DEPARTMENT OF JUSTICE
SAFE FROM INJURY AND RISKS TO
Review of Workplace Health and Safety in
Denise Brown & Steve Hyam
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
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
Steve J. Hyam, Project Director, & Denise Brown, Senior Review Officer
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.
Australian Bureau of Census and
Australian Chamber of Commerce
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
Australian Safety and Compensation
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
Construction, Forestry, Mining and
Energy Union (Mining Division)
Council of Australian Governments
Comparative Performance Monitoring
Department of Employment, Industrial
Relations and Training
Department of Infrastructure, Energy
Department of Immigration and
Review of workplace health and
safety in Tasmania 2006, Discussion
Paper (June 2006)
European Network for Workplace
Housing Industry Association
Her Majesty’s Stationery Office
Health and Safety Executive (UK)
International Labour Organisation,
Metal Industries Association
Medical Journal of Australia
National Chronic Disease Strategy
National Cancer Statistics Clearing
National Data Set
National Hospital Morbidity Database
National Health Priority Action
National Institute for Occupational
Safety & Health (USA)
National Notifiable Disease
National Occupational Health and
National Research Centre for OHS
Organisation for Economic Cooperation
Occupational Health and Safety
Recruitment and Consulting Services
Tasmanian Automobile Chamber of
Tasmanian Chamber of Commerce
Tasmanian Minerals Council Ltd
World Health Organisation
Workplace Relations Ministers’
ACKNOWLEDGEMENTS ......................................................................................................... 2
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
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
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
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
Social responsibility and shareholder control ............................................................... 151
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
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
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
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
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
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
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.
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
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,
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
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.
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
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.
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
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 -
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
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.
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
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
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
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
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
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. 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
SUMMARY OF RECOMMENDATIONS
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.
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.
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.
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.
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
It is further recommended that in all national and local fora, that
workplace health and safety matters should be given balanced
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.
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
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
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
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.
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.
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.
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.
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”.
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.
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.
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.
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
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.
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.
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
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”.
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.
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”.
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.
It is recommended that the Act be amended to include a definition of
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.
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).
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.
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.
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
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
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.
It is recommended that the agency provide regular training seminars
for businesses on aspects of the legislation and preventing injury and
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
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.
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
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).
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.
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.
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.
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
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.
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.
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.
We recommend the removal of Part 4 from the Act.
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
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.
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
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
quickened. 1 As a result of reforms, Australia has seen accelerated
productivity growth and changes in the composition of employment
by industry. 2
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/)
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
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.
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.
positions as well as encouraging early retirement. It has a similar
impact to one-off downsizing or restructuring that involves loss of
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.
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.
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.)
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)
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.
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.
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
Tasmania is actively encouraging skilled migrants,
particularly health specialists and general practitioners, to meet its
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
12 The Department of Economic Development website provides a skills shortages list but also
indicates potential business opportunities for skilled migrants.
13 ABC Tasmania (Monday, 25 September, 2006) “Tasmania’s migrants net highest wages”.
14 Peter Wels, Stateline “Refugees” 24 March 2006. ABC Radio
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
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.
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
16 Australian jurisdictions passed “unfair contract” legislation throughout the 1990s and early
2000s to establish “fair”, minimum, contract conditions.
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:
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.
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
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
21 ILO (2006) Changing Patterns in the World of Work, Geneva. Retrieved July 2006 from
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
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
Clinical practitioners have reported increasing stress-
and mental illness-related morbidity and mortality as features
“characterising societies in distress and undergoing dramatic
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
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:
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).
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
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
… 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.
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”.
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.
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
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
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
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
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
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
ecause they can better balance work and family
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
69. “Enterprise” captures an attitude or state of mind, describing
“boldness or readiness in undertaking, adventurous spirit, or
Used this way the term expresses the idea of individuals
breaking new ground, taking risks (a “new breed” – as described by
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
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)
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.
Reviews of workplace health and safety in other
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
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
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.
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.
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
86. Maxwell recommended a strengthening of consultation,
participation and representation provisions in the OHS Act.
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
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
promoting fairness, consistency and transparency in the
enforcement of the legislation, [and]
bringing penalties broadly into line with other
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
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
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.
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
94. The Issues Paper sought comment on:
• the level of guidance on reasonably practicable and risk
• 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
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
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
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 of “officer” 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.
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
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
• Training for responsible officers, health and safety
representatives and health and safety committee
• 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
• Alternative, non-pecuniary, penalties introduced; and
• An amendment that allows prosecution of government
departments by the Director of Public Prosecutions,
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
106. The WA review proposed changes to the operation of provisional
improvement, improvement and prohibition notices; the status of
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
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:
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.
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.
as targets for Australian jurisdictions to reduce work-related
fatalities and the incidence of workplace injury. 37
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
120. The nine action areas are:
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.
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.
122. The National Strategy establishes targets for national improvement.
With 2001-02 Compensation Data used as the base line, the
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.
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
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
The CPM Reports are available at http://www.workplace.gov.au/cpm.
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
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
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:
Fatalities per 100,000 Employees
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
(Source: unpublished internal document provided by Scheme
Improvement section, WorkCover Branch)
Incidence rate for compensable work-related injury and
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
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
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
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
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.
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.
(53.9%), followed by Fractures (10.8%) and Anxiety/stress disorder
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
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.
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.
WORKPLACE HEALTH AND SAFETY: ROBENS
“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
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
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
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
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.
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.
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
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
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 ."
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
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
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
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.
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
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.
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
“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
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.
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.
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
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
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
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.
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
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
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
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).
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
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.
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.
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
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
He supported the inclusion of established and
recognised industry standards as statutory requirements within
198. Australian workplace health and safety legislation did not follow the
Robens framework entirely. Elements of the earlier (pre 1970s)
style of legislation survived.
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
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
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
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
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.
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.
213. It is also worth considering his view that greater inspection and
prosecution activities are needed to maintain improved health and
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
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.
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
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
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.
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
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.
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
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.
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.
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
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
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.
75 ibid, p. 2.
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
The future of the legislative framework for workplace
health and safety will therefore depend on the outcome of this
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.
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
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
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
78 Robens, “The use of non-statutory codes and standards”, paras 149-150, p. 47.
79 Ibid, para 151, p. 47.
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
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
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.
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
… 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
244. Each National Standard is accompanied by a National Code of
Practice (and Guidance Notes in some cases) so that, in total,
there are hundreds of pages of potential regulations, that would
add to the regulatory and administrative burden for both the State
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
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.
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
81 Lord Cullen (1996) “The Development of Safety Legislation”, Royal Academy of
Engineering and Royal Society of Edinburgh Lecture.
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
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
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
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.
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).
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.
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
a safe working environment; and
safe systems of work; and
plant and substances in a safe condition; ” &c
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;
(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
(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
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
(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
(d) to provide for consultation and co-operation between
employers and employees in achieving the objects of
(e) to ensure that risks to health and safety at a place of
work are identified, assessed and eliminated or
(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
(h) to deal with the impact of particular classes or types
of dangerous goods and plant at, and beyond, places of
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
(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,
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.
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
‘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
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.
public interest regulatory requirements and deliver good
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
The mechanisms for monitoring and performance
measurement are relevant and explicit; and
The statutory framework is well understood and fit for
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
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),
86 Ibid, p.5.
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
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
• 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
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
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
[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
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,
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
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
to the knowledge of available, practical solutions.
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.
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.
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.
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.
It is further recommended that in all national and local fora, that
workplace health and safety matters should be given balanced
RELATIONSHIP BETWEEN LEGISLATION AND
Each successive statute aimed at remedying a single
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
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
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
(This appears as the quotation at the
beginning of this chapter.) Thinking about Webb’s remark, Robens
… 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.
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
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.
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.
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
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
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.
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
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
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
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
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:
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
320. The CFMEU (Mining and Energy Division) Tasmanian Branch, for
example, submitted for the inclusion of “check inspector” provisions
95 Maxwell, p. 9.
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
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
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
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
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.
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
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.
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 –
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”.
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.
334. This is sound advice and applies as much to alliances between
industry and government as it does to alliances forged within
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”.
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’
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’
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
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.
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
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
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
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.
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
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
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
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
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.
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
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
360. In giving consideration to the recommendation for a workplace
health and safety council, the agency should consider the effect of
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.
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.
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”.
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
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
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.
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
370. Yet, he commented, the program had been introduced at a cost to
“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
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.
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.
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.
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.
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
381. Although the Tasmanian legislation does not prescribe the making
of workplace policies, employers might nevertheless use them
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
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
determining who are the accountable parties and who is to be
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
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
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
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,
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
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.
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
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.
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
control the level of risk of injury, illness or death occurring. (This is
explored in the next chapter.)
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
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.
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
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
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
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.
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
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.
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.
414. Another variation on the notion of control advanced by
stakeholders is “authority”.
For example, Unions Tasmania
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
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
persons who exercise management authority in or for the
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
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
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).
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
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.
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
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.
the duty holder and the contractor, the severity of the
risk and the duty holder’s knowledge of the contractor’s
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
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.
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.
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.
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
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;
(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.
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
wish to reduce workplace injury, illness and death, we need to
communicate in language that everyone can understand.
On-hired services (on-hired employees and on-hired
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
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
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”.
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
(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.
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
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
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.
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
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
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
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.
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
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.
education or training institution and should then continue in the
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
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.
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
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).
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
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.
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.
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).
language of the Act has an interesting effect. When the Act
“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.
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
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
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
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
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
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”.
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
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.
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
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
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
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.
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
“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.
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”.
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”
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.
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”.
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.
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.
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
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
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.
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
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.
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).
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
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).
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
(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
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.
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”.
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
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
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:
Changing work environment, changing workplace
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
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.
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
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
…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.
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.
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
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.
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.
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,
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.
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.
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.
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
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
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
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.
556. Campbell notes “Australia appears to have had by far the largest
increase in average hours for full-time employees since the early
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/.
access to technology which keeps workers “in touch” with their
place of employment, making it more difficult to disengage from
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
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
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.
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:
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
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
• 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
• 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).
• 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
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
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
• 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.
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
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
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.
Legislative obligations to identify hazards and control
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.
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
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.
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.
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
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.
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
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
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
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.
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
• 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
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.
might have seemed to be a straightforward and simple approach to
preventing injury is rendered complicated by all these
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,
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
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:
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.
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
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
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”.
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.
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,
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
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
• 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
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
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
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.
where management control is translated into a workplace
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
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
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
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
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.
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”.
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.
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
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
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.
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.
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.
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
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.
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.
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
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
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
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)
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
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.
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
(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
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
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
workplace agreements that have the potential to affect health and
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.
decision. The decision remains that of the accountable person or
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
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
in the legislation, should therefore apply to consultation “with all
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
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
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.
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.
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;
• Contact dermatitis;
• Infectious and parasitic diseases;
• Noise induced hearing loss
• Cardiovascular disease;
• Musculoskeletal disorders (MSDs); and
• 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
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.
• for any process involving lead, to the National Standard
for Control of Inorganic Lead at Work issued by Worksafe
• 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
• 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
• 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.
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
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/).
Cardiovascular disease, musculoskeletal disease and
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
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
162 Ibid, p. 26
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”.
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
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
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.
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.
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
168 See ENWHP (Germany) http://www.enwhp.org/news/workhealth.php?news=4) and
WHO, Occupational Health – Workplace Health Promotion
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
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
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
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
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
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
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
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.
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
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
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.
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.
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
710. Currently it has no powers to carry out such activity and the parties
involved would have to give those powers.
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
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.
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.
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
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.
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.
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
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
It is recommended that the agency provide regular training
seminars for businesses on aspects of the legislation and
preventing injury and illness.
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 –
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
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
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.
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
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
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
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
(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
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
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.
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.
Legislated powers to give advice, education, support
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.
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”
744. The chapter on enforcement in the CPM Report goes on to discuss
workplace interventions that are categorised as “proactive” and
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.
2000-01 4410 491 (11.13%) 3919 (88.86%)
2004-05 6964 2857 (41%) 4107 (58.97%)
171 WRMC (2006) CPM Report, p.15.
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.)
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.)
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
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.
754. (See the diagram below – with acknowledgement to Neil
Gunningham, from whose PowerPoint presentation the diagram is
copied. 173 )
(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
issue of an infringement notice, improvement notices or
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
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.
disease at workplaces and the development of healthy and safe
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
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.
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.
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
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
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.
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
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.
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.
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.).
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
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,).
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
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
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
176 ACCI Blueprint, pamphlet.
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
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
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).
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.
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
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
• 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
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
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.
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.
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
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.
796. The Construction Forestry Mining and Energy Union (CFMEU),
Construction and General division, Tasmanian Branch responded
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
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)
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
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.”
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.
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
• 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
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;
• That penalties should be awarded that will punish
offenders and strongly deter others from the possibility of
• 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.
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
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
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,
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.
associated with industrial deaths. To date we are not aware of a
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
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
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
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.)
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.
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.
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.
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.
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”.
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
838. Section 4 of the Act binds the Crown “in right of Tasmania and, so
far as the legislative powe