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DEPARTMENT OF JUSTICE

SAFE FROM INJURY AND RISKS TO

HEALTH

Review of Workplace Health and Safety in

Tasmania 2006

Interim Report

Denise Brown & Steve Hyam

February 2007


ACKNOWLEDGEMENTS

We acknowledge the contributions of all the people who participated in the

review by making a written submission, by meeting with us or by contacting us

informally to talk about workplace health and safety issues.

Many representative organisations told us that the consultation period on the

Discussion Paper was too short to be able to consult their members and

represent their views adequately. Despite this, many responded in detail and

we thank you for the consideration and time given to the issues canvassed.

Thank you to the Secretary of the Department, Mr Peter Hoult, for discussing

aspects of the review with us in his roles as Head of Agency, Chairperson of

the WorkCover Tasmania Board, and as the sponsor of the review project.

Thank you to David Peters, Deputy Secretary of DIER, for his early

involvement in the review before the change of agency. We also thank the

WorkCover Board of Tasmania and the Workplace Standards Tasmania

management executive as well as inspectors for their useful suggestions.

Thanks to Pat Leary, President, and Allan Mahoney, Registrar, of the

Tasmanian Industrial Commission for discussing aspects of the review with

us.

We also wish to acknowledge the work completed by other reviewers of

workplace health and safety in recent years in Australia.

In conducting this review we have read widely on relevant subjects and

acknowledge our sources in footnotes and the bibliography. One text,

however, stands out above all the others and we make frequent references to

it. This is the Report of the Committee appointed “to review the provision

made for the safety and health of persons in the course of their employment”

chaired by Lord Robens, 1970-1972 (United Kingdom). Lord Robens’s report,

Safety and Health at Work is still, after thirty-four years, surprisingly relevant.

Finally, thank you to Myrna Hutchins for taking care of all the documents and

correspondence, and assisting with the organisation of the references for this

report.

Steve J. Hyam, Project Director, & Denise Brown, Senior Review Officer

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Apathy is the greatest single obstacle to progressive

improvement; it can only be countered by an

accumulation of deliberate pressures to stimulate more

sustained attention to safety and health at work.

Lord Robens, Chairman (1972). Safety and Health at

Work: Report of the Committee 1970-72. London,

HMSO; Ch. 18, p. 151, para. 456.

3


ABBREVIATIONS

ABS

ACCI

ACIRRT

ACTU

ADG

AFC

ANU

APRA

ASCC

AWU

CAF

CCH

CFMEU (Construction)

CFMEU(Mining)

COAG

CPM

DEIRT

DIER

DIMA

DP

ENWHP

HIA

Australian Bureau of Census and

Statistics

Australian Chamber of Commerce

and Industry

Australian Centre for Industrial

Relations, Research and Training,

University of Sydney, Australia

Australian Council of Trade Unions

Australian Dangerous Goods

Australian Finance Conference

Australian National University

Australian Prudential Regulation

Authority

Australian Safety and Compensation

Council

Australian Workers Union

Council for the Australian Federation

Trading Name for Wolters Kluver,

London Road Kingston UK

Construction, Forestry, Mining and

Energy Union (Construction &

General Division) (Tasmanian

Branch)

Construction, Forestry, Mining and

Energy Union (Mining Division)

Tasmanian Branch

Council of Australian Governments

Comparative Performance Monitoring

Department of Employment, Industrial

Relations and Training

Department of Infrastructure, Energy

and Resources

Department of Immigration and

Multicultural Affairs

Review of workplace health and

safety in Tasmania 2006, Discussion

Paper (June 2006)

European Network for Workplace

Health Promotion

Housing Industry Association

4


HMSO

HSE

ILO

MIA

MJA

MSD

NCDS

NCSCH

NDS

NHMD

NHPAC

NIOSH

NNDSS

NOHSC

NRCOHSR

OECD

OHS

RCSA

TACC

TCCI

TMC

WHO

WMSD

WRMC

Her Majesty’s Stationery Office

Health and Safety Executive (UK)

International Labour Organisation,

WHO, Geneva

Metal Industries Association

Medical Journal of Australia

Musculo-Skeletal Disorder

National Chronic Disease Strategy

National Cancer Statistics Clearing

House

National Data Set

National Hospital Morbidity Database

National Health Priority Action

Council

National Institute for Occupational

Safety & Health (USA)

National Notifiable Disease

Surveillance System

National Occupational Health and

Safety Commission

National Research Centre for OHS

Regulation

Organisation for Economic Cooperation

& Development

Occupational Health and Safety

Recruitment and Consulting Services

Association

Tasmanian Automobile Chamber of

Commerce

Tasmanian Chamber of Commerce

and Industry

Tasmanian Minerals Council Ltd

World Health Organisation

Work-Related Musculoskeletal

Disorder

Workplace Relations Ministers’

Council

5


CONTENTS

ACKNOWLEDGEMENTS ......................................................................................................... 2

ABBREVIATIONS..................................................................................................................... 4

EXECUTIVE SUMMARY......................................................................................................... 10

INTRODUCTION ..................................................................................................................... 14

TERMS OF REFERENCE FOR THE REVIEW................................................................................ 14

CONDUCT OF THE REVIEW...................................................................................................... 15

STRUCTURE OF THIS REPORT................................................................................................. 18

SUMMARY OF RECOMMENDATIONS ................................................................................. 20

CHAPTER 1 THE WORLD OF WORK................................................................................... 29

GLOBAL CHANGE ................................................................................................................... 30

Industry Profile ................................................................................................................ 31

Downsizing...................................................................................................................... 32

Ageing society................................................................................................................. 34

Migration ......................................................................................................................... 35

Changed employment arrangements ............................................................................. 38

Impact of precarious employment on health................................................................... 39

Work intensification......................................................................................................... 40

Decline in unionism......................................................................................................... 41

Workplace relations and workplace health and safety ................................................... 43

CHAPTER 2 NATIONAL DEVELOPMENTS 48

REVIEWS OF WORKPLACE HEALTH AND SAFETY IN OTHER JURISDICTIONS.................................. 48

Australian Capital Territory: Occupational Health and Safety Act 1989 ......................... 48

Victoria: Occupational Health and Safety Act 1985 - Occupational Health and Safety Act

2004 ................................................................................................................................ 49

Queensland: Workplace Health and Safety Act 1995. ................................................... 52

Commonwealth: Occupational Health and Safety (Commonwealth Employment) Act

1991 (OHS(CE) Act ........................................................................................................ 53

NSW: Occupational Health and Safety Act 2000 ........................................................... 53

South Australia: Occupational Health, Safety and Welfare Act 1986 - Occupational

Health, Safety and Welfare (SafeWork SA) Amendment Act 2005................................ 55

Western Australia: Occupational Health and Safety Act 1984 ....................................... 55

General conclusions drawn from these reviews ............................................................. 57

NATIONAL OCCUPATIONAL HEALTH AND SAFETY IMPROVEMENT STRATEGY 2002 – 2012......... 59

National Priorities............................................................................................................ 60

National Standards ......................................................................................................... 60

National Targets.............................................................................................................. 61

COMPARATIVE PERFORMANCE MONITORING........................................................................... 61

Incidence rate of compensable fatalities......................................................................... 63

Incidence rate for compensable work-related injury and disease................................... 64

CHAPTER 3 WORKPLACE HEALTH AND SAFETY: ROBENS FRAMEWORK 69

ROBENS’S PRINCIPLES........................................................................................................... 69

Change in focus .............................................................................................................. 72

Duty to take reasonable care.......................................................................................... 73

THREE ELEMENTS OF THE FRAMEWORK.................................................................................. 74

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1. “General Duties”.......................................................................................................... 74

2. “Good Management”................................................................................................... 74

3. “The involvement of workpeople”................................................................................ 75

Flexibility ......................................................................................................................... 77

OTHER FRAMEWORKS ............................................................................................................ 79

Safety Case .................................................................................................................... 80

PREVENTING MAJOR ACCIDENTS............................................................................................. 81

Lessons from failures...................................................................................................... 82

SOME CONCLUSIONS SO FAR.................................................................................................. 84

THE PATH OF REGULATORY REFORM....................................................................................... 86

National consistency versus national uniformity............................................................. 86

COAG REGULATORY PRINCIPLES .......................................................................................... 94

Implementation of National Standards............................................................................ 95

CHAPTER 3 ACCOUNTING FOR CHANGES 101

TASMANIAN LEGISLATIVE FRAMEWORK.................................................................................. 102

Objectives ..................................................................................................................... 104

‘SELF-REGULATORY’ OR ‘PRESCRIPTIVE’ FRAMEWORK?........................................................ 109

MEETING THE NEED FOR NATIONAL CONSISTENCY ................................................................. 114

CHAPTER 4 RELATIONSHIP BETWEEN LEGISLATION AND OUTCOMES ................... 118

LEGISLATION, ADMINISTRATION AND COMPLIANCE ................................................................. 119

PREVIOUS REVIEWS AND AMENDMENTS................................................................................. 121

PREVAILING ATTITUDES........................................................................................................ 124

RAISING AWARENESS AND FACILITATING COMPLIANCE ........................................................... 124

FAMILIARITY, KNOWLEDGE AND UNDERSTANDING .................................................................. 125

COMMUNITY COMMITMENT ................................................................................................... 129

STRATEGIC ALLIANCES OR PARTNERSHIPS ........................................................................... 130

Workplace Health and Safety Council –partnership or alliance.................................... 132

Purpose ..................................................................................................................................133

Membership............................................................................................................................134

Strategic direction...................................................................................................................136

Legislative amendments to establish the workplace health and safety council............ 136

PREVENTION DUTIES, OBLIGATIONS AND ACCOUNTABILITY.................................................... 138

Differentiating the concepts – prevention and compensation....................................... 138

Shared accountability.................................................................................................... 141

Employers and employees............................................................................................ 145

CONCEPTS OF CONTROL ...................................................................................................... 147

Control test and employment contracts ........................................................................ 147

Control risks .................................................................................................................. 147

Management control ..................................................................................................... 148

Influence........................................................................................................................ 149

Social responsibility and shareholder control ............................................................... 151

Authority........................................................................................................................ 152

Management ................................................................................................................. 153

Inherent control – specialist skills ................................................................................. 154

REASONABLY PRACTICABLE ................................................................................................. 158

ON-HIRED SERVICES (ON-HIRED EMPLOYEES AND ON-HIRED CONTRACTORS) .......................... 161

INEXPERIENCED EMPLOYEES ................................................................................................ 168

Training and experience .........................................................................................................168

CLARIFYING THE MESSAGE................................................................................................... 172

Safety............................................................................................................................ 172

Welfare.......................................................................................................................... 173

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Health............................................................................................................................ 174

General information - s9(2)(c)....................................................................................... 177

Information, instruction, training and supervision about hazardous work – s9(2)(d), (e)

and (f)............................................................................................................................ 179

PRESENTATION OF THE GENERAL DUTIES AT SECTION 9 ......................................................... 181

Duty of employers to ‘other persons’ ............................................................................ 182

OBLIGATIONS SET OUT BY THE REGULATIONS........................................................................ 185

Accountable person ...................................................................................................... 185

CONCLUSIONS SO FAR ......................................................................................................... 186

CHAPTER 5 SAFE FROM INJURY AND RISKS TO HEALTH 188

CHANGING WORK ENVIRONMENT, CHANGING WORKPLACE HEALTH RISKS................................ 189

What respondents said ................................................................................................. 191

WORK-RELATED PSYCHOSOCIAL HAZARDS AND RISK FACTORS............................................... 194

Violence in the workplace ............................................................................................. 194

Long working hours....................................................................................................... 197

Fatigue associated with hours of work and other conditions...................................................198

AGEING WORKFORCE........................................................................................................... 203

LEGISLATIVE OBLIGATIONS TO IDENTIFY HAZARDS AND CONTROL RISKS .................................. 205

Manual handling............................................................................................................ 206

SYSTEMATIC PROCESSES..................................................................................................... 209

Risk management – Regulations 17 – 19..................................................................... 209

Need for experts ........................................................................................................... 214

SAFETY SYSTEMS ................................................................................................................ 216

Relevance to small businesses .................................................................................... 220

Traditional safety systems not appropriate to new risks to health................................ 220

INVOLVEMENT OF WORKERS ................................................................................................. 222

What respondents said about ‘involvement of workpeople’.......................................... 224

LEGISLATION AND CONSULTATION......................................................................................... 227

What is meant by consultation?.................................................................................... 228

Who should be involved?.............................................................................................. 229

How to consult? ............................................................................................................ 230

PREVENTING ILLNESS........................................................................................................... 232

CARDIOVASCULAR DISEASE, MUSCULOSKELETAL DISEASE AND MENTAL DISORDERS................ 236

Work-related Musculoskeletal Disorders (WMSDs) ..................................................... 237

Work-related mental disorders...................................................................................... 238

IMPLICATIONS FOR THE AGENCY ........................................................................................... 239

Workplace as setting for Health promotion strategies .................................................. 239

Training ......................................................................................................................... 240

ROLE OF THIRD PARTY MEDIATION TO PREVENT RISKS OF ILLNESS.......................................... 245

HEALTH PROMOTION............................................................................................................ 247

CHAPTER 6 ADMINISTRATION AND OTHER MATTERS 250

INSPECTORATE.................................................................................................................... 253

Ascertaining whether an offence has been committed (section 36)............................. 253

In respect of health and safety risks (section 38) ......................................................... 255

LEGISLATED POWERS TO GIVE ADVICE, EDUCATION, SUPPORT ETC......................................... 257

Enforcement Pyramid ................................................................................................... 259

SMALL BUSINESS SUPPORT .................................................................................................. 265

TRAINING ISSUES................................................................................................................. 267

Resources..................................................................................................................... 271

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DIRECTOR’S POWERS AND FUNCTIONS.................................................................................. 272

“RIGHT OF ENTRY” PROVISIONS FOR AUTHORISED REPRESENTATIVES..................................... 274

PENALTIES .......................................................................................................................... 278

Deterrence .................................................................................................................... 279

INDUSTRY CODES OF PRACTICE ............................................................................................ 285

OTHER MATTERS ................................................................................................................. 286

Crown Liability............................................................................................................... 286

DESIGNATED WORKPLACES ................................................................................................. 289

LIST OF SUBMISSIONS....................................................................................................... 290

BIBLIOGRAPHY ...................................................................................................................292

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EXECUTIVE SUMMARY

This report surveys the “big picture” context of workplace health and safety to

find that the world of work has changed dramatically in a little less than two

decades. Global economic changes initiated by the liberalisation of trade and

a series of reforms in Australia have wrought lasting effects, including new

risks to health arising from work.

Traditional industries such as manufacturing have declined and new

industries based upon communication, finance and other service industries

have emerged.

The 1990s saw widespread reorganisation of businesses allowing the

development of new employment arrangements, including the casualisation of

the workforce and the proliferation of small and micro-businesses, otherwise

referred to variously as ‘enterprise workers’, or `independent contractors’.

Workplace health and safety researchers see the new employment

arrangements as contributing to `precarious employment’ that, in turn, is

identified as a key factor in new and emerging work-related health risks. An

ageing workforce and shortage of skills are also identified as workplace

issues that may give rise to new health and safety risks.

Coinciding with economic reforms there have been steady, ongoing regulatory

reforms in Australia with national uniformity or consistency and de-regulation

as major foci. While the pressure for uniformity and reduction in regulation

has marked the period, paradoxically national developments in the decade

since the passage of the Workplace Health and Safety Act 1995 have actually

contributed to a return to the piecemeal regulation of workplace health and

safety characteristic of the pre-1970s.

All jurisdictions have reviewed their workplace health and safety legislative

and administrative frameworks within the last five years. The outcome of the

reviews has been to confirm the relevance of the Robens legislative

framework on which Australian general workplace health and safety

legislation is based, while amendments have sought to create greater

consistency between the jurisdictions and address issues related to

contemporary workplaces.

National developments include the commitment to national improvement

targets. The state’s recent performance against national targets in reducing

injury, illness and death was reviewed using local and national reports. It was

found that national comparative performance monitoring reports are not

consistent, making it very difficult to assess performance from one year to the

next. Locally generated reports are more stable. Based on the target

indicators it seems that Tasmania is on target for reducing the incidence of

work-related compensable injury, but there is considerable volatility in workrelated

compensable deaths over the last four to five years.

10


The Robens style legislation is strictly speaking a co-regulatory legislative

framework based on principles set down by Lord Robens in his report to the

UK Government – Safety and Health at Work- in 1972. The framework is

designed to enable workplace parties themselves resolve health and safety

problems based on three principles: general duties; good management and

the involvement of workpeople.

The enabling Act is the first tier of the legislative framework; the Regulations

provide the second tier; while industry standards and codes were intended as

the non-statutory (also termed “voluntary”) third tier.

The strength and ability of the framework to prevent injury, illness and death,

lie in how well both the State and industry support the framework.

The review found that the current legislation implements most of the Robens

principles but does not adopt all features. This report analyses the duties and

obligations provided by the Act and Regulations. The analysis identifies a

predominant safety focus with an emphasis on traditional physical hazards.

The risks to health associated with the latter are amenable to control through

the application of standards that are referenced in the Regulations; however,

the analysis also finds that the risk management methodology prescribed is

not easily applicable in all workplaces or to all contemporary hazards to health

and safety. The aspects of the legislation that attempt to embody the Robens

principles of ‘good management:’ and ‘involvement of workpeople’ need to be

clarified and strengthened. This may be done through legislative amendment

but will also require other strategies to raise awareness and prepare workers

and managers for their prevention duties and obligations.

We find generally low levels of awareness of the framework and suspect that

knowledge of the provisions of the legislation is poor. It is therefore essential

to the effectiveness of the framework that efforts are made to increase

awareness and knowledge of the framework as well as encouraging industry

to adopt relevant and recognised standards and codes. In addition there is a

need for increased awareness of new and emerging hazards so that

workpeople may be “safe from injury and risks to health”. We do not

recommend legislative amendment in isolation.

Recommendations for legislative and administrative change to prevent injury,

illness and death are made on the basis of:

Clarifying and strengthening the legislation;

Stronger efforts to raise awareness;

Working more effectively in partnership with industry;

Legislative and administrative emphasis upon good management and

involving workpeople to achieve the outcomes;

Avoiding the proliferation of statutory material; and

11


Achieving vertical and horizontal agreement and co-operation in

relation to certain aspects of workplace health and safety, such as

training in health and safety matters and the application of health

promotion in workplaces to more effectively control the hazards and

risks that are known contributory factors to chronic disease.

Workplace Standards Tasmania and industry need to work collaboratively and

co-operatively to uphold the framework to achieve improved outcomes. We

recommend the establishment of a workplace health and safety council as a

new mechanism to actively involve the agency and industry in a close,

strategic partnership.

The major chronic diseases – especially the “big three” in the National Health

Strategy and National Chronic Disease Strategy of cardiovascular disease,

musculoskeletal disorders and mental disorders – are also three of the priority

occupational diseases in the National OHS Improvement Strategy.

These chronic diseases are unlike the occupational diseases associated with

well-identified “traditional” physical hazards. Stress, fatigue, and violence are

identified as the contemporary work-related health risks. They are termed

“psychosocial” risk factors and arise from the nature of work itself and the way

in which it is organised.

Either alone, or in combination with physical risk factors present, psychosocial

risk factors are contributing to a serious increase in potentially debilitating

chronic disease. Strategies to prevent illness therefore depend upon

strategies adopted by the State to raise awareness of the risk factors and

industry taking action to control the level of risk. “Good management”, one of

the central principles of the Robens legislative framework, becomes even

more important in ensuring that workpeople are “safe from injury and risks to

health”.

Workplaces are potential settings for health promotion and should be

environments that promote long-term positive health outcomes. One of the

challenges in preventing illness (promoting wellness) will be to select the most

effective promotional methods to target all workplaces, including the growing

number of self-employed, micro-businesses as well as the diverse types of

workplaces that now exist.

High level policy mechanisms are required to assist workplaces to reduce the

levels of risk to health that may be associated with the social and/or

management environment of the workplace. We have therefore

recommended the creation of an impartial disputes or workplace conflict

resolution function within the Tasmanian Industrial Commission which

workplace parties may approach to “de-fuse” and assist with resolving

situations that may otherwise give rise to stress-induced injury or illness.

The potential for “third party” right of entry into the workplace, as a

mechanism to improve workplace health and safety, is subject to a six-month

trial that commenced late in 2006 and is due to be evaluated at its conclusion.

We therefore do not make a recommendation in relation to this strategy.

12


The report concludes with reference to the need to change the statutory

functions of inspectors to enable them to take on a greater role in providing

direct advice and information to workplaces. Current small scale efforts to

provide services to small business are supported and these should be

expanded, particularly through the role and function of inspectors on the ‘front

line’.

We find that issues such as whether, and by what quantum, penalties should

be increased, must be considered carefully, taking into consideration the

strong and polarised views of penalties as either retributive or restorative.

Other jurisdictions have increased penalties, but of course that is insufficient

reason to advocate an increase. If consistency is preferred in the level of

penalties, we would like to see further work completed on what criteria should

be used in determining how the penalties should be “benchmarked”.

Commonwealth legislation will shortly enable employers who join the

Comcare workers’ rehabilitation and compensation scheme to be regulated by

the Commonwealth OHS legislation. The administration of workplace health

and safety in Tasmania is therefore likely to undergo further change, making

the need for increased awareness, partnerships and a strategic approach

even more relevant.

The report also looks at some other matters, such as the need to clarify the

roles of the Secretary and the WorkCover Board of Tasmania in relation to the

legislative objectives of workplace health and safety.

13


INTRODUCTION

Terms of Reference for the Review

1. The Minister for Justice and Workplace Relations, the Hon. Steve

Kons, MHA, provided the following terms of reference for the

review of workplace health and safety in Tasmania, 2006:

The review of workplace health and safety in Tasmania

is to examine the legislative and administrative

frameworks within which workplace health and safety is

regulated to ensure they are designed to meet the

changing circumstances of workplaces and the

developing economy effectively.

In particular, the review will consider and provide

recommendations upon improvements that may be

made to the Workplace Health and Safety Act 1995 and

the administration of workplace health and safety by

Workplace Standards Tasmania:

1. To ensure that the workplace health and safety

legislative framework takes account of changes that

affect, or may affect, workplace health and safety such

as changes in the labour market, industrial relations and

new and emerging risks in the workplace;

2. To ensure that legislated duties and obligations are

updated so that they are clearly understood by all duty

holders and enforcers of the legislation;

3. To ensure that the nature of offences is clear and that

penalties associated with offences have appropriate

deterrent effect so as to increase compliance with the

legislation;

4. To ensure that all parties in the workplace clearly

understand their role and responsibilities for workplace

health and safety;

5. To improve the effectiveness of the administration of

workplace health and safety in achieving the purposes

of the legislation; and

6. To further reduce the incidence of workplace

accident, injury and illness to achieve the Targets of the

National Occupational Health & Safety Improvement

Strategy 2002- 2012 -

14


a) to sustain a significant, continual reduction in the

incidence of work-related fatalities with a reduction of at

least 20 per cent by 30 June 2012 (with a reduction of

10 per cent being achieved by 30 June 2007); and

b) to reduce the incidence of workplace injury by at least

40 per cent by 30 June 2012

Conduct of the review

2. The review of workplace health and safety in Tasmania

commenced with the appointment of the Director of the project, Mr

Steve Hyam in October 2005. The Senior Review Officer, Dr

Denise Brown, and Administrative Assistant, Mrs Myrna Hutchins,

were appointed to the team in February 2006.

3. Phase I of the review involved early discussions with government,

industry and union stakeholders; research and planning of the

project.

4. The calling of the State election for 18 March 2006 and the

project’s subsequent transfer under new administrative

arrangements from the Department of Infrastructure, Energy and

Resources to the Department of Justice and Workplace Relations,

delayed Phase II of the project.

5. The appointment of the Hon. Steve Kons MHA as Attorney-General

and Minister of Justice and Workplace Relations enabled the

review to proceed. The terms of reference for the review were

approved and major issues confirmed by the Minister in May 2006.

15


6. Phase II, comprising public consultation and reporting, commenced

with the release of a Discussion Paper on 24 June as a basis for

formal public consultation.

7. The purpose of the Discussion Paper was to stimulate discussion

and response on a range of legislative and administrative issues

relevant to the terms of reference. The issues included those that

have been subject to debate over recent years, either by similar

reviews occurring elsewhere in Australia or by various authors as

published in academic papers, safety journals, occupational health

and safety or workers compensation magazines, and newspapers.

The Discussion paper made suggestions on most of the issues

seeking the views of respondents.

8. Thirty eight written submissions were received from organisations

representing employers and employees as well as individuals from

the private and public sector. Ten respondents requested that their

submissions not be published while one was withheld from

publication by the Director; all other submissions were published on

the Department of Justice website at http://www.justice.tas.gov.au/.

9. Follow up meetings were organised with some respondents to

explore their comments or suggestions, with an additional invitation

to the peak bodies (Tasmanian Chamber of Commerce and

Industry, Unions Tas and the Tasmanian Minerals Council) to meet

with the team if they wished to offer additional comment. These

meetings took place over two weeks, with a total of 13 people

16


involved in focus group type meetings and three meetings with

individuals. The last meeting took place on 28 August 2006.

10. This Interim Report reports the findings of the review and makes

recommendations for consideration by the Minister for Justice and

Workplace Relations prior to being released for public consultation

with key stakeholders and the community. This provides an

important opportunity for consideration of the recommendations

that are put forward and feedback will be provided to the Minister

for consideration.

11. Depending upon the community response and the wishes of the

Minister, a final report may be prepared for State Government

approval and decision making processes after consultation is

complete.

12. Phase III of the project will involve the implementation of approved

recommendations. The extent of this phase will depend upon the

number and nature of the recommendations that are approved,

however if it requires the drafting of any agreed legislative

amendments, the draft Bill will be subject to consultation, before

being presented to Parliament. This Phase will also involve

implementing decisions about administrative improvements as well

as public promotion of the new legislative and administrative

arrangements. Implementation should be complete by mid to late

2007.

17


Structure of this Report

13. This report begins by examining the “big picture” to look at the

impact of economic and political changes upon workplace health

and safety.

14. It then proceeds to examine the framework and principles for

workplace health and safety legislation set by Lord Robens. It

looks at how those principles have been represented in the

Tasmanian legislation and how relevant or adaptable they may be

to the contemporary situation.

15. The structure of the report is intuitive, following a train of thought

from the legislative structure at the beginning to the roles and

functions of administrative bodies at the end, considering the terms

of reference as it proceeds. Throughout the report we refer to the

views of respondents, as well as other reviews, reports and

research papers. In recommending change to the legislation, we

have often recommended administrative action as well since we do

not see that the former can be fully effective without the latter.

16. For convenience of the reader, the recommendations are copied at

the beginning of the report.

17. The views expressed in this paper are not the views of the Minister

or the Tasmanian Government.

18


18. Comments and submissions may be sent to the following address

by 26 May 2007:

Dr Denise Brown

Senior Review Officer

Workplace Health and Safety Review 2006

Department of Justice and Workplace Relations

GPO Box 825

Hobart Tas 7001

Telephone: 03 62 337355

Email: Denise.Brown@justice.tas.gov.au

19


SUMMARY OF RECOMMENDATIONS

Recommendation 1:

The health and safety needs of mature-aged persons, skilled

migrants, refugees entering the Tasmanian workforce and other

persons re-entering the workforce after a long absence, are issues

that both industry and government need to consider carefully now in

planning programs and strategies to prevent injury and illness.

Recommendation 2:

In negotiating at a high level on the national harmonisation of

workplace health and safety legislation, either within COAG or within

the Australian Council for Federation, it is recommended that

Tasmania urgently seeks a sensible resolution to the dilemma of

national and/or industry standards that avoids adding further

regulation to the health and safety legislation framework.

Recommendation 3:

It is recommended that the current framework and its objectives to

prevent work-related injury, illness or death be retained and

defended against attempts to return to the old piecemeal approach of

prolific regulation. The State must work to achieve industry’s

commitment to uphold the framework as the most flexible and

appropriate for regulating contemporary workplaces.

Recommendation 4:

The review recommends that industry be strongly encouraged to

adopt existing relevant standards (including National Standards) as a

means of accessing practical detail to support their workplace health

and safety efforts.

Recommendation 5:

It is also recommended that proposals put forward for

“harmonisation” of workplace health and safety either within the

COAG or CAF processes, be carefully considered to ensure that

proposals do not increase the level and number of regulation. If

proposals have the potential for increasing regulation, they should be

rejected.

20


Recommendation 6:

It is further recommended that in all national and local fora, that

workplace health and safety matters should be given balanced

attention.

Recommendation 7:

It is recommended that the Government establish a workplace health

and safety council of agency and industry partners with a purpose,

functions, roles and membership along the lines proposed. Relevant

amendments would need to be made to the Act (and likely to the

Workers Rehabilitation and Compensation Act) as indicated.

Recommendation 8:

It is recommended that the workplace health and safety council work

cooperatively to develop a Workplace Health and Safety Charter

setting out the general principles to underpin the objectives of the

Act. The first principle could be “in any employment arrangement

and any workplace, prevention of work-related injury, illness or death

is paramount”.

Recommendation 9:

The review team recommends that an amendment to the Act be

made to extend the duties of employers in section 9 of the Act to all

persons employed or engaged to perform work for the employer and

who are exposed to health and safety risks at the workplace under

the employer’s control or management.

This amendment would deal with the majority of concerns that the

Act does not presently provide sufficient prevention duties to classes

of workers who do not fit the definition of “employee of the

employer”.

It may be achieved by amending the commencement of Part 3,

section 9 so that a new opening statement of general principle is

inserted to replace the existing first paragraph of s9(1) - viz:

“employers must ensure so far as is reasonably

practicable, that all persons employed or engaged by

employers to perform work for the employer, are, while

at work, safe from injury and risks to health and, in

particular, must – (&c) …”.

The amendment needs to be drafted so that the new opening

statement applies to all the identifiable duties (currently outlined in

subsection 2).

21


Recommendation 10:

If recommendation 9 is not agreed or adopted, then:

it is recommended that the provisions for instruction and information

that only apply currently to employees of employers, be extended to

include on-hired employees and on-hired contractors (as “any

persons”) whose health and safety may depend upon appropriate

instruction and information about the workplace being provided

directly by the workplace employer.

Recommendation 11:

Likewise, if recommendation 9 is not agreed or adopted, then it is

recommended that the employers’ duty at section 9(2)(e) to provide

supervision to any employees who are inexperienced in the

performance of any work, be extended to include all inexperienced

persons whether they are employees or engaged as on-hired

employees, in order to satisfy the need to prevent injury, illness and

death of any person in the workplace.

Recommendation 12:

It is recommended that section 9(2)(a) and (b) that allow the Director

administrative power to notify employers and require appropriate

action about health hazards be removed and replaced with a

provision that prescribes firstly a duty of employers to protect the

health of persons employed or engaged in the workplace and

secondly, where hazards or risks to health exist, to monitor the

health of those persons to prevent illness.

Recommendation 13:

It is also recommended that “work-related injury” be removed from

the content of a provision whose main intent is to talk about

preventing work-related illness.

Recommendation 14:

It is recommended that to strengthen and clarify the employers’

duties to provide information etc, after removing s9(2)(a) and (b)

from this section and placed elsewhere in the Act, the duties of

employers at sub-subsections (c), (d), (e) and (f) be placed in a

separate section under the heading something like “duties of

employers to provide information to employees”.

Recommendation 15:

It is also recommended that another separate section be provided for

the duty of employers to responsible officers at (g), headed “duty of

22


employers to provide information &c to responsible officers,

managers and supervisors“.

These duties are to retain the practicability provision.

Recommendation 16:

It is also recommended that the agency provide guidance as to the

type of information that should be provided, to allow for relevant

workplace health and safety policies etc.

Recommendation 17:

This recommendation relates to the previous recommendations

made about section 9(2). Sub-subsections (h) and (i) of subsection

(2) should be written as separate sections.

In effect if all recommendations about subsection (2) were to be

taken up, there would be separate sections dealing with separately

identified types of duties.

Recommendation 18:

It is recommended that s9(3) be rewritten as a separate section

clearly titled as a duty of employers to other persons not at the

workplace.

Recommendation 19:

It is recommended that guidance and/or education be provided to

raise the level of awareness of who are “accountable persons”

according to the legislation.

Recommendation 20:

It is recommended that the agency gives close consideration at a

strategic level to how to raise levels of awareness of the risks to

health associated with contemporary workplaces and how workplace

health and safety training may best be provided.

Recommendation 21:

It is recommended that the agency encourage industry to adopt

existing industry standards or codes of practice as recognised

practical non-statutory instruments. Large industries and businesses

could, by following this principle, be encouraged to adopt relevant

national standards; while small businesses could develop simple

health and safety measures or relevant codes of practice that apply

to their operations.

The recommended workplace health and safety council could be an

appropriate body to advance the adoption of standards by large

23


usinesses and the encouragement of relevant simple solutions for

small businesses in Tasmania.

Guidance materials, whether published electronically or in paper

form, must be simply written in “plain English”.

Recommendation 22:

It is recommended that further consideration be given to the internal

inconsistencies of the legislation that prescribes both innovative and

traditional safety systems; and how organisations can overcome

problems created by having to comply with a “system” that is

incompatible with the way in which their organisation is managed.

Recommendation 23:

It is recommended that Regulations 18 and 19 be considered closely

by the agency with a view to remove those aspects that are not

strictly necessary to preventing injury or illness. Administrative

processes, for example the requirements at Reg18 (3), (4), and (5)

should be considered for removal.

Reg 19(1) prescribing general control of risk could stand; however it

is recommended that Reg 19(2) which is complex and confusing for

most duty holders and which imposes unnecessarily onerous

requirements subject to a penalty, be removed.

The review team recognises that changes to the prescription of risk

management processes is potentially an area for national attention

rather than something pertaining only to Tasmania and it could be

referred to the ASCC for action for “national harmonisation”.

Recommendation 24:

If the message to prevent injury or illness is to get through to the

maximum number of people, it is important to avoid using jargon (or

language that is only understood by a small group) either in the

legislation or in guidance provided by the agency.

Recommendation 25:

It is recommended that the Act be amended to include a definition of

consultation, and;

The Act should contain a general duty that employers and

accountable persons must consult with all relevant persons to ensure

that each person is safe from injury and risks to health.

Recommendation 26:

It is recommended that an amendment to the Act would strengthen

the current references to “work practices” and working conditions. It

24


could be phrased as a duty of employers (so far as is reasonably

practicable) to control risks to health and safety that arise from any

aspect of work including the organisation and management of work,

working conditions, job design and demand, work practices, and

workplace behaviour (or “relations” if this term is preferred).

Recommendation 27:

It is recommended that a provision be included in the Act to enable

workplace parties to approach a tribunal of the Tasmanian Industrial

Commission for resolving workplace health and safety issues that

have not been successfully resolved at the workplace.

The primary purpose of the tribunal would be to mediate and

facilitate the resolution of issues.

The overall objective would be to prevent illness and/or injury that

may arise from psychosocial risk factors in the workplace.

The amendment would necessarily be drafted so that its purpose is

clear and not be exploited for other purposes.

A working group of agency, TIC and other relevant persons would

need to consider the powers, indemnification and referring provisions

that would enable the tribunal to operate within the legislation.

Recommendation 28:

It is recommended that collaboration with other relevant agencies be

used to raise awareness of the contributory work-related risk factors

to chronic disease identified as priorities by the National OHS and

National Health Strategies.

It is recommended that programs, activities and services delivered to

workplaces take advantage of health promotional methods that have

proved to be successful.

The WorkCover Board, in fulfilling its promotion function according

the Act, and the recommended workplace health and safety council

may benefit from exploring a whole of government approach to

preventing work-related illness.

Recommendation 29:

It is recommended that the Inspectorate should receive targeted

training on how to advise businesses correctly in regard to the

impact of work organisation, work practices and management of

work.

25


Recommendation 30:

To reduce injury and illness in Tasmanian workplaces, it is

recommended that workplace health and safety training, embracing

awareness of the legislation and how to prevent work-related injury

and illness, should be a mandatory part of all vocational and

management training.

Employers, principals, contractors, managers and supervisors should

all be actively encouraged to complete workplace health and safety

training. The State Government could lead the way by initiating

workplace health and safety training in all public sector training

provided for relevant supervisory and management positions.

Recommendation 31:

It is recommended that the agency provide regular training seminars

for businesses on aspects of the legislation and preventing injury and

illness.

Recommendation 32:

It is recommended that an amendment to the powers and functions

of inspectors be drafted to include educative and advisory powers

and functions to:

- meet stakeholders’ needs for more direct advice;

- enable the increase in awareness-raising activities that we have

consistently recommended throughout this report; and

- provide indemnification of inspectors when engaging in advisory or

educative functions.

Recommendation 33:

It is recommended that funding arrangements are negotiated

between the WorkCover Board, the agency and the Workplace

Health and Safety Council to develop and implement additional

awareness raising, educative and advisory programs that support the

needs of small business.

Recommendation 34:

It is recommended that inspectorate training programs include

training to equip them with the knowledge and skills to be able to

identify risks and prevent illness arising from work organisation, work

practices and the management of work and advise businesses

appropriately.

26


Recommendation 35:

It is recommended that the agency enter into discussions with

relevant education and training bodies to discuss the potential for the

inclusion of core OHS education and training in post-secondary

courses. The outcome of discussions could become part of a

feasibility study for the Minister to determine whether to proceed to

the next step – workplace health and safety education and training

strategy (see next recommendation).

Recommendation 36:

It is recommended that representatives of the agency, the

WorkCover Board and Workplace Health and Safety Council get

together to determine a workplace health and safety education and

training strategy to be presented to the Minister for Justice and

Workplace Relations and the Minister for Education.

Recommendation 37:

It is recommended that section 9(2)(a) and (b), and section 14A be

further examined in conjunction with section 39. If it is agreed that

they substantially duplicate the powers of the Director in s39, it is

recommended that s9(2)(a) and (b); and s14A be removed for the

purpose of consolidating all the powers and functions of the Director

in one place for easy reference and greater clarity.

Recommendation 38:

It is recommended that the issue of monitoring health, as one means

of preventing illness, and keeping records of monitoring conducted,

be further considered by the agency in view of changed employment

arrangements. Consideration should include how to maintain

consolidated records, particularly for persons who are self-employed,

on-hired, or working regularly between different states.

Recommendation 39:

It is recommended that, while Tasmanian penalties should be on a

par with other States and Territories, benchmarking should be based

on objective criteria. Any increase should be approached with

caution. Further consideration should be given to the issue of

penalties by the agency, keeping in mind the size of most of

Tasmania’s businesses.

Recommendation 40:

We recommend that the proposed workplace health and safety

council consider the issue of codes of practice, and invite the HIA

and other interested parties to be involved.

27


Recommendation 41:

It is recommended that “public administration” be included within the

definition of “industry” in section 3 of the Act. This would remove any

doubt as to whether the Act applies to those persons who are

employed or engaged for work in public sector agencies, offices,

statutory authorities, etc.

Recommendation 42:

It is recommended that the agency liaise with the Department of

Premier and Cabinet and/or Volunteering Tasmania to ensure that

there is consistent guidance in regard to the application of the

legislative objectives towards volunteers.

Recommendation 43:

We recommend the removal of Part 4 from the Act.

28


CHAPTER 1

THE WORLD OF WORK

19. Our report commences by looking at what has happened to change

the world of work over the last decade or so, and how these

changes affect people’s health and safety.

20. The productivity of our local and national economy depends on the

work we do. Economic arrangements influence the way we work

as well as the kind of work we do. Social policies, expressed in

industrial relations or welfare policy, may affect how we feel about

work and at work, and what can happen to us if we are out of work.

21. If we are injured or become ill because of the work we do, the

effects are felt in loss of productivity and costs of care, and by

individuals and families; physically, financially and emotionally. By

preventing work-related injuries, illness or death, we support the

economy and the capacity of people to live fulfilling lives.

22. Thus we commence by looking at the strategic environment within

which workplace health and safety policy operates. Some parts of

the big picture that appear to have the greatest impact upon

workplace health and safety, particularly national economic and

industrial relations policy, are beyond the limited reach of this

review.

29


23. Where potential national directions in workplace health and safety

are likely to have a significant impact upon Tasmania’s legislative

and administrative frameworks, we have given them consideration.

Global change

24. Although the Tasmanian Workplace Health and Safety Act 1995

was passed by the Tasmanian Parliament just over a decade ago,

it is firmly based on a world view that goes back at least thirty years

and probably longer. This is because it is based upon the

recommendations set out in the 1970s by Lord Robens in the

United Kingdom.

25. The changes that have taken place over the last ten to twenty

years have been far-reaching. Social, political and economic

changes on a global scale, driven by liberalisation and growth of

trade, intense competition and deregulation of the labour market,

have inevitably affected the nature of work and workplaces, and

thus workplace health and safety.

26. The 1990s saw a wave of economic change in Australia driven by

national reforms in industrial relations, infrastructure and network

market reforms, and reforms driven by National Competition Policy

to reduce regulation and increase competitiveness. After the

release of the OECD economic blueprint, The Jobs Study: Facts,

Analysis, Strategies (1994) the pace of change in the labour market

30


quickened. 1 As a result of reforms, Australia has seen accelerated

productivity growth and changes in the composition of employment

by industry. 2

Industry Profile

27. The industry profile that existed at the time that Robens made his

recommendations in the 1970s has changed profoundly. Numbers

of people employed in manufacturing have declined in Australia

while service industries have grown.

Structural changes to the Australian economy over

recent decades are reflected in changes in the

composition of employment by industry. In 1985-86,

one-third (33%) of all employed people were employed

in goods producing industries* but this had dropped to

one-quarter (25%) in 2005-06 (with the remaining 75%

of employed people working in service industries*).

While most jobs in goods producing industries were held

by men (approximately 78% in both 1985-86 and 2005-

06), the jobs in service industries were more evenly

distributed between men and women. 3

28. According to Dr. Ken Henry, Secretary of the federal Treasury

(2006), manufacturing lost almost 50,000 jobs over the last two

1 Organisation for Economic Co-operation and Development (1994) The Jobs Study: Facts,

Analysis, Strategies, OECD, Paris.

2 Ziegelschmidt, Helmut; Koutsogeorgopoulou, Vassiliki; Bjornerud Simen; & Wise, Michael

(2005). OECD Economics Department Working Paper No. 451 “Product Market Competition

and Economic Performance in Australia”, p. 14. (http://www.oecd.org/eco/Working_Papers/.)

3 61050.0 Australian Labour Market Statistics (October 2006) “Changes in Where People

Work Over Time” – Introduction. Australian Bureau of Statistics: Canberra.

(* Goods producing industries are defined in endnotes 1 and 2 of the ABS report as

Construction; Agriculture, forestry and fishing; Manufacturing; Mining; and Electricity, gas and

water; while service industries are defined as [defined as Property and business services;

Accommodation, cafes and restaurants; Cultural and recreational services; personal and

other services; health and community services; Retail trade; Education; Wholesale trade;

Government administration and defence; Finance and insurance; Transport and storage; and

Communication services.) http://www.abs.gov.au/Ausstats/abs@.nsf/)

31


years [2004-2006]. 4 The trend continues: in October 2006

Mitsubishi announced plans to shed 2000 jobs and close down

their automobile engine manufacturing plant in South Australia.

29. Manufacturing and primary industries continue to rank high in terms

of the number of people employed in Tasmania, but their

dominance is being challenged by the emergence of tourism,

communication and other service type industries. 5

Downsizing

30. Extensive and intensive organisational change took place in the

1990s. Many terms – including “business re-engineering”,

“restructuring”, “strategic transformation” – are used to refer to the

phenomenon of reducing the size of organisations and reorganising

the business as strategies to increase business efficiency and

competitiveness. Gandolfi & Neck (2003) refer to the 1990s as the

“downsizing decade”. 6

31. Ongoing downsizing is a variation of the “one-off” mass staff

reductions. This is downsizing by attrition, freezing of positions,

conversion of full-time positions to part-time or “job-shared”

4 Megalogenis, George “China-led boom to threaten factories”, The Weekend Australian, Sept

30-Oct 1 2006; The Nation, p.6.

5 According to the Department of Economic Development’s Annual Report 2004-05,

Tasmanian manufacturing and services industry employed 23,000 people; Food, Agriculture

and Fish industry employed 20,000 people; Forest industry employs 7,700 people; Mining and

Minerals employed about 4,000 people; Construction industry employed 10,000 people; ICT

employs 2,800 full-time equivalent employees; Energy related industry employs about 1,500

people; business services and contact centre industry employs 5,300 people.

(http://www.development.tas.gov.au.)

6 Gandolfi, Franco & Neck, Philip A. (2003) “Organisational Downsizing”, Australasian Journal

of Business & Social Inquiry Vol.1. Number 1, p. 4.

Retrieved October 2006 from website: http://www.scu.edu.au/ajbsi/papers/vol1/gandolfi.pdf.

32


positions as well as encouraging early retirement. It has a similar

impact to one-off downsizing or restructuring that involves loss of

staff. 7

32. Many organisations, particularly in manufacturing, retail, finance

and the public sector, experienced repeated downsizing or restructuring,

thus compounding the effects.

33. Downsizing in both the private and public sectors resulted in 3.3

million full-time employees in Australia being retrenched between

1986 and 1997. 8 Some involved forced redundancies; others

involved voluntary redundancies, early retirements or redeployment

into lower paid jobs.

34. Many of those who were made redundant re-entered the workforce

either as self-employed persons (accounting for a rise in the

number of small and micro businesses) or as hired out labour (onhired

employees or sub-contractors). Some experienced

unemployment; others required re-training before they could reenter

the workforce in other occupations or other sectors.

35. In 2000-01, 13.7% of all Tasmanian businesses were nonemploying

and 96% of all Tasmanian businesses are classified as

7 Ibid, p. 11.

8 Gandolfi & Neck, p. 5.

33


small to micro businesses thus reflecting the national growth of

“micro-business” after the downsizing phenomenon. 9

36. Research on the impact of downsizing on the health of workers

[Gandolfi and Neck (2003) and Quinlan (2001; 2006)], reveals that

the workers who stayed behind as well as those who left the

organisations have been affected negatively.

Health effects

include mental stress as a consequence of job strain (increased job

demand) and job insecurity. (Mental disorders are now recognised

as a priority national occupational disease and risks to health are

discussed further in Chapter 5.)

Ageing society

37. We are witnessing an ageing, diminishing, labour force. As our

ageing workers retire it is likely to create shortages in skills as well

as numbers of workers. The Australian Bureau of Statistics Labour

Force Survey report of October 2006 reveals “the proportion of

both men and women employed in higher skilled occupations

increases with age”. 10 As these employees retire they are likely to

leave workforce gaps in skills and experience that will be a

challenge to fill.

38. The departure of retirees from the workforce may see a recurrence

of “risks to health” created by the “downsizing decade” of the

9 Australian Bureau of Statistics 2006, Cat. No. 1384.6 Statistics – Tasmania. Retrieved

September 2006 from website: http://www.abs.gov.au/Ausstats/abs.

10 Australian Bureau of Statistics 2006, Cat. No. 6105.0 Australian Labour Market Statistics

“Introduction”. Australian Bureau of Statistics (ABS)

(http://www.abs.gov.au/Ausstats/abs@nsf/.)

34


nineties. As individual workforces reduce in size, attempts to

spread the same workload across fewer people will repeat the

experience of the 1990s.

Then the demand for increased

productivity and more streamlined business led to increased pace,

load, demand and intensity of work with resulting high psychosocial

risk factors of work-related illness and injury. Consideration of the

health and safety of the ageing workforce will also need to factor in

the fact that some, perhaps many, ageing workers will already be

affected by the onset of chronic illness.

39. One downside of the ageing workforce being felt now is difficulty in

recruiting people with specialist skills in certain sectors. In sectors

such as health services, where demand is increasing, shortages of

essential staff make it difficult for providers to meet demand without

impacting negatively on the health and safety of workers.

40. Various national policies and strategies have emerged in response

to the ageing of the workforce. These include encouragement of

mature aged or older people (aged 55 – 60 years and beyond

retirement age) to remain in the workforce; importing labour

through skilled migration programs; and policies to return people to

work who have been out of the labour market for extended periods.

Migration

41. One feature of the global economy is the mobility of the labour

force: people move internationally, as well as within nations and

within regions, to meet demands for labour.

35


42. According to the ABS population statistics (2001), recent

immigrants are more likely to work in the leading sectors of the

economy in jobs that are highly paid and settle in major urban

areas. 11

Tasmania is actively encouraging skilled migrants,

particularly health specialists and general practitioners, to meet its

needs. 12

43. Figures released by the (then) Commonwealth Department of

Immigration and Multicultural Affairs (DIMA) indicate that recent

migrants to settle in Tasmania work in the energy industries, health

and community services and some in agriculture, forestry and

fishing, and mining. They are predominantly from the United

Kingdom or India. 13

Small numbers of refugees have settled in

Tasmania from Sudan, Ethiopia and Sierra Leone. 14

44. The agency needs to take the needs of ageing and migrant

workers into account in developing strategic directions for

preventing injury and illness in the workplace.

45. Both private and public sector employers need to carefully consider

the health and safety impacts of reducing/reduced workforces.

11 Australian Bureau of Statistics (2001), Cat. No. 2053.0, Population Statistics Australian

Census Analytic Program, “Australia’s Most Recent Immigrants”. Commonwealth of

Australia: Canberra.

(http://www.abs.gov.au/AUSSTATS/abs@nsf/latestproducts/2053.0Media).

12 The Department of Economic Development website provides a skills shortages list but also

indicates potential business opportunities for skilled migrants.

(http://www.development.tas.gov.au/migration/skilledmigration.html).

13 ABC Tasmania (Monday, 25 September, 2006) “Tasmania’s migrants net highest wages”.

(http://www.abc.net.au/news/items/200609/1747719.htm?tasmania).

14 Peter Wels, Stateline “Refugees” 24 March 2006. ABC Radio

(http://www.abc.net.au/stateline/tas/content/2006/s1600250.htm)

36


Unless production or output is adjusted accordingly, remaining

workers are likely to be at higher risks of injury and/or illness as a

result of increased job demand, load and pace of work. Employers

need to consider the needs of migrants in their workforce when

fulfilling their duties of providing information, instruction, training

and supervision.

Recommendation 1:

The health and safety needs of mature-aged persons, skilled

migrants, refugees entering the Tasmanian workforce and other

persons re-entering the workforce after a long absence, are

issues that both industry and government need to consider

carefully now in planning programs and strategies to prevent

injury and illness.

37


Changed employment arrangements

46. Many people who took redundancies from downsizing companies

during the late 1980s and `90s became independent contractors

and sub-contractors, contributing to the increase in the numbers of

small, especially “micro” non-employing, businesses. A massive

growth in casual and part-time employment arrangements replaced

“full-time, permanent” employment.

47. Chris Maxwell refers to the changed employment arrangements:

It has been estimated that 85% of net employment

growth is in “precarious employment” categories. Most

of the job losses in the period from 1985 to 2001 were

associated with industries which had traditionally

provided full-time, permanent employment. By 2002

employees with paid leave entitlements made up only

58% of the Australian workforce. 15

48. Among the increased numbers of people in “precarious

employment” are those employed on a casual basis. This is

employment based on working flexible hours without sickness or

holiday benefits, often on an “on call” basis (such as in the

hospitality, entertainment and other service industry sectors but

increasingly used also in the retail sector). Other employment in

this category includes fiercely contested fixed, short-term, contracts

that frequently result in narrow margins. 16 )

15 Chris Maxwell (2004), Occupational Health and Safety Act Review (State of Victoria,

Australia), para.59, p. 26. [Maxwell’s footnotes within the quotation are deleted to avoid

confusion.]

16 Australian jurisdictions passed “unfair contract” legislation throughout the 1990s and early

2000s to establish “fair”, minimum, contract conditions.

38


49. The Australian Bureau of Statistics Labour Force Survey reports “it

is widely agreed that casual employment has increased over the

last decade and will continue to do so. In 2004, 26% of employees

[in Australia] were casual”. 17

50. In Tasmania 28.5% of all employees are casual (2005). 18

Impact of precarious employment on health

51. The International Labour Organisation of the United Nations (ILO)

published research on the effects of globalisation indicating that

employment insecurity is a major contributing factor to work-related

stress and stress-induced illnesses.

52. The percentage of people employed/unemployed no longer

indicates employment security, since “employment” includes all

forms of temporary employment and includes very low and/or

irregular hours. It is generally agreed that the “nine to five”, fulltime

permanent employment of thirty years ago, when the

legislative framework was designed, is now relatively uncommon.

53. There is consensus among researchers that the rewards of high

levels of productivity have come with the emergence of new health

and safety risks. 19

17 Australian Bureau of Statistics 2006, Year Book Australia 2006, Cat. no. 1301.0, ABS,

Canberra. Retrieved July 2006 from website:

www.abs.gov.au/ausstats/abs@nsf/Latestproducts/1301.0Feature Article.

18 Australian Bureau of Statistics 2005, Australian Social Trends 2005, Cat. no. 41102.0,

ABS, Canberra. Retrieved July 2006 from website www.abs.gov.au/ausstats/abs.

39


54. In Australia, many of those who are in full-time employment,

particularly in senior or managerial roles, are working longer hours,

mostly attributable to unpaid overtime and are feeling the effects in

fatigue and stress. 20

55. The United Nations International Labour Organisation (ILO) also

cites changed work organisation and work practices, as well as the

emergence of more high-risk ventures, as features of the global

economy that exert negative effects on health and safety

considerations. 21

Work intensification

56. The effects of work intensification on health are substantiated by

the findings of the Whitehall II Study (2002) commissioned by the

Health and Safety Executive in the United Kingdom. This study

reveals that increased work intensification with low control (i.e.

ability to control the pace and/or demand of work) leads to

deterioration of mental health of workers. When insecurity of

employment is added to the equation, the potential for stress

related illness is increased. 22

19 There is a large body of work on this subject. See for example: Flaspoler, E., & Brun, E.

(2005) Expert forecast on emerging physical risks related to occupational safety and health,

pub. European Agency for Safety and Health at Work: William Cockburn, Luxembourg.

20 Iain Campbell (2002) Cross-national Comparisons – Work Time Around the World (Centre

for Applied Social Research, Royal Melbourne Institute of Technology University, Melbourne,

Victoria). Accessed through ACTU web site

(http://www.actu.asn.au/public/papers/crossnationalcomp.html).

21 ILO (2006) Changing Patterns in the World of Work, Geneva. Retrieved July 2006 from

website: http://www.ilo.org/public/english/standards/relm/ilc/ilc95/reports.htm.

22 The influences of the psychosocial work environment on incident coronary heart disease

and diabetes and the influences of change in work risk factors on health are reported from the

40


57. The World Health Organisation World Health Report 2001 – Mental

Health: New Understanding, New Hope cites widespread social,

technological and economic changes in the late twentieth century

as stressors associated with the global increase in mental

disorders representing four out of ten of leading causes of disability

world-wide. 23

Clinical practitioners have reported increasing stress-

and mental illness-related morbidity and mortality as features

“characterising societies in distress and undergoing dramatic

change”. 24

Decline in unionism

58. The period from the late 1980s to the present has seen a steady

decline in union membership in Australia and other OECD

countries with economies similar to Australia’s. The ABS feature

article on trade union membership links the decline in unionism

with labour market changes that have occurred within the same

period:

In part, the decline in trade union membership in

Australia is due to changes in the composition of the

labour market, with job growth tending to occur in

industries (particularly in the services sector) where the

trade union membership rate has always been relatively

longitudinal Whitehall II cohort study of 10308 British Civil Servants commissioned by the

Health and Safety Executive (HSE), United Kingdom. Listed as CRR 422/2002 Ill-Health -

Work environment, alcohol consumption and ill-health: The Whitehall II study. Retrieved July

2006 from website: http://www.hse.gov.uk/research/crr_htm/2002/crr02422.htm.

23 World Health Organisation (WHO) (2001) The World Health Report 2001 – Mental Health:

New Understanding, New Hope, World Health Organisation, Geneva: Chapter 1 “A public

health approach to mental health”, p. 3. Retrieved June 2006 from website:

http://www.who.int/whr/2001/en/.

24 Rutz, Wolfgang (2003)“The European WHO mental health programme and the World

Health Report 2001: input and implications”. The British Journal of Psychiatry 183: 73-74.

The Royal College of Psychiatrists. (http://bjp.rcpsych.org/cgi/content/full/183).

41


low. Conversely, there has been a decline in jobs in

industries that were traditionally highly unionised, such

as mining and manufacturing. Coinciding with these

changes has been an increase in casual and part-time

employment, both of which have tended to have lower

unionisation rates.

While compositional change in the Australian labour

market has contributed to some of the decline, the trade

union membership rate has also fallen within individual

industries and occupations, and within full-time and parttime

employment groups. This general decline in trade

union membership rates may reflect the substantial

changes to the industrial relations environment in recent

times. …

… In 2003, the trade union membership rate was higher

for employees with leave entitlements (29%) and fulltime

employees (26%) than for employees without leave

entitlements (9%) and part-time employees (17%). 25

59. There is divided opinion on the role and relevance of unions in

workplace health and safety. Unions have played a major part in

providing training, advice and assistance in workplace health and

safety issues in the past, but some unions have also been accused

of exploiting workplace health and safety as a means to advance

other, industrial or political, agendas. 26

60. Dr Steven McBride, Professor and Director of the Centre for Global

Political Economy, Simon Fraser University in British Columbia,

working as an Honorary Research Fellow at Monash University

(Victoria, Australia), identifies the decline in unionisation of

workplaces and restrictions on unions’ ability to represent workers’

25 Australian Bureau of Statistics (2004) Australian Labour Market Statistics, Cat. No. 6105.0

Feature Article – Trade Union Membership, Commonwealth of Australia, Canberra.

(http://www.abs.gov.au/ausstats/abs@.nsf/0/592d2f759d9d38a9ca256ec1000766f7?OpenDo

cument).

26 Cole, T.R.H. QC, Commissioner, (2003) Final Report of the Inquiry into the Building and

Construction Industry, Vol.6 “Reform – Occupational Health and Safety”.

42


concerns as factors contributing to problems in workplace health

and safety. He argues that the decline of unionism adds to the

problems of people in insecure employment who are afraid to

express their concerns to employers for fear of retaliation, with

resulting effects on poor health. 27

Workplace relations and workplace health and safety

61. For the purpose of this discussion ‘workplace relations’ is taken to

be those arrangements or factors governing the terms or conditions

of employment. It is argued that workplace relations make a

significant contribution to the total social and management

environment (or ‘climate’) of a workplace. Workplace relations, the

‘climate’ of the workplace and workplace health and safety are

closely inter-related and all affect productivity. 28

62. Changes to Australia’s industrial relations system over the last ten

to twenty years have accompanied economic reforms. The pace of

change has quickened since the passage of the Industrial

Relations Act 1993 (Cwlth) that introduced workplace and

enterprise bargaining and agreements. The Workplace Relations

Act 1996 (Cwlth) and the most recent reforms of the Workplace

Relations (Work Choices) Amendments Act 2005 (Cwlth), have

completed a steady movement to create an industrial relations

27 McBride, Steven (n.d.) “Living precariously: A Canadian Perspective on Economic

Security”, Research Centre on Work and Society in the Global Era, Monash University,

Clayton, Victoria, Australia; p. 7.

28 United Nations International Labour Organisation (March, 2006) Occupational safety and

health: Synergies between security and productivity. ILO, Geneva.

43


framework that emphasises a direct relationship between

employers and individual employees.

63. The Australian Workplace Relations (Work Choices) Amendments

passed in 2005 exempt businesses that employ fewer than 100

persons from the unfair dismissal provisions that had previously

granted some protections and security for workers. Early reaction

to the amendments appears to indicate that there is uncertainty

and a perception of increased insecurity for workers, though it may

be too early to tell.

64. In order to prevent injury and illness associated with contemporary

workplaces in the twenty-first century, workers need to be able to

negotiate freely about a wide range of potential and significant

health and safety risk factors. The new workplace arrangements

are intended to enable individual negotiation, however there is a

view that job security or winning a contract in a highly competitive

market frequently takes higher priority over personal health and

safety considerations.

65. The workplace health and safety legislative framework is based on

the principle enshrined in statutory duties and obligations that each

person must take care that his or her actions do not harm

themselves or others. Provisions then enable collaborative effort to

ensure that persons in the workplace are safe from injury and risks

to health.

44


66. Collaboration and co-operation operate especially in the application

of democratic representative mechanisms in the workplace to

enable employers and employees to work together to solve

workplace health and safety problems. Such principles and

mechanisms may not fit comfortably with the current emphasis on

singular relationships or individual workplace arrangements.

67. In the early part of the federal government’s 2005 Work Choices

campaign, the Prime Minister, the Hon. John Howard, described

his vision of contemporary workplaces. The Prime Minister’s

speech praises the dynamic and positive aspects of the new

economy but it also reflects the value now placed upon

individualism:

These Australians do not fit neatly into categories based

on age or geography, occupation or industry, income

level or formal qualification.

They are white collar and blue collar. They work each

day in our factories, our small businesses, our great

services companies, our farms and our mines. Some

choose to be trade unionists; many do not. Most are

traditional employees, while a growing number have

embraced the independence and flexibility of working for

themselves.

This new breed of enterprise workers includes the

knowledge workers who now make up roughly 40 per

cent of our workforce. They include the providers of

personalised services, reshaping our society with little

more than initiative, a mobile phone and a computer. But

they also include blue-collar workers in industries that

only a few years ago were written off as part of the ‘old

economy’.

They include the almost 2 million Australians working for

themselves, often as independent contractors,

franchisees or consultants. More than a million

Australians now run small businesses from home, often

45


ecause they can better balance work and family

responsibilities. 29

68. The Prime Minister’s description of the “new breed of enterprise

workers” in contemporary workplaces is interesting. According to

the ILO definition of “enterprise” as “a locus of productivity”, it might

refer to an organisation or a single unit – a company or an

individual – a small, medium or large enterprise. 30

Used in the

context of the Prime Minister’ speech, the term would include selfemployed

individuals, contractors or sub-contractors, on-hire

employees and casual employees identified earlier as belonging to

the category of precarious employment. Because the PM indicates

that “most are traditional employees”, the term would therefore

describe any worker who today might be engaged under

individually negotiated workplace agreements or individual

contracts.

69. “Enterprise” captures an attitude or state of mind, describing

“boldness or readiness in undertaking, adventurous spirit, or

energy”. 31

Used this way the term expresses the idea of individuals

breaking new ground, taking risks (a “new breed” – as described by

the PM).

29 The Hon John Howard, PM., Address to the Sydney Institute, “Workplace Relations

Reform: The Next Logical Step”, Four Seasons Hotel, Sydney, 11 July 2005. As retrieved

August 2006 from the Prime Minister’s Speeches at

www.pm.gov.au/news/speeches/speech1455.html.

30 United Nations International Labour Organisation (March, 2006) Committee on Employment

and Social Policy, 5 th Session, Agenda Paper 29; “Occupational safety and health: Synergies

between security and productivity”. (Geneva: Switzerland); p. 2.

31 The Concise Macquarie Dictionary (1982)

46


70. The “new breed” of enterprise workers experiences both the

potential benefits and the risks of the brave new economy.

71. The workplace health and safety legislative framework designed

thirty years ago is therefore likely to be out of step with the new

economy and its emphasis upon individualism and the new breed

of enterprise workers.

72. The extent and nature of the changes to the world of work that we

have reviewed constitute challenges to be met in achieving the

objective to prevent work-related injury, illness and death. Other

States and Territories have contemplated these changes in reviews

of workplace health and safety and have responded by making

amendments to their workplace health and safety legislation and

the way in which it is administered. The Tasmanian review team is

in the fortunate position of being able to benefit from their

experience. The report turns now to consider other reviews.

47


CHAPTER 2

NATIONAL DEVELOPMENTS

Reviews of workplace health and safety in other

jurisdictions

73. This chapter commences with a summary of reviews and recent

legislative amendments in other jurisdictions and examines national

policy relevant to this review.

Australian Capital Territory: Occupational Health and Safety

Act 1989

74. The review of the ACT legislation and administration was

conducted in two stages: the first, in 2003, examined compliance

and enforcement provisions and resulted in amendments passed in

2004. The second, resulting in a report released in September

2005, examined the objects, boundaries and structure of the Act on

the basis of the need for jurisdictional consistency as well as to

account for changes that have occurred since the Act was first

proclaimed.

75. The issues examined are very similar to those examined by other

reviews and take into account the impact of changes upon the duty

of care, consultation and representation provisions, and the

administration of the Act.

48


76. One aspect that is different from other reviews is the examination

of the issue of public safety, and potential overlap between OHS

and public safety legislation.

77. Industrial manslaughter provisions for death in workplaces as a

result of reckless conduct or negligence were included in the ACT’s

Crimes Act 1951 in 2001.

78. The Bill to amend the current Act is due to be introduced into the

Legislative Assembly by the last sitting day in 2006. 32

Victoria: Occupational Health and Safety Act 1985 -

Occupational Health and Safety Act 2004

79. The review of the 1985 Victorian OHS Act by Mr Chris Maxwell QC

resulted in a new Act – the Occupational Health and Safety Act

2004 - proclaimed in July 2005.

80. The new Act is based on Maxwell’s findings that the safety duties

imposed by the Act and regulations must be clearly defined,

properly targeted and that the safety duties are amended to take

account of the changing nature of work relationships.

81. In recognition of the connection between the changing nature of

work and poor health, Maxwell recommended specific reference to

risks to psychological health.

32 ACT Occupational Health & Safety Council, “Occupational Health and Safety Act 1989:

Scope and Structure Review”, final Report September 2005; p. 2.

49


82. In examining the limits of “practicability”, Maxwell recommended

that guidance be provided to provide greater certainty for all

workplaces and the Authority, and he concluded that “control”

should be added as a factor in considering what is practicable. He

recommended guidance be provided on determining the levels of

responsibility between a host employer and an on-hire labour

services provider; and devoted considerable attention to the cost

factor in determining what is practicable.

83. Maxwell recommended clarification of the existing upstream duties

on manufacturers, designers and suppliers and recommends the

imposition of a safety duty on designers as well as owners,

managers and controllers of buildings that are used as workplaces.

84. He also examined the role of company officers and recommended

that a clear obligation should be imposed on company officers,

equivalent to that imposed on employees, to take reasonable care,

within the limits of their ability to exercise control.

85. In relation to knowledge and compliance, Maxwell called for a

major upgrading of the authority’s role in providing education and

informing workplace parties about their duties, obligations and

rights.

86. Maxwell recommended a strengthening of consultation,

participation and representation provisions in the OHS Act.

50


87. Union right of entry was established by the new Act, exercisable

only by union officials who have been trained in OHS and who

carry an entry permit issued by the Magistrate’s Court, to comply

with Work Choices amendments.

88. A number of Maxwell’s recommendations also addressed the need

for changes in the roles, powers and functions of inspectors, the

introduction of infringement notices and the power to accept

enforceable undertakings. (Infringement notices and enforceable

undertakings are already provided for in the Tasmanian Act.)

89. Penalties for OHS breaches in Victoria were found to be well below

the levels recommended by the Industry Commission in 1995, and

considerably lower than those in Queensland and NSW. Maxwell

recommended an increase in penalties as well as alternatives to

sentencing being introduced. He also recommended that the OHS

Act be amended to make clear that the Crown has no immunity

from prosecution.

90. The “package” of changes implemented as a result of Maxwell’s

review is contained in the Victorian Government’s initiative Working

Together for Safer, Healthier Workplaces as follows:

modernising the language and layout of the Act, making

it easier to understand

providing greater clarity and certainty about the

obligations of duty holders

fostering increased participation by employers,

employees and their representatives in workplace health

and safety issues

51


promoting fairness, consistency and transparency in the

enforcement of the legislation, [and]

bringing penalties broadly into line with other

jurisdictions. 33

91. The Commonwealth Regulatory Taskforce on Reducing Regulatory

Burdens on Business in its report in January 2006 found that the

new Victorian Act provides a good model on which any effort to

“harmonise” workplace health and safety legislation might be

based. 34

Queensland: Workplace Health and Safety Act 1995.

92. To bring the Queensland Act into line with legislation in the

Australian Capital Territory, Victoria and New South Wales,

Queensland’s review resulted in amendments to allow authorised

representatives of unions to enter workplaces on workplace health

and safety grounds. The legislation provides that union members

will have to hold both a federal permit issued under the Work

Choices legislation, and a state permit under the Workplace Health

and Safety Act (Qld). It also identifies the powers of representatives

and limits to their powers. The legislation is at

http://www.legislation.qld.gov.au/.

33 Victorian WorkCover Authority - www.workcover.vic.gov.au/vwa/home.nsf/pages/ohsact.

34 Regulation Taskforce (2006) Rethinking Regulation – Report of the Taskforce on Reducing

Regulatory Burdens on Business, Report to the Prime Minister and the Treasurer, Canberra;

Recommendation 4.27, p.38.

52


Commonwealth: Occupational Health and Safety

(Commonwealth Employment) Act 1991 (OHS(CE) Act

93. This review was announced in early April 2006. The OHS(CE) Act

(Cwlth) covers employees working in Commonwealth government

departments, statutory authorities and Government Business

Enterprises.

94. The Issues Paper sought comment on:

the level of guidance on reasonably practicable and risk

management;

• coverage of upstream duty holders; employee duties;

• health and safety representative (HSR) training and

powers, including the removal of the power for HSR to

issue provisional improvement notices and the potential

for new provisions allowing employers to seek

compensation or damages for loss caused by the action

of HSRs.

95. Coinciding with the review, a Bill was introduced into the federal

parliament to provide coverage to private sector corporations under

the Occupational Health and Safety (Commonwealth Employment)

Act if they are also licensed to self-insure under Comcare, the

Commonwealth’s workers’ compensation scheme.

NSW: Occupational Health and Safety Act 2000

96. A number of amendments to clarify and improve the operation of

the NSW legislation were proposed by the review. Amendments

insert the words reasonably practicable in the general duties

applying to all duty holders in the Act, thus making the NSW Act

53


consistent with terminology of the other States. A definition of the

phrase is included to ensure that the extent of reasonably

practicable is clearly understood.

97. The NSW amendments also aim to clarify the provisions relating to

clothing industry outworkers so that they have the same workplace

health and safety protection provided for other employees in the

Act.

98. NSW adopted provisions similar to the Victorian provisions

imposing liability on directors and managers of corporations that

ensure that officers will only be held liable for matters under their

control. The definition ofofficer” is based upon that used in the

Commonwealth Corporations Act.

99. NSW also addressed the issue of consultation in the workplace on

health and safety through amendments to strengthen and extend

the current provisions, including a definition of what constitutes

meaningful and effective consultation. Amendments also extend

the powers of authorised employee representatives to include the

authority to enter a workplace to discuss a workplace health and

safety matter as well as the powers to enter a workplace to

investigate a suspected breach.

100. Amendments also add an advisory role to the statutory functions of

NSW WorkCover, allowing WorkCover to issue guidelines on

particular legislative provisions or how discretion will be exercised.

54


101. NSW introduced provisions allowing WorkCover to enter into

enforceable undertakings, provisions for resolving disputes about

consultation arrangements; clarifying the employees’ duty of care;

and other administrative matters relating to investigations and

prosecutions.

South Australia: Occupational Health, Safety and Welfare Act

1986 - Occupational Health, Safety and Welfare (SafeWork SA)

Amendment Act 2005

102. Amendments passed in 2005 to the South Australian Act (by the

Occupational Health, Safety and Welfare (SafeWork SA)

Amendment Act 2005) include:

• The establishment of the SafeWork South Australia

Advisory Committee to review, advise the Minister and

provide a forum for stakeholder consultation (combining

functions of Workplace Services and OHS functions from

WorkCover);

• Training for responsible officers, health and safety

representatives and health and safety committee

members;

• Provisions for improvement notices and prohibition

notices where there could be immediate risk;

• Provisions to enable an inspector, after investigating a

workplace bullying matter, to refer the issue to the

Industrial Relations Commission for conciliation or

mediation;

• Alternative, non-pecuniary, penalties introduced; and

• An amendment that allows prosecution of government

departments by the Director of Public Prosecutions,

Western Australia.

55


103. A discussion paper on possible changes to the state’s OHS

legislation was released in April 2006 for comment by May 2006.

104. Issues canvassed in the Discussion Paper included:

the issue of “control” of the workplace and other aspects

of the general duty of care provisions,

• proposals to extend the coverage of the Act to a range of

alternative employment arrangements that may currently

fall outside the traditional employer/employee relationship

and the principal/contractor relationship provided for in

the W.A. Act;

the impact of the federal Work Choices amendments on

OHS legislation; and

the expansion of rights to initiate prosecution to include

unions, as well as the place and process for prosecutions.

105. The WA review also examined a range of issues associated with

serious breaches of the WA OHS Act, including how to establish

accountability of corporations, their directors and senior officers.

The potential to increase maximum penalties to reflect levels in

other jurisdictions and community expectations, including

imprisonment for serious offences involving negligence resulting in

serious injury or death; and the development of sentencing

guidelines, were issues discussed in relation to offences and

penalties.

106. The WA review proposed changes to the operation of provisional

improvement, improvement and prohibition notices; the status of

56


codes of practice; as well as recommendations relating to

inspectorate activity that included recommending an increase in the

number of inspectors and employment of trainee inspectors.

107. Administrative strategies were also recommended, aimed at

promoting the effective reporting of OHS performance by

companies and government agencies, including within annual

reports. 35

General conclusions drawn from these reviews

108. Each review examined the performance of the Robens style

legislation in meeting the objectives of the Acts. Overall, the

outcomes of the reviews reveal remarkably little attempt to change

radically the existing legislative structure by returning to a more

detailed model. Instead, there appears to be a surprising level of

consensus that the Robens style legislative framework remains the

most relevant and flexible framework within which the challenges to

workplace health and safety may be met.

109. The reviews found that the challenges to workplace health and

safety created by economic and labour market changes must be

addressed by making adjustments to clarify, strengthen and

support both the legislative and administrative frameworks.

110. The reviews also appear to recognise that the passage of the new

Commonwealth workplace relations laws (“the Work Choices

35 The discussion paper is online at:

http://www.docep.wa.gov.au/Corporate/Content//Reviews/OSH/overview.html.

57


amendments”) may increase the “precariousness” of employment

and associated negative health and safety outcomes.

111. They responded to the Work Choices provision that allows union

representation of employees for health and safety purposes subject

to corresponding provisions being included in the States’ and

Territories’ health and safety Acts, by inserting such provisions in

the OHS Acts.

112. The reviews identified the need for regulators to become more

active in their efforts to support the legislation by increasing

inspector activity as well as providing more advisory and educative

programs and services, to ensure greater understanding of, and

compliance with, health and safety legislation.

113. They also demonstrate that there is a strong desire for consistency

in workplace health and safety legislation across the jurisdictions

by looking to developments in other jurisdictions and considering

how their own legislation might be brought into line with others.

114. The concept of national consistency leads into the consideration of

the National Occupational Health and Safety Improvement Strategy

- a significant part of the national context in which the Tasmanian

review is taking place.

58


National Occupational Health and Safety Improvement

Strategy 2002 – 2012

115. According to a National Occupational Health and Safety

Commission (NOHSC) report, The Cost of Work-related Injury and

Illness for Australian Employers, Workers and the Community

(2004), an estimated 2000 people die each year in Australia as a

result of work-related injuries and diseases.

116. The report estimates the economic costs of work-related illnesses

and injuries at $34.3billion (2000-01) but when the “indirect” costs

of pain, suffering and early death are included, it conservatively

adds a further $48.5 billion to the total cost, arriving at a cost

estimate figure of $82.8 billion. 36

117. The National Occupational Health and Safety Improvement

Strategy 2002 – 2012 (National Strategy) is the “blueprint” for

national workplace health and safety improvements, co-ordinated

by the members of the Australian Safety and Compensation

Council (ASCC) – comprising representatives of each State and

Territory, the Commonwealth Department of Workplace Relations,

the ACTU and ACCI.

118. The national strategy sets national priorities and action areas in

terms of hazards, industries, occupational injury or disease as well

36 NOHSC (2004) “The Cost of Work-related Injury and Illness for Australian Employers, Workers

and the Community”, Canberra. p. 4. The NOHSC estimate that 2000 people die each year in

Australia as a result of work-related injuries and diseases compares to 1,636 people killed in road

deaths (2005) according to the Australian Transport Safety Bureau (2005) Road Deaths Australia

2005 Statistical Summary.

59


as targets for Australian jurisdictions to reduce work-related

fatalities and the incidence of workplace injury. 37

National Priorities

119. The five priority areas are to:

1. reduce high incidence/severity risks;

2. develop the capacity of business operators and workers to

manage OHS effectively;

3. prevent occupational disease more effectively;

4. eliminate hazards at the design stage; and

5. strengthen the capacity of government to influence OHS

outcomes.

120. The nine action areas are:

National Standards

1. Comprehensive OHS data collections;

2. A coordinated research effort;

3. A nationally consistent regulatory framework;

4. Strategic enforcement;

5. Effective incentives;

6. Compliance support;

7. Practical guidance;

8. OHS awareness; and

9. OHS skills development.

121. The Strategy includes the development of priority National

Standards in the areas of manual handling; occupational noise;

hazardous substances; dangerous goods; major hazard facilities;

asbestos; plant, and construction. Each National Standard is

subject to review, endorsement by ASCC and agreement by

Workplace Relations Ministers (meeting as the Workplace

Relations Ministers’ Council (WRMC). The development and

37 A copy of the National Strategy is available on the Australian Safety and Compensation

Council website at http://www.ascc.gov.au.

60


implementation processes associated with these is slow, a fact that

has been remarked upon by national inquiries and referred to the

Council of Australian Governments for action.

National Targets

122. The National Strategy establishes targets for national improvement.

With 2001-02 Compensation Data used as the base line, the

targets are:

to reduce work related fatalities by at least 20%; and

to reduce workplace injury (including musculo-skeletal

disorders) by at least 40% by 2012.

123. Interim targets are to reduce work-related fatalities by 10% and

reduce workplace injury by 20% by June 2007.

Comparative Performance Monitoring

124. The WRMC monitors the comparative performance of workplace

health and safety and workers compensation schemes of each

State, Territory, Commonwealth Government and New Zealand.

Performance is measured according to workers compensation data

collected in the National Data Set for Compensation-based

Statistics (NDS) managed by the ASCC from data supplied by the

workers’ compensation schemes in all Australian jurisdictions.

Comparative figures are published in the Comparative

Performance Monitoring Report - a “Comparison of occupational

health and safety and workers’ compensation schemes in Australia

and New Zealand” (CPM Report) by the WRMC each year.

61


125. The review team examined the 7 th CPM Report (based on 2003-04

data, published in 2005) and 8 th CPM Report (based on 2004-05

data published in September 2006) as well as published and

unpublished Tasmanian workers’ compensation scheme

information. 38

The WorkCover Branch of Workplace Standards

Tasmania kindly allowed us to have access to unpublished

information used in the preparation of annual reports, to assist us in

reaching conclusions about Tasmanian performance.

126. The jurisdictional annual reports present data that relate to the

performance of the workers’ rehabilitation and compensation

schemes and CPM Reports acknowledge that jurisdictional

published data is quite different.

127. We found that we could not easily compare performance reported

by the CPM Reports from one year to another as a result of

changes that occur in the compilation and definition of data

collected by each workers compensation scheme from year to year

and reading the two kinds of reports to determine how Tasmania is

performing was difficult.

128. It is important to note that the statistics are based on workers’

compensation claims so they are incidence rates for compensable

fatalities (based on the year reported) and compensable injuries.

38 The WorkCover Tasmania Board Annual Report is available at

http://www.workcover.tas.gov.au/workcoverpublish/node/publications-13.htm.

The CPM Reports are available at http://www.workplace.gov.au/cpm.

62


Incidence rate of compensable fatalities

129. Compensated fatalities include both traumatic fatalities (injury) and

fatalities due to work-related disease.

130. The CPM figures are based on the date of lodgement of a claim,

not the year of death and the incidence rate is based on the

number of compensable fatalities in that year per 100,000

compensable employees.

131. Accordingly Tasmania’s incidence rate of compensated fatalities as

published in CPM reports has declined from 4.1 per 100,000

employees in 2001-02 to 1.7 per 100,000 employees in 2003-04.

132. Jurisdictional figures for 2004-05 were not published in the 8 th CPM

Report.

133. We therefore turned to the incidence of compensated fatalities

shown in the internal document we referred to earlier to find that

the incidence rate for compensated fatalities has been quite

volatile. The actual incidence rate of 2.7 in 2001-02 (the baseline

figure); and an actual incidence rate of 3.0 for 2003-04, compare to

the target set of 2.6.

134. The unpublished graph depicting the actual incidence rate for

fatalities and the corresponding Tasmanian national strategy

targets is reproduced below:

63


Fatalities per 100,000 Employees

6

5

4

3

2

1

0

Incidence Rate - Compensated Fatalities

(Progress against National OHS Strategy)

2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 2011-12

Actual Incidence rate

Strategy Target

(Source: unpublished internal document provided by Scheme

Improvement section, WorkCover Branch)

Incidence rate for compensable work-related injury and

disease

135. The incidence rate for work-related injury and disease resulting in

one week or more compensation published in the CPM reports is

based on claims per 1000 employees.

136. The national incidence and frequency rates of work-related injury

and disease resulting in one week or more compensation

continued a downward trend, representing an improvement

nationally in the incidence of work-related injury. 39

137. The work-related injury and disease incidence rates for Tasmania

as published by CPM reports have remained fairly stable in the four

years from the 2001-02 base-line figures. The incidence rate

reported for 2003-04 is 16.8 compensated claims per 1000

employees, just above the national average incidence rate of 16.4.

As commented previously, the absence of jurisdictional statistics in

39 7 th CPM Report, p. 33

64


the 8 th CPM Report does not allow us to compare the incidence

rate for 2004-05 with the target.

138. The incidence of workplace injury for Tasmania as calculated in the

internal document provided to us by the Scheme Improvement

Section of the WorkCover Branch of WST is shown in the graph

reproduced below (based on the chart that follows):

Incidence Rate - Injuries and Musculoskeletal Disorders

(Progress against National OHS Strategy)

Claims per 10,000 Employees

60

50

40

30

20

10

0

2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 2011-12

Actual Incidence rate

Strategy Target

R

Incidence

2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2011-12

Injury & Musculoskeletal Claims 9,731 9,667 9,386 9,360 9,208 - -

Employees 187,793 193,410 200,149 211,930 208,553 - -

Actual Incidence Rate 51.8 50.0 46.9 44.2 44.2 - -

Strategy Target Rate 51.8 49.7 47.7 45.6 43.5 44.1 31.1

(Source: Unpublished internal document provided by Scheme

Improvement section, WorkCover Branch, Workplace Standards

Tasmania.)

139. Despite being on or slightly below the actual injury incidence rate

for the first three years of the Strategy, the incidence rate for last

year (2005) shows a very slight upward variation from the target.

65


This compares with what is reported by the WorkCover Tasmania

Board Annual Report:

Across all industries, there was an average of 48.04

claims per thousand workers during 2005-06. This was

only a slight decrease on 2004-05 of 0.7%, but

continues a trend seen over the past 5 years in which

the average incidence rate has fallen 14.6% from 56.26

in 2001-02. 40

140. The Tasmanian Workers Compensation Statistical Report July

2005-June 2006 indicates a levelling in the number of claims over

the period 2001-02 to 2005-06. 41

It reports that the incidence rate,

as measured by the number of claims per thousand workers, has

continued a declining trend across all industries, with ten industries

experiencing decreases in the incidence of claims per thousand

workers while eight had increases. The report reveals that the

highest incidence rate in 2005-06 was in the Manufacturing

industry, followed by Construction, Mining and Government

Administration and Defence. 42

141. The Occupational Black Spots Injury Report Update 2006 reports

that “severe injuries as a proportion of all injuries has increased

from 6.8% to 8.0%”. 43

The top three types of severe injuries were

Soft tissue injuries, accounting for more than half of all injuries

40 WorkCover Tasmania Board (September 2006) Workers Compensation Statistical Report:

July 2005 – June 2006, p. 9.

41 Ibid, Chart 1: “Number of Claims Reported", p. 3.

42 Ibid, p. 5.

43 WorkCover Tasmania occupational Black Spots Injury Report: Update 2006, “Black Spot

Occupations”, “Executive Summary” p. 1.

66


(53.9%), followed by Fractures (10.8%) and Anxiety/stress disorder

(5.2%). 44

142. The continued inclusion of Nursing and care workers within the

occupational groups having the most severe injuries (surpassing

Factory workers, Road transport drivers and Agricultural labourers)

and the appearance of School teachers within the top thirteen

occupational black spots are causes for concern. The Tasmanian

incidence of severe injury across occupations appears to be

consistent with the distribution of incidence rate of compensable

injury for other Australian jurisdictions. 45

143. From our examination of the different sources of information about

Tasmanian performance, we conclude that the CPM reports do not

appear to be stable from year to year as individual workers

compensation schemes are modified and data definitions appear to

change. This results in inconsistency in measuring comparative

performance of jurisdictions against the targets of the National

Strategy.

144. Samples and data definitions for the Tasmanian workers

compensation scheme, by comparison, have stayed more stable.

We believe that the commitment to achieving percentage

improvements in health and safety based on the incidence rates of

44 WorkCover Tasmania Occupational Black Spots Injury Report: Update 2006 “Executive

Summary”, p. 1. (The percentages in brackets are taken from the Chart “Severe Injuries by

Type of Injury 2002—03 to 2004-05, p. 6.)

45 Workplace Relations Ministers’ Council Comparative Performance Monitoring Report,

Eighth Edition September 2006, “Indicator 11 – Incidence rate of compensated claims

resulting in one week or more compensation by injury” p. 12.

67


fatalities and injuries would be more accurately and safely

measured using the local workers compensation data.

145. Work is currently proceeding on the national harmonisation of

workers compensation schemes as a Council of Australian

Governments (COAG) priority. This work may ultimately lead to

more meaningful reports on national workplace health and safety

achievements against the National Targets.

68


CHAPTER 3

WORKPLACE HEALTH AND SAFETY: ROBENS

FRAMEWORK

“The primary responsibility for doing something about

the present levels of occupational accidents and disease

lies with those who create the risks and those who work

with them.” Lord Robens (1972) 46

Robens’s Principles

146. Workplace health and safety law in OECD countries is based on

the recommendations of Lord Robens who was commissioned as

Chairman of the Committee of Inquiry on Safety and Health at

Work in 1970 to investigate and report on “the provision made for

the safety and health of persons in the course of their employment”

to the United Kingdom Parliament.

147. His report (1972) provided the principles – for both form and

content – of the legislative framework (the UK Health and Safety at

Work Act 1974) that is the basis of most workplace health and

safety legislation today. In reviewing workplace health and safety

in Tasmania 2006 it is worth reminding ourselves of the elements

of that framework.

148. Robens found that “the fundamental defect of the statutory system

is simply that there is too much law”. 47

In the UK at the time of

46 Lord Robens (1972) (Chairman) Safety and Health at Work: Report of the Committee 1970-

72, HMSO, London; para. 28, p.7.

47 Robens, p. 6

69


Robens’s review there were nine main groups of statutes

supported by nearly 500 subordinate statutory instruments, some

of which dated back to the middle of the nineteenth century, and

these were being added to every year. These were characterised

by rigid, detailed specifications that prescribed how to deal with

every health or safety contingency. They imposed arbitrary

prescriptions that quickly became obsolete and did not allow for

innovation.

149. Robens found that such a mass of law had a conditioning effect on

people to think that health and safety was a matter of “detailed

rules imposed by external agencies”. He encountered attitudes

and arguments in the course of his inquiry that the way to improve

standards of health and safety is to impose more rules, more

stringent laws, or to increase the frequency of the visits of

inspectors. 48

Robens’s words thirty years ago have uncanny

echoes in the present.

150. Robens also found that the Acts and Regulations were badly

structured, attempting to cover every contingency resulting in

elaborate detail and complexity -

that deters even the most determined reader. It is

written in a language and style that renders it largely

unintelligible to those whose actions it is intended to

influence. Line managers, supervisors and shop-floor

operatives are not legal experts. Even the personnel of

48 Robens, para 28, p.7.

70


the inspectorates experience difficulty in picking their

way through it all. 49

151. He also noted that the civil service and Parliament could not cope

with the enormous task of keeping this body of law up to date.

152. Robens found that the administration of the laws was fragmented

across many different agencies with little co-ordination between

them, resulting in one workplace being subject to several, often

conflicting and confusing, pieces of health and safety legislation.

153. The situation Robens found is similar to the present situation in

regard to health and safety laws applying in Australia. The States

and Territories have difficulty keeping up with requirements to draft

new regulations each time a national body amends provisions

relating to public or occupational safety. Examples in recent years

have been in the regulation of electricity safety, gas safety,

dangerous goods (with distinct regulation of storage/handling and

transport); major hazard facilities; off-shore petroleum facilities; rail

safety as well as building and construction safety regulation. This

has resulted in a proliferation of legislation dealing with separate

aspects of workplace health and safety.

154. The need to keep up with national regulatory developments is

ongoing. For example, Tasmania last amended legislation relating

to dangerous goods in 2005 to meet national commitments to

implement the National Standard for the Storage and Handling of

49 Robens, para 29, p. 7.

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Dangerous Goods and the National Standard for the Control of

Major Hazard Facilities.

Recently the National Transport

Commission completed a review of the Australian Dangerous

Goods Code that classifies dangerous goods and has drafted

amended national regulations with the expectation that the

jurisdictions will introduce amended transport regulations for

dangerous goods.

155. The combination of fragmentation and frequent amendments is

likely to have a negative impact upon the ability of those who are

regulated to understand the legislative requirements and thus on

the achievement of the objectives of the legislation.

Change in focus

156. Robens saw the pace of change in the 1970s would outstrip the

narrow technical focus and prescriptive detail of the legislation. He

believed that the way to improve workplace health and safety was

to focus the responsibility for health and safety on those whose

main undertakings in business are the source of the hazards and

risks to health and safety.

157. He concluded that the objective of greatest importance in reform of

statutory arrangements is to provide for more effective selfregulation:

This calls for the acceptance and exercise of appropriate

responsibilities at all levels within industry and

commerce. It calls for better systems of safety

organization, for more management initiatives, and for

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more involvement of workpeople themselves. The

objectives of future policy must therefore include not

only increasing the effectiveness of the state’s

contribution to safety and health at work but also, and

more importantly, creating the conditions for more

effective self-regulation. 50

Duty to take reasonable care

158. The Robens legislative framework provides the conditions within

which workplace parties themselves must take necessary action to

prevent injury, illness or death occurring – based on the legal and

moral principle that in our actions we must take reasonable care

not to do harm to others. This principle was expressed by Lord

Atkin (UK) as a duty owed by one person to take reasonable care

that his activities not injure or harm another [Donoghue v

Stevenson (1932)], and applied later to workplaces by Wilson’s &

Clyde Coal Co. v English (1937). 51

50 Robens, para 40, p. 12.

51 In Donoghue v Stevenson (1932) AC 562, Lord Atkin observed at 579-580: "The rule that you are to

love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question,

Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or

omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in

law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my

act that I ought reasonably to have them in contemplation as being so affected when I am directing my

mind to the acts or omissions which are called in question ."

73


Three Elements of the Framework

159. The Robens framework is constructed on three principles or

elements: general duties (based on the duty of care); good

management; and involvement of workpeople.

1. “General Duties”

160. The first element of the framework comprises the part that

establishes the duties and obligations of the parties in the

workplace, traditionally employers and employees, but extended to

persons in control of the workplace (those to whom the day to day

responsibility for managing affairs at the workplace is given by the

employer).

161. The duties extend to those “upstream” of the workplace (such as

designers, manufacturers, suppliers and installers) whose activity

may affect the health and safety of those who must work with plant,

substances etc., in the workplace. The duty also has limited

extension to those who may be visitors to the workplace and to

those outside the workplace so that they are protected from injury

or illness resulting from activities at the workplace.

2. “Good Management”

162. Robens contemplated that, in fulfilling this duty, the main

prerequisites were not legal responsibilities, but good

management. He foresaw that in managing for health and safety,

employers must make workplace health and safety an aspect of the

74


usiness that needs to be managed routinely. He further saw that

employers must adopt a systematic approach designed to control

risks to health and safety that arise from the workplace and the

performance of work. 52

163. He also recommends that the enabling Act should contain an

obligation for company directors’ reports to include information

about accidents and industrial diseases suffered by the company’s

employees and about the company’s preventative measures. 53

He

saw this as a means of drawing attention to the importance of

health and safety and generating further improvement efforts.

3. “The involvement of workpeople” 54

164. In assigning the principal duty to manage health and safety at work

to management, Robens does not limit health and safety to a

management prerogative. He warns:

real progress is impossible without the full co-operation

and commitment of all employees [who must] be able to

participate fully in the making and monitoring of

arrangements for safety and health at their place of

work. Moreover, if the new inspection approaches . . .

are to work, increasing reliance will have to be placed on

the contribution that workpeople themselves can make

towards safety monitoring. 55

165. According to Robens, involvement of workpeople means securing

their co-operation, commitment and participation. Robens noted

52 Robens, paras 46-48, pp. 14-16.

53 ibid, para 76, p. 24.

54 Ibid, subheading to para 59, p. 18.

55 Ibid, para 59, p. 19.

75


the progress that was made in health and safety in manufacturing

and coal mining in the 1970s through mechanisms that involved

workers and increased joint commitment and co-operation between

employers and employees in making the workplace safer.

166. He observed “the typical method of involving workpeople is through

the voluntary establishment of joint safety committees in which

representatives of management and employees meet periodically

to discuss safety and health problems and measures”. 56

167. While he saw the benefits of these joint committees, he also points

out:

health and safety committees are not the only way to

increase the involvement and commitment of

workpeople. Some firms have arrangements whereby

all employees in a particular working unit meet

periodically for discussions about safety. This approach,

sometimes referred to as “total involvement”, lays stress

on participation by every individual employee. Other

ways in which employees can take a direct part in the

actual work of safety assessment and accident

prevention are by participation in exercises such as

safety sampling and hazard spotting. 57

168. Communication, through the provision of information, is essential to

effective involvement, and indeed to the effectiveness of all three

elements of the legislative framework.

169. At the level of the individual workplace Robens discusses the

practical value of firms having written health and safety policies as

a means of providing information to employees. He goes on to say

56 Robens, para 61, p. 19

57 Ibid, para 62, p. 19.

76


that if employees are to participate in the health and safety

arrangements of their own workplace, they must know and

understand those policies and arrangements. 58

He recommends

there should be a legal obligation on all employers employing

more than a specified number of workpeople . . . to set out their

safety and health policy and rules in writing and to make such

statements available to all employees”. 59

Flexibility

170. The strength of the Robens legislative framework lies in its

flexibility, in that the “one size fits all” framework is designed to

enable workplaces to develop specific solutions to suit their

particular needs rather than having specific detail dictated in

numerous confusing pieces of legislation.

171. Robens envisaged that the enabling Act should contain a statutory

declaration of the three major principles (general duties, good

management and involvement of workpeople) but otherwise be

limited to provisions for administering the Act; a general regulation

making power; powers to undertake and promote research and

training; provisions for dealing with offences; definitions of

application and scope etc.; and transitional provisions.

172. The enabling Act would provide the first tier of the framework.

58 Robens, “Written safety and health policies”, para. 73, p. 23.

59 Ibid, para 74, p.23.

77


173. To support the first tier, Robens recommended statutory

regulations that prescribe only in terms of outcomes to be achieved

as the second tier of the framework.

174. Non-statutory, industry standards and codes were intended as the

third tier of the framework. Robens saw these industry standards

as the means for firms to develop and adopt relevant standards

that would keep pace with changing technology, improved

knowledge and market variation for the specific industry. As nonstatutory

instruments they would fulfil the requirement for “less law

and more provision for voluntary self-regulation”. 60

175. The Australian pattern of workplace health and safety legislation

has not followed the Robens framework exactly. Standards,

particularly for high profile hazards, have been included in the

statutory framework. Most are “performance” standards, setting

forth the outcomes to be achieved (e.g. National Standards

developed by WorkSafe Australia); while certain “process”

standards (e.g. Australian Standards developed by Standards

Australia) are also referenced by the legislation.

176. Codes of practice are other instruments provided for by the

framework. These are intended to be subsidiary documents

providing guidance on the steps necessary for taking “reasonable

60 Robens, Chapter 5, paras 126-139, pp40 – 44.

78


care” in fulfilment of the general duties. Such steps may be stated

“precisely and succinctly”. 61

177. Codes of practice that are approved by the regulator (in Tasmania

by the Minister responsible for workplace health and safety) have

evidentiary status only, so that when the practice outlined by the

approved code is followed, it is evidence that “reasonable care” has

been taken.

178. To maintain proper balance between regulations and voluntary

instruments, Robens recommended that an “Advisory Committee

on Regulations and Codes” advise the “Authority” in the

administration of the framework. 62

Other frameworks

179. Since the introduction of the general workplace health and safety

legislation based upon the Robens framework, and in response to

high profile accidents, we have seen a return to the earlier

approach of applying new regulatory frameworks to identified

individual problems.

180. Safety case style legislation emerged in the 1980s that applies to

specific industries whose hazardous activities, if not effectively

controlled, present risks of a greater magnitude to persons, within

and outside the workplace, property and the environment.

61 Adrian Brooks (1993) Occupational Health and Safety Law in Australia 4 th Edition, CCH

Australia Limited, North Ryde, NSW Australia, para 2505, p. 934.

62 Ibid, para 1161, p. 50.

79


Safety Case

181. A safety case comprises a documented, detailed risk assessment,

mitigation strategy and emergency plan (the “safety case”) required

by legislation to be prepared by the operator of the facility and

approved by the regulator, prior to granting a licence to operate.

182. The responsibility to implement, monitor and review the safety case

resides firmly with the operator or employer (depending on the term

used).

183. The advantage of this type of framework is that it forces the

employer or operator to conduct a detailed analysis of potential

risks associated with the hazards as well as identifying mitigating

strategies that will be applied to control the risks. It also compels

the employer or operator to consult with the community and with

other industry and government bodies in matters that are relevant

to the management of emergencies and potential environmental or

property harm.

184. One disadvantage is that once the facility is operating under

licence, health and safety depends upon the strength and flexibility

of the safety case in meeting actual circumstances, rather than

theoretical ones. Robens’s principles of duty, good management

and involvement of workpeople remain important even to the safety

case framework.

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Preventing major accidents

185. Safety case frameworks replaced general workplace health and

safety legislation for certain industries after high-level inquiries into

major accidents. 63

186. The Royal Commission of Inquiry conducted by former High Court

judge Sir Daryl Dawson into the Longford Gas Explosion that

occurred in Victoria (Australia) in 1998, resulted in the adoption of

safety case legislation for major hazard facilities.

187. The Royal Commission found that the employer, Esso, was solely

responsible for the accident causing the deaths of two people and

cutting the state’s gas supply for two weeks following the explosion.

188. It was found that Esso had failed to comply with its management

responsibilities and duty of care under the Victorian OHS Act,

including a failure to provide information, supervision, training, and

effective communication with supervisors and employees; it had

failed to perform regular internal audits of safety procedures and

failed to monitor and maintain equipment condition.

189. It was also found that Esso had relied upon a safety system

developed by its parent company without adequate internal or

external safety audits or any other adequate procedure for the

63 The safety case regime emerged as a recommendation of the Public Inquiry into the Piper

Alpha off-shore oil rig disaster (Lord Cullen, 1990).

81


identification and control of hazards. 64

The inquiry also revealed

that the problems at Esso had not happened overnight, but had

mounted over a long period during which the company and the

regulator should have detected and corrected the problems.

190. Even though the Australian Capital Territory (ACT) Coroner, Shane

Madden, investigating the death of Katie Bender in the accident

known as the Canberra Hospital Implosion, found gross negligence

on the part of the contractor and sub-contractor in failing to comply

with their duty of care under the ACT OHS Act, he also found

deficiencies on the part of WorkCover ACT inspectors in not acting

upon doubts about safety work plans and failing to issue prohibition

notices. 65

Lessons from failures

191. The Longford Royal Commission findings and the ACT Coroner’s

findings demonstrate the indispensable need for industry to comply

with their own internal policies developed to comply with the law.

They also demonstrate that the authorities administering the

legislation have vital responsibilities in enforcing compliance with

all aspects of those duties.

192. Thus the achievement of the objectives of workplace health and

safety legislation depends upon strong support given to them by

64 Parliament of Victoria (1999) The Esso Longford Gas Plant Accident: Report of the

Longford Royal Commission, p. 235.

65 ACT Coroner’s Findings (Section 56 Coroners Act 1956) and Conclusions: Role of

Regulatory Agencies, par.7.

(http://www.courts.act.gov.au/magistrates/dec/bender/Sect07.htm)

82


oth industry in implementing the duties and obligations and the

State in administering the legislation.

193. The clearest message to emerge from the transcripts of these

inquiries is that a company’s failure to comply on a small scale

leads to emerging and growing health and safety problems. If no

correction occurs, either through internal management checking

mechanisms or through regulatory enforcement, the problems will

almost certainly grow in magnitude.

194. The Esso inquiry revealed that internal checking systems are only

as good as the basic communication between the people who work

within the system and the response of management, highlighting

the importance of “good management” as a central feature of

workplace health and safety. It was found that management at the

Longford plant had allowed itself to become distracted from health

and safety concerns by other management prerogatives, notably

how to maintain production within severe budget limits.

195. It was also found that the local management did not listen, or

respond, to reports of problems at the plant and therefore

neglected important maintenance and repair that would have

mitigated the risks of an accident occurring.

This finding

emphasises the importance of the involvement of workpeople as a

central principle of health and safety frameworks. Some other

pressure needed to be applied to change their focus from the

budgetary prerogative, such as pressure from the regulator to

83


comply with workplace health and safety legislation. Thus the

findings reiterate Robens’s original view that both the State and

industry need to support the framework.

196. In circumstances such as these, it is not enough for a government

to depend upon market forces, shareholder pressure, or other

indirect influences to support compliance in workplace health and

safety. Where competitive pressures within a dynamic economy

are great, it could be argued that governments, through the

regulators, need to assign more, rather than fewer, resources to

support and enforce the regulatory framework.

Some conclusions so far

197. This chapter summarises how Lord Robens saw health and safety

as a responsibility for workplaces themselves and recommended

legislation based upon three central elements (general duties, good

management and involvement of workpeople). Robens’s

framework included an enabling Act to be supported by regulations

stating the outcomes to be achieved and more detailed nonstatutory

industry standards and/or codes that industry itself was to

maintain.

He supported the inclusion of established and

recognised industry standards as statutory requirements within

legislation.

198. Australian workplace health and safety legislation did not follow the

Robens framework entirely. Elements of the earlier (pre 1970s)

style of legislation survived.

84


199. The discussion of frameworks concluded with a brief look at the

appearance of another kind of legislative framework, the safety

case framework, and emergence of legislation dealing with

individual industry sectors.

200. The current legislative trend unfortunately represents a return to

the proliferation of separate legislation for individual industries or

types of health and safety hazards that Robens found in 1970-1972

created confusion and administrative inefficiency, therefore not

contributing to the desired outcomes.

201. Any recommendations we might make about the need for

legislative amendment may be constrained by commitments or

agreements that the State has made at a national level to

regulatory reform, depending, of course, on the legal status of

those agreements or commitments.

202. Some respondents to the review asked us to take account of

national commitments and so we have considered the national

developments carefully. The discussion of the framework turns

now to examine the progress and impact of regulatory reform in

Australia on the Robens workplace health and safety legislative

framework.

85


The path of regulatory reform

National consistency versus national uniformity

203. Since 1995 workplace health and safety regulation has been

subjected to the pressure of regulatory reform to remove regulation

that imposes unnecessary burdens on business. At the same time,

informal as well as formal co-operation and consultation has taken

place between jurisdictions and social partners through the

previous National Occupation Health and Safety Commission

(NOHSC) – now the Australian Safety and Compensation Council –

to work towards the achievement of shared objectives.

204. All Australian workplace health and safety Acts are based on the

Robens model, so the general framework and principles are

consistent. (This is borne out by the positive factor that, while the

representatives of two large national employers who met with us

may not have been entirely familiar with the detail of the

Tasmanian legislation, they were able to apply their knowledge of

other States’ OHS Acts and implement similar safety management

systems in their Tasmanian operations.)

205. Since the early 1990s, a succession of federal inquiries has called

for uniformity. The Industry Commission in 1995 agreed with large

national employers (“multi-State” employers who make up the

smallest percentage of the total businesses in Australia but who

employ the greatest number of employees) that multiple workplace

health and safety regimes impose additional costs on national

86


employers, concluding that national uniformity in OHS law was

preferable. By “uniformity” it is understood that there should be

one health and safety law applying to all workplaces and to all

jurisdictions.

206. The pressure for uniformity has been applied selectively. The

adoption of other frameworks and legislation for specific industries

are examples of how workplace health and safety legislation has

become fragmented, resulting in numerous pieces of legislation in

each jurisdiction.

207. For example, the Final Report of the Cole Royal Commission

Inquiry into the Building and Construction Industry (2003)

recommended that the building and construction industry be

regulated separately in recognition that “powerful competitive

forces in the building and construction industry worked against

occupational health and safety” and that these needed to be

controlled if the industry were to improve its safety records. 66

208. The passing of the Commonwealth Building and Construction

Industry Improvement Act 2005 and the establishment of a

separate OHS framework specifically for the building and

construction industry, two important outcomes of the Cole Royal

Commission, provide national uniformity in workplace health and

safety for one industry sector.

66 Cole, T.R.H. (2003) Final Report of the Inquiry into the Building and Construction Industry,

Vol.6 “Reform – Occupational Health and Safety”, p. 41; Commonwealth of Australia, Victoria.

87


209. It does so by establishing a separate framework regulated by the

Commonwealth that imposes a federal occupational health and

safety accreditation scheme in relation to persons in the building

and construction industry that contract with the Commonwealth

(including those contracted by States and Territories for projects

that are partly or fully funded by the Commonwealth). It also

created a national office with OHS functions to administer the

legislation, overseen by a federal Safety Commissioner and with

the creation of a federal inspectorate dedicated to this industry.

210. This structure (like the safety case legislation applying to other

industries) is in addition to the general workplace health and safety

regulatory framework in each State and Territory, leading to the

conclusion that uniformity does not necessarily mean simplicity or

greater clarity in regulation.

211. Commissioner Cole’s views about the imperative for cultural and

behavioural change as an overall driver of industry performance

sends a strong message about how all industries might improve

health and safety outcomes.

212. He also identifies an important role for governments in using the

competitive forces within an industry in pre-tendering activities to

achieve cultural and behavioural change by demanding evidence of

high levels of OHS performance.

88


213. It is also worth considering his view that greater inspection and

prosecution activities are needed to maintain improved health and

safety.

214. The push for national uniformity took another step in 2004 when

the successor to the Industry Commission, the Productivity

Commission, was asked to assess possible models for establishing

national frameworks for OHS and workers compensation

arrangements.

215. The Productivity Commission Report on National Workers

Compensation and Occupational Health and Safety Frameworks

2004 concluded that “[a] uniform national regime would make it

much more efficient for multi-state employers to ensure that their

management and employees understand the one set of

requirements [and] any changes to it. 67

216. It favoured the establishment of a nationally uniform legislative

approach based on the adoption of template legislation developed

by the Commonwealth similar to that which has been used to

create nationally uniform transport and food standards laws,

however the Commission recognised there were constitutional and

process difficulties involved in such an approach. To overcome

these, the Productivity Commission advocated a “two-pronged”

strategy to achieve uniformity:

67 Commonwealth Government Productivity Commission Inquiry and Report National Workers

Compensation and Occupational Health and Safety Frameworks, No. 27, 16 March 2004;

p.28; Commonwealth of Australia, Canberra.

89


The Commission considers that a single uniform

national OHS regime, which is focused on preventing

workplace injury and illness, should be the medium term

reform objective for OHS. It would build on the initiative

of the recently agreed national strategy.

To achieve this the Commission is proposing two broad

approaches, to operate in parallel. The first approach

adapts the current cooperative model by strengthening

the national institutional structure based on NOHSC and

the WRMC — emphasising the timely development of

best-practice national OHS standards and their

implementation uniformly throughout Australia. Such an

approach should be commenced immediately. The

second approach is to progressively open up access to

the existing Australian Government OHS regime, giving

firms the choice of a single set of national OHS rules.

The two approaches are not dependant on each other.

Each has merits that would warrant their independent

introduction. 68

217. The Productivity Commission’s position is reflected in their

proposal for a stronger national body to replace the NOHSC. This

was realised with the establishment of the Australian Safety and

Compensation Council (ASCC), a tri-partite body that sits

according to Commonwealth administrative arrangements within

the broad structure of the federal Department of Workplace

Relations.

Thus it comes under the overall direction and

responsibility of the federal Minister for Workplace Relations, “to

provide leadership and coordination of national efforts to prevent

workplace death, injury and disease; and advice on directions to

improve national workers’ compensation arrangements,

rehabilitation and return to work of injured employees”. 69

68 Ibid, p. 141.

69 ASCC Communiqué, 6 April 2006, departmental correspondence.

90


218. The Office of the ASCC, although having no regulatory jurisdiction

in its own right, describes itself having a major focus on “…national

legislative provisions, regulations and standards for approval by the

Workplace Relations Ministers’ Council.” 70 [Emphasis added.]

219. The report of the federal Regulatory Taskforce on Reducing the

Regulatory Burden on Business (G. Banks, 31 January 2006)

echoed the Productivity Commission’s earlier recommendations in

referring OHS and National Standards as two regulatory “hot spots”

to the Council of Australian Governments (COAG). In discussing

the regulation of workplace health and safety, the Taskforce

reported:

While employers and their representatives confirmed

their support for the policy objectives underlying OHS

regulation, they were concerned that inconsistency

across jurisdictions adds significantly to compliance

costs for businesses operating nationally, that liability is

not reasonably shared between employers and

employees, that OHS training is not embedded in

industry training packages, and that regulators are

reluctant to provide advice and support on compliance

and changes to the rules”. 71

220. While commenting upon occupational health and safety matters,

the Taskforce’s comments appear not to differentiate between

workplace health and safety and workers rehabilitation and

compensation, particularly in its statement that “liability is not

reasonably shared between employers and employees”.

70 Productivity Commission (2004), p. 142.

71 Regulation Taskforce 2006, Rethinking Regulation: Report of the Taskforce on Reducing

Regulatory Burdens on Business, Report to the Prime Minister and the Treasurer,

Commonwealth of Australia, Canberra; p. 36.

91


221. “Liability” in the workers rehabilitation and compensation framework

attaches to the employer (not the employee) because of the “no

fault” basis of the workers compensation schemes that operate in

each jurisdiction.

222. Duties (and therefore “liability”) in the preventive workplace health

and safety framework, by contrast, attach to all parties both in, and

upstream from, the workplace.

223. The prevention duties are based on employers, principals,

manufacturers, designers, suppliers et al doing what is reasonably

practicable and employees taking reasonable care.

224. At the time that the Regulatory Taskforce reported employers’

complaints about absolute liability in workplace health and safety,

NSW was the only jurisdiction ostensibly to have workplace health

and safety legislation based on absolute liability, however, the

perception that it was absolute may have been incorrect. 72

225. The NSW review of workplace health and safety nevertheless

made the situation quite clear by the insertion and definition of

“reasonably practicable” into the Occupational Health and Safety

Amendment Act 2006 (passed 17 September 2006).

226. Nevertheless, an agreement reached by the States and Territories

in the newly created Council of Australian Federation on 13

72 We say “ostensibly” because Brooks (1993) disputes this. Brooks argues that the effect of

the NSW legislative provisions at sections 15(1) and 53 of the 1983 OHS Act is the same as

other jurisdictions’ legislation. (Brooks, paras 1005 – 1008, pp 432-434.

92


October 2006 on Harmonisation of Workers Compensation and

Occupational Health and Safety Arrangements promises greater

administrative co-operation and harmonisation in workplace health

and safety as well as compensation matters. 73

To date, workers

compensation items dominate the agenda.

73 Council for the Australian Federation Communiqué 13 October 2006 Agreement by the

States and Territories on Harmonisation of Workers Compensation and Occupational Health

and Safety Arrangements, p.15.

93


COAG Regulatory principles

227. The principles for regulation are expressed in the COAG Principles

and Guidelines for National Standard Setting and Regulatory

Action by Ministerial Councils and Standard-Setting Bodies (the

Regulatory Principles). They require that all regulation be subject

to analysis based on transparency, accountability, efficiency,

adaptability and coherence.

228. New regulations are required to be pro-competitive and outcomes

focused, and subject to rigorous cost-benefit analysis. 74

In

Tasmania, these processes are overseen by the Economic Reform

Branch of the Department of Treasury, which requires Regulatory

Impact Statements to be developed for any regulatory reform that

may have an impact on competition.

229. These principles apply equally to those instruments of a voluntary

nature (such as industry codes of practice or guidelines issued by

the State)

where there is a reasonable expectation that their

promotion and dissemination by standard-setting bodies

or by government could be interpreted as requiring

compliance. For example, should non-compliance with

provisions of a voluntary code be considered as

evidence by a court or an administrative body when

determining compliance with statutory obligations, such

advisory documents are subject to the review process”. 75

74 COAG (1995, as amended 2004), Principles and Guidelines for National Standard Setting

and Regulatory Action by Ministerial Councils and Standard-Setting Bodies.

http://www.coag.gov.au/meetings/250604/coagpg04.pdf

75 ibid, p. 2.

94


230. It is not clear whether non-statutory industry standards issued by

industry bodies must be subject to the same regulatory principles.

Implementation of National Standards

231. Regulatory reforms and movement towards centralising workplace

health and safety regulation converge upon the COAG agreement

in April 2006 to focus on workplace health and safety and National

Standard development as regulatory “hot spots” by:

(a) agreeing specific time frames for implementation so

that each jurisdiction will implement the standard or

code within an agreed time frame [and]

(b) the Workplace Relations Ministerial Council to

identify priority areas in principal OHS Acts in each State

and Territory that should be harmonised. 76

232. The agreement assigns responsibility to the ASCC for undertaking

the review of all national OHS legislation to identify priority areas

that should be harmonised and report to WRMC in December this

year”. 77

The future of the legislative framework for workplace

health and safety will therefore depend on the outcome of this

work.

233. The status of National Standards within the workplace health and

safety legislative framework is problematic.

234. It is salutary to recall that the intention of the Robens framework is

to enable workplace parties themselves to determine how they

should achieve the outcomes prescribed by the enabling Act (the

76 COAG Communiqué, 10 February 2006, Decision 5.6.

77 Communiqué of the ASCC 6 April 2006.

95


first tier of the framework) and the regulations (forming the second

tier). Industry standards and codes of practice that are the

responsibility of industry to develop and maintain were intended to

provide a supportive, largely non-statutory, third tier.

235. Robens explains the value of industry standards thus:

…standards and codes developed within industry and by

independent bodies are, over a large part of the field,

more practical and therefore potentially more effective

instruments of progress than statutory regulations. . . . .

[however], the constant multiplication of non-statutory

codes of diverse origin and authority can be as

confusing and unhelpful as the multiplication of statutory

regulations.” 78

236. Robens therefore suggests making explicit reference in statutory

regulations to existing and recognised industry standards and

codes, or where none exists, “to the preparation of an approved

non-statutory code as an alternative to preparing statutory

regulation. 79

237. Consistent with the first part of his recommendation, some industry

standards (such as those created by Standards Australia or

National Standards created by WorkSafe Australia) are referenced

in legislation for Tasmania and other jurisdictions. This means that

all workplaces, regardless of type or size, must comply with the

standards that are referenced. (Clearly that would make the

requirements far more onerous for smaller businesses than for the

larger.)

78 Robens, “The use of non-statutory codes and standards”, paras 149-150, p. 47.

79 Ibid, para 151, p. 47.

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238. The question now confronting regulators is whether the growing

number of National Standards should be given statutory status by

being adopted as regulation, or whether they should remain

advisory in nature and adopted as non-statutory codes by relevant

industries.

239. The ASCC position is that National Standards developed through

the ASCC are intended to be “model regulations” to be adopted as

additional regulation or incorporated into legislation by the

jurisdictions that have responsibility for administering workplace

health and safety:

A national standard is a document that sets

requirements for preventing occupational deaths,

injuries and diseases from particular workplace hazards,

and is intended to be taken up by jurisdictions into

legislation.

National standards contain the obligations of duty

holders, definitions, technical and administrative

requirements. The provisions could be taken up in

either OHS Acts or Regulation. 80

240. There are real difficulties with this position. Firstly, as the ASCC

itself acknowledges (above), the National Standards contain

statements of duties and obligations, definitions and administrative

responsibilities that are matters already prescribed by the

legislation, and very often they are inconsistent with the legislation.

These statements of duties etc. also have a way of being different

80 ASCC Draft Report to the Council of Australian Governments, provided to members 17

August 2006, departmental correspondence.

97


from one National Standard to another. They simply cannot be

adopted as they are without risking confusion and/or contradiction.

241. Secondly, but perhaps more seriously, their adoption as regulation

would inevitably lead to greater proliferation of regulation as each

standard becomes a new set of regulations.

242. One respondent to the review, who prefers to remain anonymous,

supports our view that the proliferation of statutory instruments

such as standards and codes is problematic. The respondent

writes:

… a significant contributor to the problems which we

encounter today in achieving desired outcomes is that

the path to them is strewn with so much regulation that

they cannot be reached. In Tasmania alone we have

some thousands of pages of new legislation each year,

and in the Commonwealth several thousand pages.

Loaded on top of that are countless pages of codes,

directions, guidelines, standards and so forth. The

proliferation of material is just too great for most people

to cope with, so they give up and do nothing when really

all that was wanted, at least in the workplace, was that

reasonable care be taken to prevent injury. (Anon.)

243. The conversion of standards to regulations attached to the Act

would also add to an ever-increasing administrative load for the

States and Territories as they attempt to keep the regulations up to

date with frequently changing industry developments. Parliaments

would become processors of a stream of regulations developed

elsewhere.

244. Each National Standard is accompanied by a National Code of

Practice (and Guidance Notes in some cases) so that, in total,

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there are hundreds of pages of potential regulations, that would

add to the regulatory and administrative burden for both the State

and industry.

245. Thus the position on national standards contradicts the aim of

reducing the volume and complexity of regulation.

246. Thirdly, the conversion of industry standards to statutory regulation

would remove the vital non-statutory pillar supporting the

framework - the role of industry. In taking away the non-statutory

role of industry, it would place all initiative and far greater

responsibility with the State.

247. In considering the possible impact of these national developments

on workplace health and safety in Tasmania, the review team is

therefore concerned that they may work against the health and

safety outcomes that we are seeking.

248. Recent European experience of centralised “harmonisation” of

workplace health and safety law is relevant to this discussion.

Cullen, as the Lord Chief Justice of Scotland, comments upon

European “harmonisation” processes:

In health and safety legislation a great deal has been

achieved in putting into practice and maintaining the

principles of the Robens Report. However, much of the

legislation is more complex, pervasive and specific than

he envisaged. The process of change in the regulatory

system, which was always going to take a long time, has

99


een distorted and disrupted by introduction of EC

based provisions. 81

249. To sum up, we appear to be witnessing simultaneous movement to

deregulate (particularly in the labour market); pressure for

centralisation of regulation; and a return to the piecemeal creation

of more regulation applying to specific problems, so criticised by

Robens in his report Safety and Health at Work.

250. In workplace health and safety matters we seem to have

blundered our way full circle back to the period before Robens. If

we really want to prevent work-related death, injury or illness in the

complex and confusing times we live in now, we need at least to

rediscover the wisdom of Robens.

Recommendation 2:

In negotiating at a high level on the national harmonisation of

workplace health and safety legislation, either within COAG or

within the Australian Council for Federation, it is recommended

that Tasmania urgently seeks a sensible resolution to the

dilemma of national and/or industry standards that avoids

adding further regulation to the health and safety legislation

framework.

81 Lord Cullen (1996) “The Development of Safety Legislation”, Royal Academy of

Engineering and Royal Society of Edinburgh Lecture.

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CHAPTER 3

ACCOUNTING FOR CHANGES

To ensure that the workplace health and safety

legislative framework takes account of changes that

affect, or may affect, workplace health and safety, such

as changes in the labour market, industrial relations and

new and emerging risks in the workplace … (Term of

reference 1)

251. The Tasmanian review is to consider the general workplace health

and safety framework as provided by the Workplace Health and

Safety Act 1995 and the Workplace Health and Safety Regulations

1998. Our terms of reference direct us to both the legislation and

the way in which it is administered “to ensure they are designed to

meet the changing circumstances of workplaces and the

developing economy effectively”.

252. The previous chapter looked at the framework that Robens

originally recommended and, by tracing legislative reform since

then, concluded that we have departed significantly from the

simplicity that Robens recommended.

253. We believe that Robens’s findings and recommendations of 1972

are as relevant today as they ever were and that good health and

safety at work is still a normal management function that must flow

through from the directors in the boardroom to the supervisors on

the shop floor. As much as things may change, very little has

101


changed in terms of the need for business to apply preventive

measures to ensure that people at work are healthy and safe.

254. Ernst & Young conducted the last review of occupational health

and safety in Tasmania reporting to the State Government in June

1991. Their recommendations for a single Act regulating health

and safety and a single administrative body produced the

legislative and administrative frameworks that the review team is

required to examine at this time. 82

Tasmanian legislative framework

255. The Tasmanian legislative framework comprises the principal Act,

the Workplace Health and Safety Act 1995 (the Act) – as “[a]n Act

to provide for the health and safety of persons employed in,

engaged in or affected by industry, to provide for the safety of

persons using amusement structures and temporary public stands

and to repeal certain enactments” 83

and the accompanying

Workplace Health and Safety Regulations 1998. The framework

repealed the Mines Inspection Act 1968, the Industrial Safety,

Health and Welfare Act 1977, the Scaffolding Act 1960, and the

Inspection of Machinery Act 1960.

256. Other Acts apply to workplace health and safety in specific

circumstances.

The Dangerous Goods Act 1998, and the

Dangerous Substances Act 2005, for example, apply to health and

82 Ernst & Young, (1991) OH&S review – Tasmania, Final Report, Department of

Employment, Industrial Relations and Training, Government of Tasmania.

83 Long Title of the Act.

102


safety in dealing with dangerous goods and substances that are

transported, stored or handled. These Acts are based on nationally

agreed frameworks designed to control the higher level of risks to

health and safety to persons, property and the environment posed

by dangerous goods and hazardous substances. The Tasmanian

Electricity Industry Safety and Administration Act 1997, Gas Act

2000 and Gas Pipelines Act 2000, regulate safety in these specific

industries. These Acts are not part of this review.

257. The Workplace Health and Safety Act 1995 is constructed loosely

upon the principles and framework recommended by Lord Robens,

discussed in the previous chapters, and certain provisions are

based on the International Labour Organisation (ILO) Conventions

ratified by Australia, particularly ILO Convention 155 –

Occupational Health and Safety Convention.

258. The scope of the legislative framework is broadly defined to extend

to all workplaces and is in addition to other legislation that

regulates workplaces (s3A). (Thus any workplace regulated by

other legislation, is also, for general health and safety purposes,

regulated by the Workplace Health and Safety Act.)

259. Workplaces are defined by the Act to include “any premises or

place (including any mine, aircraft, vessel or vehicle) where an

employee, contractor or self-employed person is or was employed

or engaged in industry” (s3).

103


Objectives

260. The objective of the framework is not the total elimination of injury,

illness or death. While it would be ideal that not a single person

should die or be hurt or become ill as a result of, or in the course

of, performing work, zero tolerance is unfortunately not a realistic

goal. As one respondent put it:

Because workplaces involve, by definition, human

beings, human error will always be found there, and thus

there will always be accidents. The objective of the

legislation is to minimize their number and impact.

(Anon.)

261. The objective of the Tasmanian framework is to prevent workrelated

deaths, injury, or illness by applying general duties and

obligations to persons, which when complied with, reduce the level

of health and safety risks associated with workplaces.

262. Sections 9 through to 16 speak to the purpose of the Act in

prescribing the duties of the employer, beginning with the general

safety duty at s(9)(1)(a):

An employer must, in respect of each employee

employed by the employer, ensure so far as is

reasonably practicable that the employee is, while at

work, safe from injury and risks to health and, in

particular, must –

(a) provide and maintain so far as is reasonably

practicable –

a safe working environment; and

safe systems of work; and

plant and substances in a safe condition; ” &c

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263. Acts for workplace health and safety passed by other States and

Territory parliaments are written in different language and drafting

style and some have expressed the objectives explicitly rather than

allowing the Act to “speak for itself”. For example, the Victorian

Occupational Health and Safety Act 2004 details its “objects” in

section 2 of that Act, as follows:

(1) The objects of this Act are—

(a) to secure the health, safety and welfare of

employees and other persons at work; and

(b) to eliminate, at the source, risks to the health, safety

or welfare of employees and other persons at work; and

(c) to ensure that the health and safety of members of

the public is [sic] not placed at risk by the conduct of

undertakings by employers and self-employed persons;

and

(d) to provide for the involvement of employees,

employers, and organisations representing those

persons, in the formulation and implementation of

health, safety and welfare standards — having regard to

the principles of health and safety protection set out in

section 4.

(2) It is the intention of the Parliament that in the

administration of this Act regard should be had to the

principles of health and safety protection set out in

section 4.

264. The NSW Occupational Health and Safety Act 2000 details the

“objects” as follows:

a) to secure and promote the health, safety and welfare

of people at work,

(b) to protect people at a place of work against risks to

health or safety arising out of the activities of persons at

work,

(c) to promote a safe and healthy work environment for

people at work that protects them from injury and illness

and that is adapted to their physiological and

psychological needs,

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(d) to provide for consultation and co-operation between

employers and employees in achieving the objects of

this Act,

(e) to ensure that risks to health and safety at a place of

work are identified, assessed and eliminated or

controlled,

(f) to develop and promote community awareness of

occupational health and safety issues,

(g) to provide a legislative framework that allows for

progressively higher standards of occupational health

and safety to take account of changes in technology and

work practices,

(h) to deal with the impact of particular classes or types

of dangerous goods and plant at, and beyond, places of

work

265. The objects of the South Australian Occupational Health, Safety

and Welfare Act 1986 are:

(a) to secure the health, safety and welfare of persons at

work; and

(b) to eliminate, at their source, risks to the health,

safety and welfare of persons at work; and

(c) to protect the public against risks to health or safety

arising out of or in connection with—

(i) the activities of persons at work; or

(ii) the use or operation of various types of plant;

(d) to involve employees and employers in issues

affecting occupational health, safety and welfare; and

(e) to encourage registered associations to take a

constructive role in promoting improvements in

occupational health, safety and welfare practices and

assisting employers and employees to achieve a

healthier and safer working environment.

266. While detailed objectives written into the Act may be helpful to the

courts if there were any ambiguity contained in the provisions

themselves, they are not strictly necessary. The review team

believes the objective of the Tasmanian Act to prevent injury,

106


illness or death is sufficiently clear and we do not see any benefit in

including specific objectives in the Act.

267. Very few submissions commented upon the nature of the

framework. Two union submissions (AWU, CFMEU) commented

on their preference for a prescriptive legislative framework and one,

from the Tasmanian Minerals Council (TMC) observed that they

opposed “self-regulation”, preferring our description of “regulated

self-regulation”. Other submissions provide strong support for

retaining the current framework based on duty provisions that allow

flexibility for duty holders to determine how those duties are to be

met within their workplace.

268. Some acknowledge that the adoption of the Robens model has

seen significant improvement in workplace health and safety, and:

We should be careful not to tinker with it too much,

although at the same time recognising that there is

always room for improvement. (Anon.)

269. Many individual employers acknowledge that the review of the

legislation is timely and commented that issues raised for

discussion reflect changing circumstances and highlighted the

importance of sustaining legislation that is relevant to contemporary

needs. These employers unanimously support the Robens style

framework, but indicated some adjustment is needed for it to

operate more effectively.

107


270. Unions Tasmania, the peak body representing unions in Tasmania,

acknowledges that the review is occurring at a time when many

economic, social and political changes are occurring that make it

“timely to consider the fine tuning of the 1995 Act to determine

whether or not it delivers the structures, powers and tools needed

to achieve safer workplaces”. (Unions Tasmania)

271. Hydro Tasmania submits that “the discussion paper provides no

compelling rationale to move to a more prescriptive regulatory

regime”, while the Tasmanian Branch of the Australian Workers’

Union, in its general comments, takes a contrary view:

Through its experience with the current legislative and

administrative frameworks for workplace health and

safety as it has applied in the State’s Metalliferous

Mining Industry the AWU has been a consistent critic of

the Robens model and consistently urged a more

prescriptive approach to workplace health and safety, if

not generally, then at the least, in the State’s mining

industry. (The Australian Workers’ Union, Tasmanian

Branch)

108


‘Self-regulatory’ or ‘Prescriptive’ Framework?

272. Understanding the meaning of “prescription” or “prescriptive” as

terms used in describing legislative frameworks is very important in

approaching our discussion of the Act.

273. All provisions of an Act or regulation prescribe what must be

complied with. Thus duty holders must comply with the prescribed

duties and obligations created by the legislation.

274. However, in common parlance “prescriptive” is used to describe

narrow, rigid rules or laws that specify in exact detail what must be

done. Robens found that the laws he examined were “prescriptive”

in this sense and were inflexible in dealing with change.

275. The idea that the workplace health and safety framework needs to

be more prescriptive may derive from the fact that it is described as

“self-regulatory”, based on the Act providing general duties and the

Regulations prescribing the outcomes expected, leaving the detail

up to the duty holders.

276. The self-regulatory framework is criticised on two fronts – that it is

insufficiently clear in prescribing duties or obligations; and that it

amounts to a laissez faire approach equivalent to virtually no

regulation at all. Then there is the view that “reliance on selfregulation

for small business was excessively optimistic”. (Unions

Tasmania)

109


277. Opposition to self-regulation is not really surprising, given the

decline in trust that has occurred as a result of some outstanding

examples of self-regulatory failure – in the communication and

finance industries particularly – and in the potential for corruption

where “watchdogs” composed of representatives of those being

regulated are found to be at fault. 84

278. The legislative framework for workplace health and safety is more

strictly described as “co-regulation” that enables industry to

develop non–statutory codes of practice or industry standards that

provide detail of the risk management strategies they will use to

comply with their statutory duties to prevent workplace injury,

illness or death.

279. Such standards and codes may be as stringent and as detailed as

industry considers necessary and once agreed and approved,

compliance with these standards and codes should provide both

the “level playing field” that some employers want, as well as

assurance to employee representatives and the regulator, that

industry is meeting its statutory obligations.

280. The State is accountable to the community for enforcement of the

framework and “clear arrangements have to be made, therefore, for

effective relations between the regulators and the regulated in

designing and maintaining self-regulatory systems which meet

84 Examples include the collapse of the insurance company HIH and the sensational collapse

of Enron Corporation (USA). The report of the Royal Commission into the failure of HIH was

highly critical of APRA, the regulator.

110


public interest regulatory requirements and deliver good

outcomes”. 85

281. Agencies that have responsibility for administering the regulatory

framework, must ensure that:

They are explicit about how enforcement regimes are to

be applied to meet their public interest obligations and

duties;

The mechanisms for monitoring and performance

measurement are relevant and explicit; and

The statutory framework is well understood and fit for

purpose. 86

282. The roles and function of the State in administering the framework

(whether it is described as “regulated self-regulatory” or “coregulatory”)

are therefore crucial. Those roles involve not only

detecting and penalising failures to comply but also involve a very

active role in educating, advising, motivating, and correcting

workplaces to improve their effectiveness. In other words, the

framework requires ongoing effort by both industry and the State to

support it.

283. If its objectives are not being achieved effectively it may actually be

related to the way that industry and the State are performing in

their efforts to uphold the framework rather than a problem inherent

in the framework itself.

85 Bartle, Ian & Vass, Peter (2005) Self-regulation and the Regulatory State: A Survey of

Policy and Practice, Centre for the Study of Regulated Industries, University of Bath (UK),

p. 5.

86 Ibid, p.5.

111


284. The review team does not favour a return to “more prescription”, as

in specifying more statutory detail, as an alternative to the existing

framework. The reasons are as follows:

• Specific detail may work well in application to quite

distinct and separate circumstances but such

circumstances are not likely to be identical in, or even

relevant to, all workplaces;

• The need for detail may be met by the adoption and

implementation of specific industry standards and codes

by industry itself 87 ;

• Administration of multiple, separate Acts based on

individual industries or classified types of workplaces

(back to the pre-Robens period) does not meet public

expectations of cost-effectiveness;

• With specific regulation it is possible that some industries,

particularly newly developing (yet unknown) industry,

would fall outside the framework;

• Difficulty in determining where the line of specificity is

drawn: in extreme, the current trend for separate

legislation could extend to every separate occupation (as

it did in some British nineteenth century laws, which for

example, included an Act for “tripe cleaners”) and to

every possible occupational hazard – as the national

standard setting process is threatening to do;

• Specific detailed regulation would rapidly become

obsolete and would stifle competitive innovation as

circumstances change;

87 The CFMEU opposed the current framework as not being suitable for “pillar coal extraction”

– a specific activity. On the contrary, the framework enables industry to develop a standard

or code of practice for “pillar coal extraction” without needing to create a new Act or

regulation.

112


• With different health and safety prescriptions for each

industry, inequities would be created between industries,

and for employees engaged by those industries; and

• Such specific detail relies upon specialist advice which

Recommendation 3:

the State would have to retain.

It is recommended that the current framework and its objectives

to prevent work-related injury, illness or death be retained and

defended against attempts to return to the old piecemeal

approach of prolific regulation. The State must work to achieve

industry’s commitment to uphold the framework as the most

flexible and appropriate for regulating contemporary

workplaces.

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Meeting the need for national consistency

285. Coles Myer Ltd., identifying itself as “Australia’s largest single

employer in the private sector nationally and a major employer in

Tasmania” supports:

[An] OHS regulatory framework that is consistent across

jurisdictions, that is not prescriptive on how results may

be achieved but enables companies to develop solutions

that best fit their needs, is flexible, and that encourages

continuous improvement in the face of an ever-changing

environment. (Coles Myer Ltd.)

286. Coles Myer advises that it has been able to apply one national

program to all its workplaces across all eight jurisdictions: “[t]he

company’s Safety Right Now – everybody everyday program has

introduced a nationally consistent approach in all its work centres

that recognises the shared responsibility of management and

employees to create a safe workplace . . . . [with a] 50%

improvement across all safety metrics [sic]”. (Coles Myer Ltd)

287. In discussions with the regional manager who has responsibility for

OHS in Tasmania and Victoria, we understand that Coles Myer is

able to apply its close knowledge of the Victorian OHS Act to its

operations in Tasmania without problem. We are encouraged by

this information.

288. Other respondents asked us to note national developments in

regulatory reform and apply these to the review of the legislative

framework. A written submission from Dallas Booth, writing as an

individual and not as a WorkCover Tasmania Board member,

114


eferred the review team to the COAG communiqués (April and

July 2006) and asked the review “to clarify what role, if any, it will

play in implementing these commitments in Tasmania” since the

review seems to be “an ideal opportunity through which these

commitments …. can be implemented”. (Dallas Booth, personal

comment.)

289. National Standards have been identified as one of the means for

achieving national uniformity and, with workers’ compensation

issues, have been included for “harmonisation” by the COAG

commitments. Tasmanian workplace health and safety legislation,

like that of other States and Territories, references many Australian

Standards (issued by Standards Australia) and National Standards

(issued by WorkSafe Australia).

290. The ASCC put forward the proposal to adopt National Standards as

regulation, however we believe that this would be contrary to the

policy of reducing regulation and has a number of other

weaknesses. It is possible to meet the requirements for national

consistency, the COAG regulatory principles (particularly the goal

of reducing regulation) and satisfying industry’s need for practical

detail, by encouraging industry to adopt relevant National

Standards and accompanying Codes of Practice as non-statutory

industry standards or codes of practice.

291. Excellent quality materials have been developed and published by

other jurisdictions that aim to assist understanding and contribute

115


to the knowledge of available, practical solutions.

Scarce

administrative and enforcement resources could be used more

effectively and efficiently, while meeting the need for national

consistency, if the jurisdictions were to present the best of these

nationally. Better still, the role of the ASCC in co-ordinating

national consistency might be achieved by performing the task of

providing central guidance material (without references to any

specific legislation or contact details) nationally. We understand

that these options are being explored.

292. The October 2006 Agreement of the Council for the Australian

Federation on Harmonisation of Workers Compensation and

Occupational Health and Safety Arrangements identified the

potential for the jurisdictions to collaborate in such matters.

293. Two of these establish agreement to “[s]hare advertising

campaigns focussed on improving safety at work” and “[u]se

common guidance material for employers to help improve

workplace safety and compliance with workers compensation” –

aspects that are sensible and had already been substantially

agreed upon prior to the COAG and CAF processes.

294. Item 5, “States and territories agree that the Council for the

Australian Federation (CAF) will give further consideration to the

harmonisation of enforcement, compliance and administrative

arrangements of workers compensation and occupational health

and safety schemes” contains potential for improvement.

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295. Nevertheless, further reductions in the incidence of work-related

injury, illness or death are dependent upon giving priority to

workplace health and safety – increasing awareness of, and

facilitating or enforcing compliance with the workplace health and

safety legislation – rather than concentrating resources upon a

national workers’ compensation model.

Recommendation 4:

The review recommends that industry be strongly encouraged

to adopt existing relevant standards (including National

Standards) as a means of accessing practical detail to support

their workplace health and safety efforts.

Recommendation 5:

It is also recommended that proposals put forward for

“harmonisation” of workplace health and safety either within

the COAG or CAF processes, be carefully considered to ensure

that proposals do not increase the level and number of

regulation. If proposals have the potential for increasing

regulation, they should be rejected.

Recommendation 6:

It is further recommended that in all national and local fora, that

workplace health and safety matters should be given balanced

attention.

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CHAPTER 4

RELATIONSHIP BETWEEN LEGISLATION AND

OUTCOMES

Each successive statute aimed at remedying a single

ascertained evil.

In an age of rapid change in industrial structures and

technologies as well as in social attitudes and

expectations, this traditional empirical approach cannot

keep pace. That it leads eventually to confusion is, we

think, apparent on any view …. 88

296. This chapter recalls the conclusions of the previous major

workplace health and safety review conducted by Ernst & Young in

1991 that gave rise to the current legislation and administrative

arrangements.

297. We comment on the generally low levels of awareness of

workplace health and safety legislation and consider how to forge a

closer relationship between the State and industry to support the

framework to prevent work-related death, injury or illness. We then

analyse the issue of “control” that was raised by respondents to the

review and discuss the issue of on-hired employee services in

relation to “control”. We examine Part 3 of the Act – Duties and

Obligations Relating to Workplace Health and Safety, giving most

attention to Section 9, “Duties of employers”, to determine how well

88 Lord Robens (Chairman) quoting Sidney Webb’s preface to A History of Factory

Legislation, in Report of the Committee, Safety and Health at Work (1972), Chapter 1 “What

is Wrong with the System?”, para. 22, p. 5. HMSO, London. Subsequent references will refer

to “Robens”.

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the message of the legislation is conveyed and how readily the

message may be understood and therefore carried out. 89

Legislation, administration and compliance

298. In considering the legislation itself, we bear in mind Lord Robens

again, this time as he quotes Sidney Webb’s comment on the

English empirical approach to workplace legislation in the

nineteenth century.

(This appears as the quotation at the

beginning of this chapter.) Thinking about Webb’s remark, Robens

asked:

… how much can and should be looked for through the

medium of legislation and state intervention, and how

much through the voluntary efforts of employers and

workpeople? [and] “What sort of contribution can

legislation and state intervention usefully make?” 90

299. The legislative framework (described earlier in this report) is

therefore designed for workplaces to regulate themselves by

establishing statutory duties and obligations of persons. The

legislation also defines the role of the State by creating an authority

and authorised officers whose role and functions are to uphold the

statutory framework. The roles of industry and the roles of the

State therefore should be in balance to ensure a stable framework.

300. Compliance with the law depends on knowing what is required.

Parliaments enact new laws every session at State and federal

levels, with a constant turn over of new legislation on so many

89 To access the Act go to http://www.thelaw.tas.gov.au.

90 Robens, Chapter 2 “Safety and Health at the Workplace”, para. 43, p. 14.

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matters, often in such a routine manner that it barely seems to

raise a single paragraph in the newspaper. There are nowadays

so many laws that most of us are not, and could not possibly be,

aware of them. We are unlikely to be familiar with the laws that

apply directly to us, let alone those that do not. There are

fundamental issues related to the amount of law and the role of

Parliaments that deserve to be debated; however, this review is not

the place. Suffice to say that if we do not know, and do not

observe, our legal duties and obligations, we stand to be penalised.

In the mass of law being churned out each year, how do we keep

up to date with it all and avoid “breaking the law”?

301. We turn to others for guidance when we have a need to know. As

employers with workplace health and safety duties and obligations

to uphold we would endeavour to find out about our obligations and

how to fulfil them and thus we might approach OHS advisers, or

business associations providing information and advice to

members, to assist us in understanding our relevant duties and

obligations.

302. Mostly, though, we would be dependent on the administering

agency to educate us about our duties and obligations, help us

understand and take the appropriate action, to reinforce the

message of the law and to penalise us when we fail.

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303. A close relationship between the legislation, its administrators and

those to whom the legislation is addressed, is therefore important

to achieving the legislation’s objectives.

304. In approaching the legislation, the review team makes

recommendations for change where we believe an amendment

would strengthen and clarify it, making compliance with it more

likely. But simply amending the legislation and doing nothing else

will have little effect in preventing work-related injury, illness and

death in Tasmania. We therefore do not recommend legislative

amendment in isolation.

Previous reviews and amendments

305. The (then) Minister for Employment, Industrial Relations and

Training, the Hon. Michael Aird, MHA commissioned the last major

review of workplace health and safety in Tasmania in 1991. The

review was conducted by Sydney consultants, Ernst & Young and

covered all aspects of OHS legislation and services provided within

the State. It also considered the appropriateness of workers’

compensation insurance provisions.

306. Ernst & Young repeated the lessons of Robens in their statement

that: “recognition of the workplace, and employers and employees

jointly, [is] the foundation for enduring improvements in

occupational health and safety standards”. 91

They were highly

critical of the Department of Employment, Industrial Relations and

91 Ernst & Young, p. 2.

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Training (the agency administering workplace health and safety at

the time) for having elected to adopt a “policing” role, concentrating

available resources on statutory inspections and investigations

largely in reaction to received complaints, and concluded that much

more pro-active support should be provided. 92

307. Ernst & Young concludes:

The overwhelming evidence of international experience

suggests that a traditional policing and enforcement role

is inadequate. Such a role tends to concentrate on the

consequences of occupational health and safety

matters, rather than addressing their root cause. The

emerging consensus suggests that government can

more productively secure the aim of improving the social

and economic well being of the community by adopting

a systemic approach which ensures the nature of

occupational risks are properly understood and

responded to within the workplace. 93 [Emphasis

added]

308. Ernst & Young envisaged that the administration of the legislation

would involve different approaches for different workplaces: the

promotion and implementation of relevant standards and systems

for larger organisations, particularly those in higher risk industries;

and the provision of education and support for smaller

organisations. 94

309. Later amendments to the Workplace Health and Safety Act 1995

occurred in 2002 as a result of the Joint Select Committee of

Inquiry into the Tasmanian Workers’ Compensation System (which

92 Ernst & Young, p. 18.

93 Ernst & Young, p.46.

94 Ernst & Young, p. 47.

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eported in 1998) rather than as an outcome of a dedicated review

of the Workplace Health and Safety Act.

310. The most significant of the 2002 amendments included the

introduction of infringement notices (“on the spot fines”) for

breaches of certain regulations and an amendment extending the

duties of employers to contractors and any subcontractors engaged

by the contractor. An important amendment was a provision

prescribing that where a number of contractors and sub-contractors

operate in the same workplace, a co-operative approach must be

adopted to ensure health and safety of all persons at the

workplace.

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Prevailing attitudes

311. The current review reveals two characteristic attitudes towards

workplace health and safety: firstly, that it is a matter of providing

detailed or precise rules and regulations imposed by the State and

supported by more inspections conducted by more inspectors and

punished by more stringent penalties. Secondly, that workplace

health and safety depends upon the State providing more

information, more assistance, more advice, more guidance, more

education and more training, fewer regulations but not more

penalties.

312. Both attitudes reflect the State’s role in facilitating compliance and

raising awareness, two key Outputs adopted by the agency to

prevent illness and injury; however, an expectation that the State

would adopt the dominant role in prevention overlooks the central

premise on which the legislative framework is based, that it is

designed for workplace parties themselves to take action according

to their statutory duties and obligations.

Raising awareness and facilitating compliance

313. The Discussion Paper (at pages 26 – 29) discussed the two

Outputs – raising awareness and facilitating compliance –

according to the activities of the Inspectorate. The objective of

raising awareness is to “raise community awareness of the

requirements of the legislation and provide guidance on how to

comply” (DP, p. 26) while the objective of facilitating compliance is

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to “ensure compliance with legislation administered by WST

through inspections, audits, investigations and other enforcement

activities” (DP, page 27).

314. Raising awareness involves different activities listed as awareness

programs; advice; advisory services; awards; campaigns and

events; data administration; media relations; policy; promotions;

publications; reporting; research; and training. The Inspectorate

participates in some, but not all, of these activities. Their major role

and activities are involved in the second Output, facilitating

compliance.

315. Facilitating compliance involves the activities of advice; awareness

programs; innovative solutions; inspection and investigation

(broken down into investigation of accidents, incidents and

complaints and issuing of directions and infringement notices);

resolution; prosecution (further involving preparation of cases for

prosecution of alleged offences leading to imposition of penalties);

and reporting. The final Chapter of this report discusses the role of

the Inspectorate in delivering this Output.

Familiarity, knowledge and understanding

316. The review team found that the level of awareness of the

Tasmanian legislation is generally low. In his review of the

Victorian Occupational Health and Safety Act, Chris Maxwell

similarly found a lack of awareness of the Victorian Act:

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It is axiomatic that the extent of compliance with OHSA

is dependent on the degree of awareness in Victorian

workplaces of what the Act requires. Most employers

and employees are generally aware that they have

safety duties, but few know what is required of them in

order to discharge those duties. 95

317. One submission to the Tasmanian review reflected greater

awareness of the Victorian Act than the Tasmanian, reflected in a

comment that the Tasmanian Act needed to apply more broadly

and include a definition, comparable to the Victorian definition, that

recognises that a workplace includes “a car, truck, ship, boat,

airplane and any other vehicle”.

318. Section 3, the Interpretation section of the Act, defines “workplace”

as “any premises or place (including any mine, aircraft, vessel or

vehicle) where an employee, contractor or self-employed person is

or was employed or engaged in industry”.

319. Large employers, branches of unions and employer associations

often have a regional focus with their headquarters in Victoria or

New South Wales, so it is reasonable to expect that they would be

more familiar with, or have a greater awareness of, the legislation

of that State. This appears to underline a desire, expressed by

some respondents to the Tasmanian review, for features of other

legislation.

320. The CFMEU (Mining and Energy Division) Tasmanian Branch, for

example, submitted for the inclusion of “check inspector” provisions

95 Maxwell, p. 9.

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that are features of the NSW and Queensland Acts that regulate

coal mining separately from the general workplace health and

safety Acts. The check inspector provisions allow for the election

of employee representatives whose functions are associated with

the review of health, safety and welfare measures at a coal mining

operation.

321. Tasmania regulates all workplaces, including mining operations,

through the Workplace Health and Safety Act 1995.

322. Sections 26 to 29 of the Tasmanian Act (allowing for the

establishment of Health and Safety Committees) and section 32

(allowing for the election of “employees’ safety representatives”)

are substantially the same as the NSW coal mine “check

inspectors” provisions. Section 26 provides that if a majority of

persons at a workplace employing more than 20 persons decide

they want a health and safety committee, they may request such a

committee, and the employer must establish it within two months of

the request. A person nominated by the committee may inspect

the workplace.

323. Likewise, if there are ten or more persons working at a workplace,

section 32 of the Act allows employees to elect one of their number

to be their health and safety representative. The health and safety

representative may also inspect the workplace.

324. If there is a need for employee representatives or committees in

Tasmanian coal mines (or metalliferous mines) or, indeed any

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workplace, to bring about improvements in health and safety then

we strongly recommend that employees take advantage of these

provisions of the Act. However, they need to be aware of the

provision in order to make use of it. Facilitating awareness of the

legislative framework and the purpose of enabling provisions is

thus a vital aspect of preventing work-related injury, illness and

death.

325. The consultation conducted on the Discussion Paper provides a

snapshot of stakeholders who, by responding to the Discussion

Paper, have demonstrated a key interest in workplace health and

safety, nevertheless the level of awareness, understanding, or

familiarity with the legislation, could be improved.

326. Some respondents share this view:

… understanding of OHS legislation is minimal. In

bigger organisations there may be an adequate

understanding but too often this is kept at the higher

level of the organisation and not disseminated down to

the workplace level. (A. Ayling)

327. The Australian Chamber of Commerce and Industry (ACCI) states

in its “OH&S Blueprint” that many small and medium business

operators do not understand the legislation and that OHS laws are

too complex. 96

The WorkCover Board responded to the needs of

small businesses in 2006 by establishing a small advisory unit of

three FTEs within the WorkCover Branch to assist small business.

96 ACCI (2005), Modern Workplace: Safer Workplace – An Australian Industry Blueprint for

Improving OHS 2005 – 2015. ACCI, Canberra.

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This small beginning is commended, and to ensure a long-term,

sustained effort of preventive action, we would like to see this

expanded into a bolder initiative - a stronger, strategic, partnership

approach.

328. Two respondents to the Discussion Paper disagreed with the view

that workplace health and safety legislation was too complex and

difficult to understand. They stated that, despite limited education,

they had no difficulty understanding the legislation. (G. & K.

Hudson)

Community commitment

329. The inclusion of “safe workplaces” within the revised Tasmania

Together goals and targets (2006) indicates that the community

has acknowledged the importance of workplace health and safety. 97

The Indicator established for safe workplaces is the “incidence of

workplace injuries” based on 2001/02 injury incidence rate of 51.8

claims per 1000 workers. It is assumed that “injury” includes illness.

(Targets are: for 2010 – 35/1000; 2015 – 28/1000; and 2020 –

23/1000.) 98

330. Despite this, some respondents share the belief that “the

community remains distanced from workplace health and safety”.

(S. R. Porter.) If this were true, some things apparently do not

97 Goal 2 “confident, friendly and safe communities” / Standard 1 “To support safe and

responsible behaviour and ensure that community facilities and spaces, transport systems,

workplaces and private homes are, and are perceived to be, safe environments”.

98 (http://www.tasmaniatogether.tas.gov.au/_data/assets/pdf_file/18509/Tasmania_Together_B

ooklet).

129


change: the Committee of Inquiry chaired by Lord Robens was in

no doubt that “the most important single reason for accidents at

work is apathy”. 99

331. Distance is unfortunately shortened abruptly when serious injury,

illness, or death occurs. Headline accidents attract our attention

and safety campaigns bring health and safety matters into focus for

a short period but afterwards people settle back into their everyday

attitudes and behaviours. We are human.

332. We conclude that there is a need for the agency to engage closely

with the Tasmanian community and to forge close links and work

more collaboratively with industry. The objective would be to build

the commitment of the community and the confidence of industry to

greatly increase levels of awareness of the legislative framework.

From improved levels of awareness and commitment, we would

anticipate that workplaces would embrace their responsibility to

apply the framework to prevent injury, illness and death.

Strategic Alliances or Partnerships

333. Our view is reflected in the Tasmanian Minerals Council’s belief

that strategic alliances offer the best way forward for improvement:

Strategic alliances are important in such a competitive

and changing world, so we encourage further

development of arrangements that build relationships

across the [mining] industry; enabling greater

involvement will no doubt help achieve good outcomes

while avoiding unnecessary paperwork. (TMC)

99 Robens, Chapter 1 “What is wrong with the system?”, para. 13, p. 1.

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334. This is sound advice and applies as much to alliances between

industry and government as it does to alliances forged within

industry itself.

335. The importance of alliances is also expressed in the TCCI’s

submission that “the key problem is the failure of Workplace

Standards to genuinely engage with employers and work

collaboratively with them to improve health and safety outcomes”.

(TCCI)

336. One respondent noted, “the WorkCover Tasmania Board has

amongst its membership representatives of Tasmanian industry. It

is this body that needs to take ownership and develop a

partnership with Government to develop and implement strategy to

improve OHS performance”.

337. The WorkCover Tasmania Board’s focus has been predominantly

on workers’ rehabilitation and compensation issues in the past,

despite its considerable role and acknowledged effort in fulfilling its

function to promote workplace health and safety through

publications and campaigns.

The Board’s membership is

composed to reflect the stakeholders having a particular interest in

workers compensation matters.

338. Since 1991 there have been regular and ongoing state reviews into

the workers rehabilitation and compensation scheme. The current

state review and the national harmonisation of workers’

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compensation (subject to the COAG timetable and processes) are

matters that currently require the WorkCover Board’s close

attention, in addition to the major responsibility to manage the

workers compensation fund.

339. In this context, there is an urgent need for a body to take on a

strategic role for workplace health and safety issues in their own

right, unfettered by the added burden or urgency of workers’

compensation issues.

340. Other jurisdictions have recognised the importance of prevention in

the creation of workplace health and safety councils as advisory or

strategic bodies, and there are established Tasmanian precedents

in other areas, such as road safety for example.

Workplace Health and Safety Council –partnership or alliance

341. A workplace health and safety council would, we believe, create a

strong alliance of government, industry and the community with a

strategic focus on workplace health and safety issues to uphold the

legislative framework and significantly improve workplace health

and safety outcomes.

342. Potentially such a council could do much in terms of “building

bridges” in relationships and knowledge and understanding with the

business community, therefore increasing confidence and

commitment to workplace health and safety throughout the

community.

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343. It is emphasised that the proposed council would need to have

greater status than an “advisory committee”. The provision under

the Workplace Health and Safety Act for advisory committees

(section 7) to be established by the WorkCover Board lacks

sufficient strength for the creation of the proposed council.

Purpose

344. It is important that the proposed council should be a forum for close

engagement of the members dedicated to ensuring that the current

framework operates to its maximum effectiveness. The purpose of

such a council would therefore be to work collaboratively and cooperatively

to support the objective of the legislation (to prevent

work-related death, injury and illness).

345. As a strategic alliance, it would devise strategies, programs,

products and services for which government and industry would

have joint responsibility to deliver.

346. It could, for example, design strategies to promote understanding

and awareness of the legislative framework as well as increasing

the knowledge and adoption of standards to meet legislative

objectives.

347. Similarly it could develop advisory programs and services designed

to meet the specific needs of small business.

348. We emphasise that It would not derogate from the State’s

responsibilities in administering the legislation, nor would it diminish

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the important role of the WorkCover Board of Tasmania, rather, it

would create an additional mechanism to bring the State and

industry together as partners to work towards the same objective at

a time when there are many significant and competing demands for

attention.

Membership

349. The membership of the council would be drawn from industry and

government (both from the administering agency and potentially

other agencies) reflecting a broad spectrum of types and sizes of

business as well as different industry sectors. The aim should be

to get a membership structure that is as close to workplaces as

possible. It should certainly include representatives of, and

promote the interests of, small business as well as large business.

350. There is potential value in inviting major category award winners of

the WorkCover Safety Awards to a rotational membership of the

council (i.e. for twelve months following the receipt of their award)

so that the benefit of their practical experience might be passed on,

perhaps extending to, or including, a mentoring program.

351. With the emphasis upon collaboration, the council needs to be

composed so that it does not create rival “camps”. Nor should its

membership necessarily be determined according to traditional

“peak body” representation. Membership could, in fact, be decided

by consensus of interested industry, community and government

representatives in a first process of agreement.

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352. In the establishment and governance of the proposed workplace

health and safety council, including its relationship to the

WorkCover Tasmania Board, it may be possible to benefit from

examining models provided by other councils to discover and apply

what works most effectively.

For example, the existing State

Industry Councils and the Road Safety Council could be

considered.

353. A close examination of the way in which similar OHS councils

operate in other jurisdictions also may be helpful in determining

matters to do with functions, representation, governance and

potential funding of the council.

354. A central principle for membership of the council would be for

industry members to act as “ambassadors” for good health and

safety practice in the business community. They should therefore

be exemplary in practice and could, with their agreement, operate

as mentors of good workplace health and safety practice to other

industry members.

355. For close collaboration and co-operation between the agency and

industry, it is important that there be active agency representatives

on the council and administrative support must be provided to

assist the council.

356. The State Service is a significant employer in Tasmania.

Representation of the State Service Commissioner who has

responsibility for administering the State Service Act, under which

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State government employees and officers are employed, would

assist in making progress towards the National Strategy priority “to

strengthen the capacity of government to influence OHS

outcomes”.

357. To provide a balanced constituency, consideration should also be

given to how employees, contractors, and on-hire employee

bodies, and representation of unions might be achieved.

Strategic direction

358. The National OHS Improvement Strategy provides the overall

strategic priorities and action areas; nevertheless, a strategic plan

should be developed that co-ordinates and maximises available

resources and integrates activities of the WorkCover Board, the

Workplace Health and Safety Council and Workplace Standards

Tasmania.

Legislative amendments to establish the workplace health

and safety council

359. To facilitate the establishment of the council, certain amendments

would need to be made to the Act at Part 2 “Functions and Powers

of Secretary and Board”. A provision would be needed to establish

the functions, powers, membership etc., of the council. A separate

fund would need to be established to support the activities of the

council.

360. In giving consideration to the recommendation for a workplace

health and safety council, the agency should consider the effect of

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sections 5, 6 and 7 of the Act in respect to the workplace health

and safety functions of the Secretary and the WorkCover Board of

Tasmania (under both this Act and the Workers Rehabilitation and

Compensation Act 1988). The objective should be to ensure that

there is clarity in defining the purpose of the Secretary (and

agency), the Board and the proposed council, so they may work

closely together to the achievement of common strategic direction.

361. Although outside the terms of reference, an amendment is also

likely to be needed to the Workers Rehabilitation and

Compensation Act 1988 to account for changed functions and roles

of the WorkCover Board in respect of the new council.

Recommendation 7:

It is recommended that the Government establish a workplace

health and safety council of agency and industry partners with a

purpose, functions, roles and membership along the lines

proposed. Relevant amendments would need to be made to the

Act (and likely to the Workers Rehabilitation and Compensation

Act) as indicated.

Recommendation 8:

It is recommended that the workplace health and safety council

work cooperatively to develop a Workplace Health and Safety

Charter setting out the general principles to underpin the

objectives of the Act. The first principle could be “in any

employment arrangement and any workplace, prevention of

work-related injury, illness or death is paramount”.

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Prevention Duties, Obligations and Accountability

Differentiating the concepts – prevention and compensation

362. The common law ‘duty of care” principle is the obligation to take

reasonable care that your activities do not cause harm to another

(Donoghue v Stevenson 1932 SC (HL) 31). It is based on the

relationship of the parties, a negligent act or omission and the

reasonable foreseeability of loss to the individual.

363. Liability for compensation to be paid if harm does occur is worked

out according to whether there is a duty of care owed in the

relationship of the parties. A “control test” applied by the courts

determines the nature of the relationship and whether a contract of

employment exists.

364. In Chapter 3 we observed that COAG (2006) agreed to consider

the OHS duty of care” nationally for “harmonisation” in response to

recommendations by the Taskforce on Reducing Regulatory

Burdens on Business – (recommendation 4.27).

365. In writing about “harmonising employer liability requirements in

OHS”, the Regulation Taskforce (likely with its sights set on NSW)

noted that “in some jurisdictions” workplace health and safety

liability has been interpreted as “absolute”.

366. Unlike the “no fault liability” of workers compensation schemes,

separately legislated health and safety duties apply to all parties in

the workplace and upstream of the workplace. In Tasmania (as for

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all jurisdictions now we believe), they are based on what is

“reasonably practicable”. Employers have the lion’s share of

statutory duties in recognition that they manage matters at the

workplace, which other parties cannot and do not, but they do not

have sole accountability.

367. The review team is concerned that the Regulation Taskforce has

not clearly differentiated two separate objectives, prevention

(embodied in the workplace health and safety statutory duties) and

compensation (provided for by separate workplace rehabilitation

and compensation legislation). This concern rests on the way in

which the Taskforce writes about workplace health and safety and

compensation in the same breath in the statement that it “is unable

to consider ACCI’s recommendation that OH&S legislation be

based on a general duty. This would entail a significant change to

current no fault policy …”. 100

368. Is it possible that much of the confusion or misunderstanding about

workplace health and safety is because the latter is being identified

with compensation? That the two systems are regarded as one?

Or, perhaps that the objectives of the two are the same?

369. Comments made by J. R. Sidebottom of Penfold Buscombe (a

printing business) about the success of a workers’ compensation

injury claims management program appear to confirm that some

confusion and identification of the two separate frameworks exists,

100 Regulation Task Force (2006), p.38.

139


ut it is difficult to ascertain how prevalent this might be. J. R.

Sidebottom wrote that the company’s program to manage workers’

compensation injury claims had been successful in seeing a

marked reduction in the number of workplace injuries, lost days

due to sick leave and a decline in the number of workers

compensation claims.

370. Yet, he commented, the program had been introduced at a cost to

the business

“without savings in premiums or incentives, and unless

the ongoing costs of the initiatives can be factored into

our workers compensation premium, it will be harder for

the business to justify the continuation of these

[program] costs”. (J. Sidebottom, Penfold Buscombe)

371. On the issue of costs associated with complying with workplace

health and safety legislation, there is an alternative view that there

is synergy between workplace health and safety and productivity.

In this view, the costs of creating a safe and healthy workplace to

prevent injury, illness or death are outweighed by the direct and

indirect costs associated with workplace accidents, injuries and

illnesses, some of which are borne by others.

372. This view is put by the ILO in stating that “just as occupational

accidents and ill health are clearly bad for productivity, the opposite

is also true: providing safe and healthy working conditions actually

140


makes enterprises more productive. Good safety and health is

good business”. 101

373. We believe that it is important for the business community to

understand that workplace health and safety and compensation

have two distinct and separate objectives – the objective of the

former is prevention - to prevent workplace injury, illness and

death; the objective of the latter is to provide compensation to

people who are injured or made ill as a result of work.

374. They are governed by two entirely separate pieces of legislation in

Tasmania, as in other States and Territories: the Workplace Health

and Safety Act 1995 and the Workers Rehabilitation and

Compensation Act 1988 respectively.

375. Much of the workers compensation case law centres on arguments

about employers’ liability, defined according to the relationship

between the employer and the worker. Liability and control are

integral to the common law duty of care principle from which

workers compensation developed.

Shared accountability

376. Comments on the issue of participation of employees in the

processes of hazard identification, assessment and control of risks

(raised in the Discussion Paper) show that some employer bodies

101 United Nations International Labour Organisation (ILO) Committee on Employment and

Social Policy 295 th session, Agenda Paper “Occupational safety and health: Synergies

between security and productivity” (Geneva: Switzerland); p. 5.

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elieve that “sharing” such processes should also involve sharing

accountability or liability.

377. For example, the Tasmanian Minerals Council (TMC) raised the

issue of accountability in relation to risk management:

A fundamental principle of risk management is that

every decision-maker is accountable. We do not agree

that this should apply only to employers or management

and we are not going to get better if there is a difference

of accountability for different people. We can only move

to a higher level of performance if accountability is

understood and shared. (TMC)

378. We agree that every decision-maker is accountable in a

management sense, but we do not agree that involving workers in

risk management processes makes all workers “decision-makers”.

Some, of course, are decision-makers, such as individual

independent contractors, who see themselves as neither

“employees” nor “workers”. They are self-employed individuals

contracted to work at workplaces where other categories of

persons also work.

379. As noted by R. Laing 102 and Chris Maxwell 103 the workplace health

and safety legislation provides a duty to be observed by

employees, so accountability is not limited to employers. The

Tasmanian legislation provides this at section 16 of the Act.

Employees must

102 Laing, R. (2002) Review of the Occupational Safety and Health Act 1984 – Final Report,

State of Western Australia, Perth; paras 291–300, pp.73-75.

103 Maxwell, Chris (2004) Chapter 16 “Duties of Employees”, paras 720 – 727, pp 163 – 164.

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take reasonable care for the employee’s own health and

safety and for the health and safety of other persons,

including persons working under the direction or

supervision of the employee, who may be affected by

the employee’s acts or omissions at the workplace; and

comply with any direction given to the employee by an

employer or responsible officer with respect to any

matter relating to health and safety under this Act.

380. Robens envisaged that employees’ accountability would be defined

not only by their need to comply with a general statutory duty but

also by a requirement for employers to develop workplace health

and safety policies. Once developed, employees would have to

comply with such policies, thus strengthening their level of

accountability.

381. Although the Tasmanian legislation does not prescribe the making

of workplace policies, employers might nevertheless use them

where relevant.

382. At the level of small business where formal policies may be neither

the norm nor appropriate, simple processes or procedures would

have value in preventing illness and injury. Such processes,

procedures and/or policies might be regarded as information which

employers are required to provide employees by s9(2)(c) of the

Act.

383. Another view expressed in submissions is that employees must

share the penalty if a business is prosecuted for a breach of the

legislation. It should be remembered that each case is judged on

its own merits and magistrates will examine all aspects of a case in

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determining who are the accountable parties and who is to be

penalised.

384. Concerns about liability or accountability occur if multiple duty

holders on one site employ different “systems” for managing risks

to health and safety, yet we find that the legislation anticipates the

potential for multiple accountability.

385. Where there are multiple duty holders, the accountability for coordinating

the management of health and safety is with employers

or principal according to s9(4) and (5) of the Act, while section 21

makes it clear that each person must satisfy their duty or obligation.

Where there is a principal and several contractors, the duties of the

principal are the same as an employer’s. Thus, in making a

determination about how risks are to be controlled, or which safety

system(s) should apply on a complex site, clearly the “accountable

person” making the final decision is the employer or principal.

386. The Act establishes the prevention duties owed by persons in Part

3 – Duties and Obligations Relating to Workplace Health and

Safety, from section 9 through to the end of section 22. The

degree of protection afforded by the Act depends on how and to

whom it speaks about duties and obligations to prevent workplace

illness, injury or death.

387. We find that the Act in this Part, by speaking to “employers”;

“responsible officers”; “self-employed persons”; “designers,

manufacturers, importers, suppliers and installers”; “service

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providers”; “persons in control of workplaces”; “principals”,

“employees” and “any person”, attempts to be as universal as

possible in this respect so that accountability is well-distributed,

nevertheless employers have the lion’s share of duties as outlined

in section 9.

Employers and employees

388. The major parties involved in workplace health and safety are

defined by the legislation as employers and employees.

“Employer” is defined in section 3 as “a person by whom an

employee is employed under a contract of service” and “employee”

means “(a) a natural person employed under a contract of service;

or (b) a natural person who uses substances or plant in an

educational or other training establishment”.

389. The duties of employers to prevent work-related injury, illness or

death in respect of each employee employed by the employer are

provided for in much greater detail at s9(1) and (2) than the rest of

the section.

390. There are now many persons working in the same workplace

whose relationship to the workplace employer is not that of an

employee as defined and the lack of detail about duties in regard to

them might make a significant difference to their health and safety

outcomes.

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391. In our scan of labour market changes, we have seen that

employment arrangements for a growing number of people

unfortunately define not only their “flexibility” in labour market terms

but may also determine their degree of vulnerability to work-related

health and safety problems (ILO, 2006; Bohle, Quinlan & Mayhew,

2001).

392. The Discussion Paper therefore asked whether any change in

terminology was needed to update the Act and suggested that a

change ought to take into account the issue of control. At least we

believed that some accommodation ought to be taken of the

different employment arrangements that now exist. Categories of

people now called “independent contractors” or on-hired

employees for example, now generally outnumber “employees” in

certain workplaces. The person having “control” of the workplace

is not their “employer” in the way in which that term is defined in the

Act.

393. Submissions supporting the retention of existing terminology stated

that our examination of the prevention duty should aim at

strengthening and clarifying existing provisions rather than adding

new definitions. This advice is accepted; however, concerns about

clarity and inclusiveness ought nonetheless to be addressed.

394. Responses to the Discussion Paper contained various

interpretations of “control”, one of the most hotly debated issues in

relation to prevention.

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395. Statutory prevention duties provided by the Act, like compensation,

are based upon the employment relationship that in turn, is

determined by the courts according to the application of a “control

test”.

396. We turn now to look at the various aspects of control that were

raised by respondents and explore how such interpretations of

“control” may relate to statutory workplace health and safety duties.

Concepts of control

Control test and employment contracts

397. The first aspect of “control” is concerned with the employment

relationship. The Act defines employer and employee in terms of a

contract of service. The level of control exerted by one person over

another (called the “control test”) is used to determine the

existence of an employment relationship – whether it is a contract

of service or a contract for service - and this test identifies liability

for compensation where injury or illness occurs when prevention

has failed. This is now largely replaced by the multi-factor test that

is used to determine the existence of a contract of employment.

Control risks

398. Another vital aspect is the control of risk. Health and safety duty

holders are required to control risks to safety and health, the extent

of which is based on what is “reasonably practicable” - that is, an

objective estimation of what the person ought reasonably do to

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control the level of risk of injury, illness or death occurring. (This is

explored in the next chapter.)

Management control

399. Both aspects of control mentioned in previous paragraphs are

related to control or management of the workplace which,

depending upon the size and complexity of the workplace, may

involve hierarchical levels of control or direction by the person

(corporation or natural person) whose business undertaking it is.

The discussion of the Esso – Longford accident earlier in this report

illustrates how the corporate “controlling mind” of executive

management may be very remote from the actual workplace, yet

high level control (“direction”) of the company can be seen to

extend to what actually happens at the workplace.

400. Corporate direction flows down the chain of command through all

levels of management of the company to the immediate manager

of the worker performing the task. This “control” is significant in

making decisions about health and safety, particularly in

determining the level of control to be applied to a recognised risk,

as in Esso’s case.

401. Such control has been acknowledged in provisions in legislation of

other States and Territories where company officers may be held

criminally liable.

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402. In the investigation of accidents it is not unusual for all of these

aspects of control to be carefully analysed and untangled in

determining whether an offence has been committed and by whom.

Influence

403. The Australian Finance Conference (AFC) introduces another

aspect of “control” when they write

… as a general principle, the law should impose duties

on the individuals and organisations who are in a

position to influence health and safety outcomes. We

therefore agree with the suggestion [in the Discussion

Paper] that the Act and Regulations use terminology

based on the concept of degrees of control of the

workplace, and hence on capacity to discharge duties

under the Act. (AFC) [Emphasis added.]

404. The AFC explained that as a finance organisation involved in

financing the acquisition of plant or structures for use in a

workplace, for legal and taxation or security reasons, they are the

“owner” of the financial property. (Just as a bank is the “owner” of

any mortgaged property and may seize the property in the event

that scheduled payments are not made.) Yet their influence in

workplace health and safety matters is very limited: they do not

select the plant or equipment that is financed and would have no

control over the manner of use or maintenance of the plant

financed.

405. The AFC would like to see the position of the financier clarified

through the inclusion of a provision into the Tasmanian Act similar

to section 30(2) of the Victorian Occupational Health and Safety

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Act to “transfer the relevant duties from the financier to the person

whose plant is acquired under the finance arrangement”. (AFC)

406. As far as we can see the financier has no prevention duty. There

are no prevention duties applying to an “owner”. According to

section 14 of the Tasmanian Act, designers, manufacturers,

importers, suppliers and installers have a duty so far as is

reasonably practicable to ‘ensure that the design and construction

of the plant or structure is such that persons who use the plant or

structure properly are not, in doing so, exposed to risks to their

health and safety”.

407. A financier is in none of these categories. Although for other

purposes the financier is the “owner” of the financed property, the

transaction has simply been the loan of money to purchase the

plant.

408. Section 15(1) applies a duty to “a person who has control of any

premises, plant …. [etc.] (Emphasis added.) It seems clear

enough that the issue of control is the important aspect in

determining who has the prevention duty here as elsewhere. If

doubt remains, then a guidance note could be issued by the

agency to provide assurance for financiers.

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Social responsibility and shareholder control

409. Many persons, including shareholders and consumers, could be

said to exert influence over health and safety outcomes and

working conditions through exercising their social responsibility,

particularly where corporate reputation is involved.

410. By way of example, the Finnish corporation Nokia responded

directly to concerns about factory and employment conditions of

workers making Nokia products in Asia. A team of European

managers from Nokia were filmed visiting and conducting “product

quality control” exercises in the factories of Chinese manufacturers

making their goods, meeting with workers and local managers,

explaining their (Nokia’s) requirements. The Nokia managers were

motivated to do this by the importance attached to corporate

reputation and shareholder expectation.

411. The quality control exercises provided the opportunity for the Nokia

managers to comment upon other matters at the Chinese factory,

including the safety record, health and welfare conditions. Nokia’s

intervention led to the Chinese contractors agreeing to make much

needed improvements in the general working conditions and

health, safety and welfare of the workers. 104

Shareholder influence

in corporate management was therefore exerted serendipitously to

improve not only the quality of the product but also the health,

safety and other matters of the people involved in the production.

104 SBS Television documentary, “Nokia: A Decent Factory”, broadcast Thursday

20 April 2006.

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412. Any corporation and, indeed governments, might exert similar

strong influence over the improvement of health and safety

outcomes through their contracting or purchasing practices. This is

recognised by one of the National OHS Improvement Strategy

priorities to motivate governments to exert such influence.

413. To assign prevention duties and possible criminal liability to

shareholders on the grounds of “influence”; however, would extend

the duties rather too broadly to be either meaningful or fair.

Authority

414. Another variation on the notion of control advanced by

stakeholders is “authority”.

For example, Unions Tasmania

submitted:

The Act must create a duty of care so that those who

hold authority and power in a workplace are charged

with that duty of care. The duty of care must apply to

every person who exercises authority and power and at

all levels of a business including the directors of a

corporation. No person should be able to delegate that

duty of care although it will be exercised in different

ways at different levels of an organisation. (Unions

Tasmania)

415. The idea that there are persons exercising authority at different

levels of management in a business and that the duty should

extend to them, is reflected in the definition of person in the Act as

a natural person or a corporation. The concepts of “responsible

officer” or “accountable person” as they are included in the Act and

Regulations respectively also fit the idea of duties assigned to

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persons who exercise management authority in or for the

undertaking.

Management

416. Many of these concepts of control coalesce in the idea and

practices of management. As Chapter 2 explains, the Robens

legislative framework is based on the important assumption that

workplaces depend on good management and that workplace

health and safety should become a matter of management.

417. The Act partly follows a management approach. It proceeds from

the duty to provide a safe workplace, safe systems of work and

safe plant and substances through duties to provide instructions,

information, supervision, training, monitoring and keeping records

where necessary, as well as managing relationships between

different parties. (These duties are further elaborated upon by

prescribing obligations in the Regulations to carry out systematic

management of health and safety risks.)

418. Where the Act inadequately responds to the management cycle is

its failure to make it a duty of employers to involve workpeople in

contributing to, as well as understanding and implementing,

workplace health and safety policies; and it stops short of requiring

managerial or company reporting of performance in prevention.

The Act allows for employee health and safety representative

mechanisms and prescribes how affairs within these mechanisms

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must be managed, but the mechanisms themselves depend upon

the employees, not the management, taking the initiative.

Inherent control – specialist skills

419. The Australian Chamber of Commerce and Industry (ACCI) writes

in a draft paper discussing yet another aspect of control. ACCI

writes that control is a concept that has traditionally defined the

employment relationship of employer and employee but also asks

how this same notion can be used in occupational health and

safety “when employees invested with particular skills will

inherently control their work”. 105

420. The debate about control may contribute to, or be part of, the

attitude or belief that we mentioned earlier where prevention is

“someone else’s responsibility” and so it is worth looking at this

idea of “inherent control” a little more closely.

421. ACCI’s reference to inherent control appears to recall a theory of

accident causation called the “domino theory”. It also relates to the

doctrine of volenti non fit iniuria or voluntary assumption of risk that

limits the employer’s liability for compensation payment. 106

In

105 The review team acknowledges the submission received from the Housing Industry

Association (25 July 2006) that appended a copy of a discussion paper prepared by the

Australian Chamber of Commerce and Industry (ACCI) (2006) “Definition of Control and

Person in Control – Introduced into Revised National Standards and Codes of Practice”, p. 2.

The paper had been prepared in response to a paper by the Office of Australian Safety &

Compensation Council to the Chemical Standards Sub-Committee of NOHSC on the

possibility of introducing the concept of “person in control” into a revised national standard for

hazardous substances. The review team understands that the latter paper was withdrawn.

106 Brooks, Adrian (1993) Occupational Health and Safety Law in Australia 4 th Edition, Chapter

1, “Employers” Liability: The Laissez-Faire Phase”, para. 102, pp. 13-14. (CCH Australia Ltd.

North Ryde Australia).

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finding that 88% of accidents arise from an unsafe act by a person,

the developer of the domino theory, H. W. Heinrich, places the

focus of accident causation upon the person whose final unsafe act

gives rise to an accident or injury. 107

422. His theory likens the occurrence of an accident to a row of

dominoes beginning with the domino representing a person who

does the work whose behaviour is due to antecedent social

environment or ancestry (first domino), and who (inexplicably) is

inherently “at fault” (second domino). The third domino represents

an unsafe act performed by that person in relation to a mechanical

or physical hazard; that in turn leads to an accident (fourth

domino), that causes the injury (final domino).

423. The “unsafe act” of the person “at fault” is the domino that causes

the others to fall over in sequence. According to the theory the

accident or injury can be prevented if you remove any of the middle

dominoes (the unsafe act or the mechanical or physical hazard)

separating the person from the injury. This theory gives rise to the

idea that inherent control over the work being performed is the

crucial element in fixing the label of liability on the performer of the

unsafe act.

424. The domino theory of accident causation was updated in the 1980s

however, to include recognition of the importance of management

107 Heinrich, H.W., Peterson, D. & Roos, N. (1980) Industrial Accident Prevention. McGraw-

Hill: New York.

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and managerial error; and to include the concept of loss

(production loss, property damage or other wastage of assets as

well as injuries that are classed as “losses”). 108

So management

control is a vital element in statutory prevention duties as well as in

determining who owes the common law duty of care.

425. Chris Maxwell concluded that the Victorian Authority (WorkCover

Victoria) responsible for the administration of the Victorian

Occupational Health and Safety Act must provide guidance on the

issues of control for each of the duty holders. He goes further to

recommend that the “reasonable practicability” condition in the Act

itself must explicitly refer to control.

496. In my view, “control” should be added to the list of

practicability factors. The definition of “control” will need

to include the capacity to control, even where control is

not in fact being exercised. It will also need to be made

clear that an ability to influence decisions is a species of

control. Moreover, the extent of a duty holder’s control

must be assessed in light of the control actually

exercised by, or capable of being exercised by, any

person in respect of whose acts or omissions the duty

holder may properly be regarded as responsible. This

obviously includes its employees and agents.

497. By making explicit the relevance of control, the Act

will enable appropriate consideration to be given – by

duty holders, by inspectors and the courts – to another

issue which has frequently arisen during the

consultations. It is the issue of whether, or when, it is

reasonable for a duty holder to relinquish control, or to

refrain from exercising control, on the ground that a

contractor with particular skills or expertise has been

engaged to carry out the relevant activity. The answer to

that question will depend, as usual, upon the

circumstances of the case. Of particular relevance would

be matters such as the respective levels of expertise of

108 Bird, F.E & Germain, G.L. (1986), Practical Loss Control Leadership, International Loss

Control Institute, Loganville, Georgia USA.

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the duty holder and the contractor, the severity of the

risk and the duty holder’s knowledge of the contractor’s

safety procedures.

498. Once the concept of control is explicitly addressed,

the practicability qualification will be able to moderate

overlapping duties to take into account modern work

arrangements. 109

426. Tasmania’s legislation already takes account of the issue of control

in section 9(4) and section 15, however if it would provide greater

clarity, this could be provided through the usual channels of

providing guidance or support.

427. In concluding this section, it is reiterated that the statutory

prevention duties in the Act are intended to reflect agreement that

the “[t]he primary responsibility for doing something about present

levels of occupational accidents and diseases lies with those who

create the risks and those who work with them”. 110

428. Traditionally this has been taken to mean employers (those whose

business activities create the health and safety risks) and

employees (those who perform work for employers in that business

and whose health and safety may be negatively affected by

uncontrolled health and safety risks).

429. It was intended by the Parliament of the day that the Act’s objective

of preventing work-related injury, illness and death should be

extended to relevant parties at the workplace, with more limited

and general forms of protection extended to others whose health

109 Maxwell (2004), paras. 496-498, pp.118-119.

110 Robens, Chapter 18 “Summary”, para. 457, p. 151.

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and safety may be affected, such as visitors, adjoining properties or

businesses, or customers.

430. In assigning duties to prevent work-related injury, illness or death

the Act acknowledges that the primary preventive duty rests with

the employer although it also recognises that all other parties to a

greater or lesser extent, have duties that must be satisfied

severally, so far as is reasonably practicable, and all these parties

in the workplace are accountable according to the Act.

Reasonably practicable

431. The review team emphasised the importance of the “so far as is

reasonably practicable” phrase that defines the extent to which

duty holders must comply with the duties under the Act. 111

432. It is interpreted to mean that employers must do everything that

they reasonably can to ensure that their employees and any

persons at a workplace under their control or management are safe

from injury and risks to health.

433. The Discussion paper explored potential sources of uncertainty,

one of which was the reasonably practicable provision (DP pp9-

10). We concluded by suggesting that the Act might be amended

“to clarify or define `reasonably practicable’ in such a way that the

111 Adrian Brooks (1993) Occupational Health and Safety Law in Australia 4 th Edition (CCH

Australia Limited, North Ryde, NSW Australia), Chapter 2 “Employers’ Liability: The Modern

Law” para. 202 “Duty to take reasonable care”, p. 35.

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extent of the duty is not subject to uncertainty or unreasonably

limited to affordability”. (DP, suggestion 3, p. 14).

434. The agency website explains “reasonable practicability” thus:

The 'reasonable practicability' test must take into

account:

The nature of the employment or, as the case may be,

the particular aspect of the employment concerned; and

(a) the severity of any potential injury or harm to health

or safety that may be involved, and the degree of risk

that exists in relation to such potential injury or harm;

and

(b) the state of knowledge about the injury or harm to

health or safety that may be involved; the risk of the

occurrence of that injury or harm to health or safety; and

any methods of preventing, removing or mitigating that

injury, harm or risk; and

(c) the availability and suitability of ways to prevent,

remove or mitigate that injury or harm to health or safety

or risk; and

(d) whether the cost of preventing, removing or

mitigating that injury or harm to health or safety or that

risk is prohibitive in the circumstances.

As the risk increases, it is reasonable to increase

substantially the time, effort and cost needed to reduce

or eliminate that risk.

(http://www.workcover.tas.gov.au/resource/poldutyofcar.

htm)

435. While the website explanation appears to be comprehensive, it

reveals another aspect that may contribute to the perception that

workplace health and safety is complex and difficult to understand.

That is the language of workplace health and safety. As the website

explanation illustrates, the use of legalistic style or technical

terms may make it difficult for a layperson to understand. If we

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wish to reduce workplace injury, illness and death, we need to

communicate in language that everyone can understand.

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On-hired services (on-hired employees and on-hired

contractors)

436. The issues of control and reasonably practicable intersect at the

issue of on-hired employees. The limited protection afforded to any

person as “others” in the workplace is insufficient for those persons

who are engaged in work at the workplace itself and who are

thereby more exposed to risks to safety and health, but whose

employment arrangements do not fit the definition of “employee”.

437. The health and safety of on-hired employees, whose services are

engaged through on-hire employment services, has been a matter

of concern to many people, and we raised it in the Discussion

Paper:

There is potential for confusion as to who may be the

duty-holder according to the duties currently assigned by

the Act in situations where a person with control of a

workplace engages independent contractors (who have

a degree of control over their own work), or where the

actual employer of the person is not in control of the

workplace (as occurs when labour is engaged through

an employment agency or labour hire organisation).

(DP, p. 13)

438. For the legislation to provide the greatest preventive benefit we

argued that the terminology used should be inclusive.

439. This issue is important to the Recruitment and Consulting Services

Association Limited (RCSA), the peak body for the on-hire

employment services industry throughout Australia and New

Zealand.

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440. This association represents members who are responsible for the

placement in workplaces of on-hired workers whose precarious

employment contributes to poor health and safety outcomes

according to researchers such as Quinlan, Bohle & Mayhew (2001)

and McNamara (2006). It is therefore important that we give close

consideration to the issues that the RCSA raises.

441. The RCSA responded to the Discussion Paper in strong terms:

. . . inappropriate regulation of occupational health and

safety in relation to third party employment services has

dire consequences, particularly for on-hired employees

and independent contractors. Inappropriate and

outdated occupational health and safety legislation will

not only threaten the lives of workers within Tasmania, it

also has the capacity to threaten employment

opportunities, skill development and employment

flexibility and as such Tasmania’s competitive edge in

the national market (RCSA)

442. The RCSA therefore seeks “a regulatory system where employer,

client, employee and workplace colleague work in cooperation” to

ensure that the health, safety and welfare of on-hired employees

are protected effectively.

443. Section 21 of the Act prescribes that when duties imposed by Part

3 of the Act are owed by more than one person, each person must

satisfy their duties “without regard to the fact that another person

may also be responsible for satisfying that duty or obligation”; and

that they must “co-operate with any other person who is performing

that duty or obligation”.

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444. In practice however, such co-operation (or agreement) may be

difficult to achieve.

445. Hobart Water, an employer in Southern Tasmania, supported the

notion of making adjustments to the legislation to take into account

the changing nature of workplace relationships. It points out

though “the fact [that] the labour hire firm places employees at a

specific location carries with it a duty for them to ensure the

placement is not going to put the individual at risk”. (Hobart Water)

446. RCSA anticipated this expectation and submitted

“any amendment of the Act to reflect duties based on

control must ultimately recognise the limited capacity of

on-hired employee service providers to effectively

control risks within client workplaces following the

placement of such employees”. (RCSA)

447. RCSA furnished a survey they commissioned to support their

position that members were often prevented from gaining access to

workplaces to conduct health and safety assessments prior to

placement. They asserted that the problem is compounded after

placement, where “36% of clients [workplace employers] believe

that on-hire employee service providers should rarely or never

have the right to instruct clients in how to manage workplace safety

for the protection of their own employees”. (RCSA)

448. There are three parties rather than two who need to co-operate:

(1) the on-hire services provider;

(2) the workplace or host employer; and

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(3) the on-hired employee / contractor.

449. The Act provides for this kind of situation through the duty of

employers towards employees at s9(1) (a) (b) and (c) to provide a

safe workplace, safe systems of work and safe plant and/or

substances; providing facilities for welfare; providing information,

instruction, training and supervision reasonably necessary; all to

“ensure that each employee is safe from injury and risks to health”.

450. This is elaborated upon in section 9(2) – an extensive provision

that meanders from s9(2)(a), a requirement to monitor health when

directed to do so by the Director, through to ensuring that

accommodation or any other facilities provided are maintained “in a

safe and healthy condition” at s9(2)(i). (Surely hygienic rather than

healthy facilities is meant, but that is not the point.)

451. Section 9(3) would appear to exclude on-hired employees if they

are “a contractor” or “employed or engaged by a contractor”. In this

provision employers must:

ensure so far as is reasonably practicable that the health

and safety of any person, other than an employee of the

employer or a contractor or any person employed or

engaged by a contractor, is not adversely affected as a

result of the work carried on at a workplace.

452. Section 9(4), however, extends the employer’s duty to any person

at that workplace based on the issue of control as the significant

factor in determining who must exercise the duty.

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Any employer who exercises, or is in a position to

exercise, management or control over a workplace

must ensure that, so far as is reasonably practicable

any person at that workplace is safe from injury and

risks to health. (Emphasis added.)

453. Thus the Act does speak about the issue of on-hired employees in

section 9(4) and does so by referring specifically to the issue that

the RCSA is concerned about – the “management or control of the

workplace”.

454. To satisfy s9(4) what must workplace/host employers do to ensure

that on-hired employees are “safe from injury and risks to health”?

Must they act towards them in the same way as they must towards

their direct employees by providing instruction, information,

training, facilities for welfare, supervision reasonably necessary,

monitoring health etc?

455. The Act does not say specifically. In not specifying, the Act allows

flexibility and therein may also lie potential uncertainty for not only

employers but potentially also for on-hired employees. The level of

uncertainty may be clarified by negotiation between the parties or

through guidance provided by the State agency.

456. The workplace or host employer who provides the workplace, is

the most able to carry out the duty at s9 (1)(a) – fulfilling the

requirement for a safe place. In negotiating a placement, the onhire

employment service providers may theoretically satisfy

themselves that the host employer has fulfilled this duty before

agreeing to provide the on-hired employee service. They may also

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satisfy themselves that facilities are provided for the welfare of

employees, including the on-hire employees, according to s9(1)(b).

457. It may also be reasonably practicable for the on-hire

employee/contractor service providers to ensure that the on-hired

contractor or on-hired employee is properly trained, experienced,

and instructed in safe methods of work etc. before they are referred

to a workplace employer – thus satisfying part of s9(1)(c).

458. Providing information (such as pointing out hazards, providing

workplace health and safety policies; or information about the plant

and substances, etc.); as well as providing supervision to ensure

that the persons are safe from injury and risks to health, can only

reasonably be done by the workplace/host -employer.

459. It must also be considered that employees (whether on-hired or

not) cannot reasonably be expected to exercise their own duties in

respect of their own, or any other person’s, health and safety if they

are not given clear direction in the matter. That takes involvement,

the third principle enshrined in Robens’s framework, in order to

reach understandings and for co-operation to prevail.

460. To avoid any doubt, or rely on perhaps an unrealistic view of

workplaces, we believe the Act should define the duties of

employers in relation to the health and safety of persons who are

employed or engaged. A person’s employment arrangements

should not disqualify them from reasonable preventive action.

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461. Maxwell articulates this subject:

587. The focus of health and safety protection, and

therefore of the corresponding obligations, must surely

be to protect each person who is at work in a workplace.

It hardly seems relevant, at least at this general level, to

enquire into the precise legal basis of a person’s

employment.

588. What matters is that, for the period during which a

person is at work in a workplace, there is a responsibility

to ensure that –

(a) the work which that person undertakes does not

create health and safety risks for him or her or for others

in that workplace (or non-workers who are affected by

the activity in that workplace); and

(b) that person’s health, safety and welfare are not put at

risk by hazards in that workplace.

589. In the course of the consultations, it has been

suggested that a definition of “worker” should be

introduced into the Act. Such a term could

accommodate the whole range of different workplace

relationships in the new economy – including

contractors, casual workers, outworkers and labour hire

workers – but would not seek to draw any distinctions

between them where their rights and responsibilities with

respect to occupational health and safety are

concerned. 112

462. We agree with Maxwell. The health and safety of workers, whose

employment arrangements do not meet the definition of “employee”

according to the Act, should not potentially be compromised

because the Act provides a diminished or less specific protection

for them.

463. Before leaving the discussion of the prevention duties in relation to

employees and on-hired employees, there is one more issue to

explore – the issue of supervision and experience.

112 Chris Maxwell (2004), Chapter 11, “Control and responsibility”; paras 586 – 588, p.136.

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Inexperienced employees

464. An issue associated with Tasmania’s ageing workforce which we

suspect will become increasingly important as retirees leave the

workforce to be replaced by less experienced persons, is the issue

of providing supervision and training to inexperienced workers.

465. Inexperienced employees may be young, such as persons on work

experience, apprentices or persons in a training scheme of any

kind. 113

466. They may also be employees who have not had previous

experience with some aspect of the work to be undertaken or may

be unfamiliar with the part of the workplace where they are

assigned. Lack of familiarity may be resolved through induction,

however, training and supervision are also vital where inexperience

is a key factor.

Training and experience

467. Training in how to prevent injury, illness or death while performing

the job competently should commence at any post-secondary

113 This group is particularly at risk. The ABS reports “young men were most likely to

experience a work-related injury or illness. ….Men aged 20-24 years had the highest rate of

all (98 per 1,000 men who worked in the last 12 months had experienced a work-related injury

or illness), while for women the highest rate occurred among those aged 15-19 years (65 per

1000 women”). Australian Bureau of Statistics (2006), Cat.No. 6324.0 Work-Related Injuries,

Australia 2005-06 (released 20 December 2006), Commonwealth of Australia, Canberra.

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education or training institution and should then continue in the

workplace. 114

468. Once in the workplace, preventing injury, illness or death may

depend on knowing what to look out for, how to deal with certain

aspects of the workplace, as well as how to perform the job

competently. Induction into the workplace, an aspect of good

management (the second element of the Robens framework)

therefore may be vital in the prevention of injury, illness or death for

inexperienced employees.

469. Inexperienced on-hired employees are most vulnerable to injury or

illness or death because the Act does not specifically prescribe

what workplace/host employers must provide for them. While there

is nothing in Act to prevent employers or accountable persons from

providing the same level of protection to on-hired employees, we

understand that the RCSA has genuine concerns.

470. We conclude that induction, (on-site instruction and information)

and supervision are crucial aspects of the duty to ensure that any

inexperienced person, regardless of the nature of the employment

arrangement, is “safe from injury and risks to health”..

471. While it may not be within the province of the Act to stipulate

competent management, we also believe that where instruction

and supervision are to be provided, it must also be competent. We

114 ABS, Cat.No. 6324.0 Work-Related Injuries, Australia 2005-06 reports that more than twofifths

(43%) of those people who experienced work-related injury or illness had not received

any occupational, health and safety training in the job where the injury or illness occurred.

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ely on the assumption that the employer, in appointing a

management team (accountable persons), will give due

consideration to the need to manage health and safety as well as

other business risks.

472. We conclude this discussion by observing that the Act’s intent, as

announced by its Long Title, is to be inclusive: it is an Act “to

provide for the health and safety of persons employed in, engaged

in or affected by industry ….”. (Long Title of the Act)

473. The objective of the Act to prevent work-related injury, illness or

death should therefore be equally inclusive. If it is to achieve its

objective in contemporary workplaces, the Act must acknowledge

or accommodate changed employment arrangements in assigning

general duties.

Recommendation 9:

The review team recommends that an amendment to the Act be

made to extend the duties of employers in section 9 of the Act

to all persons employed or engaged to perform work for the

employer and who are exposed to health and safety risks at the

workplace under the employer’s control or management.

This amendment would deal with the majority of concerns that

the Act does not presently provide sufficient prevention duties

to classes of workers who do not fit the definition of “employee

of the employer”.

It may be achieved by amending the commencement of Part 3,

section 9 so that a new opening statement of general principle

is inserted to replace the existing first paragraph of s9(1) - viz:

“employers must ensure so far as is reasonably

practicable, that all persons employed or engaged by

employers to perform work for the employer, are, while

at work, safe from injury and risks to health and, in

particular, must – (&c) …”.

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The amendment needs to be drafted so that the new opening

statement applies to all the identifiable duties (currently

outlined in subsection 2).

Recommendations 10:

If recommendation 9 is not agreed or adopted, then:

it is recommended that the provisions for instruction and

information that only apply currently to employees of

employers, be extended to include on-hired employees and onhired

contractors (as “any persons”) whose health and safety

may depend upon appropriate instruction and information

about the workplace being provided directly by the workplace

employer.

Recommendation 11:

Likewise, if recommendation 9 is not agreed or adopted, then it

is recommended that the employers’ duty at section 9(2)(e) be

extended to include all inexperienced persons whether they are

employees or engaged as on-hired employees, in order to

satisfy the need to prevent injury, illness and death of any

person in the workplace.

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Clarifying the message

474. Having explored the issues associated with how the legislation

takes account of changes (term of reference 1), this chapter turns

now to analyse section 9 (duties of employers to employees) in

greater detail to see how clearly the Act prescribes duties to

prevent injury, illness and death (according to term of reference 2).

475. Since employers stand to be penalised if they do not meet their

duties and obligations, it is reasonable to expect that the legislation

is clear. They may approach the legislation with a number of

questions in mind. What constitutes a safe working environment?

What are safe systems of work? What sort of facilities? What

should be in the information I provide? And so on.

476. Respondents to the review unanimously agreed that some

clarification of duties and obligations of persons was needed. We

approach the Act with this in mind.

Safety

477. Close analysis of the language of the primary duty at section 9(1)

reveals a connection between the concepts of safety, health and

welfare, which were the subjects of the previous Act: the Industrial

Safety, Health, and Welfare Act 1977.

478. We can determine the meaning of safety, health and welfare from

the way in which the Act “speaks” to us in section 9(1).

The

language of the Act has an interesting effect. When the Act

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“speaks” in this provision, the duty holders will often “hear” safety.

The duty of the employer to ensure that each employee is “safe

from injury and risks to health” is expanded in sub-subsection (a)

(i), (ii) and (iii) to connect the repetition of the word “safe” with the

working environment, systems of work and plant and substances.

Welfare

479. At section 9, sub-subsection (1)(b) the concept of welfare is

introduced, in that the employer is to “provide facilities of a

prescribed kind for the welfare of employees”. Welfare is taken to

mean general “well being” which can be associated with health (as

commonly understood in the phrase “health and wellbeing”).

480. To see what facilities are prescribed for welfare, we look to the

Workplace Health and Safety Regulations (the Regs). Regulation

116 makes it an obligation of an “accountable person” to provide a

supply of drinkable water; providing and keeping clean, sanitary,

washing, changing, seating and dining amenities and facilities; and

ensuring a comfortable temperature at an enclosed workplace and

appropriate seating for employees who must work while seated.

481. These are minimum facilities and employers may, if they choose,

provide other facilities for the welfare of their employees.

482. Where the workplace comprises buildings or structures, duty

holders must look to Regulation 7 (“Compliance with other

legislation”) as well as Regs 27, 28 and 29 to see what their

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obligations are in certain circumstances. Insofar as the workplace

comprises or has a building or structure, the duties and obligations

appear to be clear.

483. What about providing for the welfare of employees where no

building or structure is involved? The requirement for welfare

provided by the Act is equally important to people who are

employed outdoors on building and construction sites or in forestry

coupes, or farms, parks and gardens or anywhere where

employees are likely to be exposed to the elements.

484. The provision of “dining amenities and facilities” might sound rather

grand, but in reality and in practice, the provisions do no more than

establish the general duty and obligation and it is then up to the

employer or accountable person to determine what is reasonably

practicable in the circumstances. The Act’s provisions “enable”,

that is they permit great flexibility for duty holders to interpret them

from the perspective of their own individual workplaces or

locations.

Health

485. The analysis of s9(1) reveals that the Act says very little specifically

about the duty to prevent risks to health in the same way as it does

about safety and welfare.

486. Section 9, subsection (2)(a) and (b) begins to speak about health

by prescribing a duty of employers to monitor the health of

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employees, but only if the Director of Industry Safety identifies

hazards in writing and notifies the employer.

487. Monitoring is described in the Annotated Regulations, annotation

r21, as:

The checking, observation or recording of hazards, how

they may be affecting a workplace and persons in that

workplace, the efficiency of any control mechanisms

implemented and the health and safety of persons in the

workplace. 115

488. Monitoring is explained as a process that may need to be done “if it

has been determined during an assessment that it is necessary to

establish the level of a hazard in a workplace, or that it is

necessary to ensure that any control measures implemented in the

workplace are effective”. 116

489. On the face of it, the provision appears to indicate that monitoring

the health of employees is a duty that only needs to be undertaken

if and when notified to do so by the Director of Industry Safety. The

inclusion of “work related injuries” in this section is also somewhat

confusing if the provision intends to speak about monitoring health

and preventing illness.

490. With this provision the focus of section 9 has transferred to the

Director in this sub-section making it inconsistent with the

construction of the rest of section 9.

115 WorkCover Tasmania / Workplace Standards Tasmania, (n.d.) Annotated Workplace

Health and Safety Regulations 1998, Annotation r21, “Monitoring”. Retrieved February 2007

from website: http://www.workcover.tas.gov.au/AnnotatedRegs/Annotated/newpage2.htm.

116 Annotated Regulations, Annotation r21, “Monitoring”.

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491. For the duty to safeguard health (to prevent illness) to be clear it

should not be dependent upon the Director’s administrative action

in identifying and notifying employers about hazards to health.

While it may be necessary to give a power to the Director to direct

employers to monitor health in certain circumstances, this power

would be more appropriately located within a section dealing with

the powers of the Director. 117

492. The provision could be clarified by explicitly creating a duty to

control risks to health associated with any hazard in the workplace

or associated with the nature and organisation of the work

performed and to monitor conditions giving rise to hazards or “risks

to health”.

493. Keeping records relating to exposure levels, work-related injuries

and illnesses and retaining those records is likewise important.

494. We conclude that Section 9, sub-subsection 2(a) and (b) might be

clarified by amendment to remove the words that make it

conditional to monitor the health of employees as a response to

administrative action of the Director, action that appears to be

duplicated in s39(2)(a).

117 The provision was useful in the action of the Director to identify working hours in the mining

industry as hazardous to the health of mining employees. In notifying employers, it also

required them to take action to address the hazard, resulting in the development of an agreed

plan that can be found at www.tasminerals.com.au\fatigueguideline.pdf.

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Recommendation 12:

It is recommended that section 9(2)(a) and (b) that allow the

Director administrative power to notify employers and require

appropriate action about health hazards be removed and

replaced with a provision that prescribes firstly a duty of

employers to protect the health of persons employed or

engaged in the workplace and secondly, where hazards or risks

to health exist, to monitor the health of those persons to

prevent illness.

Recommendation 13:

It is also recommended that “work-related injury” be removed

from the content of a provision whose main intent is to talk

about preventing work-related illness.

General information - s9(2)(c).

495. Five sub-subsections follow in section 9 that deal with the duty of

employers to provide information - of different kinds and in different

circumstances.

496. In relation to the duties of employers to employees at subsection

(2)(c), employers are required to provide information about health,

safety and welfare in the workplace in languages that are

appropriate, including the names of persons to whom employees

may make enquiries about a health and safety matter or to whom a

complaint may be made.

497. This provision is very general and may also apply to subsequent

provisions about information, instruction and training – i.e. in

complying with following sub-subsections about providing

instruction or training to inexperienced employees or information to

be given about change, employers must comply with the

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equirements of sub-subsection (c) so that all information,

instruction, training, etc is provided in appropriate language.

498. Appropriateness could refer to languages other than English where

there are employees who do not have a strong grasp of English

(important when considering migrants of a non-English speaking

background). It could also refer to the level and style of the

language used, so that the information provided is couched in

language that is simple, clear and easy to understand.

499. Since information comes in many forms and for many purposes,

the provision speaks very broadly to the duty of employers to make

known any relevant information. Information might include health

and safety policies, procedures to be followed, or workplace rules

to be observed, information about standards or codes to be

followed, or it might include simple signs, directions and so forth.

500. Similarly, the Act makes no requirement that such information

needs to be written, although it may be reasonably practicable for

certain information to be written down and, in the case of a

workplace that is in a building or structure, placed where it can

easily be seen or accessed. Written information might more easily

and consistently be provided where contractors or agents like onhire

employment services are involved.

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Information, instruction, training and supervision about

hazardous work – s9(2)(d), (e) and (f)

501. The next sub-subsections (d), (e) and (f), relate to the duty of

employers to ensure that employees are properly informed about,

instructed, trained and supervised in, work of a hazardous nature.

Such information is necessarily more specific than the general

information provided for in sub-subsection (c).

502. The duty must be complied with before employees commence

hazardous work, but there is clearly value in exercising this duty for

any work, whether hazardous or not. For example, the provision of

information, instruction, training and supervision might relate to the

need for employers to properly induct new or inexperienced

persons employed or engaged so that they are able to exercise

their duty to prevent injury or illness.

503. The following sub-subsection (f), that requires the employer to

provide information, instruction and training in regard to any

change that may be proposed either to the workplace itself, or in

any work or work practice, activity or process of the workplace may

apply. It could be argued that change occurs when new or

inexperienced persons are introduced to the workplace as much as

it does to change in organisation, process, plant or activity.

504. To ensure that such changes do not negatively affect the health

and safety of employees, employers are required to provide

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“proper” information, instruction, and training before the change

occurs, as well as providing supervision reasonably necessary.

505. The remaining duty of employers about information, instruction and

training concerns the duty of employers towards persons who are

responsible officers, managers or supervisors.

Responsible

officers, managers and supervisors must be provided with any

information, instruction and training reasonably necessary to

ensure that employees under their management or supervision are

safe from injury and risks to health. The Act does not limit the kind

of information, instruction or training, nor how it should be provided.

These are all subject to decisions to be made by employers in

complying with their general duties as far as is reasonably

practicable and they complete the Act’s emphasis on the second

element of the Robens framework - “good management”.

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Presentation of the general duties at section 9

506. The style, presentation or format of any written direction has a

bearing upon how well that direction is understood. The style in

which section 9 is presented is therefore an important factor in

determining how well the general duties of employers are both

understood and complied with.

507. Section 9 is by far the longest and most complex of the provisions

dealing with general duties. The review team believes that if s92(a)

and (b) were to be amended as a duty to monitor conditions that

may give rise to illness, then the sub-subsections following could

be grouped together into easily identifiable sections distinguished

by sub-headings – for example, “duty to provide information”; “duty

to provide instruction and training”, “duty to provide supervision”

etc.

508. This would not necessarily change the substance or content of the

provisions but would break up the employer’s duties so that they

stand out clearly. Clear presentation would reduce the risk that

employers would overlook important aspects of their duty – thus

contributing to the overall objective of preventing injury and illness.

Recommendation 14:

It is recommended that to strengthen and clarify the employers’

duties to provide information etc, after removing s9(2)(a) and (b)

from this section and placed elsewhere in the Act, the duties of

employers at sub-subsections (c), (d), (e) and (f) be placed in a

separate section under the heading something like “duties of

employers to provide information to employees”.

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Recommendation 15:

It is also recommended that another separate section be

provided for the duty of employers to responsible officers at (g),

headed “duty of employers to provide information &c to

responsible officers, managers and supervisors “.

These duties are to retain the practicability provision.

Recommendation 16:

It is also recommended that the agency provide guidance as to

the type of information that should be provided, to allow for

relevant workplace health and safety policies etc.

509. The duty to monitor working conditions and the duty to provide

facilities for the welfare of employees (which relate to s9(1)(b)) are

spelt out in sub-subsections (h) and (i). Like the previous

recommendation about distinguishing these duties, they might also

be written as separate sections marked by sub-headings.

Recommendation 17:

This recommendation relates to the previous recommendations

made about section 9(2). Sub-subsections (h) and (i) of

subsection (2) should be written as separate sections.

In effect if all recommendations about subsection (2) were to be

taken up, there would be separate sections dealing with

separately identified types of duties.

Duty of employers to ‘other persons’

510. Section 9, subsection (3) commences prescribing the duties of

employers to ‘other persons’ who are not identified as employees.

Accordingly employers must ensure so far as is reasonably

practicable, that the health and safety of any person other than an

employee of the employer or a contractor or any person employed

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or engaged by a contractor, is not adversely affected as a result of

the work carried on at a workplace.

511. Such a person is not specified because it is intended to be fully

inclusive – the ‘other person’ might be a supplier who is not a

contractor, or a person in a neighbouring business, or a resident, or

a consumer, or a pedestrian, or a volunteer.

512. It therefore applies to anyone who may be adversely affected as a

result of the work carried on at the workplace occupied by the

business.

513. This provision goes back to the pre-1970s legislation that sought to

control public health and safety aspects of workplaces. For

example uncontrolled noise, smoke, heat, vapours, gases, dusts,

liquids, wastes, falling objects, that may affect the health of persons

who are “outside” the workplace.

Recommendation 18:

It is recommended that s9(3) be rewritten as a separate section

clearly titled as a duty of employers to other persons not at the

workplace.

514. As already mentioned, subsection (4) introduces the concept that

any employer who exercises, or is in a position to exercise,

management or control over a workplace must ensure that, so far

as is reasonably practicable, any person at that workplace is safe

from injury and risks to health.

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515. Subsections (6) and (7) that deal with “a person who is a principal

but is not an employer” are relevant to situations whereby

independent contractors are engaged to perform work at a

workplace. Subsection (6) prescribes that a principal who is not an

employer is required to comply with subsections (4) and (5) as if

they were employers, and “ensure that, so far as is reasonably

practicable, any person at that workplace is safe from injury and

risks to health”.

516. Subsection (7) goes on to speak about the duties of a contractor in

relation to any persons employed or engaged by the contractor.

We understand from this subsection that the contractor’s duties to

any person employed by the contractor are the same as the duties

of an employer as provided for in subsections (1), (2), (3) (4) and

(8). Both employers and principals have a duty to visitors to a

workplace according to s9(8).

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Obligations set out by the Regulations

517. Duty holders may proceed to the Workplace Health and Safety

Regulations (the Regs.) to find out more about their duties in

relation to ensuring that persons are “safe from injury and risks to

health”. Part 3 – OBLIGATIONS, Division 1 – General obligations

in relation to workplace hazards prescribes the obligations of

“accountable persons”.

518. One respondent pointed out that the introduction of the term

“accountable person” in the Regs is a source of difficulty. Whereas

the Act defines duties of employers and responsible officers

(sections 9 and 10 of the Act), the Regs talk about the obligations

of an accountable person (Reg 5).

Accountable person

519. An accountable person is defined by Reg 5 as:

(a) any person who is responsible for the management

or control of the relevant place at which work is

undertaken; or

(b) any person temporarily acting in the capacity of a

person referred to in paragraph (a); or

(c) any other person on whom the Act imposes a duty or

an obligation relevant to the regulation containing the

reference.

520. It therefore appears to be the intent of the legislation to give broad

scope to the interpretation of “accountable person”, so that the term

is fully inclusive of all duty holders named in the Act; however to

provide clarity, some guidance could be given.

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Recommendation 19:

It is recommended that guidance and/or education be provided

to raise the level of awareness of who are “accountable

persons” according to the legislation.

Conclusions so far

521. This chapter opens with Robens’s question about what contribution

can legislation make to health and safety in workplaces. It

discussed the issue of compliance based on familiarity with the

general framework and understanding and knowledge of the

legislative provisions. It also commented that the effectiveness of

the legislation in achieving its objectives is dependant upon the

level of commitment.

522. In turn, commitment means close involvement and engagement –

of the community, duty holders and the agency – in increasing the

levels of awareness, taking responsibility and initiative, to apply the

enabling provisions of the legislation.

523. We considered the Act and Regulations in light of the comments

made in Chapter 1 about the changes that have taken place in the

labour market. We analysed the legislation in detail to see how

well the objective of the Act to prevent work-related injury, illness or

death applies to new employment arrangements and the issue of

“control or management of the workplace”.

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524. The analysis of section 9 identified the need for numerous minor

amendments, particularly in the setting out or presentation of

section 9, that we believe would clarify and strengthen the

prevention capacity of the Act. These amendments address terms

of reference 2 and 4.

525. To support legislative amendments, the agency needs to ensure

that sufficient ongoing guidance and education are provided to

increase the levels of familiarity with, and awareness of, the

framework and its specific provisions.

526. The consideration of the legislative framework continues in the next

chapter.

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CHAPTER 5

SAFE FROM INJURY AND RISKS TO HEALTH

…. we have successfully focused on the safety aspects

of the Act, but have let slide the associated health

issues. …. We need to focus on the broader context of

both issues with regard to the application of OHS. 118

Adjusting the OHS work environment to suit the needs

of older workers must be a key priority in order to

encourage their participation beyond traditional

retirement age. 119

527. This chapter continues the analysis of the legislation by looking at

how the Regulations direct accountable persons to prevent injury

and illness. It identifies the major occupational diseases and

associated risk factors, many of which are connected to the

changes in work and workplaces surveyed in Chapter 1.

528. We find that in order to fulfil the duties and obligations of the

legislation, duty holders need the involvement of workers and the

agency administering the legislation in addressing complex

hazards to safety and health. This can take place through informal

and formal mechanisms of co-operation and collaboration at the

workplace supported by a range of enforcement and assistance

methods.

118 Transport Workers’ Union (Victoria/Tasmania Branch) submission to the review.

119 Kevin Andrews MP, Commonwealth Minister for Employment and Workplace Relations (28

April, 2005) Speech “Key workplace OHS policy issues for the next decade”. Commonwealth

Government Media release:

http://mediacentre.dewr.gov.au/mediacentre/AllReleases/2005/April/KeyworkplaceO

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Changing work environment, changing workplace

health risks

529. Laing (2002) and Maxwell (2005) noted that the workplace health

and safety legislative framework is predicated on quite a different

work environment to the one that currently exists. Since the

economy was manufacturing-based at the time that the legislative

framework was designed, the inclination of the legislation would

have been towards eliminating physical hazards associated with

production processes of factories, mines, agriculture and to a

lesser extent, shops.

530. The growth of service industries; proliferation of small business,

particularly self-employed “micro” businesses; new technologies;

new work practices and employment arrangements may all involve

new hazards and new challenges which the legislative framework

probably could not have anticipated.

531. Dr Ellen Rosskam, Senior Work Security Specialist with the United

Nations International Labour Organisation (ILO), presented

alarming statistics about the negative effects of global economic

change on work and health at a conference held in Oregon, USA in

April 2005. Based on statistics collected by the ILO from member

states, Rosskam concludes that the top occupational illnesses of

the twenty-first century are expected to be heart attacks, suicide

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and stroke with work-related stress identified as a major

contributory factor. 120

532. Australian OHS researchers, Quinlan, Mayhew & Bohle, (2001);

and McNamara, (2006) also highlight the association of new

working arrangements with adverse OHS outcomes. They list

increased fatalities, illnesses, occupational violence and

psychological distress as work-related issues for both workplaces

and regulators to address in the prevention of work-related illness.

They also cite other changes, such as “decreased reporting (of

incidents and injury); fewer training and career opportunities

available for workers; as well as inferior knowledge of, or

compliance with, OHS entitlements, standards and regulations” as

obstacles to the effort to prevent injury and illness. 121

533. “Safe from injury and risks to health” in contemporary workplaces

takes on new meaning in light of these findings.

120 Ellen Rosskam (ILO) (2005). “Surviving Work in Modern Times? Global Trends in Workers’

Health” presented to the Workplace Health & Safety in the Global Economy conference,

University of Oregon, April 29 2005.

121 McNamara, M (2006), “The Hidden Health and Safety Costs of Casual Employment”,

Industrial Relations Research Centre University of New South Wales, p. 5. See also Quinlan,

M., Mayhew, C & Bohle, P. (2001) “The Global Expansion of Precarious Employment, Work

Disorganisation, and Consequences for Occupational Health: A Review of Recent Research”,

International Journal of Health Services, vol. 31 no.2, pp.335-414.

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What respondents said

534. In the consultation conducted so far in the review, we found that

the majority of respondents expressed genuine concerns for safety.

535. Others also expressed genuine concerns about the impact of other

work-related stressors that, if uncontrolled, lead to ill health. 122

536. Unions Tasmania wrote:

The great promise of technology providing increased

leisure time has not been delivered on; current trends

are in fact in the opposite direction. Employers are

happily accepting massive increases in productivity

through technology, improved work practices and higher

skill levels but are now demanding, and getting,

increases in working hours, reductions in recreation

leave and significant encroachment into weekends and

public holidays. The small gains made by workers in

working hour reductions are being reclaimed. At the

same time work is performed at unprecedented intensity

and in some cases in a tedious, rote and repetitive

manner with limited control. There is a conflict between

the constant drive for more output and lower inputs and

the possible health outcome for workers. (Unions

Tasmania)

537. Hydro Tasmania acknowledges the importance of the challenge

facing business to find ways to effectively control the risks

associated with the “new hazards” of today’s workplace. They

wrote:

the recognition that hazards arising from factors other

than physical facilities and plant, has particular

122 This term is the term used by the World Health Organisation to describe the risk factors in

the workplace or in the nature of work leading to stress and many stress-induced illnesses.

(http://www.who.int/occupational_health/topics/risks_psychosocial/en/)

Similarly it is used by clinicians – see for example: Stephen J. Bunker et al, (2003) “Stress”

and coronary heart disease: psychosocial risk factors, The National Heart Foundation of

Australia position statement, The Medical Journal of Australia Vol. 178 (6): pp 272-276.

191


elevance in today’s changing work environment. The

ability of business to recognise and find effective means

of controlling such hazards can be a significant

challenge. The current test of reasonable practicability

is particularly relevant to the management of emerging

hazards. (Hydro Tasmania)

538. The Housing Industry Association (HIA) expressed a view that

workplace health and safety is not achieved through the imposition

of bureaucratic or administrative procedures. HIA wrote: “safer

workplaces are not achieved by completing forms, complying with

endless regulations and heavy-handed enforcement. Education

rather than punishment creates a healthier climate, an approach

that makes a positive contribution to safer workplaces”.

539. We agree with this observation. It applies as much to the way in

which duty holders manage workplace health and safety in the

workplace as it does to the way in which the State administers the

legislation.

540. Robens saw that one of the key elements in preventing injury and

illness is good management. Translated into practice, this means

giving equal consideration to establishing and maintaining healthy

social and management environments wherein other measures,

such as workplace health and safety policies or safety systems can

work effectively. Administrative policies, practices or systems on

paper are likely to fall short without good relationships and

involvement of workpeople to back them up.

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541. This chapter looks at some of the ways in which risks to health are

nowadays manifested in contemporary workplaces, it identifies the

major illnesses that must be prevented and some of the

contributory risk factors, and analyses how the legislative

framework might address them. Finally we recommend how injury

and illness arising from them might be prevented.

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Work-related psychosocial hazards and risk factors

Violence in the workplace

542. Violence may be overt – involving the threat of or actual physical

violence - or covert, involving repeated behaviour intended to

cause distress, intimidate, humiliate and/or isolate another person,

frequently referred to as “bullying”. 123

543. The Report of the Queensland Government workplace bullying

taskforce confirms that most contributory risk factors for workplace

violence are associated with work organisation, the nature of work

and work practices. Such factors are within the realm of

management control. The taskforce also reports high direct and

indirect costs to the employer associated with bullying/workplace

harassment and resultant stress, with flow on impact on public

health and medical services, thus persuasively supporting the case

for accountable persons to control such risks. 124

544. The ACT Workcover publication “Guidance on Workplace Violence”

(October 2002) states:

National occupational health and safety and workers’

compensation data show that nearly half the workplace

123 Violence involves a range of behaviours from actual physical assault (which may be a oneoff

incident or, in worst case scenarios, may involve repeated physical violence) through

verbal abuse and bullying in different forms (overt and covert), which is repeated, sustained

behaviour calculated to cause distress. All forms of violence may cause injury or illness

(physiological and psychological). It may occur between employers/managers and workers,

between workers or it may involve persons external to workforce (clients, customers, patients,

intruders).

124 Report of the Queensland Government Workplace Bullying Taskforce (March 2002)

“Creating Safe and Fair Workplaces: Strategies to Address Workplace Harassment in

Queensland”. Department of Industrial Relations, Queensland Government.

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assaults resulting in injuries or lost time from work are in

the health and community services industry. This

includes workplaces such as hospitals, institutions for

the intellectually handicapped, aged care facilities and

prisons. Overall, the workers most frequently assaulted

are nurses and other hospital staff, welfare officers,

security guards, prison officers, childcare workers,

teachers aides and teachers. 125

545. Early in December 2006, The Mercury reported an incident that

occurred at the Royal Hobart Hospital in which a patient violently

attacked and caused serious injuries to hospital staff.

546. In Tasmanian schools, respondents told us, students verbally or

physically abuse teachers; sometimes intimidating them so much

they are fearful of entering the classroom. We have also been told

that persons, working alone, either at night or in isolated or remote

places, fear for their personal safety. One respondent described

how a new board of management engaged in a campaign of covert

and sustained violence that isolated and intimidated a manager

causing extreme distress, leading ultimately to stress-induced

physical illness as well as depression and anxiety.

These

anecdotal “stories” about the incidence of violence in workplaces

also reflect the variety of ways in which it may be manifested, both

overtly and covertly.

547. Preventing such violence is an essential aspect of the duty to

provide and maintain a safe working environment.

125 Australian Capital Territory Workcover Guidance on Workplace Violence.

(http://www.workcover.act.gov.au/pdfs/guides_cop/workplace_violence_guide.pdf).

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548. A common theme of guidance material prepared by workplace

health and safety regulators for employers and workers on

workplace violence is the need for awareness and understanding of

the issues contributing to workplace violence as a first step.

549. Broad management skills are necessary to create a safe working

environment wherein the psychosocial risk factors for stress and/or

violence are controlled. Control of risk may also depend upon

other, more specific, skills to mediate or resolve conflict, or secure

the workplace from violence arising from “outside”.

550. We have seen that the legislation prescribes that employers must

ensure that their managers and supervisors are trained. Training

applies to effective management and supervisory knowledge and

skills as much as it does to other, more technical, aspects of the

job. Thus the Act does indirectly provide for the prevention of

illness and/or injury associated with these risks.

551. Monitoring, an important aspect of controlling risks to health

according to the duties prescribed by the Act, means in this

instance, monitoring the conditions within the organisation or within

the workplace to ensure a healthy social and management

environment.

552. If a workplace is planning change, the Act provides that employers

must consult with employees. Recommended amendments will,

we hope, if agreed to, make consultation a routine part of the way

in which the workplace is managed so that any risks to safety or

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health may be dealt with early and effectively. Consultation can be

an effective tool in monitoring “climate” that may give rise to

incidents of violence.

Long working hours

553. Working hours of those Australians with full-time jobs have steadily

increased over the last decade. 126

Increasing working hours

appear closely linked to forms of employment, downsizing, high

levels of unpaid overtime, and employment agreements. 127

554. Iain Campbell’s study of cross-national comparisons of working

hours in comparable countries found that Australian full-time

working hours have been lengthening since the early 1990s, and

that Australia is the only country where the trend in lengthening

working hours is driven by increases in unpaid overtime. 128

555. Campbell notes that elsewhere in the developed world, working

hours are actually coming down. In Japan and Korea where long

working hours and intense working conditions have been

associated with very poor health outcomes including stressinduced

depression and suicide, hours of work are now declining.

Australia’s working hours are set to overtake them.

126 Sharon Beder (2001) “Working Long Hours”, Engineers Australia

(http://www.uow.edu.au/arts/sts/sbeder/columns/probe15.html).

127 ACIRRT, University of Sydney Report prepared by J.Buchanan, B van Wanrooy et al

(2001) Working time Arrangements in Australia: A Statistical Overview for the Victorian

Government, Chapter 5 “conclusion”, pp 61-65.

128 Iain Campbell (August 2002)”Cross-National Comparisons – Work Time Around the World”

(Centre for Applied Social Research RMIT University, Melbourne, Victoria; p. 1.

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556. Campbell notes “Australia appears to have had by far the largest

increase in average hours for full-time employees since the early

1980s”. 129

Further, he notes that there is an overlap between

extended hours and intensification of work in Australia. 130

557. Extended hours of work have effects on health (as a result of

fatigue and stress) and are also cited as causative of imbalance

between working life and other aspects of life, particularly in the

decline of family and community life. 131

Fatigue associated with hours of work and other conditions

558. WorkplaceOHS (an Australian web-based OHS subscription

service) recently reported research in the United States of America

that confirms the prevalence of fatigue in the workplace. A study of

29,000 adults employed across a range of industry sectors and

occupations in the USA revealed that fatigue was a common

problem with health-related lost productive time manifested in

“absenteeism” as well as “presenteeism”. (The latter is the term

applied to days that the employee is at work but performing at less

than full capacity because of health reasons). 132

559. The effects of long working hours are extended to families,

exacerbated by the participation of women in the workforce and

129 Campbell, p. 7.

130 Campbell, p. 17.

131 Ibid, p.64.

132 “Fatigue in the US Workforce: Prevalence and Implications for lost productive work time”

Journal of Occupational & Environmental Medicine, 49(1): 1-10, January 2007. Reported in

WorkplaceOHS 12 January 2007–a subscription service. http://www.workplaceohs.com.au/.

198


access to technology which keeps workers “in touch” with their

place of employment, making it more difficult to disengage from

work. 133

560. A local study of working hours in the mining industry found

extended hours and shifts to be a major cause of fatigue and

resultant health problems with associated impacts on family and

community life.

561. More significantly perhaps, the report found that health and safety

systems to prevent fatigue in the industry were absent or

ineffective, and that the regulatory arrangements were also

ineffective in dealing with the issue of working hours and fatigue. 134

562. The effects of fatigue are felt in reducing work performance, lost

productivity and health-related costs. Fatigue is reported for

workers at both ends of the scale, but workers with “high control”

jobs – relatively well-paid jobs with high levels of responsibility –

reported higher levels of fatigue in the USA study according to

WorkplaceOHS.

563. Hours are not the only factor that may lead to fatigue. The nature

of the work being performed, working with computers and other

display equipment, noise and vibration also contribute to both

133 Ruth Weston, Matthew Gray, Lixia Qu & David Stanton (2004) Long work hours and the

wellbeing of fathers and their families. Research Paper No. 35. Australian Institute of Family

Studies – Commonwealth of Australia, Melbourne; p. 2.

134 Kathryn Heiler (2002) The Struggle for Time – a review of extended shifts in the

Tasmanian mining industry. ACCIRT, University of Sydney.

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fatigue and stress. Transport workers comprise an occupational

group that is at risk of fatigue or stress-induced injury or illness.

564. The Health and Safety Executive in the United Kingdom recognised

stress and fatigue as hazards in the workplace arising from the use

of display screen equipment in amendments to the UK Health and

Safety (Display Screen Equipment) Regulations 1992,

implementing the European Community Directive 90/270/EEC.

565. Long hours are not restricted to specific occupations or industry

sectors. It emerges in both blue- and white-collar occupations.

The Medical Journal of Australia (MJA) (1998) reported on fatigue

and stress experienced by junior doctors in public hospitals working

extended hours with inadequate provision for rest and recovery.

The MJA article reports that long working hours were having an

impact on junior doctors’ ability to establish effective relationships

with patients, their colleagues, and with their families.

566. Attributable partly to organisational culture and partly to work

practices of hospitals, the problem was subject to a policy adopted

by the Australian Medical Association (AMA) in 1996 to promote a

safer workplace for junior doctors and patients in public hospitals. 135

567. Long hours and fatigue may be increasingly associated with the

impact of shortages of certain skills and reduced numbers in the

workforce as a consequence of the ageing workforce.

135 Gerry Holmes (1998) “Junior doctors’ working hours: an unhealthy tradition?” MJA; 168:

587-588. (http://www.mja.com.au/public/issues/jun15/holmes/holmes.html).

200


568. Health services workers, nursing staff and general practitioners,

especially in rural practices, for example, are now feeling the

impact of long hours of work without relief. There is an obligation

on governments to take note that certain skills shortages will

impact not only on the availability of services but also on the health

and safety of workers.

569. In order to meet their duty to employees and any persons to

provide and maintain so far as is reasonably practicable, a safe

working environment, employers have a duty to ensure that

working conditions, including hours of work, do not cause fatigue

and resultant health and safety problems.

570. The foregoing discussion introduced some of the factors that are

recognised as contributing to injury and potential “risks to health”.

In the literature on the subject of emerging risks much is written on

“psychosocial risk factors”. These are not well understood. The

very term itself is a mouthful.

571. “Psychosocial risk factors” arise from a wide range of hazards in

the workplace that are connected to the nature of work and levels

of individual control over the demand of work. The European

Agency for Safety and Health at Work (European Union) reported

in 2005 on the links between the growing incidence of psychosocial

risk factors for poor health and the increase of chronic disease:

The far-reaching changes that have been occurring in

work organisation and design, and in contractual

relationships at work, are associated with the

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emergence or aggravation of psychosocial problems.

There is growing concern for the negative effects this

may have on employees’ health and well-being, the

quality of work, and the creativity and innovation needed

by organisations in current markets. There is, therefore,

a pressing need to monitor and research the `changing

world of work’ and its impact on health and safety. At

the same time, research is needed to develop and test

organisational interventions to improve the psychosocial

work environment, with a special emphasis on the

prevention of work-related stress and physical and

psychological violence. It is also important to investigate

the role of psychosocial factors in the occurrence of

errors and accidents, and in the reporting and aetiology

of musculoskeletal disorders (MSDs). 136

572. The following are recognised work-related “psychosocial” risk

factors:

• Job content - work strain associated with work intensity,

demand and control of work, pace of work, fragmented or

meaningless work, high uncertainty, frequent exposure to

“difficult” situations or difficult people (e.g. working in

emergency, police, health, hospitality or entertainment

services or certain types of government services) or a

combination of any or all of these factors;

• Workload – over/underload, time pressure that cannot be

controlled;

• Work schedule – shift work, inflexible or unpredictable

work schedules, long or unsocial hours of work that may

lead to fatigue and physical and/or mental exhaustion;

• Job control and job insecurity – including employment

arrangements, participation in decision;

• Physical environment and equipment – inadequate or

faulty equipment, physical conditions and exposures;

136 European Agency for Safety and Health at Work (2005), Risk Observatory No. 5. “Expert

forecast on emerging physical risks related to occupational safety and health”. European

Union, Bilbao; p. 7. (http://osha.eu.int).

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• Social and organisational aspects of work – a broad

range of factors including organisational culture (that may

be difficult to pinpoint but can be very influential in

establishing “healthy workplaces”.

• Individual risk factors include individual differences,

home/work interface, interpersonal relationships, roles

and functions in organisation, career development,

meaningful reward and recognition etc. 137

573. These risk factors are all associated with work organisation.

Quinlan (2006) (unpub.) considers that changes in work

organisation have had a major impact upon workplace health and

safety in Australia and overseas. 138

Ageing workforce

574. While work demands appear to be increasing, the workforce is

ageing. The workplace health and safety implications of an ageing

workforce should be a high priority for workplace health and safety

agencies.

575. The national policy of encouraging workers to remain in the

workforce must consider a range of issues to do with training, work

137 These are recognised by:

• European Agency for Safety and Health at Work (2005) Priorities for occupational

safety and health research in the EU-25. Luxembourg: Office for Official Publications

of the European Communities. (http://www.europa.eu.int);

the International Labour Organisation (ILO) (2003) Global Strategy on Occupational

Safety and Health

(http://www.ilo.org/public/english/protection/safework/globstrat_e.pdf);

• and the Australian Safety and Compensation Council (ASCC) (2005) National

Occupational Disease Profiles “Executive Summaries of Each Disease Category”.

138 Michael Quinlan (2006) (unpub.) “Organisational Restructuring/Downsizing, OHS

regulation and worker health and wellbeing”. School of Organisation and Management,

University of New South Wales, Sydney, Australia.

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practices and the impact of work environment on health, especially

on exacerbating the emergence of chronic disease. Horizontal

collaboration is needed between agencies responsible for public

health, industrial relations, retirement and taxation issues, and

workplace health and safety, as well as vertical policy and political

co-operation between State and federal agencies to strategically

manage any extension of working life and the impact on health and

safety.

576. Thus far, we have identified the major “new” work-related risks to

health that apply to contemporary workplaces. We turn now to

examine the legislation to see how well it relates to the risk factors

identified.

Recommendation 20:

It is recommended that the agency gives close consideration at

a strategic level to how to raise levels of awareness of the risks

to health associated with contemporary workplaces and how

workplace health and safety training may best be provided.

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Legislative obligations to identify hazards and control

risks

577. The analysis of the legislation in the previous chapter concentrated

upon the duties prescribed by the Act. The Workplace Health and

Safety Regulations 1998 (the Regs) at Part 3 – OBLIGATIONS –

Division 1 General Obligations in relation to workplace hazards

prescribe how hazards must be identified and the risks to safety or

health assessed and controlled.

578. Part 4 - HAZARDS – GENERALISED are organised according to

distinct Divisions that identify traditional physical hazards that are

known to involve serious risks to safety or health unless exposure

to them is controlled. These Divisions are:

• Division 1 - Manual handling

• Division 2 – Control of workplace hazardous substances

• Division 3 – Plant

• Division 4 – Noise

• Division 5 – Confined spaces

• Division 6 – Fire and emergency

• Division 7 – Facilities

• Division 8 – Remote or isolated places

• Division 9 – Asbestos

• Division 10 – Diving

• Division 11 – Construction Notification.

579. Divisions 6 and 7 are a little different, but in the main, each Division

prescribes the obligations of “accountable persons” in respect of

certain traditional, physical hazards.

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580. The majority of these are hazards to safety. (Noise, hazardous

substances and asbestos being traditional hazards to health.)

Each hazard named in the legislation was associated with the

typical industrial workplaces of the 1970s – the factories, railways,

mines, construction sites, shipyards, workshops, shops, transport

operations, farms, fisheries, laboratories, hospitals and educational

establishments. 139

581. Of course, these types of workplaces still exist. The hazards still

exist, workpeople still need to be protected from risks associated

with them, and the current legislation continues, and needs to

continue, that earlier focus. Manual handling, for example,

continues to be a common hazard.

Manual handling

582. Manual handling gives rise to the highest number of compensable

injuries recorded as “body stressing” according to the mechanism

of injury or disease reported in the Compendium of Workers’

Compensation Statistics Australia 2003-04. 140

583. The most recent update of the WorkCover Tasmania publication on

severe injuries and the occupational distribution of reported

compensable injuries, the Occupational Black Spots: Injury Report

Update 2006 (Black Spots Update 2006) identifies “body stressing”

139 Robens identifies these types of workplaces in Chapter 6 “The Application and Scope of

new legislation”, pp 51 – 58.

140 Department of Employment and Workplace Relations, Australian Safety and

Compensation Council (2006) Compendium of Workers’ Compensation Statistics Australia

2003-04, Commonwealth of Australia, Canberra.

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as the most common cause of severe injuries accounting for 44.7%

of all severe injuries. 141

The second and third most common severe

injuries are “falls, trips and slips” (22.3%) and “being hit by moving

objects” (14.3%).

584. Since the early 1990s, however, MSDs have also been associated

increasingly with display screen equipment. 142

According to the

Black Spots Update 2006, the most common severe injury type

was “soft tissue injuries” which made up more than half of all

severe injuries, consistent with the high incidence of body stressing

associated with manual handling activities. 143

The most commonly

affected part of the body from severe injuries were reported as the

back (21.3% of all severe injuries), followed by knee (11.8%),

shoulder (9.4%) and hand, fingers and thumb (8.2%). 144

585. The (then) Workplace Safety Board of Tasmania acknowledged the

need to raise awareness of manual handling and launched its Body

Strain Prevention Kit: Your Guide to Avoiding Manual Handling

Injuries in the Workplace in October 2001. This was later

withdrawn and redeveloped as part of the “It’s Working –

Workplace Safe” campaign that commenced in August 2003.

586. As the Black Spots Injury Report: Update 2006 reveals manual

handling to be a continuing major source of injury, there will need

141 WorkCover Tasmania (2006) Occupational Black Spots Injury Report: Update 2006, p. 5.

142 The UK Health and Safety Executive identifies display screen equipment with MSDs,

stress and visual fatigue leading to eye problems.

143 WorkCover Tasmania (2006) Black Spots Injury Report: Update 2006, p. 6.

144 Ibid, pp 7 – 8.

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to be an ongoing effort by both the agency and by duty holders to

prevent injury associated with manual handling.

587. The legislation anticipates the need to prevent such injuries by

prescribing the National Standard for Manual Handling issued by

Worksafe Australia [NOHSC:1001(1990)] at Reg 65 to reduce the

risk of injury caused by manual handling. It is understood that the

National Standard for Manual Handling is currently under review.

Other standards prescribed by the Regulations are similarly subject

to periodic review and there is an ongoing administrative need for

the agency to inform duty holders of changes as well as to promote

their use.

588. The Regulations require accountable persons to follow a

systematic process of hazard identification, risk assessment and

control of risk; and standards are based on this methodology. If

standards or codes of practice are not prescribed for industry to

follow, then industry must follow the general systematic process

prescribed. We turn now to look at these processes and systems

more closely.

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Systematic processes

589. The huge volume of literature on the subject of systematic risk

management in workplace health and safety testifies that if it is not

the core element of workplace health and safety then it is a very

significant part of it. Therefore understanding risk management as

it applies to workplace health and safety, and being able to put it

into practice, are crucial to complying with the legislation and

preventing injury and illness.

590. Risk management is variously defined, but one definition, general

enough to be suitable to this discussion at least, is put forward:

The management of the working environment to control

those aspects of work that will lead to undesirable health

and safety outcomes. It involves an explicit analysis and

determination of an acceptable level of risk. 145

Risk management – Regulations 17 – 19

591. The Regulations (the Regs) make it a general obligation of all

accountable persons to identify all hazards arising, or which may

arise, in a workplace; to assess the level of risk associated with

those hazards; and to implement appropriate measures to control

the level of risk (Reg. 17). (This process was simplified in the

Workplace Health and Safety Board’s SAFE campaign in August

1998 – Spot the hazard; Assess the risk; Fix the problem; Evaluate

the result.)

145 Gary Ch Ma, Fenkins Ly Chow & Jonathan F Chung (n.d) Minimum Effort and Shortest

Development Time to Safety and Health Management System (Hong Kong Polytechnic

University: Hong Kong; quotes Edward Emmett and Colin Hickling, (1995) “Integrating

Management Systems and Risk Management Approaches”, Journal of Occupational Health

and Safety, Vol.11, no. 6, p. 617.

209


592. By mandating a risk management approach, the Regs not only

prescribe the outcome (i.e. to minimise the risks of injury and

illness associated with hazards) but they also prescribe the manner

in which the outcome is to be achieved in detail.

593. Risk assessment must be timely –

• it must be done as soon as reasonably practicable;

• it must be done before introducing new plant or new

substances into the workplace;

• it must be done when work, not previously performed, is

commenced;

• it must be done before there is any change in the type of

work, work practices, or plant;

• it must be done when any new information becomes

available about work, work practices, plant or substances

that may impact on the health or safety of an employee or

any person at the workplace. (Reg. 18).

594. Certain generally agreed criteria have emerged in the risk

management industry that proponents consider must be included

when reducing risk, adding further to the complexity of the process.

These criteria include: whether to use quantitative or qualitative

assessment; the consideration of severity of consequences;

foreseeability; whether means are available to control the risk; the

extent of knowledge about the risk and whether the cost of controls

is justified on the basis of severity and likelihood of risk. 146

What

146 Hopkins, Andrew (2001) Safety, Culture and Risk: The Organisational Causes of Disasters

Chapter 12, “Quantitative risk assessment and acceptable risk: a critique”, CCH Australia

Ltd., Sydney, p. 113.

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might have seemed to be a straightforward and simple approach to

preventing injury is rendered complicated by all these

considerations.

595. To ensure that the risk assessment process is adequate and

updated regularly, Regulation 18 prescribes that an accountable

person must ensure that a competent person undertakes the risk

assessment. (That may raise further questions for accountable

persons about the level of competence required, including the

possibility that risk assessment may be a task to be performed by

an “expert”.) Finally the accountable person must regularly review

the risk assessment and keep a written record of it.

596. Each sub-section of the two Regulations examined so far is subject

to a penalty if the obligations are not met.

597. Regulation 19 (1) then prescribes “the exposure of any person to

an identified hazard at a workplace is controlled to eliminate or

minimise the risk to the health or safety of the person”.

598. One respondent to the review (Inspector) pointed out that the

wording of Reg 19 specifying “an identified hazard” allows an

accountable person to avoid the obligation on the basis that if the

hazard is not identified, the risks associated with it do not need to

be assessed or controlled.

599. Reg 17 talks about “all hazards”, Reg 18 talks about “a hazard” and

finally Reg 19 talks about “an identified hazard”. In other words,

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the Regs move from the general to the particular. We do not

believe that Reg 19 intends accountable persons to avoid their

obligations: it is clear in a systematic process that if all hazards are

identified as the first step in the process, each must then be subject

to risk assessment and control. If the Reg is susceptible to

misinterpretation generally it may be worth looking at Reg 19(1) to

ensure it does not create that impression.

600. Reg 19(2) continues the expansion of how to control risks: they

must be controlled systematically by applying hierarchical methods

of control. These are elimination; substitution; isolation; control by

engineering means; control by administrative means; or, at the

lowest level of control, when all other methods of control are

demonstrated to be not reasonably practicable, the use of personal

protective equipment.

601. The systematic control of risk is emphasised by all jurisdictions in

their approach to workplace health and safety. The ASCC website

provides a diagram of the control of risk incorporating other

management processes prescribed by the legislation (including

consultation, instruction and training) as well as the management

cycle processes of planning, implementing, and review. 147

602. It is here, in Reg 19(2), that the legislation appears to introduce

complexity, uncertainty and confusion for accountable persons. If

147 ASSC n.d. Control of Risk diagram, Retrieved October 2006 from website:

(http://www.ascc.gov.au/ascc/healthsafety/managinghealthsafety/ohsbestpractice/healthsafet

yresearchreport/3typesofhealthandsafetymanagementsystems.htm).

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the hazard cannot be eliminated (removed, not used) what does

the regulation mean by “the substitution of the hazard”; “the

isolation of the hazard”; “the control of the hazard by engineering

means”; or “the control of the hazard by administrative means,

including the adoption of safe working practices”? If the source of

a hazard is not a physical object such as machinery or a substance

or noise that could be eliminated, replaced, isolated, etc., how is

the regulation to be applied?

603. Regs 18 and 19 may draw accountable persons into a tangle of

legal and financial considerations motivated by trying to find the

“answer” to the relatively simple question of “what must we do to

make the workplace safe from injury and risks to health?” It cannot

be forgotten that the Reg makes it mandatory to comply with the

process as prescribed. Each sub-part of the Reg is subject to a

penalty for non-compliance.

604. Regs 18-19 also impose onerous requirements upon small and

micro-businesses who form the majority of duty holders or

accountable persons and who may not have the capacity or

resources to fulfil the detailed requirements.

605. What should be a simple and clear direction from the legislation

becomes, by virtue of Reg 18 and Reg 19(2), a formidable

prospect. The process of ensuring that the workplace is, so far as

is reasonably practicable, safe from injury and risks to health,

becomes fraught with, dare we say? – risk.

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Need for experts

606. The prescribed risk management approach is not intuitive and the

language it uses sets it up as an arcane process. It appears to be

written with technical persons in mind or to be more relevant to

those workplaces having access to risk management “experts”.

(This recalls the much earlier comment about the quantity of law

and the need for experts to inform and advise employers about

their regulatory obligations.)

607. Liz Bluff and Richard Johnstone agree that the requirement for

systematic control of risk is a source of much uncertainty in

preventing injury and illness in Australian workplaces:

The OHS risk management process is a modified

version of risk management principles applied more

widely in business. The latter typically involves the

holistic identification of hazards and other threats to an

organisation or entity, analysis and evaluation of the

risks, and determination of strategies to treat risks

through risk avoidance, limitation, reduction, transfer,

retention, deferment or mitigation (Cross et al 1999, p.

366; SAA/SNZ 1999, pp. 3-4, 7-8; Waring and Glendon

1998, pp. 9 & 14). The form of risk management applied

under Australian OHS legislation involves fewer process

steps but elaborates the strategy of risk reduction,

applying a hierarchy of control measures which gives

priority to controlling risks at source by elimination,

redesign, substitution, isolation or engineering means, in

preference to administrative controls or use of personal

protective clothing and equipment. In this respect, OHS

risk management draws on the disciplines of

occupational hygiene, safety engineering and

ergonomics which adopt such a preferential approach to

risk control (Bohle and Quinlan 2000, pp. 92-100; Hale

et al 1997). While in broad terms risk management is

concerned with identifying, assessing and treating risks,

it is a collective term applied to many different activities

and approaches, to many different kinds of risks, and

using variable terminology. Moreover, “the recursive

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nature of terms such as ‘hazard’ and ‘risk’ and terms

such as ‘assessment’, ‘analysis’, ‘estimation’ and

‘evaluation’ in everyday speech, creates fertile ground

for ambiguity and confusion” (Waring and Glendon

1998, p. 22). All of this suggests that OHS risk

management principles could be difficult for duty holders

to engage with, quite apart from the uncertainty about

how the risk management process relates to the general

duties. 148

608. Our consideration of Reg 19(2) commented that it was addressed

to technical persons. Bluff and Johnstone, quoted above, identify

that the methodology is drawn from the fields of occupational

hygiene, safety engineering and ergonomics. 149

609. We conclude that the legislation has narrowed its focus

considerably. It is speaking to a limited audience (experts and

large businesses) and the process of preventing injury and illness

appears to be complex and difficult to understand.

610. The way in which the Regs prescribe the management of

workplace health and safety seriously excludes the majority of

businesses in Tasmania. According to ABS statistics, in 2000-01

there were an estimated 24,700 private sector, non-agricultural

business [sic] in Tasmania. Of the 24,700 businesses in 2000-02,

some 23,700 (96.0%) were classified as small businesses with

148 Bluff, Liz & Johnstone, Richard (2004) “The Relationship between `Reasonably

Practicable’ and Risk Management Regulation”. Working Paper 27; p. 4. National Research

Centre for OHS Regulation, Australian National University, Canberra.

149 By coincidence or otherwise, the theme of the December 2-6 Conference of the Australian

Institute of Occupational Hygienists (Surfers’ Paradise, Queensland) is “The role of risk

assessment and management within occupational hygiene and its allied fields”.

(http://www.aioh.org.au/conference/2006/defult.htm).

215


employment of less than 20.” A high percentage, 13.7%, of

Tasmanian businesses is non-employing. 150

611. These businesses are unlikely to have the technical expertise, or

access to such, to be able to comply. In wrestling with the

difficulties comprehending and applying risk assessment and the

systematic control of risk introduced by the Regs, the majority of

accountable persons may even overlook the simple duties

prescribed by the Act and the health and safety benefits that are

derived from them.

612. In this event, the very real risk is that, not understanding what else

to do, they will apply the very last measure to control the risk – that

is, to provide personal protective equipment - or do nothing at all.

Safety systems

613. One submission to the review observed that in Tasmania “of most

concern, is the considerable lack of formal systems for hazard

identification, assessment, control and evaluation – pivotal in

ensuring good health and safety”. (A. Ayling)

614. The idea that formal systems should be “pivotal in ensuring health

and safety” again reflects a belief that health and safety is a

technical, perhaps even an engineering, domain. Professions

involved in health and safety, such as occupational hygienists,

150 ABS 92006) Cat. No.1384.6 – Statistics – Tasmania, Commonwealth of Australia,

Canberra.

(http://www.abs.gov.au/AUSSTATS/abs@.nsf/2f762f95845417aeca25706c00834efa/65C7BA

8A2C6CDE68CA25710E007563D0?opendocument).

216


ergonomists and engineers have predominantly a technical and

systems focus. The systems traditional to that domain (particularly

the risk management system that is the basis of Reg 19) are

inherently technical or engineering systems.

615. In approaching the systematic control of risk and the concept of

systems to be used for managing health and safety, we open up a

Pandora’s Box of issues and complexities. To begin with, there are

so many different types of health and safety management

systems. 151

616. According to the ASCC research report (“Types of Health and

Safety Management Systems”) there are broadly speaking two

major groups of systems described as “traditional” and “innovative”.

Regulation 19(2) prescribing the systematic control of risk is very

traditional in focus.

617. Traditional systems are safety focused and are sub-divided into the

following types:

• Prevention strategy focused on the control of hazards at

source through attention at the design stage and

application of hazard identification, assessment and

control principles; and

• Those based on the idea of a “safe person” - concerned

with the control of “unsafe acts” or behaviour, with a

strong focus on selection, training and supervision of

151 For a detailed analysis of the various types of health and safety systems see

http://www.ascc.gov.au/ascc/HealthSafety/ManagingHealthSafety/OHSbestPractice/HealthSa

fetyResearchReport/3TypesofHealthandSafetyManagementSystems.htm#3.3.1_The_Four_T

ypes.

217


employees to eliminate risks (e.g. Heinrich). These are

traditionally rules based, “top down” and management

driven with little if any scope for employee involvement,

save for the traditional health and safety committee.

618. Innovative systems incorporate broader management concepts

(that is, incorporating principles adapted from human resources

management, quality management and strategic planning and

development) providing a more holistic approach to health and

safety. 152

619. Innovative systems might be described as being more

contemporary, given that the management of health and safety is

integrated into the wider management of the organisation.

Employee or worker involvement is seen as being critical to the

system operation and there are mechanisms in place to give effect

to a high level of involvement.

620. To the reader of this report, there is purpose in this apparent

digression.

621. Robens’s principles for a legislative framework that enables the

parties in workplaces to sort out their solutions to specific problems

based on the reasonable care that one person should have for

another would appear to favour predominantly “innovative” systems

152 Management concepts such as “Total Quality Management”, “Best Practice”,

“Benchmarking”, “Networking and Alliances”, “Organisational Development” may take in

workplace health and safety. Again, these are familiar and relevant to large organisations

rather than smaller ones.

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where management control is translated into a workplace

democracy.

622. In this approach executive management provides the strategic

direction and outcomes to be achieved while managers facilitate,

co-ordinate and involve staff in applying the solutions to workplace

health and safety issues.

623. The Discussion Paper commented “the Robens principles of selfregulation

were grafted onto the rootstock of the earlier factory

regulation” (DP, p.10). Close analysis of the legislation bears this

out.

624. The Act focuses primarily on safety – safe place, safe systems - a

very traditional approach.

It assigns responsibilities to “key

persons” (employers, responsible officers, accountable persons); it

enables employee involvement through a representational health

and safety committee but only if a majority of employees wish to be

represented by either a committee or an individual representative,

so it does not make involvement of workpeople critical. It

prescribes traditional management processes such as the provision

of instruction, information and supervision. In all these aspects

then, the Act adopts an approach to safety and management that is

“traditional command and control”.

625. The Regs are also very traditional in both structure and content by

prescribing a strong risk management focus that is safety oriented

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and by prescribing standards for traditional, nominated hazards,

usually (but not exclusively) associated with manufacturing.

Relevance to small businesses

626. Traditional and often complex risk management processes and

safety systems are universally recognised as being more suitable

to large businesses. Small businesses make up the lion’s share of

the number of businesses in Tasmania. Yet, when the legislation

prescribes detailed process, all accountable persons must comply

with the requirements, regardless of the size of their business.

Traditional safety systems not appropriate to new risks to

health

627. A further issue is whether the traditional systematic risk

management approach is sufficiently adaptable to control the risks

associated with workplace hazards of the twenty-first century.

628. Traditional systems that often deal with one contributory risk factor

(rather than many) and have a strong physical hazard focus, may

not apply well to the present and emerging health and safety risks

that are multi-factorial and include psychosocial as well as physical

risk factors.

Recommendation 21:

It is recommended that the agency encourages industry to

adopt existing industry standards or codes of practice as

recognised practical non-statutory instruments. Large

industries and businesses could, by following this principle, be

encouraged to adopt relevant national standards; while small

businesses could develop simple health and safety measures or

relevant codes of practice that apply to their operations.

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The recommended workplace health and safety council could

be an appropriate body to advance the adoption of standards by

large businesses and the encouragement of relevant simple

solutions for small businesses in Tasmania.

Guidance materials, whether published electronically or in

paper form, must be simply written in “plain English”.

Recommendation 22:

It is recommended that further consideration be given to the

internal inconsistencies of the legislation that prescribes both

innovative and traditional safety systems; and how

organisations can overcome problems created by having to

comply with a “system” that is incompatible with the way in

which their organisation is managed.

Recommendation 23:

It is recommended that Regulations 18 and 19 be considered

closely by the agency with a view to remove those aspects that

are not strictly necessary to preventing injury or illness.

Administrative processes, for example the requirements at

Reg18 (3), (4), and (5) should be considered for removal.

Reg 19(1) prescribing general control of risk could stand;

however it is recommended that Reg 19(2) which is complex

and confusing for most duty holders and which imposes

unnecessarily onerous requirements subject to a penalty, be

removed.

The review team recognises that changes to the prescription of

risk management processes is potentially an area for national

attention rather than something pertaining only to Tasmania

and it could be referred to the ASCC for action for “national

harmonisation”.

Recommendation 24:

If the message to prevent injury or illness is to get through to

the maximum number of people, it is important to avoid using

jargon (or language that is only understood by a small group)

either in the legislation or in guidance provided by the agency.

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Involvement of workers

59. We have stressed that the promotion of safety and

health at work is first and foremost a matter of efficient

management. But it is not a management prerogative.

In this context more than most, real progress is

impossible without the full co-operation and commitment

of all employees. How can this be encouraged? We

believe that if workpeople are to accept their full share of

responsibility (again, we are not speaking of legal

responsibilities) they must be able to participate fully in

the making and monitoring of arrangements for safety

and health at their place of work. (Lord Robens (1972)

Chapter 2 “Safety and Health at the Workplace”, para.

59, p.21.)

629. In the course of their discussions, the Committee of Inquiry chaired

by Lord Robens found that firms used many different arrangements

for the participation of employees in health and safety matters.

Lord Robens himself was already aware of the positive contribution

to health, safety and welfare made by worker representatives in the

coal mining industry.

630. The Committee also found that “most of the employers, inspectors,

trade unionists and others [were] in no doubt about the importance

of bringing workpeople more directly into the actual work of selfinspection

and self-regulation”, and in deciding whether legislation

could help in this matter, Robens concluded “involvement of

employees in safety and health measures is too important for new

occupational health and safety legislation to remain entirely silent

on the matter”. 153

153 Robens, paras. 68-69, pp 21-22.

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631. Robens therefore recommended that there should be a statutory

duty on every employer to consult with his employees or their

representatives at the workplace on measures for promoting safety

and health at work, and to provide arrangements for the

participation of employees in the development of such measures:

The form and manner of such consultation and

participation would not be specified in detail, so as to

provide the flexibility needed to suit a wide variety of

particular circumstances. … Guidance should, however,

be given in a code of practice outlining model

arrangements, including advice on joint safety

committees and the appointment of employees’ safety

representatives. 154

632. The Discussion Paper raised the issue of the involvement of

workers and other parties in preventing injury and illness in the

workplace and it was suggested that “the Act needed to be

strengthened to ensure better workplace health and safety

outcomes through greater involvement in the processes of hazard

identification and risk control as well as representational

mechanisms”. It was also suggested that changes to workplace

relations have increased worker insecurity - a major factor in

preventing workers from speaking up about health and safety

matters. (DP pp. 14-16).

154 Ibid, para. 70, p.22.

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What respondents said about ‘involvement of workpeople’

633. Many respondents support the principle of involvement of all

relevant parties in the workplace, however it was often conditional

upon distributing accountability and sharing penalties.

634. The Tasmanian Forest Contractors Association (TFCA) wrote:

Active involvement by all parties present at the

workplace must occur to achieve the best outcomes.

Indeed, involvement by advisers, assessors or

inspectors to assist should be the norm not the

exception as it is now.

TFCA supports any regulation that ensures all parties at

the workplace are responsible for health and safety.

…Sharing responsibility and the corresponding

apportionment of penalties is a fairer and more even

way of achieving workplace safety. (TFCA)

635. This view recognises the positive value of active involvement of

different parties to achieve the best health and safety outcomes but

links involvement to sharing responsibility and liability.

Yet

responsibilities are already distributed as duties owed by all

workplace parties including employers, employees, responsible

officers, contractors, self-employed persons, manufacturers,

suppliers, etc. Penalties apply to offences committed by any party.

Thus both responsibility and accountability are apportioned.

636. Because all workplace parties have statutory duties and

obligations, including the prescription for multiple duty holders to

co-operate in satisfying their duties (and remember that employees

are duty holders too), it is sensible if employers, employees,

contractors etc. communicate and work together in order to satisfy

224


their duties. Communication is basic to any involvement. To

demonstrate their compliance, especially in the event of any doubt

about “liability” should an accident occur, it is also prescribed by

the Regulations that a record of the risk management processes be

kept.

637. The RCSA writes

Any objects should extend the requirement for

consultation and co-operation beyond employer and

employee to include third parties whose employees may

be affected by the actions, omissions and decisions of

principals and host organisations (clients of on-hired

employee service providers). (RCSA)

638. The RCSA also submitted that incidents involving on-hired

employees should be reported to the on-hire service provider as

well as notifying the agency.

639. The Master Builders Association of Tasmania (MBAT)

believes that the mandating of involvement by

employees would help all parties understand that safety

at work is a shared responsibility. Regardless of

whether changes are made to the wording of the Act,

members would support further education about the

rights and responsibilities of all parties involved in this

aspect… (MBAT)

640. Unions Tasmania supported our suggestion that all parties in the

workplace should be involved in processes of hazard identification

and risk management “subject to not in any way transferring

responsibility down the chain of command to relieve the employer

of the duty of care”. (Unions Tasmania)

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641. Similarly another respondent believes that “[t]he proposed idea that

an employer may consult with an employee to consider a problem

and issue an agreed opinion could affect the employer’s duty of

care responsibility”. (S. R. Porter)

642. There is nowadays a general fear that “being involved” will incur a

legal liability. Inspectors themselves have been directed not to

provide advice to workplaces “because of liability problems”.

643. Inspectors have no statutory protection according to the workplace

health and safety legislation, to prevent them being drawn into

individual suits if a breach of the legislation is blamed upon

following an inspector’s advice. The final chapter considers this

issue as part of the discussion of the powers and functions of

inspectors.

644. We turn now to look at how the legislation deals with the practical

issues of consultation or involvement of relevant parties to prevent

workplace injury and illness.

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Legislation and consultation

645. Part 5 of the Act prescribes, depending upon the size of the

workplace and if a majority of employees wish to have one, the

formation of a health and safety committee (section 26) or the

election of an employee safety representative (s32). If the majority

of employees wish it, the employer must arrange it within one

month. The legislation goes on to prescribe the functions of the

committee or safety representative.

646. The Regs prescribe that if there is a health and safety committee

the employer must consult it.

647. Section 9(2)(f) of the Act also prescribes that the employer must

provide information, instruction and training in the event of any

change in any work or work practices, activity or process:

(2)… an employer must, so far as is reasonably

practicable –

(f) ensure that any employee of the employer who could

be put at risk by a change in the workplace, in any work

or work practice, in any activity or process or in any

plant –

is given proper information, instruction and training

before the change occurs; and

receives such supervision as is reasonably necessary to

ensure the employee’s health and safety;… (Section

9(2)(f))

648. Reg 15(1)(b) requires accountable persons to consult with

employees when there is any proposed change likely to affect the

health or safety of employees. This might be interpreted to apply to

any change, including organisational change and/or the making of

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workplace agreements that have the potential to affect health and

safety.

What is meant by consultation?

649. Maxwell considers that it is important to make it clear what is meant

by consultation in the Victorian OHS Act. He refers to the

Queensland workplace health and safety legislation that defines

consultation as “fostering co-operation and developing partnerships

between government, employers and workers to ensure workplace

health and safety”.

650. This definition would be useful as a definition for the community

engagement to be undertaken by the recommended workplace

health and safety council, but in the context of the Act and the

duties of parties in individual workplaces, it is too broad.

651. Maxwell then goes on to discuss consultation in terms of what it is

not, that is to say it is not a process that requires consensus or

agreement, but that it must be a dialogue between the parties. 155

652. We believe that the definition of consultation should be as simple

and flexible as possible to suit different types and sizes of

business. Consultation should be a process involving an exchange

of views between relevant persons about a health and safety issue

applicable to the workplace and that in discussing the issue, the

views expressed should be taken into account in making a

155 Maxwell, paras 920 – 923; pp 204-205.

228


decision. The decision remains that of the accountable person or

persons.

653. The inclusion of a duty of employers and principals to consult with

relevant persons engaged or employed would, we believe, have

many benefits in further reducing the incidence of injury, illness and

death in the workplace, particularly if the agency were to continue

its work in encouraging consultation and promoting its benefits.

654. Such a provision could be the basis for stimulating the

development and understanding of workplace health and safety

policies or industry standards or codes or, indeed any other

sources of information that are appropriate to the prevention of

injury and illness in specific workplaces, where it matters.

Who should be involved?

655. As for all other aspects of the duties and obligations previously

discussed, the current representation and consultation provisions

of the legislation are focused on the employment relationship of

employers and employees. The presumption that all workplace

relationships are organised according to this basis is now clearly

outdated.

There are now businesses that do not employ

“employees” as defined at all, and other workplaces where

“employees” are vastly outnumbered by other workpeople. We

have already observed that the legislation does not meet the needs

of these workplaces. The duty or obligation to consult, if included

229


in the legislation, should therefore apply to consultation “with all

relevant persons”.

656. If there is any doubt as to how “relevant persons” might be defined,

it must include workers employed or engaged by the employer and

may also include contractors and on-hire employment service

providers. Consideration might also be given as to whether

“relevant persons” should include those “upstream” of the

workplace – such as manufacturers, suppliers, installers etc. The

legislation should enable maximum flexibility for workplaces to

determine who are the relevant persons to involve in consultation.

How to consult?

657. Robens’s advice about providing “guidance” on how to conduct

consultation does not mean prescribing in detail how it should be

conducted in the legislation.

658. If formal consultation methods are preferred, and if employees

express a wish for such mechanisms, the legislation currently

provides detailed requirements for health and safety committees or

employee representatives.

659. Otherwise we find that is should be an aspect of “good

management”. Supervisors or site managers may, in the course of

their supervisory or management duties, consult individuals on a

daily basis. They may conduct informal “tool box meetings” where

aspects of the job are discussed and the control of risks to health

230


and safety are agreed and documented to provide the necessary

record. Small businesses could comply with the duty to consult

through direct and active involvement of the entire workforce where

numbers are small, without the need for representational

mechanisms. These are matters that, clearly, workplace parties

themselves can decide.

660. Earlier we recommended that industry and the agency collaborate

(potentially through the workplace health and safety council) in

developing a Charter for workplace health and safety. It was

suggested that the first principle might be that workplace health

and safety is paramount. In the same vein, the second principle

might be to do with involvement and consultation.

661. As one respondent put it to the review team, the agency need only

to demonstrate a benefit and then allow employers and employees

to take ownership of the process for themselves. The prevention of

injury, illness and death, is the desired outcome.

Recommendation 25:

It is recommended that the Act be amended to include a

definition of consultation, and;

The Act should contain a general duty that employers and

accountable persons must consult with all relevant persons to

ensure that each person is safe from injury and risks to health.

231


Preventing illness

662. Our terms of reference require us to examine how the legislative

framework provides for the prevention of illness and how it could be

further reduced. Our analysis of the Regs concluded that they deal

adequately with certain traditional hazards to safety and risks to

health; however, we have yet to examine whether the traditional

safety systems emphasis would be effective in dealing with present

or future risks to health that are quite different. Our discussion

turns now to take a closer look at how to prevent illness arising

from present and emerging risk factors.

663. In this discussion we acknowledge the National OHS Improvement

Strategy that nominates “more effective prevention of occupational

disease” as one of the five agreed national priorities to be tackled

over the life of the Strategy. Work completed and endorsed by the

National Strategy at the NOHSC meeting in March 2004 identifies

eight priority occupational disease categories. Priority is based

upon two indices, severity and incidence.

664. The eight disease categories agreed and endorsed are:

• Respiratory diseases including asthma;

• Cancer;

• Contact dermatitis;

• Infectious and parasitic diseases;

• Noise induced hearing loss

• Cardiovascular disease;

• Musculoskeletal disorders (MSDs); and

232


• Mental disorders. 156

665. The ASSC work in this area acknowledges that the link between

some occupational exposures and eventual disease may not

always be easily demonstrated, especially in chronic diseases that

have long latency. Apart from infectious and parasitic diseases, all

the priority occupational diseases listed are chronic.

666. Most of these priority occupational diseases are associated

predominantly with health risks arising from the physical hazards

that are identified in the Regs – hazardous substances and noise,

for example, are the identifiable hazards associated with the first

three listed diseases and the fifth listed disease. Prevention of

illness associated with these hazards is now subject to compliance

with nominated standards, the provision of information (Reg 20),

monitoring (Reg 21), and health surveillance for certain substances

(Reg 22).

667. Cumulative exposure is controlled according to quantitative

assessment according to prescribed standards (Part 4, Division 2):

• for hazardous substances, the National Standard for the

Control of Workplace Hazardous Substances, Part 2 –

Scheduled Carcinogenic Substances issued by Worksafe

Australia 157 ;

156 See www.ascc.gov.au for “National Occupational Disease Profiles” – Executive

Summaries of Each Disease Category.

157 This is now subject to review and integration into the National Standard for the Storage

and Control of Dangerous Goods issued by Worksafe Australia that now forms the basis of

Tasmania’s Dangerous Substances Act 2005.

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• for any process involving lead, to the National Standard

for Control of Inorganic Lead at Work issued by Worksafe

Australia;

• for the processes of classification, labelling and

preparation of material safety data sheets, the Regs

prescribe that these must be undertaken according to the

List of Designated Hazardous Substances; the Approved

Criteria for Classifying Hazardous Substances and the

National Code of Practice for the Preparation of Material

Safety Data Sheets – all of which are issued by Worksafe

Australia; 158

• for the control of risks to health caused by exposure to

noise in the workplace, exposure standards are

prescribed and these must be measured and controlled

according to stated Australian Standards - AS1269 and

AS 1270; and

• for musculoskeletal disorders, the Manual Handling

National Standard is prescribed to control manual

handling injuries. (This is currently under national

review.)

• The use of certain substances known to be extremely

hazardous is prohibited.

668. The specific Regs that apply to preventing illness therefore conform

to the traditional safety system (hazards-based, safe place/safe

person, application of rules) described earlier in this chapter. We

conclude that when complied with and applied consistently, the

Regs would appear to work reasonably well in preventing the

occupational diseases that are associated with “traditional”,

singular, risk factors.

158 The List and Approved Criteria are integrated into the Dangerous Substances Act 2005.

234


669. However there are some doubts as to how well the safety based

framework relates to the final three priority diseases in the list

(cardiovascular disease, musculoskeletal disease and mental

disorders)?

670. The ASCC in its report (endorsed April 2006) on Indicators for

Occupational Disease acknowledges that, unlike injury where there

is usually a clear-cut cause and effect relationship between a single

hazard or risk factor and a clear-cut health effect (such as noise –

industrial deafness), most work-related chronic diseases are “multifactorial”

in nature, with “workplace exposure constituting one

important part of the risk matrix” for many occupational diseases. 159

671. Standards based on traditional safety systems that deal with

singular risks are poorly designed to deal with multi-factorial risks.

159 ASCC (2006) Report on Indicators for Occupational Disease; “Section 1, Introduction”, p.

8. Commonwealth of Australia: Canberra. (http://www.ascc.gov.au/).

235


Cardiovascular disease, musculoskeletal disease and

mental disorders

672. These three priority occupational disease categories are also

identified within the top national public health priorities. In terms of

total health expenditure (2000-01), cardiovascular disease, nervous

system disorders, musculoskeletal disorders/injuries and mental

disorders are ranked in the highest levels of health expenditure. 160

673. According to the National Chronic Disease Prevention Strategy

(NCDPS) which sits within the National Health Strategy, the longterm

strategic plan for health in Australia,

Chronic diseases are called the diseases of the

twentieth century. Together, they account for nearly

70% of health expenditure. “Cardiovascular disease is

the leading cause of death for both males and females.

About 1 in 5 Australians had cardiovascular problems in

2001 and around 1.1 million have a disability as a result.

Arthritis and other musculoskeletal conditions are

estimated to affect more than 6 million Australians (3 in

every 10) in 2001. These cause more disability than any

other medical condition, affecting about 34% of all

people with a disability. 161

674. All these chronic diseases can be prevented or their onset delayed.

The major strategic emphasis of the NCDPS and the National

Health Strategy is on “creating healthy environments –

environments in which people live, work and play…” [emphasis

added] in the effort to prevent the onset of these diseases. 162

A key

160 Ibid, Table 1 Health expenditure 2000-01 Australia, p. 12.

161 National Health Priority Action Council (NHAC) (2006), National Chronic Disease Strategy

(NCDS), Australian Government Department of Health & Ageing, Canberra, pp 11-12. The

NCDS can be found at

http://www.health.gov.au/internet/wcms/Publishing.nsf/Content/Health+Priorities-1.

162 Ibid, p. 26

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action area of the National Health Strategy is raising awareness –

to be reinforced in multiple settings, including workplaces. 163

675. According to a report prepared by Access Economics Ltd., for

Diabetes Australia (October 2006), 3.24 million Australians are

obese (15% of all males and 16.8% all females are obese).

676. The Access Economics Report notes that obesity is associated

with higher relative risk rates for a number of chronic health

problems including Type II Diabetes, Circulatory Vascular Disease,

Osteoarthritis, Cancers and other health conditions.

677. Of special interest to this review is the finding that “more sedentary

work environments” ranks high in the list of most important

contributory factors to obesity (after genetic, diet, and lifestyle) and

therefore to the priority chronic diseases. 164

678. Further, obesity is highest in the workforce where it is prevalent

particularly in the age groups 45-49 and 55-59 years. 165 Thus with

the combination of sedentary work and other lifestyle risks, our

ageing workforce is at high risk of chronic disease.

Work-related Musculoskeletal Disorders (WMSDs)

679. Our earlier discussion considered MSDs and concluded that

manual handling, a source of MSDs, is dealt with according to the

traditional application of the Manual Handling standard.

163 NCDS, p, 26.

164 Access Economics report, p. 29.

165 Access Economics Ltd. (October 2006) “The economic costs of obesity”.

237


680. A report was commissioned by the Department of Employment and

Workplace Relations on behalf of the Australian Safety and

Compensation Council and undertaken by Associate Professor

Wendy Macdonald and Associate Professor Owen Evans from La

Trobe University. Macdonald and Evans found that physical

factors of work and psychosocial factors associated with work

organisation, job design and demand and associated factors of

control, in combination, are significant contributory factors in the

acute onset and latent development of MSDs. In other words, body

stress and job stress, especially if they are present together, can

contribute to the onset of musculoskeletal disease. 166

Work-related mental disorders

681. According to the evidence-based literature, work-related stress,

arising from a number of work-related risk factors, if sustained and

uncontrolled, may lead to stress-induced mental illness such as

depression and anxiety, as well as some chronic physiological

illnesses or disease.

682. Both the ILO and the WHO identify job insecurity and job strain as

two significant consequences of work re-organisation that are

recognised widely as important indices in increased risk of workrelated

injury, occupational violence, cardiovascular disease and

166 MacDonald, Wendy, & Evans, Owen (2006) Research on the Prevention of Work-Related

Musculoskeletal Disorders: Stage 1 – Literature Review , ASCC, Canbera. Retrieved

September 2006 from website

(http://www.ascc.gov.au/NR/rdonlyres/D0C2EF6D-C027-4BEF-B9A2-

D4F76F50A05A/0/WorkRelatedMusculoSkeletalDisordersStage1LitReviewNov06.pdf).

238


mental disorders. How can the legislative and administrative

frameworks prevent chronic disease associated with these workrelated

risks to health?

Implications for the agency

683. To some extent the workplace health and safety legislative

framework may be adaptable to dealing with these risks to health,

but regulators of workplace health and safety cannot rely upon the

application of traditional safety systems and standards alone, to

control these risks.

684. Traditional safety systems and standards, as we have discussed

earlier in this report, are predominantly focused on single risk

factors, while the risks associated with the incidence of chronic

diseases are multi-factorial.

685. There is urgency in the need to address the risk factors for chronic

disease in our workplaces.

686. The review team believes that the first task of the agency should be

to increase general levels of awareness of the health risks

associated with certain characteristics of work.

Workplace as setting for Health promotion strategies

687. A broader response is needed. Public health promotion and

prevention strategies are being adopted in Europe to address the

impact of lifestyle and work on health. European workplace health

and safety agencies now recognise the value of using the

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workplace as a setting for health promotion built on the concept of

a “healthy enterprise”. 167

688. Comprehensive and integrated programs, built on partnerships and

agreements with appropriate funding, are now being put forward to

control the workplace risk factors for chronic disease.

For

example: the European Work Health Project (commenced 2002

and ongoing) and the World Health Organisation – Workplace

Health Promotion programs; apply health promotion principles and

programs to campaigns and programs to improve workplace health

and safety. 168

689. Similar efforts might be made in Tasmania by engaging with

workplace parties at an industry and enterprise level to assist in

controlling work-related risks to health through health promotion.

690. Training is another strategy that may be used to prevent injury and

illness associated with risks to health in contemporary workplaces.

Training

691. The broader goals of preventing work-related injury and illness rely

upon training and education of all parties (employers included) and

all sized businesses to become more health and safety conscious,

adopting health promotion strategies in wider settings.

167 Matti Ylikoski & Riita-Maija Hämäläinen (2006) Workplace Health Promotion, National

Health Policies and Strategies in an Enlarging Europe. Finnish Institute of Occupational

Health, Linz.

168 See ENWHP (Germany) http://www.enwhp.org/news/workhealth.php?news=4) and

WHO, Occupational Health – Workplace Health Promotion

(http://www.who.int/occupational_health/topics/workplace/en/index1.html).

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692. We can expect that there will be greater demand to include health

and safety education in schools and training institutions generally if

preventive efforts are to have effect. Training also needs to be

provided in workplaces for workers, managers and employers, in all

sectors.

693. Many respondents to the review have identified that there is an

urgent need for training in workplace health and safety, and see it

as a responsibility for the agency administering the Act to provide

as an adjunct to the prevention function.

694. Inspectors and other relevant persons in Workplace Standards

Tasmania would also need training in being able to provide advice,

educate and raise awareness of the need to prevent chronic

disease.

695. If the agency were to meet these needs, resources and the

potential for joint government strategies – both to train and recruit

the trainers (advisors or inspectors) as well as to fund the training

and awareness programs to be delivered – are potentially issues to

be considered.

696. To the extent that workplace health and safety has a major impact

on the economy and presents a long-term concern for State and

federal health expenditure, it should be a policy concern for the

whole of government. As a whole of government concern, it would

bring the weight of policy in various fields (including education and

training; economic development; industrial relations; public health

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and workplace standards) together to deal with the effects of

change on health and safety and prevent chronic disease.

697. Lifestyle risk factors for the priority chronic diseases are already

targeted in public health promotion strategies that make use of both

legislation (control of smoking legislation, for example) and

educational programs (e.g. QUIT or exercise programs) to raise

awareness of the health risks and therefore prevent illness. Such

strategies have been introduced into some workplaces quite

successfully.

698. Dealing with multi-factorial risks to health associated with the work

itself is far more problematic. Most jurisdictions have responded to

the needs of duty holders by providing guidance and information,

including advice that employers should develop workplace health

and safety policies to manage psychosocial risk factors for illness

and injury.

699. Tasmania launched a kit -“Hidden Hazards – Stress, Bullying,

Alcohol and Other Drugs” - designed for employers and employees

as part of Safety Week in 2002 and provided well-attended

seminars in each region on “How to deal with Stress in the

Workplace”. Victoria responded by creating a specialist unit to deal

with complaints and provide advice and information to assist

workplaces on how to prevent stress-related illness.

700. If we are to do more to assist workplaces to control the multifactorial

risks associated with cardiovascular disease, MSDs and

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mental disorders, we need to strengthen the legislation so that it

gives greater recognition to the impact of work organisation, work

practices, job design and demand on psychosocial risk factors for

illness. Administrative programs to educate and advise workplaces

about the need to control the risks must then support the legislation

and we can learn much from the health promotion methods of the

national and state health programs.

Recommendation 26:

It is recommended that an amendment to the Act would

strengthen the current references to “work practices” and

working conditions. It could be phrased as a duty of employers

(so far as is reasonably practicable) to control risks to health

and safety that arise from any aspect of work including the

organisation and management of work, working conditions, job

design and demand, work practices, and workplace behaviour

(or “relations” if this term is preferred).

701. The amendment to the Tasmanian Act thus made would reflect

Article 6 of the European Union workplace health and safety

Directive (EU 89/391). Article 5 of the latter opens with the

statement of principle that employers shall have a duty to ensure

the safety and health of workers in every aspect of the work. A key

clause of the Directive that relates to the association between work

organisation and injury or illness is Article 6 (2) (g). It states

employers shall take measures necessary to the safety and health

protection of workers by “developing a coherent overall prevention

policy which covers technology, organisation of work, working

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conditions, social relationships and the influence of factors related

to the working environment”. 169

702. Definitions of “organisation and management of work”, etc. would

be required. These definitions should include the risk factors that

are outlined in the text above.

703. In regard to the potential impact of employment conditions and

other aspects of work that may contribute to psychosocial risk

factors, we believe accountable persons should give close attention

to all aspects of the workplace that determine the general social

and management environment. But they should not do so without

the advice and support and potential programs provided by the

State. The common goal for industry and the State in upholding

the framework should be the creation of healthy workplaces.

704. Some approaches to the prevalence of psychosocial factors

advocate the provision of programs to assist persons already

experiencing difficulties, for example “employee assistance

programs” that may be valuable in providing support, advice and

guidance to employees when they are experiencing problems.

These have value but they are ‘reactive’ interventions that are

useful after the event: they have very limited effect on prevention.

705. We realise that any risk factor that inherently involves work

organisation may not be conducive to problem solving and

169

EEC Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage

improvements in the safety and health of workers at work. European Union, Brussels.

(http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod)

244


negotiation between workers and management or employers. We

suspect that many persons may be reluctant to jeopardise their

employment by raising psychosocial risk factors connected to work

organisation, management, work practices and so forth. Workers

who are exposed to such risks are, in reality, unlikely to feel able to

deal individually with many of these risk factors, at least not without

some form of support.

706. The inclusion of a duty to involve workpeople and encouragement

of accountable persons to increase levels of involvement

(potentially an issue that can be addressed by the recommended

workplace health and safety council) may be further strengthened

by another strategy.

Role of third party mediation to prevent risks of illness

707. Where existing legislative provisions, such as consultation and

representative mechanisms are inadequate to resolve work-related

health and safety issues at the workplace, there may be a need for

an independent, non-threatening, impartial and respected

mechanism to which parties might apply for mediation. The aim

would be to facilitate the resolution of the problem when workplace

parties themselves are unable to do so.

708. We discussed the issue with Pat Leary, the President, and Allan

Mahoney, the Registrar, of the Tasmanian Industrial Commission.

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709. Both Pat Leary and Allan Mahoney support the idea. The TIC has

both the resources and the skills to facilitate the resolution of

issues that affect the social and management environment of

workplaces.

710. Currently it has no powers to carry out such activity and the parties

involved would have to give those powers.

Similarly, the

commissioners of the TIC would need to be given indemnification

from liability in order to act as mediators or third party facilitators in

resolving psychosocial risks to health and safety.

711. The expertise and experience of commissioners would provide the

kind of credible, non-threatening mechanism envisaged. It would

be valuable for people who feel that they are the victim of bullying

or whose workload, job demands etc are felt to be unreasonable

and causing stress that they cannot resolve themselves within the

workplace.

712. The review team believes that the legislative framework should

therefore provide for an independent forum established within the

TIC to hear such matters. It would assist in preventing the

incidence of psychosocial risk factors in the workplace that give

rise to work-related injury and illness and may assist in improving

workplace relations generally.

Recommendation 27:

It is recommended that a provision be included in the Act to

enable workplace parties to approach a tribunal of the

Tasmanian Industrial Commission for resolving workplace

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health and safety issues that have not been successfully

resolved at the workplace.

The primary purpose of the tribunal would be to mediate and

facilitate the resolution of issues.

The overall objective would be to prevent illness and/or injury

that may arise from psychosocial risk factors in the workplace.

The amendment would necessarily be drafted so that its

purpose is clear and not be exploited for other purposes.

A working group of agency, TIC and other relevant persons

would need to consider the powers, indemnification and

referring provisions that would enable the tribunal to operate

within the legislation.

Health promotion

713. Without activities to raise awareness, increase knowledge and

understanding of the effects of work organisation, work practices

and behaviour on the health of workers, the recommended

legislative amendments would have little “teeth”.

714. The agency therefore needs to work closely with the recommended

workplace health and safety council and the WorkCover Board to

develop a broad range of activities to support the National Strategy

to prevent priority occupational diseases and focus on the work

organisational aspects of risks to health.

715. Given that workplace health and safety agencies and general

health agencies are both working towards the prevention of the

same chronic diseases, it seems sensible that there should be

collaboration between them at state and federal levels. Workplace

advisory or awareness programs developed locally by the

247


workplace health and safety council or the WorkCover Board, and

delivered by Workplace Standards Tasmania, should be designed

to employ strategies that have proven to be successful in general

health promotion. Health promotion activities likewise should give

more emphasis to raising awareness of the issues within

workplaces, so that there is a whole of government approach. In a

complex area of preventing risks to health, this is likely to be the

most effective and efficient way to achieve the common objectives.

Recommendation 28:

It is recommended that collaboration with other relevant

agencies be used to raise awareness of the contributory workrelated

risk factors to chronic disease identified as priorities by

the National OHS and National Health Strategies.

It is recommended that programs, activities and services

delivered to workplaces take advantage of health promotional

methods that have proved to be successful.

The WorkCover Board, in fulfilling its promotion function

according the Act, and the recommended workplace health and

safety council may benefit from exploring a whole of

government approach to preventing work-related illness.

Recommendation 29:

It is recommended that the Inspectorate should receive targeted

training on how to advise businesses correctly in regard to the

impact of work organisation, work practices and management

of work.

Recommendation 30:

To reduce injury and illness in Tasmanian workplaces, it is

recommended that workplace health and safety training,

embracing awareness of the legislation and how to prevent

work-related injury and illness, should be a mandatory part of

all vocational and management training.

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Employers, principals, contractors, managers and supervisors

should all be actively encouraged to complete workplace health

and safety training. The State Government could lead the way

by initiating workplace health and safety training in all public

sector training provided for relevant supervisory and

management positions.

Recommendation 31:

It is recommended that the agency provide regular training

seminars for businesses on aspects of the legislation and

preventing injury and illness.

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CHAPTER 6

ADMINISTRATION AND OTHER MATTERS

If we had one wish, we need better, relevant information

from a responsive, proportionate regulator. The

regulator must be adequately resourced and be credible

– have they told us what the national targets are, or

where we are falling down, or helped identify joint

strategies? (Tasmanian Minerals Council)

The current administration of Workplace Standards

Tasmania is not as effective as it could be. Whilst a key

function of the inspectorate needs to be enforcement,

the majority of small and medium sized businesses

would benefit from a more pro-active, educative and

supportive role. …. There is widespread support from all

members of the Association for additional funding to be

made available for education and a co-operative

approach to OH&S issues in the workplace. Members

also made a strong suggestion that revenue raised from

penalties imposed under the Act be put back into

education. (Master Builders Association Tasmania –

MBAT)

716. Throughout this report we have commented on both legislative and

administrative matters according to the terms of reference for this

review. We have often commented that legislative amendment

alone will not prevent work-related injury and illness and in making

recommendations for legislative amendment we have also made

recommendations for administrative action.

717. Chapter 5 continued in this vein, discussing how the legislative and

administrative frameworks might be improved to address the eight

priority occupational diseases. We found that the traditional

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approach of the legislation would have limited effect in application

to work-related contributory risk factors for chronic diseases.

718. We therefore recommended strengthening current references in

the legislation to work practices by the inclusion of a specific duty

of employers (subject to reasonable practicability) to control the

risks to health and safety associated with work organisation,

management of work and work practices.

719. We recommended an increase in administrative activity to raise

awareness of the work-related factors contributing to the current

increase of chronic disease and recommended collaboration at

various levels - between relevant state departments and between

the state and federal agencies – to convey the broader preventive

message to control the work-related risks of chronic disease.

720. The previous chapter included reference to the important role of

training for inspectors, managers and workers and recommended

making workplace health and safety training a compulsory part of

all post-secondary core curricula as a means of raising awareness

of health and safety risks.

721. This chapter will consider the functions and roles of inspectors as

the “front line” of the administration of workplace health and safety

in detecting and investigating possible offences. It will also

consider the legislation according to term of reference 3: “to ensure

that the nature of offences is clear and that penalties associated

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with offences have appropriate deterrent effect so as to increase

compliance with the legislation”.

722. We open the discussion with two comments from respondents

about the administration of the legislation. They are typical of

responses received. Unanimously, stakeholders identified the

need for improvements in the way in which Workplace Standards

Tasmania administers the legislation.

723. Comments have referred to the need for more responsive,

proportionate, effective, better-resourced or more credible

administration. Many comments have focused on the Inspectorate

– its roles, functions, activities and training. It has seemed that

stakeholders see the Inspectorate as “the administration”.

Certainly for many the Inspectorate is the “public face” of

Workplace Standards. In considering some final administrative

matters, we consider the Inspectorate first.

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Inspectorate

724. The Act confers powers and functions upon inspectors to facilitate

or enforce compliance with the legislation at Sections 36 and 38 of

the Act. The powers are limited to:

• ascertaining whether an offence has been committed

(section 36); and

• in respect of safety and health risks (section 38).

725. There are no legislated powers or functions to provide advice,

furnish an opinion, educate, raise awareness or any other general

activity designed to highlight the requirements of the legislation.

Ascertaining whether an offence has been committed (section

36)

726. In order to ascertain whether the legislation is being complied with,

section 36 of the Act provides inspectors with powers of entry,

inspection, examination and inquiry; taking samples, photographs,

films, video or audio recordings; examining and copying records.

Inspectors are also empowered to require persons to answer any

question or provide any information “as may be necessary to

ascertain whether the provisions of this Act are being complied

with”.

727. Section 36(6) makes it clear that “[t]he person in charge of a place

that is the subject of an inspection under this section and any

employer at that place must provide such assistance as may be

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necessary to facilitate the exercise of the powers conferred by this

section”. [Section 36(6)]

728. If inspectors suspect on reasonable grounds that an offence

against the Act has been committed, they may seize and retain

anything that affords evidence of that offence.

729. Section 37 applies standard provisions that relate to how persons

must respond: how they must furnish information and comply with a

requirement made by inspectors.

730. Section 37 (1) (a) and (b) makes it an offence in relation to an

inspector to:

(a) obstruct, wilfully delay, threaten, intimidate or attempt

to intimidate an inspector, a person assisting an

inspector or an interpreter in the execution of the

inspector’s functions under this Act; or

(b) without lawful excuse, refuse or fail to comply with a

requirement made, or to answer a question asked, by an

inspector under this Act; …

731. Section 37, sub-sections (3) and (4) have been subject to debate.

By s37(3) a person is not excused from answering any question

asked, or providing any information required by an inspector on the

ground that the answer or information may tend to incriminate that

person.

732. However, sub-section (4) provides that any answer given in

proceedings for an offence against the Act is not admissible in

evidence against the person if [at (4)(a)] “the person claims before

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giving the answer or providing the information that the answer or

information may tend to incriminate the person”.

733. Inspectors are currently required to issue a “caution” before

requiring persons to answer questions in proceedings. Inspectors

claim that the caution they are required to issue and the

incrimination and admissible evidence provisions frustrate them,

nevertheless the privilege against self-incrimination is a general

principle applying to questioning that must be preserved.

In respect of health and safety risks (section 38)

734. Inspectors are provided with powers to serve notices to remedy a

situation where an inspector is of the opinion that the safety or

health of persons is endangered or where there is a contravention

of the Act at section 38.

735. Oral directions may be issued in cases where there is sufficient

urgency to warrant immediate action but these must be followed as

soon as practicable by a notice in writing.

736. Notices or directions are common instruments used to require an

employer, a responsible officer or other person, to remedy any

situation. If complying with the notice would have the effect of

causing the cessation or substantial cessation of the business, the

employer or responsible officer may request the Director of Industry

Safety (the Director) to confirm, modify or revoke the notice.

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737. The latter does not appear to apply where oral direction is given in

urgent situations, although it would apply to a notice issued

subsequent to an oral direction, and so there is some ambiguity or

uncertainty contained within these provisions. The provision at

s38(8) should not apply to situations that require urgent action in

order to prevent injury or illness or death. In any case, if an

application is made to the Director to confirm, modify or revoke the

notice, it must be confirmed, modified or revoked within 24 hours of

receiving the request.

738. It is very clear that inspectors do not have legislated powers to do

any more than what is provided for in the Act. Since the Act

provides them with protection from liability only in respect of the

powers and functions conferred by the Act, it would not be

surprising if they were reluctant to perform any function that is not

defined by the Act.

739. Against that background we consider employers’ oft-repeated

strong desire for greater advice and assistance to be provided by

inspectors with increased general inspections and audits, so that

the overall visibility of the inspectorate and the agency in

administering the legislation are increased.

740. Without amendments to the powers and functions of inspectors to

enable them to provide advice, education and other forms of

awareness raising activities, these are clearly outside the statutory

powers and functions of inspectors.

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Legislated powers to give advice, education, support

etc.

741. The Strategy of “raising community awareness”, according to the

WST Strategic Plan 2001-05 involves thirteen different activities

from awareness programs through to training. It was stated in the

Discussion Paper that the potential for increasing “pro-active” work

depends upon the workload generated by the number of

complaints and investigations that must be completed into incidents

occurring at workplaces (often called “reactive” work). Reactive

work cannot be ignored, or not done.

742. The discussion of enforcement in the WRMC CPM Report

acknowledges the variety of enforcement tools and protocols used

by jurisdictions. 170

It misleads stakeholders by stating

Inspectors appointed under legislation may visit

workplaces for the purpose of providing advice,

investigating accidents or dangerous occurrences and

ensuring compliance with the OHS legislation.

[Emphasis added.]

743. The Tasmanian Act does not confer powers to enable inspectors to

provide advice. For inspectors to do so would be to attract

potential liability since, as it has already been pointed out, they only

have immunity in discharging their legislated powers and functions.

170 Workplace Relations Ministers’ Council Comparative Performance Monitoring Report –

Comparison of occupational health and safety and workers’ compensation schemes in

Australia and New Zealand, Eighth Edition September 2006; Chapter 3 – “Enforcement”

p. 15.

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744. The chapter on enforcement in the CPM Report goes on to discuss

workplace interventions that are categorised as “proactive” and

“reactive”:

Proactive interventions are defined as all workplace

visits that have not resulted from a complaint or

workplace incident. They include all planned

interventions, routine workplace visits, inspections/audits

and industry forums/presentations (where an inspector

delivers educational advice or information).

Reactive interventions are defined as attendances at

work sites following notifiable work injuries, dangerous

occurrences or issuing of notices where comprehensive

investigation summaries (briefs of evidence) are

completed. Not all requests for investigations or

incidents result in a formal investigation. A range of

enquiries may be made in order to inform a decision on

whether an investigation is warranted. 171

745. The CPM Report identifies that in 2004-05, 67% of all interventions

were proactive, compared to 43% in 2000-01 (the “baseline” year

established for the National OHS Improvement Strategy).

746. Enforcement activity is tabulated for each jurisdiction at page 17 of

the Report. The figures reported for Tasmania in that table are

extracted for two years – the baseline year of 2000-01 and the

most recent, 2004-05 and reproduced in the table below, with

percentages calculated for the two types of interventions.

Year Total

“Proactive” “Reactive”

interventions

2000-01 4410 491 (11.13%) 3919 (88.86%)

2004-05 6964 2857 (41%) 4107 (58.97%)

171 WRMC (2006) CPM Report, p.15.

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747. The percentage of proactive interventions depends upon two things

the number of field-active inspectors employed 172 and the number

of reactive interventions that must be made.

748. In comparison with other jurisdictions, Tasmania has the lowest

number of field-active inspectors; however, it is misleading to look

at numbers of field-active inspectors in isolation. The calculation of

the number of field-active inspectors per 10,000 employees is a

more appropriate measure of the level of resources allocated to

field inspections/work visits.

749. In this respect, Tasmanian field-active inspectors are on a par with

South Australia – at 1.5 inspectors per 10,000 employees. (It is not

indicated in the report how “employees” are defined and whether it

includes workers who are not defined as “employees” according to

the definition of the Act.)

Enforcement Pyramid

750. Contemporary enforcement by inspectors involves a wide range of

potential activities and actions diagrammatically represented by the

“enforcement pyramid” which indicates that the greatest amount of

administrative effort consists of providing positive incentives for

improvement through activities to support compliance with the

legislation such as education, information and advice. These

172 As defined by the CPM Report, these are “gazetted inspectors whose role is to spend the

majority of their time enforcing provisions of the OHS legislation directly with workplaces i.e. a

compliance field role. They do not include managers of the inspectorate.” (CPM Report, Sept.

2006, page 16.)

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activities would be categorised as “proactive” according to the CPM

Report on enforcement.

751. The enforcement pyramid concept is hierarchical, moving from the

base (information and education designed to provide incentives

and increase knowledge and understanding); to the next stage of

persuasion (letters, oral or written notices to remedy deficiencies).

752. Higher up the enforcement pyramid are alternative administrative

actions that gradually increase the level of compulsion, including

infringement notices (“on the spot fines”); and finally at the apex of

the pyramid are the options for enforceable undertakings (as

alternatives to prosecution) or prosecution for breaches of the Act.

The power to enter into enforceable undertakings with employers

now acknowledges the value of alternatives to prosecution in

certain circumstances.

753. Prosecution, a tiny part of the overall enforcement effort, would

appear to many to be “the last resort”, but of course it is not the

case. Neither does its small area of the pyramid indicate that

prosecution occupies only a small fraction of resources. Far from

it. Investigation and prosecution is very resource-intensive.

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754. (See the diagram below – with acknowledgement to Neil

Gunningham, from whose PowerPoint presentation the diagram is

copied. 173 )

Enforcement Pyramid:

(Source: Gunningham (2006) after Ayres & Braithwaite (1992).

755. As the diagram indicates, by far the majority of inspectors’ activities

should be in the bottom three “layers” encompassing education and

persuasion. Persuasion, may be, as the pyramid indicates, “soft”,

involving advice or oral direction to remedy; or “hard”, involving the

173 Gunningham, Neil, Slide 8 of a presentation made at the fifth National OHS Regulatory

Research Colloquium, February 15-16, 2006. National Research Centre for OHS Regulation,

ANU: Canberra. We also acknowledge the original source from which Gunningham took the

diagram: Ian Ayres and John Braithwaite (1992) Responsive Regulation, Oxford University

Press, UK).

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issue of an infringement notice, improvement notices or

compulsory counselling.

756. The inspectorate has the power to issue notices or proceed directly

to stronger methods, depending upon the circumstances and the

health and safety “case history” of the business. Nevertheless, the

entire enforcement effort rests upon a broad base of information,

education and advice.

757. As we have already observed, the Act does not empower

inspectors to engage in activities that are located at the base of the

enforcement pyramid.

758. Other reviewers have encountered a similar situation. Laing, in his

review of the Western Australian OHS Act 1984, for example,

writes “an inspector does not have the power to issue information

and advice although it is an important and common practice that

assists in the prevention of injury and disease”. 174

759. In seeking advice on how to approach a problem, or even in the

most basic of cases, in seeking to understand what is required of

them by the legislation itself, duty holders should expect and

receive guidance. Much of the guidance that is available is

produced by the WorkCover Board of Tasmania in the form of

publications, based upon the function assigned to the Board by

section 6(a) of the Act – “to promote the prevention of injuries and

174 Laing (2002), para 1133; p. 278.

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disease at workplaces and the development of healthy and safe

workplaces”.

760. Of course an inspector may, without fear of liability, refer workplace

parties to any written information, such as a standard that is

referenced or guidance that is published and readily available to

any workplace. (Many such publications may be accessed by

contacting the agency – through the website or through the

Helpline). Yet, sometimes nothing works better than having things

explained immediately on a face-to-face basis. Employers would

undoubtedly be irritated and confused if, when visited by an

inspector, they are told they must contact the agency “for advice or

guidance”.

761. We conclude that inspectors, at the “front line” of the agency,

should be able to exercise their discretion in providing advice and

be involved in education or other awareness raising activities,

without fear of liability. If this type of activity will facilitate the

achievement of the legislation’s objectives to prevent injury, illness

or death, then we believe that the Act should expressly give

inspectors those powers and functions.

Recommendation 32:

It is recommended that an amendment to the powers and

functions of inspectors be drafted to include educative and

advisory powers and functions to:

- meet stakeholders’ needs for more direct advice;

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- enable the increase in awareness-raising activities that we

have consistently recommended throughout this report; and

- provide indemnification of inspectors when engaging in

advisory or educative functions.

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Small business support

762. The majority of respondents are in favour of providing greater

support in workplace health and safety to small business.

763. On the theme of providing advice and education, the Tasmanian

Automobile Chamber of Commerce writes

Government needs to assist smaller employers meet

their responsibilities by providing practical guidance,

information and assistance. Larger employers should

be expected to have the capacity to do so from within

their existing resources. TACC considers that

Workplace Standards should introduce a small business

program comparable with that which is running in

Victoria and currently being adopted by a number of

other State jurisdictions. …

… TACC considers that very few of its small business

members would have any concept of compliance with

the Act or Regulations at all. (TACC)

764. Similarly the Tasmanian Forest Contractors Association believes

that Tasmania should consider the Victorian arrangement whereby

small business is able to obtain three hours of paid consultation

from the regulator.

765. The Tasmanian Minerals Council offered the advice that

the most effective forms of communication with small

business are information sheets posted out to the site

manager, backed up by face-to-face workshops where

the business comes to the regulator, followed up by site

visits. Information sheets should be to the point and

contain a photo or illustration. (TMC)

766. This is a “three pronged” planned communication strategy involving

co-operation between industry and the agency in delivery and

response. It illustrates how a small business support program

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might operate. Site visits, conducted either by small business

advisors or by inspectors would become the means for confirming

whether the first two parts of the communication strategy had been

effective.

767. Outside the formal seminar/workshop format, inspectors can

provide assistance to workplace parties simply by answering

questions, raising awareness of the duties and obligations of

persons under the Act, and promoting the adoption of risk control

strategies to prevent injury, illness or death. As one of the

respondents commented, it may mean nothing more than stating

an outcome or objective to be achieved and leaving the duty holder

to do everything they reasonably can to achieve it.

The

accountability of duty holders is not changed and the role of

inspectors is not confused.

768. We are only too aware that a small state like Tasmania does not

have the same level of funding or resources as the larger states.

Our ability to provide services is dependent upon funds being made

available either through the State Budgetary processes or through

arrangements to allocate the levy collected by WorkCover

Tasmania. (The financial capacity might be reduced if a number of

the larger employers who currently contribute to the workers’

compensation pool of funds leave the state scheme and join

Comcare.)

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769. We see value in developing programs to assist small business

where funding arrangements could be made, and see the potential

for the WorkCover Board to allocate funding for such programs on

the basis of integrated strategies and business plans received from

the recommended workplace health and safety council.

Recommendation 33:

It is recommended that funding arrangements are negotiated

between the WorkCover Board, the agency and the Workplace

Health and Safety Council to develop and implement additional

awareness raising, educative and advisory programs that

support the needs of small business.

Training issues

770. In addressing many of the issues associated with the prevention of

illness arising from the contributory factors we discussed in the

previous chapter, inspectors will themselves need to be fully aware

of the risks to health. As with other prevention aspects, inspectors

require “adequate and appropriate training to enable such issues to

be quickly identified and effectively dealt with” (Anon.).

Recommendation 34:

It is recommended that inspectorate training programs include

training to equip them with the knowledge and skills to be able

to identify risks and prevent illness arising from work

organisation, work practices and the management of work and

advise businesses appropriately.

771. Many respondents agreed with the suggestion in the Discussion

Paper that the duty holder (employer / responsible officer /

accountable person) must provide elected representatives with

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training in workplace health and safety management as well as

effective skills. They went further and suggested that the training

should comply with minimum standards or an approved curriculum

or course; that Workplace Standards should have a role in

developing the course or standard or even delivering the training.

772. Some respondents raised the issue of providing training to

accountable persons, responsible officers and employee safety

representatives. Injury Prevention Management (IPM) commented

that health and safety committees are often unproductive unless

trained and well chaired; while S.R Porter said that without training

to perform the function “you will end up with persons who like the

title “Safety Representative” but know little about occupational

health and safety”.

773. The AWU “believes that a provision in the Act mandating training

for all employees in workplace health and safety will achieve the

level of awareness and responsiveness that the review team is

attempting to achieve”.

774. The ACCI National OHS Blueprint, Modern Workplace: Safer

Workplace makes a clear statement about the “powerful common

interests between employers and employees in achieving safer

workplaces” and that “OHS is a core business activity in the

modern management of workplaces”. 175

The ACCI Blueprint

175 ACCI OHS Blueprint pamphlet at ( http://www.acci.asn.au,).

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highlights the importance of training in OHS for industry and talks

about education in basic safety principles at a young age.

775. We agree that workplace health and safety should be part of

industry training and would go so far as to suggest that workplace

health and safety should be a part of the core curriculum in all postsecondary

compulsory education and training courses.

776. Such training should include a knowledge of workplace health and

safety obligations as well as risk management processes. There is

also value in training that is associated with typical occupational

hazards relevant to specific occupations, which may involve

knowledge of recognised standards or codes pertaining to the

particular industry or occupation.

777. We believe the training should apply to young people who are most

at risk, particularly in hazardous industries like building and

construction, where training should include the Working at Heights

or Prevention of Falls codes of practice.

778. Persons re-entering the workforce after a long absence, or persons

changing careers, would also benefit from workplace health and

safety training.

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779. Such education and training would certainly help to create a

“culture of mutual and shared responsibility” based on shared

knowledge and understanding. 176

780. The review team is not convinced, however, that specific training of

elected safety representatives or committees should be made a

legislative duty of employers. Certainly the occupants of those

positions should have a good level of awareness of the legislation

and they should also have a good level of awareness of what

constitutes a risk to health and safety. Organisations that are large

enough to have committees are also large enough to satisfy their

training responsibilities. In smaller workplaces, where employee

representatives are elected, providing training may be more

difficult.

781. The State may satisfy its role in supporting the framework by

raising general levels of awareness and providing advice and

support when it is required. Seminars or workshops are provided

now for workplaces on certain issues and these activities should

definitely be continued subject to the availability of resources.

Formal training of ESRs or HSC members is an issue that may be

referred to the proposed workplace health and safety council to

consider.

176 ACCI Blueprint, pamphlet.

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Resources

782. In consideration of all the suggestions put forward by respondents

for increased administrative activity in providing awareness

programs, there is inevitably the question of ordering priorities,

allocating resources and of course, sources of funding for

additional activities.

783. The proposed workplace health and safety council, the WorkCover

Board and Workplace Standards Tasmania should explore funding

possibilities, including joint arrangements with other involved

agencies.

Recommendation 35:

It is recommended that the agency enter into discussions with

relevant education and training bodies to discuss the potential

for the inclusion of core OHS education and training in postsecondary

courses. The outcome of discussions could become

part of a feasibility study for the Minister to determine whether

to proceed to the next step – workplace health and safety

education and training strategy (see next recommendation).

Recommendation 36:

It is recommended that representatives of the agency, the

WorkCover Board and Workplace Health and Safety Council get

together to determine a workplace health and safety education

and training strategy to be presented to the Minister for Justice

and Workplace Relations and the Minister for Education.

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Director’s powers and functions

784. Section 39 of the Act moves away from inspectors and deals with

the powers of the Director in the prevention of accidents and risks

to health.

785. Accordingly the Director may direct employers or responsible

officers in writing to take action specified in the notice to prevent

injury or risks to health of any person at a workplace.

786. The actions may include any or all or any combination of:

• Monitor health of persons

• Keep information and records relating to those persons

• Employ or engage a person, being suitably qualified, to

provide advice etc.

• Monitor conditions likely to affect the health and safety of

any person

• Prepare and implement a safety management plan

• Prepare a written health and safety policy.

787. Section 39(3) requires an employer or responsible officer on whom

the notice is served to comply with the notice. At s39(4), where

employers or responsible officers are required to monitor the health

of persons, they are required to keep information and records.

788. Looked at in the context of earlier provisions of the Act, we find

some duplication. For example, section 9(2)(a) requires an

employer, “if hazards exist and have been identified to the

employer, in writing, by the Director, to monitor the health of

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employees in their employment with the employer to ensure the

prevention of work-related injuries and illnesses”. We do not see

that s9(2) is different from the relevant provisions of section

39(2)(a) and (b); s39(3) and s39(4).

789. Earlier in this report we commented upon section 9(2)(a) and (b)

being “out of place” since the provision deals with a power of the

Director rather than a duty of employers and it was recommended

that the subsection be removed from section 9.

790. We reiterate that the provision for duty holders to monitor health

should not be dependent upon the Director’s omniscient or

omnipresent power to detect conditions or exposures that need to

be controlled. Section 9(2)(a) should be primarily a duty of

employers/responsible officers etc. “where risks to health exist, to

monitor the health of persons employed or engaged to ensure the

prevention of work-related illness”.

791. Another example of duplication is found where section 14A Order

to recall, destroy, &c., plant, substances or structures is duplicated

by s39(1)(b).

Recommendation 37:

It is recommended that section 9(2)(a) and (b), and section 14A

be further examined in conjunction with section 39. If it is

agreed that they substantially duplicate the powers of the

Director in s39, it is recommended that s9(2)(a) and (b); and

s14A be removed for the purpose of consolidating all the

powers and functions of the Director in one place for easy

reference and greater clarity.

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792. In the event of largely itinerant workforces (on-hired employees or

contractors) how is a composite record of monitoring activity to be

kept particularly over the long term, and who should keep it?

793. There is a need for a consolidated record, for exposures are long

term and cumulative, and the prevention of illness will be

dependent upon knowing about the exposures at more than one

workplace under the control of other employers.

Recommendation 38:

It is recommended that the issue of monitoring health, as one

means of preventing illness, and keeping records of monitoring

conducted, be further considered by the agency in view of

changed employment arrangements. Consideration should

include how to maintain consolidated records, particularly for

persons who are self-employed, on-hired, or working regularly

between different states.

“Right of entry” provisions for authorised

representatives

794. The Discussion Paper (DP) raised the issue of third party

“authorised representatives” being given access to workplaces in

order to represent employees (and other persons engaged) in

matters involving risks to health and safety. (DP, pp 15-16.) We

suggested that the Act be amended to allow access to

“appropriately qualified and trained representatives of employee

(“worker”) organisations or employer organisations to assist with

health and safety matters”. (DP, p.17)

795. Submissions on this issue were polarised along the lines of

employee and employer representative organisations.

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796. The Construction Forestry Mining and Energy Union (CFMEU),

Construction and General division, Tasmanian Branch responded

by stating

In our opinion the Tasmanian WH&S Act places

unrealistic expectation on the employee. The Act

requires employees to initiate representational

consultative processes (ESRs and Safety Committees)

where an employer does not do so. Clearly it is

oxymoronic to expect employees working for

unsympathetic employers to contest the intent of these

employers. Certainly in the Tasmanian building and

construction industry the situation regarding participative

representation is as bad as, if not worse, than in

Victoria. …

We believe the role of Union Officials in being able to

exercise the powers of entry and enquiry, is a sensible

response and that will enable the authorized Union

representatives and the Government’s administration to

operate in partnership to deliver a healthy, safe and

productive construction industry in Tasmania. (CFMEU,

C&G Division, Tasmanian Branch)

797. The Australian Workers Union, Tasmania Branch submitted

The Robens model is built on a number of assumptions

including the fundamental proposition that workers are

“empowered” to protect their Health and Safety.

Assistance from representatives of employee

organisations can only be of benefit as an extra

measure to improve safety. …

Additional scrutiny by third parties such as employer and

employee organisations will provide a level of assistance

to their respective constituents, which is presently

absent. As a fundamental objective of such

organisations is to protect the interests of their

constituents, an active role in Workplace Health and

Safety is clearly consistent with their charter and can

only provide a positive influence on improved health and

safety performance. (AWU, Tasmania Branch)

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798. Unions Tasmania similarly stated

… federal employment legislation currently being

imposed is aimed at individualizing the employment

relationship and thus disempowering workers runs

counter to current health and safety best practice. We

are at risk of returning to the bad old days of making

choices between ongoing employment and safety. A

right of entry for employee representatives is essential to

providing appropriate support. (Unions Tasmania)

799. The TCCI is totally opposed to the suggestion of union right of

entry. The Tasmanian Forest Contractors Association (TFCA)

“does not support the intervention of third parties, other than

industry regulators”. Likewise, the Housing Industry Association

(HIA)

does not support the intervention of a third party with

health and safety issues. …. Instead of having impartial

individuals concerned only with safety, it would create a

situation where inspections are done by people with

much wider agendas. (HIA)

800. Individual employers, like representative employer associations,

were adamant that right of entry and associated powers for

persons other than workplace inspectors should not be provided.

801. Comalco Bell Bay (CBB), while opposing the inclusion of right of

entry provisions in the Act, also proposed that “any right of

workplace entry and associated powers should be restricted to that

which is necessary to provide for the identification and resolution of

workplace hazards and risk.”

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802. The CBB submission proposes that if right of entry is to be given by

the Act, the Victorian provisions should be used as a model. The

provisions should include limitations safeguarding abuse and also

“exempting those industries that have in place externally audited

workplace health and safety management systems, including

employee representation of site health and safety committees”.

(CBB) This is a suggestion worthy of serious consideration.

803. The review team is aware that during the time of the review, the

Secretary of the agency authorised a trial of union representatives

to enter workplaces on workplace health and safety issues.

804. In view of the current trial in progress the review team makes no

recommendation on the issue since it is anticipated that the agency

would give the issue further consideration. Nevertheless, because

the Workplace Relations (Work Choices) Amendments allow

unions entry into workplaces for genuine workplace health and

safety reasons, subject to corresponding provisions in the State or

Territory OHS Acts, the inclusion of a provision enabling union

entry to provide support in genuine workplace health and safety

matters would seem appropriate. At present there is no such

provision in the Tasmanian Act.

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Penalties

805. Penalties for workplace health and safety offences have been the

subject of discussion in other major workplace health and safety

reviews and subsequent changes have aimed to:

• Bring about consistency in maximum levels of workplace

health and safety monetary penalties across the

jurisdictions;

• Provide comparability of workplace health and safety

maximum monetary penalties and maximum penalties for

offences according to other Acts;

• Introduce alternatives to monetary penalties, including

custodial sentences; and

• Extend liability for offences to corporate

directors/company officers.

806. Many views about penalties have been expressed in general

discussion, some of which are specific to workplace health and

safety penalties, some of which are general to all offences. While

we put forward some of the familiar arguments in the Discussion

Paper as suggestions to stimulate thought and response, we wish

to point out that these views, like those put forward for many other

issues in the paper, are not necessarily the views of the review

team. Some views expressed on penalties include:

• That the size of a penalty should be proportionate to the

effect or impact of the offence;

• That penalties awarded are often handed out that are well

below the maximum possible;

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• That penalties should be awarded that will punish

offenders and strongly deter others from the possibility of

offending; and

• That penalties for serious workplace health and safety

incidents, accidents, or deaths should be on a par with

penalties for other serious crimes.

807. The level of debate and strong opinion on penalties leaves us in no

doubt that this is a specific concern of many.

Deterrence

808. Opinions about the deterrent value of penalties varied. We

observed that some advocated a retributive function while others,

mostly in the majority, advocated a persuasive or restorative

function for penalties.

809. For the latter, many respondents argue that the primary function of

penalties is not to deter but to educate or persuade. In the words

of Injury Prevention Management (an OHS consulting firm), “once a

penalty for an offence is handed down by the courts, the grapevine

works well to deter others”.

810. On the issue that greater penalties necessarily have greater

deterrence, one respondent wrote, “some writers would say that it

is more often than not incorrect”. (Anon.)

811. One respondent finds it “incomprehensible that abalone, gaming

machines and federal corporate business laws evidently command

greater community respect” in assigning far greater penalties for

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offences in those instances than are provided for workplace health

and safety offences.

812. If any major project were to review Tasmanian legislation to

compare relative values of penalties (certainly a major undertaking)

then perhaps such concerns might be addressed. Similarly, the

Attorney-General might request that penalties under State

legislation be examined with a view to “harmonising” penalties and

sentences between various Acts.

813. The question for this review is how can the legislative objectives of

workplace health and safety be achieved? Our response is based

on the enforcement pyramid. Prevention of work-related injury,

illness and death begins with activities designed to educate, advise

and inform.

Where that does not succeed with individual

workplaces or industry sectors, there is scope for applying

incrementally tougher measures. Thus the strategy would be to

use “soft” or “hard” persuasion, compulsion and finally prosecution.

814. Other jurisdictions have recently increased maximum penalties for

general duty offences, some have introduced new offences relating

to “negligence”, while others have introduced custodial sentences

(or custodial sentences plus monetary penalties) for high level

culpable breaches of their workplace health and safety Acts.

815. In Tasmania, the maximum penalty for an individual offence is

$50,000. The maximum penalty for a corporate offence is

$150,000. Before other jurisdictions increased their penalties,

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Tasmania’s penalties for an individual offence were on a par with

Victoria’s, and not far below New South Wales’s maxima. The

maximum was, and is, well below the maximum for corporate

offences in the larger states.

816. There is no consistency among the jurisdictions on penalties. The

general duties are very similar. Should a failure to comply with a

general duty in Victoria or NSW or Tasmania be susceptible to

different levels of penalties?

817. For Tasmania to increase its maximum penalties in line with other

jurisdictions, we may need to determine which jurisdiction we

should benchmark with and on what criteria. Should our maxima

be benchmarked with jurisdictions that have roughly similar

industry structures, or similar populations, or should some other

criterion be used?

818. As Maxwell pointed out, we agree that the maximum penalties

should be high enough “to enable the court to deal appropriately

with offences of the highest degree of culpability, which will include

offences committed by repeat offenders”. 177

819. We are aware that the Law Reform Institute, in its Issues Paper

(No. 9) on Criminal Liability of Organisations in 2005, canvassed

issues relating to workplace health and safety, including issues

177 Chris Maxwell, para. 1823, p. 375.

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associated with industrial deaths. To date we are not aware of a

report.

820. Some aspects of penalties and sentencing may also have been the

subject of a report on Sentencing to the Government by the Law

Reform Institute (University of Tasmania). An Issues paper was

released in 2002, but we are not aware of a report being released.

821. There is, in any event, a view that monetary penalties are not

effective in dealing with large corporations. A corporation that can

afford to expend very large sums of money (millions of dollars) on

feasibility studies or in pursuit and defence of legal action, is

unlikely to be concerned about the possibility of being fined some

thousands of dollars for a workplace health and safety offence.

822. There is also a strong possibility that many of the larger

corporations in Tasmania, those that are “multi-State” corporations,

will elect to join the Commonwealth Comcare workers’

compensation scheme that is tagged to the Commonwealth OHS

legislation. Thus the larger corporations who elect to join Comcare

would be outside the State’s preventive as well as compensation

spheres.

823. This must be considered in making recommendations about the

administration of workplace health and safety, including

recommendations about penalties for offences. The departure of

larger corporations from the workers rehabilitation and

compensation frameworks (and hence the workplace health and

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safety framework) would seem to make the question of increased

corporate penalties an unnecessary question; however, we are not

anticipating a mass exodus from the Tasmanian workers’

rehabilitation and compensation scheme. We would not wish the

issue of penalties to become a deciding factor for multi-state

corporations – whether to stay or go.

824. The remainder – those that constitute the larger share of the

number of businesses in the state although potentially having a

smaller number of people employed – comprises the state’s small

and micro-businesses.

825. Other respondents emphasised the need for WST to explore the

use of non-monetary penalties such as “negative media coverage”

(Hobart Water) since “damage to community reputation and custom

is a far greater deterrent than the size of the penalty” (TCCI).

There is clearly scope for the agency to use these and any other

methods of publicising prosecutions.

826. It has been observed that prosecutions (and therefore imposition of

penalty) for breach of statutory workplace health and safety

requirements are rarely successful unless an injury has occurred.

One respondent commented “a major reason for this is the way in

which offence provisions are designed. Many of the hurdles which

lie in the way of obtaining a conviction could be overcome by

casting offence provisions in different terms”. (Anon.)

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827. We have referred in this report to isolated examples in the

legislation where offences, such as failure to keep records of risk

assessments, appear to be arbitrary, but we have not delved into

the issue of why certain aspects should be offences commanding

penalties and others not. That would be a separate exercise, not to

be encompassed by this review.

828. We do believe that a closer examination of offences and penalties

is warranted, based upon the need for some consistency between

the level of penalties for offences in Tasmania and other

jurisdictions; however, given other factors to be considered, we

recommend approaching the issue of penalties with caution.

829. It may be appropriate for the Minister and/or the agency to refer the

issue of consistency in penalties to the Council of Australian

Federation, for consideration.

Recommendation 39:

It is recommended that, while Tasmanian penalties should be

on a par with other States and Territories, benchmarking should

be based on objective criteria. Any increase should be

approached with caution. Further consideration should be

given to the issue of penalties by the agency, keeping in mind

the size of most of Tasmania’s businesses.

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Industry codes of practice

830. The Discussion paper released in June 2006 raised Codes of

practice as an issue for discussion. Opinion on codes of practice

ranged from the view that “most employers would be unaware of

the existence of Codes of Practice and if they were aware of them

would find them of limited use” (TCCI); to the comment that “Codes

of practice are the preferred manner of guidance for small

business, however as stated in the paper the existing codes of

practice are basically a `cut and paste’ of regulations”. (HIA)

831. Minimalist codes of practice that aid in the process of controlling

certain specified risks to safety or health appear to be universally

preferred to the production of reams of paper documents.

832. One respondent asks why does not Tasmania examine all existing

codes of practice from around Australia and adopt those that would

be helpful here. The HIA volunteered that they would be “delighted

to be involved in a review of Codes of Practice in Tasmania in

order to meet these needs”.

833. As a primary means of providing practical guidance to workplaces,

we recommend that codes of practice should be simple, usable,

intelligible and non-statutory. Industry is not prevented from

adopting codes prepared elsewhere and, provided they meet the

basic requirements, if an industry sector or representatives of

industry generally decide that they wish to gain Ministerial approval

of a code of practice, there should be no impediment.

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Recommendation 40:

We recommend that the proposed Workplace Health and Safety

Council consider the issue of codes of practice, and invite the

HIA and other interested parties to be involved.

Other matters

834. This report concludes with brief consideration of some issues that

were raised with us by inspectors. The first is the issue of Crown

liability; the second is to do with “designated workplaces”.

Crown Liability

835. Our attention was drawn to a perceived deficiency of the Act in

respect of how it applies to the Crown, specifically how it applies to

the Crown’s engagement in “industry” according to the

interpretation of “industry” in section 3 of the Act.

836. The Long Title of the Act as “An Act to provide for the health and

safety of persons employed in, engaged in or affected by industry”.

“Industry” in section 3 is defined to mean “any industry, trade,

business, undertaking, profession, calling, function, process or

work in which persons are or were employed or engaged”.

837. It has been queried as to whether “public administration” is covered

by the definition of “industry”. Any doubt on the matter might be

simply clarified by the inclusion of “public administration” in the

definition.

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838. Section 4 of the Act binds the Crown “in right of Tasmania and, so

far as the legislative powe