Compensation Scheme is financed through the premiums that employers pay and offers medical and fiscal support to employees who have been injured. Basically, the base of the Workers compensation insurance premiums takes on several aspects and they consist of industry the employer is operating in and the total sum of the employer’s yearly wages and the dust diseases levy. The money the employer pays is geared to paying the compensation for employees who get injured and are not able to work for whatsoever reason. In addition, in regard to wage record, employers are obligated to give their employees wage estimation in two months at the beginning of the policy phase. Employers are obligated to give a declaration of actual wages paid in two months at the end of the policy phase. All employers should maintain wage records that have paid for the preceding seven years (Lewis, 2006).
Generally, a worker is a person who gets wages, or commission, irrespective of the number of working hours, every week and this consists of workers working away from the premises of the employer. In case an individual or company employs or recruits workers on regular, casual or through a contract, they are regarded as employers and are supposed to have a workers compensation insurance policy. Some individuals working as contractors are also regarded as workers because of compensation reasons and this depends on the particular situations. In case there is a workplace injury, a contractor can be at liberty to get workers compensation. In some events, the employer is supposed to cover the contractor for workers compensation as well as state any payments paid in terms of wages (Ladou, 2006).
Injury Management Responsibilities
In case of an injury at work, employers are supposed to ensure that the injured employee is attended as fast as possible, inform the insurer in 48 hours and ensure that the incident report is completed as fast as possible, cooperate with the insurer in development of an injury management plan for the employee who has been injured and also put into practice and supervise a return to work plan for the employee who has been injured. What’s more, employers notifying their insurers in five days and who ascertain that the injuries’ register has been updated end up having their claims excess relinquished. The claims excess compensation equals a week of the employee’s weekly compensation. Accordingly, employers who do not comply with the OH&S Act, for example they lack compensation policy or give incorrect information can incur penalties and this includes a fine of up to $55,000 and or imprisonment for six months (Ladou, 2006).
Under the Queensland Act, the maximum penalties for an organization is a fine of $300,000 if the violation of the Act results into death or serious bodily injury and a fine of $187,500 if violation of the Act engages exposure to substances with a likelihood of causing death or serious bodily injury or if the violation results into bodily injury. The maximum penalty is $150,000 within other cases. However, it is noteworthy that all penalties consist of an alternative for imprisonment, where the term is two years in case breaching the Act resulted into death or serious bodily injury and one year sentence within any other case (Hopkins, 2010).
However, under the New Zealand Act, the maximum penalty fine is $50,000 if the violation of the Act results into grave injury and a fine of $25,000 within any other case. Nevertheless, if an individual violates the Act knowing that the violation has the likelihood of causing a grave injury, the highest penalty is $100,000 or a one year imprisonment (Gray, 2008).
The maximum penalties stipulated by the Queensland Act resulted from the latest modifications that came up with a tiered scaled whose base is the graveness of the injury resulting from a violation. Before, one penalty was applicable to all violations, which depicted the view that the gravity of the exposure, rather than the gravity of the injury, determined the imposed penalty. As a result, the tiered scale significantly elevated penalties, with the preceding single maximum penalty of $150,000 which at present is the lowest maximum fine as per scale. The main aim of introducing the tiered scale was to make obligation holders more accountable for the violations of the Act as well as the consequences of such violations. The highest fine enforced under the current Queensland Act tiered scale so far is $30,000, within the cases of Pacific Salt Pty Ltd and Parkside Holdings Pty Ltd. For the Pacific Salt case, the employer in a slow period, told the workers to change the roof sheeting on the organization’s factory. Since this was not the standard worker’s work, the workers did not have the appropriate experience and were not trained about that work too. As a result, while on the roof, the worker fell five meters and died. The ruling of the court was that it was the duty of the employer to train the workers to carry out the work or outsource the work to individuals who were experts in such work. Since death occurred, the maximum penalty was $300,000 and hence the court enforced a $30,000 fine (Gray, 2008).
On the other hand, in Parkside case, the employer who was operating sawmill told the workers to often clean beneath the saw, where dust accumulated. When a worker tried to carry out the task, he was caught within the unguarded conveyor belt rollers beneath the saw and as a result sustained lethal crushing injuries. Even though the cleaning task could be safe if carried out cautiously, there was still a likelihood of inadvertent contact with the rollers and hence the court’s ruling was that it was the responsibility of the employer to manage and eliminate such a risk. Since there was a fatality, the maximum penalty was $300,000 and hence the Court enforced a $30,000 fine (Gray, 2008).
Issues in Australian OH&S law
The Australian OH&S law should have a responsibility of the workers to take all realistically practical steps to make guarantee their own safety as well as the safety of other individuals at workplace just like in the NSW Act, Section 20 (1), Commonwealth Act, Section 21(1), and Victorian Act, Section 25(1). This means that the general duty of the workers is supposed to extend to non-employees or public members who get into the workplace. In addition, the employee’s responsibilities should be generally specified in order to capture several circumstances. This corresponding responsibility will enable an employer to insist on employees conforming to the safety measures (Hopkins, 2010).
Additionally, the OH&S Act lacks the a provision that follows the responsibility chain ‘upstream’ for establishing steady responsibilities within each and every jurisdictions and not only for employers but should also include designers, manufacturers, suppliers as well as importers. Nonetheless, any such provision would require careful drafting in order to eradicate any overlapping with product liability along with public liability schemes. Still, the national model OH&S Act need to tackle new and upcoming risks, and this includes any responsibilities that might emerge in respect of an employer safeguarding workers against anti-terrorism undertakings. Finally, an employer is not supposed to be liable for criminal sanction in situations where the employer had taken all reasonable practicable steps to eradicate the risk. The “reasonably practicable” conception is only supposed to address only reasonably foreseeable risks (Hopkins, 2010).
The key aim of Australian Occupational, Health and Safety law is to protect the safety, healthy and welfare of individuals engaged within work or employment. Employers are supposed to conform to the State, Territory or Commonwealth laws applicable to them. Even though different jurisdictions have their own legislation, they are all alike in their aims and within most of their provisions. The most important aspect with each Act is the “duty of care” that obliges each and every employer to offer a safe working place for workers. Finally, employers also have a fundamental common law responsibility of protecting their employees from disease as well as injury at work and violation of this leads to common law tort of negligence.
Gray, W. (2008). OSHA Enforcement and Workplace Injuries. Journal of Risk and Uncertainty. Vol. 8/2.
Hopkins, A. (2010). Occupational Health and Safety. N.S.W: Allen & Unwin.
Ladou, J. (2006). Current Occupational & Environmental Medicine. Sydney: McGraw-Hill Professional.
Lewis, G. (2006). Safety management system registration in the shipping industry. International Journal of Quality & Reliability Management. Vol. 20/8.
Roughton, J. (2002). Developing an Effective Safety Culture: A Leadership Approach. London: Butterworth-Heineman
Waleters, D. (2008). Occupational health and safety legislation. London: Institute of Employment Rights.
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