View the report - Tasmanian Department of Justice
View the report - Tasmanian Department of Justice
View the report - Tasmanian Department of Justice
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DEPARTMENT OF JUSTICE<br />
SAFE FROM INJURY AND RISKS TO<br />
HEALTH<br />
Review <strong>of</strong> Workplace Health and Safety in<br />
Tasmania 2006<br />
Interim Report<br />
Denise Brown & Steve Hyam<br />
February 2007
ACKNOWLEDGEMENTS<br />
We acknowledge <strong>the</strong> contributions <strong>of</strong> all <strong>the</strong> people who participated in <strong>the</strong><br />
review by making a written submission, by meeting with us or by contacting us<br />
informally to talk about workplace health and safety issues.<br />
Many representative organisations told us that <strong>the</strong> consultation period on <strong>the</strong><br />
Discussion Paper was too short to be able to consult <strong>the</strong>ir members and<br />
represent <strong>the</strong>ir views adequately. Despite this, many responded in detail and<br />
we thank you for <strong>the</strong> consideration and time given to <strong>the</strong> issues canvassed.<br />
Thank you to <strong>the</strong> Secretary <strong>of</strong> <strong>the</strong> <strong>Department</strong>, Mr Peter Hoult, for discussing<br />
aspects <strong>of</strong> <strong>the</strong> review with us in his roles as Head <strong>of</strong> Agency, Chairperson <strong>of</strong><br />
<strong>the</strong> WorkCover Tasmania Board, and as <strong>the</strong> sponsor <strong>of</strong> <strong>the</strong> review project.<br />
Thank you to David Peters, Deputy Secretary <strong>of</strong> DIER, for his early<br />
involvement in <strong>the</strong> review before <strong>the</strong> change <strong>of</strong> agency. We also thank <strong>the</strong><br />
WorkCover Board <strong>of</strong> Tasmania and <strong>the</strong> Workplace Standards Tasmania<br />
management executive as well as inspectors for <strong>the</strong>ir useful suggestions.<br />
Thanks to Pat Leary, President, and Allan Mahoney, Registrar, <strong>of</strong> <strong>the</strong><br />
<strong>Tasmanian</strong> Industrial Commission for discussing aspects <strong>of</strong> <strong>the</strong> review with<br />
us.<br />
We also wish to acknowledge <strong>the</strong> work completed by o<strong>the</strong>r reviewers <strong>of</strong><br />
workplace health and safety in recent years in Australia.<br />
In conducting this review we have read widely on relevant subjects and<br />
acknowledge our sources in footnotes and <strong>the</strong> bibliography. One text,<br />
however, stands out above all <strong>the</strong> o<strong>the</strong>rs and we make frequent references to<br />
it. This is <strong>the</strong> Report <strong>of</strong> <strong>the</strong> Committee appointed “to review <strong>the</strong> provision<br />
made for <strong>the</strong> safety and health <strong>of</strong> persons in <strong>the</strong> course <strong>of</strong> <strong>the</strong>ir employment”<br />
chaired by Lord Robens, 1970-1972 (United Kingdom). Lord Robens’s <strong>report</strong>,<br />
Safety and Health at Work is still, after thirty-four years, surprisingly relevant.<br />
Finally, thank you to Myrna Hutchins for taking care <strong>of</strong> all <strong>the</strong> documents and<br />
correspondence, and assisting with <strong>the</strong> organisation <strong>of</strong> <strong>the</strong> references for this<br />
<strong>report</strong>.<br />
Steve J. Hyam, Project Director, & Denise Brown, Senior Review Officer<br />
2
Apathy is <strong>the</strong> greatest single obstacle to progressive<br />
improvement; it can only be countered by an<br />
accumulation <strong>of</strong> deliberate pressures to stimulate more<br />
sustained attention to safety and health at work.<br />
Lord Robens, Chairman (1972). Safety and Health at<br />
Work: Report <strong>of</strong> <strong>the</strong> Committee 1970-72. London,<br />
HMSO; Ch. 18, p. 151, para. 456.<br />
3
ABBREVIATIONS<br />
ABS<br />
ACCI<br />
ACIRRT<br />
ACTU<br />
ADG<br />
AFC<br />
ANU<br />
APRA<br />
ASCC<br />
AWU<br />
CAF<br />
CCH<br />
CFMEU (Construction)<br />
CFMEU(Mining)<br />
COAG<br />
CPM<br />
DEIRT<br />
DIER<br />
DIMA<br />
DP<br />
ENWHP<br />
HIA<br />
Australian Bureau <strong>of</strong> Census and<br />
Statistics<br />
Australian Chamber <strong>of</strong> Commerce<br />
and Industry<br />
Australian Centre for Industrial<br />
Relations, Research and Training,<br />
University <strong>of</strong> Sydney, Australia<br />
Australian Council <strong>of</strong> Trade Unions<br />
Australian Dangerous Goods<br />
Australian Finance Conference<br />
Australian National University<br />
Australian Prudential Regulation<br />
Authority<br />
Australian Safety and Compensation<br />
Council<br />
Australian Workers Union<br />
Council for <strong>the</strong> Australian Federation<br />
Trading Name for Wolters Kluver,<br />
London Road Kingston UK<br />
Construction, Forestry, Mining and<br />
Energy Union (Construction &<br />
General Division) (<strong>Tasmanian</strong><br />
Branch)<br />
Construction, Forestry, Mining and<br />
Energy Union (Mining Division)<br />
<strong>Tasmanian</strong> Branch<br />
Council <strong>of</strong> Australian Governments<br />
Comparative Performance Monitoring<br />
<strong>Department</strong> <strong>of</strong> Employment, Industrial<br />
Relations and Training<br />
<strong>Department</strong> <strong>of</strong> Infrastructure, Energy<br />
and Resources<br />
<strong>Department</strong> <strong>of</strong> Immigration and<br />
Multicultural Affairs<br />
Review <strong>of</strong> workplace health and<br />
safety in Tasmania 2006, Discussion<br />
Paper (June 2006)<br />
European Network for Workplace<br />
Health Promotion<br />
Housing Industry Association<br />
4
HMSO<br />
HSE<br />
ILO<br />
MIA<br />
MJA<br />
MSD<br />
NCDS<br />
NCSCH<br />
NDS<br />
NHMD<br />
NHPAC<br />
NIOSH<br />
NNDSS<br />
NOHSC<br />
NRCOHSR<br />
OECD<br />
OHS<br />
RCSA<br />
TACC<br />
TCCI<br />
TMC<br />
WHO<br />
WMSD<br />
WRMC<br />
Her Majesty’s Stationery Office<br />
Health and Safety Executive (UK)<br />
International Labour Organisation,<br />
WHO, Geneva<br />
Metal Industries Association<br />
Medical Journal <strong>of</strong> Australia<br />
Musculo-Skeletal Disorder<br />
National Chronic Disease Strategy<br />
National Cancer Statistics Clearing<br />
House<br />
National Data Set<br />
National Hospital Morbidity Database<br />
National Health Priority Action<br />
Council<br />
National Institute for Occupational<br />
Safety & Health (USA)<br />
National Notifiable Disease<br />
Surveillance System<br />
National Occupational Health and<br />
Safety Commission<br />
National Research Centre for OHS<br />
Regulation<br />
Organisation for Economic Cooperation<br />
& Development<br />
Occupational Health and Safety<br />
Recruitment and Consulting Services<br />
Association<br />
<strong>Tasmanian</strong> Automobile Chamber <strong>of</strong><br />
Commerce<br />
<strong>Tasmanian</strong> Chamber <strong>of</strong> Commerce<br />
and Industry<br />
<strong>Tasmanian</strong> Minerals Council Ltd<br />
World Health Organisation<br />
Work-Related Musculoskeletal<br />
Disorder<br />
Workplace Relations Ministers’<br />
Council<br />
5
CONTENTS<br />
ACKNOWLEDGEMENTS ......................................................................................................... 2<br />
ABBREVIATIONS..................................................................................................................... 4<br />
EXECUTIVE SUMMARY......................................................................................................... 10<br />
INTRODUCTION ..................................................................................................................... 14<br />
TERMS OF REFERENCE FOR THE REVIEW................................................................................ 14<br />
CONDUCT OF THE REVIEW...................................................................................................... 15<br />
STRUCTURE OF THIS REPORT................................................................................................. 18<br />
SUMMARY OF RECOMMENDATIONS ................................................................................. 20<br />
CHAPTER 1 THE WORLD OF WORK................................................................................... 29<br />
GLOBAL CHANGE ................................................................................................................... 30<br />
Industry Pr<strong>of</strong>ile ................................................................................................................ 31<br />
Downsizing...................................................................................................................... 32<br />
Ageing society................................................................................................................. 34<br />
Migration ......................................................................................................................... 35<br />
Changed employment arrangements ............................................................................. 38<br />
Impact <strong>of</strong> precarious employment on health................................................................... 39<br />
Work intensification......................................................................................................... 40<br />
Decline in unionism......................................................................................................... 41<br />
Workplace relations and workplace health and safety ................................................... 43<br />
CHAPTER 2 NATIONAL DEVELOPMENTS 48<br />
REVIEWS OF WORKPLACE HEALTH AND SAFETY IN OTHER JURISDICTIONS.................................. 48<br />
Australian Capital Territory: Occupational Health and Safety Act 1989 ......................... 48<br />
Victoria: Occupational Health and Safety Act 1985 - Occupational Health and Safety Act<br />
2004 ................................................................................................................................ 49<br />
Queensland: Workplace Health and Safety Act 1995. ................................................... 52<br />
Commonwealth: Occupational Health and Safety (Commonwealth Employment) Act<br />
1991 (OHS(CE) Act ........................................................................................................ 53<br />
NSW: Occupational Health and Safety Act 2000 ........................................................... 53<br />
South Australia: Occupational Health, Safety and Welfare Act 1986 - Occupational<br />
Health, Safety and Welfare (SafeWork SA) Amendment Act 2005................................ 55<br />
Western Australia: Occupational Health and Safety Act 1984 ....................................... 55<br />
General conclusions drawn from <strong>the</strong>se reviews ............................................................. 57<br />
NATIONAL OCCUPATIONAL HEALTH AND SAFETY IMPROVEMENT STRATEGY 2002 – 2012......... 59<br />
National Priorities............................................................................................................ 60<br />
National Standards ......................................................................................................... 60<br />
National Targets.............................................................................................................. 61<br />
COMPARATIVE PERFORMANCE MONITORING........................................................................... 61<br />
Incidence rate <strong>of</strong> compensable fatalities......................................................................... 63<br />
Incidence rate for compensable work-related injury and disease................................... 64<br />
CHAPTER 3 WORKPLACE HEALTH AND SAFETY: ROBENS FRAMEWORK 69<br />
ROBENS’S PRINCIPLES........................................................................................................... 69<br />
Change in focus .............................................................................................................. 72<br />
Duty to take reasonable care.......................................................................................... 73<br />
THREE ELEMENTS OF THE FRAMEWORK.................................................................................. 74<br />
6
1. “General Duties”.......................................................................................................... 74<br />
2. “Good Management”................................................................................................... 74<br />
3. “The involvement <strong>of</strong> workpeople”................................................................................ 75<br />
Flexibility ......................................................................................................................... 77<br />
OTHER FRAMEWORKS ............................................................................................................ 79<br />
Safety Case .................................................................................................................... 80<br />
PREVENTING MAJOR ACCIDENTS............................................................................................. 81<br />
Lessons from failures...................................................................................................... 82<br />
SOME CONCLUSIONS SO FAR.................................................................................................. 84<br />
THE PATH OF REGULATORY REFORM....................................................................................... 86<br />
National consistency versus national uniformity............................................................. 86<br />
COAG REGULATORY PRINCIPLES .......................................................................................... 94<br />
Implementation <strong>of</strong> National Standards............................................................................ 95<br />
CHAPTER 3 ACCOUNTING FOR CHANGES 101<br />
TASMANIAN LEGISLATIVE FRAMEWORK.................................................................................. 102<br />
Objectives ..................................................................................................................... 104<br />
‘SELF-REGULATORY’ OR ‘PRESCRIPTIVE’ FRAMEWORK?........................................................ 109<br />
MEETING THE NEED FOR NATIONAL CONSISTENCY ................................................................. 114<br />
CHAPTER 4 RELATIONSHIP BETWEEN LEGISLATION AND OUTCOMES ................... 118<br />
LEGISLATION, ADMINISTRATION AND COMPLIANCE ................................................................. 119<br />
PREVIOUS REVIEWS AND AMENDMENTS................................................................................. 121<br />
PREVAILING ATTITUDES........................................................................................................ 124<br />
RAISING AWARENESS AND FACILITATING COMPLIANCE ........................................................... 124<br />
FAMILIARITY, KNOWLEDGE AND UNDERSTANDING .................................................................. 125<br />
COMMUNITY COMMITMENT ................................................................................................... 129<br />
STRATEGIC ALLIANCES OR PARTNERSHIPS ........................................................................... 130<br />
Workplace Health and Safety Council –partnership or alliance.................................... 132<br />
Purpose ..................................................................................................................................133<br />
Membership............................................................................................................................134<br />
Strategic direction...................................................................................................................136<br />
Legislative amendments to establish <strong>the</strong> workplace health and safety council............ 136<br />
PREVENTION DUTIES, OBLIGATIONS AND ACCOUNTABILITY.................................................... 138<br />
Differentiating <strong>the</strong> concepts – prevention and compensation....................................... 138<br />
Shared accountability.................................................................................................... 141<br />
Employers and employees............................................................................................ 145<br />
CONCEPTS OF CONTROL ...................................................................................................... 147<br />
Control test and employment contracts ........................................................................ 147<br />
Control risks .................................................................................................................. 147<br />
Management control ..................................................................................................... 148<br />
Influence........................................................................................................................ 149<br />
Social responsibility and shareholder control ............................................................... 151<br />
Authority........................................................................................................................ 152<br />
Management ................................................................................................................. 153<br />
Inherent control – specialist skills ................................................................................. 154<br />
REASONABLY PRACTICABLE ................................................................................................. 158<br />
ON-HIRED SERVICES (ON-HIRED EMPLOYEES AND ON-HIRED CONTRACTORS) .......................... 161<br />
INEXPERIENCED EMPLOYEES ................................................................................................ 168<br />
Training and experience .........................................................................................................168<br />
CLARIFYING THE MESSAGE................................................................................................... 172<br />
Safety............................................................................................................................ 172<br />
Welfare.......................................................................................................................... 173<br />
7
Health............................................................................................................................ 174<br />
General information - s9(2)(c)....................................................................................... 177<br />
Information, instruction, training and supervision about hazardous work – s9(2)(d), (e)<br />
and (f)............................................................................................................................ 179<br />
PRESENTATION OF THE GENERAL DUTIES AT SECTION 9 ......................................................... 181<br />
Duty <strong>of</strong> employers to ‘o<strong>the</strong>r persons’ ............................................................................ 182<br />
OBLIGATIONS SET OUT BY THE REGULATIONS........................................................................ 185<br />
Accountable person ...................................................................................................... 185<br />
CONCLUSIONS SO FAR ......................................................................................................... 186<br />
CHAPTER 5 SAFE FROM INJURY AND RISKS TO HEALTH 188<br />
CHANGING WORK ENVIRONMENT, CHANGING WORKPLACE HEALTH RISKS................................ 189<br />
What respondents said ................................................................................................. 191<br />
WORK-RELATED PSYCHOSOCIAL HAZARDS AND RISK FACTORS............................................... 194<br />
Violence in <strong>the</strong> workplace ............................................................................................. 194<br />
Long working hours....................................................................................................... 197<br />
Fatigue associated with hours <strong>of</strong> work and o<strong>the</strong>r conditions...................................................198<br />
AGEING WORKFORCE........................................................................................................... 203<br />
LEGISLATIVE OBLIGATIONS TO IDENTIFY HAZARDS AND CONTROL RISKS .................................. 205<br />
Manual handling............................................................................................................ 206<br />
SYSTEMATIC PROCESSES..................................................................................................... 209<br />
Risk management – Regulations 17 – 19..................................................................... 209<br />
Need for experts ........................................................................................................... 214<br />
SAFETY SYSTEMS ................................................................................................................ 216<br />
Relevance to small businesses .................................................................................... 220<br />
Traditional safety systems not appropriate to new risks to health................................ 220<br />
INVOLVEMENT OF WORKERS ................................................................................................. 222<br />
What respondents said about ‘involvement <strong>of</strong> workpeople’.......................................... 224<br />
LEGISLATION AND CONSULTATION......................................................................................... 227<br />
What is meant by consultation?.................................................................................... 228<br />
Who should be involved?.............................................................................................. 229<br />
How to consult? ............................................................................................................ 230<br />
PREVENTING ILLNESS........................................................................................................... 232<br />
CARDIOVASCULAR DISEASE, MUSCULOSKELETAL DISEASE AND MENTAL DISORDERS................ 236<br />
Work-related Musculoskeletal Disorders (WMSDs) ..................................................... 237<br />
Work-related mental disorders...................................................................................... 238<br />
IMPLICATIONS FOR THE AGENCY ........................................................................................... 239<br />
Workplace as setting for Health promotion strategies .................................................. 239<br />
Training ......................................................................................................................... 240<br />
ROLE OF THIRD PARTY MEDIATION TO PREVENT RISKS OF ILLNESS.......................................... 245<br />
HEALTH PROMOTION............................................................................................................ 247<br />
CHAPTER 6 ADMINISTRATION AND OTHER MATTERS 250<br />
INSPECTORATE.................................................................................................................... 253<br />
Ascertaining whe<strong>the</strong>r an <strong>of</strong>fence has been committed (section 36)............................. 253<br />
In respect <strong>of</strong> health and safety risks (section 38) ......................................................... 255<br />
LEGISLATED POWERS TO GIVE ADVICE, EDUCATION, SUPPORT ETC......................................... 257<br />
Enforcement Pyramid ................................................................................................... 259<br />
SMALL BUSINESS SUPPORT .................................................................................................. 265<br />
TRAINING ISSUES................................................................................................................. 267<br />
Resources..................................................................................................................... 271<br />
8
DIRECTOR’S POWERS AND FUNCTIONS.................................................................................. 272<br />
“RIGHT OF ENTRY” PROVISIONS FOR AUTHORISED REPRESENTATIVES..................................... 274<br />
PENALTIES .......................................................................................................................... 278<br />
Deterrence .................................................................................................................... 279<br />
INDUSTRY CODES OF PRACTICE ............................................................................................ 285<br />
OTHER MATTERS ................................................................................................................. 286<br />
Crown Liability............................................................................................................... 286<br />
DESIGNATED WORKPLACES ................................................................................................. 289<br />
LIST OF SUBMISSIONS....................................................................................................... 290<br />
BIBLIOGRAPHY ...................................................................................................................292<br />
9
EXECUTIVE SUMMARY<br />
This <strong>report</strong> surveys <strong>the</strong> “big picture” context <strong>of</strong> workplace health and safety to<br />
find that <strong>the</strong> world <strong>of</strong> work has changed dramatically in a little less than two<br />
decades. Global economic changes initiated by <strong>the</strong> liberalisation <strong>of</strong> trade and<br />
a series <strong>of</strong> reforms in Australia have wrought lasting effects, including new<br />
risks to health arising from work.<br />
Traditional industries such as manufacturing have declined and new<br />
industries based upon communication, finance and o<strong>the</strong>r service industries<br />
have emerged.<br />
The 1990s saw widespread reorganisation <strong>of</strong> businesses allowing <strong>the</strong><br />
development <strong>of</strong> new employment arrangements, including <strong>the</strong> casualisation <strong>of</strong><br />
<strong>the</strong> workforce and <strong>the</strong> proliferation <strong>of</strong> small and micro-businesses, o<strong>the</strong>rwise<br />
referred to variously as ‘enterprise workers’, or `independent contractors’.<br />
Workplace health and safety researchers see <strong>the</strong> new employment<br />
arrangements as contributing to `precarious employment’ that, in turn, is<br />
identified as a key factor in new and emerging work-related health risks. An<br />
ageing workforce and shortage <strong>of</strong> skills are also identified as workplace<br />
issues that may give rise to new health and safety risks.<br />
Coinciding with economic reforms <strong>the</strong>re have been steady, ongoing regulatory<br />
reforms in Australia with national uniformity or consistency and de-regulation<br />
as major foci. While <strong>the</strong> pressure for uniformity and reduction in regulation<br />
has marked <strong>the</strong> period, paradoxically national developments in <strong>the</strong> decade<br />
since <strong>the</strong> passage <strong>of</strong> <strong>the</strong> Workplace Health and Safety Act 1995 have actually<br />
contributed to a return to <strong>the</strong> piecemeal regulation <strong>of</strong> workplace health and<br />
safety characteristic <strong>of</strong> <strong>the</strong> pre-1970s.<br />
All jurisdictions have reviewed <strong>the</strong>ir workplace health and safety legislative<br />
and administrative frameworks within <strong>the</strong> last five years. The outcome <strong>of</strong> <strong>the</strong><br />
reviews has been to confirm <strong>the</strong> relevance <strong>of</strong> <strong>the</strong> Robens legislative<br />
framework on which Australian general workplace health and safety<br />
legislation is based, while amendments have sought to create greater<br />
consistency between <strong>the</strong> jurisdictions and address issues related to<br />
contemporary workplaces.<br />
National developments include <strong>the</strong> commitment to national improvement<br />
targets. The state’s recent performance against national targets in reducing<br />
injury, illness and death was reviewed using local and national <strong>report</strong>s. It was<br />
found that national comparative performance monitoring <strong>report</strong>s are not<br />
consistent, making it very difficult to assess performance from one year to <strong>the</strong><br />
next. Locally generated <strong>report</strong>s are more stable. Based on <strong>the</strong> target<br />
indicators it seems that Tasmania is on target for reducing <strong>the</strong> incidence <strong>of</strong><br />
work-related compensable injury, but <strong>the</strong>re is considerable volatility in workrelated<br />
compensable deaths over <strong>the</strong> last four to five years.<br />
10
The Robens style legislation is strictly speaking a co-regulatory legislative<br />
framework based on principles set down by Lord Robens in his <strong>report</strong> to <strong>the</strong><br />
UK Government – Safety and Health at Work- in 1972. The framework is<br />
designed to enable workplace parties <strong>the</strong>mselves resolve health and safety<br />
problems based on three principles: general duties; good management and<br />
<strong>the</strong> involvement <strong>of</strong> workpeople.<br />
The enabling Act is <strong>the</strong> first tier <strong>of</strong> <strong>the</strong> legislative framework; <strong>the</strong> Regulations<br />
provide <strong>the</strong> second tier; while industry standards and codes were intended as<br />
<strong>the</strong> non-statutory (also termed “voluntary”) third tier.<br />
The strength and ability <strong>of</strong> <strong>the</strong> framework to prevent injury, illness and death,<br />
lie in how well both <strong>the</strong> State and industry support <strong>the</strong> framework.<br />
The review found that <strong>the</strong> current legislation implements most <strong>of</strong> <strong>the</strong> Robens<br />
principles but does not adopt all features. This <strong>report</strong> analyses <strong>the</strong> duties and<br />
obligations provided by <strong>the</strong> Act and Regulations. The analysis identifies a<br />
predominant safety focus with an emphasis on traditional physical hazards.<br />
The risks to health associated with <strong>the</strong> latter are amenable to control through<br />
<strong>the</strong> application <strong>of</strong> standards that are referenced in <strong>the</strong> Regulations; however,<br />
<strong>the</strong> analysis also finds that <strong>the</strong> risk management methodology prescribed is<br />
not easily applicable in all workplaces or to all contemporary hazards to health<br />
and safety. The aspects <strong>of</strong> <strong>the</strong> legislation that attempt to embody <strong>the</strong> Robens<br />
principles <strong>of</strong> ‘good management:’ and ‘involvement <strong>of</strong> workpeople’ need to be<br />
clarified and streng<strong>the</strong>ned. This may be done through legislative amendment<br />
but will also require o<strong>the</strong>r strategies to raise awareness and prepare workers<br />
and managers for <strong>the</strong>ir prevention duties and obligations.<br />
We find generally low levels <strong>of</strong> awareness <strong>of</strong> <strong>the</strong> framework and suspect that<br />
knowledge <strong>of</strong> <strong>the</strong> provisions <strong>of</strong> <strong>the</strong> legislation is poor. It is <strong>the</strong>refore essential<br />
to <strong>the</strong> effectiveness <strong>of</strong> <strong>the</strong> framework that efforts are made to increase<br />
awareness and knowledge <strong>of</strong> <strong>the</strong> framework as well as encouraging industry<br />
to adopt relevant and recognised standards and codes. In addition <strong>the</strong>re is a<br />
need for increased awareness <strong>of</strong> new and emerging hazards so that<br />
workpeople may be “safe from injury and risks to health”. We do not<br />
recommend legislative amendment in isolation.<br />
Recommendations for legislative and administrative change to prevent injury,<br />
illness and death are made on <strong>the</strong> basis <strong>of</strong>:<br />
Clarifying and streng<strong>the</strong>ning <strong>the</strong> legislation;<br />
Stronger efforts to raise awareness;<br />
Working more effectively in partnership with industry;<br />
Legislative and administrative emphasis upon good management and<br />
involving workpeople to achieve <strong>the</strong> outcomes;<br />
Avoiding <strong>the</strong> proliferation <strong>of</strong> statutory material; and<br />
11
Achieving vertical and horizontal agreement and co-operation in<br />
relation to certain aspects <strong>of</strong> workplace health and safety, such as<br />
training in health and safety matters and <strong>the</strong> application <strong>of</strong> health<br />
promotion in workplaces to more effectively control <strong>the</strong> hazards and<br />
risks that are known contributory factors to chronic disease.<br />
Workplace Standards Tasmania and industry need to work collaboratively and<br />
co-operatively to uphold <strong>the</strong> framework to achieve improved outcomes. We<br />
recommend <strong>the</strong> establishment <strong>of</strong> a workplace health and safety council as a<br />
new mechanism to actively involve <strong>the</strong> agency and industry in a close,<br />
strategic partnership.<br />
The major chronic diseases – especially <strong>the</strong> “big three” in <strong>the</strong> National Health<br />
Strategy and National Chronic Disease Strategy <strong>of</strong> cardiovascular disease,<br />
musculoskeletal disorders and mental disorders – are also three <strong>of</strong> <strong>the</strong> priority<br />
occupational diseases in <strong>the</strong> National OHS Improvement Strategy.<br />
These chronic diseases are unlike <strong>the</strong> occupational diseases associated with<br />
well-identified “traditional” physical hazards. Stress, fatigue, and violence are<br />
identified as <strong>the</strong> contemporary work-related health risks. They are termed<br />
“psychosocial” risk factors and arise from <strong>the</strong> nature <strong>of</strong> work itself and <strong>the</strong> way<br />
in which it is organised.<br />
Ei<strong>the</strong>r alone, or in combination with physical risk factors present, psychosocial<br />
risk factors are contributing to a serious increase in potentially debilitating<br />
chronic disease. Strategies to prevent illness <strong>the</strong>refore depend upon<br />
strategies adopted by <strong>the</strong> State to raise awareness <strong>of</strong> <strong>the</strong> risk factors and<br />
industry taking action to control <strong>the</strong> level <strong>of</strong> risk. “Good management”, one <strong>of</strong><br />
<strong>the</strong> central principles <strong>of</strong> <strong>the</strong> Robens legislative framework, becomes even<br />
more important in ensuring that workpeople are “safe from injury and risks to<br />
health”.<br />
Workplaces are potential settings for health promotion and should be<br />
environments that promote long-term positive health outcomes. One <strong>of</strong> <strong>the</strong><br />
challenges in preventing illness (promoting wellness) will be to select <strong>the</strong> most<br />
effective promotional methods to target all workplaces, including <strong>the</strong> growing<br />
number <strong>of</strong> self-employed, micro-businesses as well as <strong>the</strong> diverse types <strong>of</strong><br />
workplaces that now exist.<br />
High level policy mechanisms are required to assist workplaces to reduce <strong>the</strong><br />
levels <strong>of</strong> risk to health that may be associated with <strong>the</strong> social and/or<br />
management environment <strong>of</strong> <strong>the</strong> workplace. We have <strong>the</strong>refore<br />
recommended <strong>the</strong> creation <strong>of</strong> an impartial disputes or workplace conflict<br />
resolution function within <strong>the</strong> <strong>Tasmanian</strong> Industrial Commission which<br />
workplace parties may approach to “de-fuse” and assist with resolving<br />
situations that may o<strong>the</strong>rwise give rise to stress-induced injury or illness.<br />
The potential for “third party” right <strong>of</strong> entry into <strong>the</strong> workplace, as a<br />
mechanism to improve workplace health and safety, is subject to a six-month<br />
trial that commenced late in 2006 and is due to be evaluated at its conclusion.<br />
We <strong>the</strong>refore do not make a recommendation in relation to this strategy.<br />
12
The <strong>report</strong> concludes with reference to <strong>the</strong> need to change <strong>the</strong> statutory<br />
functions <strong>of</strong> inspectors to enable <strong>the</strong>m to take on a greater role in providing<br />
direct advice and information to workplaces. Current small scale efforts to<br />
provide services to small business are supported and <strong>the</strong>se should be<br />
expanded, particularly through <strong>the</strong> role and function <strong>of</strong> inspectors on <strong>the</strong> ‘front<br />
line’.<br />
We find that issues such as whe<strong>the</strong>r, and by what quantum, penalties should<br />
be increased, must be considered carefully, taking into consideration <strong>the</strong><br />
strong and polarised views <strong>of</strong> penalties as ei<strong>the</strong>r retributive or restorative.<br />
O<strong>the</strong>r jurisdictions have increased penalties, but <strong>of</strong> course that is insufficient<br />
reason to advocate an increase. If consistency is preferred in <strong>the</strong> level <strong>of</strong><br />
penalties, we would like to see fur<strong>the</strong>r work completed on what criteria should<br />
be used in determining how <strong>the</strong> penalties should be “benchmarked”.<br />
Commonwealth legislation will shortly enable employers who join <strong>the</strong><br />
Comcare workers’ rehabilitation and compensation scheme to be regulated by<br />
<strong>the</strong> Commonwealth OHS legislation. The administration <strong>of</strong> workplace health<br />
and safety in Tasmania is <strong>the</strong>refore likely to undergo fur<strong>the</strong>r change, making<br />
<strong>the</strong> need for increased awareness, partnerships and a strategic approach<br />
even more relevant.<br />
The <strong>report</strong> also looks at some o<strong>the</strong>r matters, such as <strong>the</strong> need to clarify <strong>the</strong><br />
roles <strong>of</strong> <strong>the</strong> Secretary and <strong>the</strong> WorkCover Board <strong>of</strong> Tasmania in relation to <strong>the</strong><br />
legislative objectives <strong>of</strong> workplace health and safety.<br />
13
INTRODUCTION<br />
Terms <strong>of</strong> Reference for <strong>the</strong> Review<br />
1. The Minister for <strong>Justice</strong> and Workplace Relations, <strong>the</strong> Hon. Steve<br />
Kons, MHA, provided <strong>the</strong> following terms <strong>of</strong> reference for <strong>the</strong><br />
review <strong>of</strong> workplace health and safety in Tasmania, 2006:<br />
The review <strong>of</strong> workplace health and safety in Tasmania<br />
is to examine <strong>the</strong> legislative and administrative<br />
frameworks within which workplace health and safety is<br />
regulated to ensure <strong>the</strong>y are designed to meet <strong>the</strong><br />
changing circumstances <strong>of</strong> workplaces and <strong>the</strong><br />
developing economy effectively.<br />
In particular, <strong>the</strong> review will consider and provide<br />
recommendations upon improvements that may be<br />
made to <strong>the</strong> Workplace Health and Safety Act 1995 and<br />
<strong>the</strong> administration <strong>of</strong> workplace health and safety by<br />
Workplace Standards Tasmania:<br />
1. To ensure that <strong>the</strong> workplace health and safety<br />
legislative framework takes account <strong>of</strong> changes that<br />
affect, or may affect, workplace health and safety such<br />
as changes in <strong>the</strong> labour market, industrial relations and<br />
new and emerging risks in <strong>the</strong> workplace;<br />
2. To ensure that legislated duties and obligations are<br />
updated so that <strong>the</strong>y are clearly understood by all duty<br />
holders and enforcers <strong>of</strong> <strong>the</strong> legislation;<br />
3. To ensure that <strong>the</strong> nature <strong>of</strong> <strong>of</strong>fences is clear and that<br />
penalties associated with <strong>of</strong>fences have appropriate<br />
deterrent effect so as to increase compliance with <strong>the</strong><br />
legislation;<br />
4. To ensure that all parties in <strong>the</strong> workplace clearly<br />
understand <strong>the</strong>ir role and responsibilities for workplace<br />
health and safety;<br />
5. To improve <strong>the</strong> effectiveness <strong>of</strong> <strong>the</strong> administration <strong>of</strong><br />
workplace health and safety in achieving <strong>the</strong> purposes<br />
<strong>of</strong> <strong>the</strong> legislation; and<br />
6. To fur<strong>the</strong>r reduce <strong>the</strong> incidence <strong>of</strong> workplace<br />
accident, injury and illness to achieve <strong>the</strong> Targets <strong>of</strong> <strong>the</strong><br />
National Occupational Health & Safety Improvement<br />
Strategy 2002- 2012 -<br />
14
a) to sustain a significant, continual reduction in <strong>the</strong><br />
incidence <strong>of</strong> work-related fatalities with a reduction <strong>of</strong> at<br />
least 20 per cent by 30 June 2012 (with a reduction <strong>of</strong><br />
10 per cent being achieved by 30 June 2007); and<br />
b) to reduce <strong>the</strong> incidence <strong>of</strong> workplace injury by at least<br />
40 per cent by 30 June 2012<br />
Conduct <strong>of</strong> <strong>the</strong> review<br />
2. The review <strong>of</strong> workplace health and safety in Tasmania<br />
commenced with <strong>the</strong> appointment <strong>of</strong> <strong>the</strong> Director <strong>of</strong> <strong>the</strong> project, Mr<br />
Steve Hyam in October 2005. The Senior Review Officer, Dr<br />
Denise Brown, and Administrative Assistant, Mrs Myrna Hutchins,<br />
were appointed to <strong>the</strong> team in February 2006.<br />
3. Phase I <strong>of</strong> <strong>the</strong> review involved early discussions with government,<br />
industry and union stakeholders; research and planning <strong>of</strong> <strong>the</strong><br />
project.<br />
4. The calling <strong>of</strong> <strong>the</strong> State election for 18 March 2006 and <strong>the</strong><br />
project’s subsequent transfer under new administrative<br />
arrangements from <strong>the</strong> <strong>Department</strong> <strong>of</strong> Infrastructure, Energy and<br />
Resources to <strong>the</strong> <strong>Department</strong> <strong>of</strong> <strong>Justice</strong> and Workplace Relations,<br />
delayed Phase II <strong>of</strong> <strong>the</strong> project.<br />
5. The appointment <strong>of</strong> <strong>the</strong> Hon. Steve Kons MHA as Attorney-General<br />
and Minister <strong>of</strong> <strong>Justice</strong> and Workplace Relations enabled <strong>the</strong><br />
review to proceed. The terms <strong>of</strong> reference for <strong>the</strong> review were<br />
approved and major issues confirmed by <strong>the</strong> Minister in May 2006.<br />
15
6. Phase II, comprising public consultation and <strong>report</strong>ing, commenced<br />
with <strong>the</strong> release <strong>of</strong> a Discussion Paper on 24 June as a basis for<br />
formal public consultation.<br />
7. The purpose <strong>of</strong> <strong>the</strong> Discussion Paper was to stimulate discussion<br />
and response on a range <strong>of</strong> legislative and administrative issues<br />
relevant to <strong>the</strong> terms <strong>of</strong> reference. The issues included those that<br />
have been subject to debate over recent years, ei<strong>the</strong>r by similar<br />
reviews occurring elsewhere in Australia or by various authors as<br />
published in academic papers, safety journals, occupational health<br />
and safety or workers compensation magazines, and newspapers.<br />
The Discussion paper made suggestions on most <strong>of</strong> <strong>the</strong> issues<br />
seeking <strong>the</strong> views <strong>of</strong> respondents.<br />
8. Thirty eight written submissions were received from organisations<br />
representing employers and employees as well as individuals from<br />
<strong>the</strong> private and public sector. Ten respondents requested that <strong>the</strong>ir<br />
submissions not be published while one was withheld from<br />
publication by <strong>the</strong> Director; all o<strong>the</strong>r submissions were published on<br />
<strong>the</strong> <strong>Department</strong> <strong>of</strong> <strong>Justice</strong> website at http://www.justice.tas.gov.au/.<br />
9. Follow up meetings were organised with some respondents to<br />
explore <strong>the</strong>ir comments or suggestions, with an additional invitation<br />
to <strong>the</strong> peak bodies (<strong>Tasmanian</strong> Chamber <strong>of</strong> Commerce and<br />
Industry, Unions Tas and <strong>the</strong> <strong>Tasmanian</strong> Minerals Council) to meet<br />
with <strong>the</strong> team if <strong>the</strong>y wished to <strong>of</strong>fer additional comment. These<br />
meetings took place over two weeks, with a total <strong>of</strong> 13 people<br />
16
involved in focus group type meetings and three meetings with<br />
individuals. The last meeting took place on 28 August 2006.<br />
10. This Interim Report <strong>report</strong>s <strong>the</strong> findings <strong>of</strong> <strong>the</strong> review and makes<br />
recommendations for consideration by <strong>the</strong> Minister for <strong>Justice</strong> and<br />
Workplace Relations prior to being released for public consultation<br />
with key stakeholders and <strong>the</strong> community. This provides an<br />
important opportunity for consideration <strong>of</strong> <strong>the</strong> recommendations<br />
that are put forward and feedback will be provided to <strong>the</strong> Minister<br />
for consideration.<br />
11. Depending upon <strong>the</strong> community response and <strong>the</strong> wishes <strong>of</strong> <strong>the</strong><br />
Minister, a final <strong>report</strong> may be prepared for State Government<br />
approval and decision making processes after consultation is<br />
complete.<br />
12. Phase III <strong>of</strong> <strong>the</strong> project will involve <strong>the</strong> implementation <strong>of</strong> approved<br />
recommendations. The extent <strong>of</strong> this phase will depend upon <strong>the</strong><br />
number and nature <strong>of</strong> <strong>the</strong> recommendations that are approved,<br />
however if it requires <strong>the</strong> drafting <strong>of</strong> any agreed legislative<br />
amendments, <strong>the</strong> draft Bill will be subject to consultation, before<br />
being presented to Parliament. This Phase will also involve<br />
implementing decisions about administrative improvements as well<br />
as public promotion <strong>of</strong> <strong>the</strong> new legislative and administrative<br />
arrangements. Implementation should be complete by mid to late<br />
2007.<br />
17
Structure <strong>of</strong> this Report<br />
13. This <strong>report</strong> begins by examining <strong>the</strong> “big picture” to look at <strong>the</strong><br />
impact <strong>of</strong> economic and political changes upon workplace health<br />
and safety.<br />
14. It <strong>the</strong>n proceeds to examine <strong>the</strong> framework and principles for<br />
workplace health and safety legislation set by Lord Robens. It<br />
looks at how those principles have been represented in <strong>the</strong><br />
<strong>Tasmanian</strong> legislation and how relevant or adaptable <strong>the</strong>y may be<br />
to <strong>the</strong> contemporary situation.<br />
15. The structure <strong>of</strong> <strong>the</strong> <strong>report</strong> is intuitive, following a train <strong>of</strong> thought<br />
from <strong>the</strong> legislative structure at <strong>the</strong> beginning to <strong>the</strong> roles and<br />
functions <strong>of</strong> administrative bodies at <strong>the</strong> end, considering <strong>the</strong> terms<br />
<strong>of</strong> reference as it proceeds. Throughout <strong>the</strong> <strong>report</strong> we refer to <strong>the</strong><br />
views <strong>of</strong> respondents, as well as o<strong>the</strong>r reviews, <strong>report</strong>s and<br />
research papers. In recommending change to <strong>the</strong> legislation, we<br />
have <strong>of</strong>ten recommended administrative action as well since we do<br />
not see that <strong>the</strong> former can be fully effective without <strong>the</strong> latter.<br />
16. For convenience <strong>of</strong> <strong>the</strong> reader, <strong>the</strong> recommendations are copied at<br />
<strong>the</strong> beginning <strong>of</strong> <strong>the</strong> <strong>report</strong>.<br />
17. The views expressed in this paper are not <strong>the</strong> views <strong>of</strong> <strong>the</strong> Minister<br />
or <strong>the</strong> <strong>Tasmanian</strong> Government.<br />
18
18. Comments and submissions may be sent to <strong>the</strong> following address<br />
by 26 May 2007:<br />
Dr Denise Brown<br />
Senior Review Officer<br />
Workplace Health and Safety Review 2006<br />
<strong>Department</strong> <strong>of</strong> <strong>Justice</strong> and Workplace Relations<br />
GPO Box 825<br />
Hobart Tas 7001<br />
Telephone: 03 62 337355<br />
Email: Denise.Brown@justice.tas.gov.au<br />
19
SUMMARY OF RECOMMENDATIONS<br />
Recommendation 1:<br />
The health and safety needs <strong>of</strong> mature-aged persons, skilled<br />
migrants, refugees entering <strong>the</strong> <strong>Tasmanian</strong> workforce and o<strong>the</strong>r<br />
persons re-entering <strong>the</strong> workforce after a long absence, are issues<br />
that both industry and government need to consider carefully now in<br />
planning programs and strategies to prevent injury and illness.<br />
Recommendation 2:<br />
In negotiating at a high level on <strong>the</strong> national harmonisation <strong>of</strong><br />
workplace health and safety legislation, ei<strong>the</strong>r within COAG or within<br />
<strong>the</strong> Australian Council for Federation, it is recommended that<br />
Tasmania urgently seeks a sensible resolution to <strong>the</strong> dilemma <strong>of</strong><br />
national and/or industry standards that avoids adding fur<strong>the</strong>r<br />
regulation to <strong>the</strong> health and safety legislation framework.<br />
Recommendation 3:<br />
It is recommended that <strong>the</strong> current framework and its objectives to<br />
prevent work-related injury, illness or death be retained and<br />
defended against attempts to return to <strong>the</strong> old piecemeal approach <strong>of</strong><br />
prolific regulation. The State must work to achieve industry’s<br />
commitment to uphold <strong>the</strong> framework as <strong>the</strong> most flexible and<br />
appropriate for regulating contemporary workplaces.<br />
Recommendation 4:<br />
The review recommends that industry be strongly encouraged to<br />
adopt existing relevant standards (including National Standards) as a<br />
means <strong>of</strong> accessing practical detail to support <strong>the</strong>ir workplace health<br />
and safety efforts.<br />
Recommendation 5:<br />
It is also recommended that proposals put forward for<br />
“harmonisation” <strong>of</strong> workplace health and safety ei<strong>the</strong>r within <strong>the</strong><br />
COAG or CAF processes, be carefully considered to ensure that<br />
proposals do not increase <strong>the</strong> level and number <strong>of</strong> regulation. If<br />
proposals have <strong>the</strong> potential for increasing regulation, <strong>the</strong>y should be<br />
rejected.<br />
20
Recommendation 6:<br />
It is fur<strong>the</strong>r recommended that in all national and local fora, that<br />
workplace health and safety matters should be given balanced<br />
attention.<br />
Recommendation 7:<br />
It is recommended that <strong>the</strong> Government establish a workplace health<br />
and safety council <strong>of</strong> agency and industry partners with a purpose,<br />
functions, roles and membership along <strong>the</strong> lines proposed. Relevant<br />
amendments would need to be made to <strong>the</strong> Act (and likely to <strong>the</strong><br />
Workers Rehabilitation and Compensation Act) as indicated.<br />
Recommendation 8:<br />
It is recommended that <strong>the</strong> workplace health and safety council work<br />
cooperatively to develop a Workplace Health and Safety Charter<br />
setting out <strong>the</strong> general principles to underpin <strong>the</strong> objectives <strong>of</strong> <strong>the</strong><br />
Act. The first principle could be “in any employment arrangement<br />
and any workplace, prevention <strong>of</strong> work-related injury, illness or death<br />
is paramount”.<br />
Recommendation 9:<br />
The review team recommends that an amendment to <strong>the</strong> Act be<br />
made to extend <strong>the</strong> duties <strong>of</strong> employers in section 9 <strong>of</strong> <strong>the</strong> Act to all<br />
persons employed or engaged to perform work for <strong>the</strong> employer and<br />
who are exposed to health and safety risks at <strong>the</strong> workplace under<br />
<strong>the</strong> employer’s control or management.<br />
This amendment would deal with <strong>the</strong> majority <strong>of</strong> concerns that <strong>the</strong><br />
Act does not presently provide sufficient prevention duties to classes<br />
<strong>of</strong> workers who do not fit <strong>the</strong> definition <strong>of</strong> “employee <strong>of</strong> <strong>the</strong><br />
employer”.<br />
It may be achieved by amending <strong>the</strong> commencement <strong>of</strong> Part 3,<br />
section 9 so that a new opening statement <strong>of</strong> general principle is<br />
inserted to replace <strong>the</strong> existing first paragraph <strong>of</strong> s9(1) - viz:<br />
“employers must ensure so far as is reasonably<br />
practicable, that all persons employed or engaged by<br />
employers to perform work for <strong>the</strong> employer, are, while<br />
at work, safe from injury and risks to health and, in<br />
particular, must – (&c) …”.<br />
The amendment needs to be drafted so that <strong>the</strong> new opening<br />
statement applies to all <strong>the</strong> identifiable duties (currently outlined in<br />
subsection 2).<br />
21
Recommendation 10:<br />
If recommendation 9 is not agreed or adopted, <strong>the</strong>n:<br />
it is recommended that <strong>the</strong> provisions for instruction and information<br />
that only apply currently to employees <strong>of</strong> employers, be extended to<br />
include on-hired employees and on-hired contractors (as “any<br />
persons”) whose health and safety may depend upon appropriate<br />
instruction and information about <strong>the</strong> workplace being provided<br />
directly by <strong>the</strong> workplace employer.<br />
Recommendation 11:<br />
Likewise, if recommendation 9 is not agreed or adopted, <strong>the</strong>n it is<br />
recommended that <strong>the</strong> employers’ duty at section 9(2)(e) to provide<br />
supervision to any employees who are inexperienced in <strong>the</strong><br />
performance <strong>of</strong> any work, be extended to include all inexperienced<br />
persons whe<strong>the</strong>r <strong>the</strong>y are employees or engaged as on-hired<br />
employees, in order to satisfy <strong>the</strong> need to prevent injury, illness and<br />
death <strong>of</strong> any person in <strong>the</strong> workplace.<br />
Recommendation 12:<br />
It is recommended that section 9(2)(a) and (b) that allow <strong>the</strong> Director<br />
administrative power to notify employers and require appropriate<br />
action about health hazards be removed and replaced with a<br />
provision that prescribes firstly a duty <strong>of</strong> employers to protect <strong>the</strong><br />
health <strong>of</strong> persons employed or engaged in <strong>the</strong> workplace and<br />
secondly, where hazards or risks to health exist, to monitor <strong>the</strong><br />
health <strong>of</strong> those persons to prevent illness.<br />
Recommendation 13:<br />
It is also recommended that “work-related injury” be removed from<br />
<strong>the</strong> content <strong>of</strong> a provision whose main intent is to talk about<br />
preventing work-related illness.<br />
Recommendation 14:<br />
It is recommended that to streng<strong>the</strong>n and clarify <strong>the</strong> employers’<br />
duties to provide information etc, after removing s9(2)(a) and (b)<br />
from this section and placed elsewhere in <strong>the</strong> Act, <strong>the</strong> duties <strong>of</strong><br />
employers at sub-subsections (c), (d), (e) and (f) be placed in a<br />
separate section under <strong>the</strong> heading something like “duties <strong>of</strong><br />
employers to provide information to employees”.<br />
Recommendation 15:<br />
It is also recommended that ano<strong>the</strong>r separate section be provided for<br />
<strong>the</strong> duty <strong>of</strong> employers to responsible <strong>of</strong>ficers at (g), headed “duty <strong>of</strong><br />
22
employers to provide information &c to responsible <strong>of</strong>ficers,<br />
managers and supervisors“.<br />
These duties are to retain <strong>the</strong> practicability provision.<br />
Recommendation 16:<br />
It is also recommended that <strong>the</strong> agency provide guidance as to <strong>the</strong><br />
type <strong>of</strong> information that should be provided, to allow for relevant<br />
workplace health and safety policies etc.<br />
Recommendation 17:<br />
This recommendation relates to <strong>the</strong> previous recommendations<br />
made about section 9(2). Sub-subsections (h) and (i) <strong>of</strong> subsection<br />
(2) should be written as separate sections.<br />
In effect if all recommendations about subsection (2) were to be<br />
taken up, <strong>the</strong>re would be separate sections dealing with separately<br />
identified types <strong>of</strong> duties.<br />
Recommendation 18:<br />
It is recommended that s9(3) be rewritten as a separate section<br />
clearly titled as a duty <strong>of</strong> employers to o<strong>the</strong>r persons not at <strong>the</strong><br />
workplace.<br />
Recommendation 19:<br />
It is recommended that guidance and/or education be provided to<br />
raise <strong>the</strong> level <strong>of</strong> awareness <strong>of</strong> who are “accountable persons”<br />
according to <strong>the</strong> legislation.<br />
Recommendation 20:<br />
It is recommended that <strong>the</strong> agency gives close consideration at a<br />
strategic level to how to raise levels <strong>of</strong> awareness <strong>of</strong> <strong>the</strong> risks to<br />
health associated with contemporary workplaces and how workplace<br />
health and safety training may best be provided.<br />
Recommendation 21:<br />
It is recommended that <strong>the</strong> agency encourage industry to adopt<br />
existing industry standards or codes <strong>of</strong> practice as recognised<br />
practical non-statutory instruments. Large industries and businesses<br />
could, by following this principle, be encouraged to adopt relevant<br />
national standards; while small businesses could develop simple<br />
health and safety measures or relevant codes <strong>of</strong> practice that apply<br />
to <strong>the</strong>ir operations.<br />
The recommended workplace health and safety council could be an<br />
appropriate body to advance <strong>the</strong> adoption <strong>of</strong> standards by large<br />
23
usinesses and <strong>the</strong> encouragement <strong>of</strong> relevant simple solutions for<br />
small businesses in Tasmania.<br />
Guidance materials, whe<strong>the</strong>r published electronically or in paper<br />
form, must be simply written in “plain English”.<br />
Recommendation 22:<br />
It is recommended that fur<strong>the</strong>r consideration be given to <strong>the</strong> internal<br />
inconsistencies <strong>of</strong> <strong>the</strong> legislation that prescribes both innovative and<br />
traditional safety systems; and how organisations can overcome<br />
problems created by having to comply with a “system” that is<br />
incompatible with <strong>the</strong> way in which <strong>the</strong>ir organisation is managed.<br />
Recommendation 23:<br />
It is recommended that Regulations 18 and 19 be considered closely<br />
by <strong>the</strong> agency with a view to remove those aspects that are not<br />
strictly necessary to preventing injury or illness. Administrative<br />
processes, for example <strong>the</strong> requirements at Reg18 (3), (4), and (5)<br />
should be considered for removal.<br />
Reg 19(1) prescribing general control <strong>of</strong> risk could stand; however it<br />
is recommended that Reg 19(2) which is complex and confusing for<br />
most duty holders and which imposes unnecessarily onerous<br />
requirements subject to a penalty, be removed.<br />
The review team recognises that changes to <strong>the</strong> prescription <strong>of</strong> risk<br />
management processes is potentially an area for national attention<br />
ra<strong>the</strong>r than something pertaining only to Tasmania and it could be<br />
referred to <strong>the</strong> ASCC for action for “national harmonisation”.<br />
Recommendation 24:<br />
If <strong>the</strong> message to prevent injury or illness is to get through to <strong>the</strong><br />
maximum number <strong>of</strong> people, it is important to avoid using jargon (or<br />
language that is only understood by a small group) ei<strong>the</strong>r in <strong>the</strong><br />
legislation or in guidance provided by <strong>the</strong> agency.<br />
Recommendation 25:<br />
It is recommended that <strong>the</strong> Act be amended to include a definition <strong>of</strong><br />
consultation, and;<br />
The Act should contain a general duty that employers and<br />
accountable persons must consult with all relevant persons to ensure<br />
that each person is safe from injury and risks to health.<br />
Recommendation 26:<br />
It is recommended that an amendment to <strong>the</strong> Act would streng<strong>the</strong>n<br />
<strong>the</strong> current references to “work practices” and working conditions. It<br />
24
could be phrased as a duty <strong>of</strong> employers (so far as is reasonably<br />
practicable) to control risks to health and safety that arise from any<br />
aspect <strong>of</strong> work including <strong>the</strong> organisation and management <strong>of</strong> work,<br />
working conditions, job design and demand, work practices, and<br />
workplace behaviour (or “relations” if this term is preferred).<br />
Recommendation 27:<br />
It is recommended that a provision be included in <strong>the</strong> Act to enable<br />
workplace parties to approach a tribunal <strong>of</strong> <strong>the</strong> <strong>Tasmanian</strong> Industrial<br />
Commission for resolving workplace health and safety issues that<br />
have not been successfully resolved at <strong>the</strong> workplace.<br />
The primary purpose <strong>of</strong> <strong>the</strong> tribunal would be to mediate and<br />
facilitate <strong>the</strong> resolution <strong>of</strong> issues.<br />
The overall objective would be to prevent illness and/or injury that<br />
may arise from psychosocial risk factors in <strong>the</strong> workplace.<br />
The amendment would necessarily be drafted so that its purpose is<br />
clear and not be exploited for o<strong>the</strong>r purposes.<br />
A working group <strong>of</strong> agency, TIC and o<strong>the</strong>r relevant persons would<br />
need to consider <strong>the</strong> powers, indemnification and referring provisions<br />
that would enable <strong>the</strong> tribunal to operate within <strong>the</strong> legislation.<br />
Recommendation 28:<br />
It is recommended that collaboration with o<strong>the</strong>r relevant agencies be<br />
used to raise awareness <strong>of</strong> <strong>the</strong> contributory work-related risk factors<br />
to chronic disease identified as priorities by <strong>the</strong> National OHS and<br />
National Health Strategies.<br />
It is recommended that programs, activities and services delivered to<br />
workplaces take advantage <strong>of</strong> health promotional methods that have<br />
proved to be successful.<br />
The WorkCover Board, in fulfilling its promotion function according<br />
<strong>the</strong> Act, and <strong>the</strong> recommended workplace health and safety council<br />
may benefit from exploring a whole <strong>of</strong> government approach to<br />
preventing work-related illness.<br />
Recommendation 29:<br />
It is recommended that <strong>the</strong> Inspectorate should receive targeted<br />
training on how to advise businesses correctly in regard to <strong>the</strong><br />
impact <strong>of</strong> work organisation, work practices and management <strong>of</strong><br />
work.<br />
25
Recommendation 30:<br />
To reduce injury and illness in <strong>Tasmanian</strong> workplaces, it is<br />
recommended that workplace health and safety training, embracing<br />
awareness <strong>of</strong> <strong>the</strong> legislation and how to prevent work-related injury<br />
and illness, should be a mandatory part <strong>of</strong> all vocational and<br />
management training.<br />
Employers, principals, contractors, managers and supervisors should<br />
all be actively encouraged to complete workplace health and safety<br />
training. The State Government could lead <strong>the</strong> way by initiating<br />
workplace health and safety training in all public sector training<br />
provided for relevant supervisory and management positions.<br />
Recommendation 31:<br />
It is recommended that <strong>the</strong> agency provide regular training seminars<br />
for businesses on aspects <strong>of</strong> <strong>the</strong> legislation and preventing injury and<br />
illness.<br />
Recommendation 32:<br />
It is recommended that an amendment to <strong>the</strong> powers and functions<br />
<strong>of</strong> inspectors be drafted to include educative and advisory powers<br />
and functions to:<br />
- meet stakeholders’ needs for more direct advice;<br />
- enable <strong>the</strong> increase in awareness-raising activities that we have<br />
consistently recommended throughout this <strong>report</strong>; and<br />
- provide indemnification <strong>of</strong> inspectors when engaging in advisory or<br />
educative functions.<br />
Recommendation 33:<br />
It is recommended that funding arrangements are negotiated<br />
between <strong>the</strong> WorkCover Board, <strong>the</strong> agency and <strong>the</strong> Workplace<br />
Health and Safety Council to develop and implement additional<br />
awareness raising, educative and advisory programs that support <strong>the</strong><br />
needs <strong>of</strong> small business.<br />
Recommendation 34:<br />
It is recommended that inspectorate training programs include<br />
training to equip <strong>the</strong>m with <strong>the</strong> knowledge and skills to be able to<br />
identify risks and prevent illness arising from work organisation, work<br />
practices and <strong>the</strong> management <strong>of</strong> work and advise businesses<br />
appropriately.<br />
26
Recommendation 35:<br />
It is recommended that <strong>the</strong> agency enter into discussions with<br />
relevant education and training bodies to discuss <strong>the</strong> potential for <strong>the</strong><br />
inclusion <strong>of</strong> core OHS education and training in post-secondary<br />
courses. The outcome <strong>of</strong> discussions could become part <strong>of</strong> a<br />
feasibility study for <strong>the</strong> Minister to determine whe<strong>the</strong>r to proceed to<br />
<strong>the</strong> next step – workplace health and safety education and training<br />
strategy (see next recommendation).<br />
Recommendation 36:<br />
It is recommended that representatives <strong>of</strong> <strong>the</strong> agency, <strong>the</strong><br />
WorkCover Board and Workplace Health and Safety Council get<br />
toge<strong>the</strong>r to determine a workplace health and safety education and<br />
training strategy to be presented to <strong>the</strong> Minister for <strong>Justice</strong> and<br />
Workplace Relations and <strong>the</strong> Minister for Education.<br />
Recommendation 37:<br />
It is recommended that section 9(2)(a) and (b), and section 14A be<br />
fur<strong>the</strong>r examined in conjunction with section 39. If it is agreed that<br />
<strong>the</strong>y substantially duplicate <strong>the</strong> powers <strong>of</strong> <strong>the</strong> Director in s39, it is<br />
recommended that s9(2)(a) and (b); and s14A be removed for <strong>the</strong><br />
purpose <strong>of</strong> consolidating all <strong>the</strong> powers and functions <strong>of</strong> <strong>the</strong> Director<br />
in one place for easy reference and greater clarity.<br />
Recommendation 38:<br />
It is recommended that <strong>the</strong> issue <strong>of</strong> monitoring health, as one means<br />
<strong>of</strong> preventing illness, and keeping records <strong>of</strong> monitoring conducted,<br />
be fur<strong>the</strong>r considered by <strong>the</strong> agency in view <strong>of</strong> changed employment<br />
arrangements. Consideration should include how to maintain<br />
consolidated records, particularly for persons who are self-employed,<br />
on-hired, or working regularly between different states.<br />
Recommendation 39:<br />
It is recommended that, while <strong>Tasmanian</strong> penalties should be on a<br />
par with o<strong>the</strong>r States and Territories, benchmarking should be based<br />
on objective criteria. Any increase should be approached with<br />
caution. Fur<strong>the</strong>r consideration should be given to <strong>the</strong> issue <strong>of</strong><br />
penalties by <strong>the</strong> agency, keeping in mind <strong>the</strong> size <strong>of</strong> most <strong>of</strong><br />
Tasmania’s businesses.<br />
Recommendation 40:<br />
We recommend that <strong>the</strong> proposed workplace health and safety<br />
council consider <strong>the</strong> issue <strong>of</strong> codes <strong>of</strong> practice, and invite <strong>the</strong> HIA<br />
and o<strong>the</strong>r interested parties to be involved.<br />
27
Recommendation 41:<br />
It is recommended that “public administration” be included within <strong>the</strong><br />
definition <strong>of</strong> “industry” in section 3 <strong>of</strong> <strong>the</strong> Act. This would remove any<br />
doubt as to whe<strong>the</strong>r <strong>the</strong> Act applies to those persons who are<br />
employed or engaged for work in public sector agencies, <strong>of</strong>fices,<br />
statutory authorities, etc.<br />
Recommendation 42:<br />
It is recommended that <strong>the</strong> agency liaise with <strong>the</strong> <strong>Department</strong> <strong>of</strong><br />
Premier and Cabinet and/or Volunteering Tasmania to ensure that<br />
<strong>the</strong>re is consistent guidance in regard to <strong>the</strong> application <strong>of</strong> <strong>the</strong><br />
legislative objectives towards volunteers.<br />
Recommendation 43:<br />
We recommend <strong>the</strong> removal <strong>of</strong> Part 4 from <strong>the</strong> Act.<br />
28
CHAPTER 1<br />
THE WORLD OF WORK<br />
19. Our <strong>report</strong> commences by looking at what has happened to change<br />
<strong>the</strong> world <strong>of</strong> work over <strong>the</strong> last decade or so, and how <strong>the</strong>se<br />
changes affect people’s health and safety.<br />
20. The productivity <strong>of</strong> our local and national economy depends on <strong>the</strong><br />
work we do. Economic arrangements influence <strong>the</strong> way we work<br />
as well as <strong>the</strong> kind <strong>of</strong> work we do. Social policies, expressed in<br />
industrial relations or welfare policy, may affect how we feel about<br />
work and at work, and what can happen to us if we are out <strong>of</strong> work.<br />
21. If we are injured or become ill because <strong>of</strong> <strong>the</strong> work we do, <strong>the</strong><br />
effects are felt in loss <strong>of</strong> productivity and costs <strong>of</strong> care, and by<br />
individuals and families; physically, financially and emotionally. By<br />
preventing work-related injuries, illness or death, we support <strong>the</strong><br />
economy and <strong>the</strong> capacity <strong>of</strong> people to live fulfilling lives.<br />
22. Thus we commence by looking at <strong>the</strong> strategic environment within<br />
which workplace health and safety policy operates. Some parts <strong>of</strong><br />
<strong>the</strong> big picture that appear to have <strong>the</strong> greatest impact upon<br />
workplace health and safety, particularly national economic and<br />
industrial relations policy, are beyond <strong>the</strong> limited reach <strong>of</strong> this<br />
review.<br />
29
23. Where potential national directions in workplace health and safety<br />
are likely to have a significant impact upon Tasmania’s legislative<br />
and administrative frameworks, we have given <strong>the</strong>m consideration.<br />
Global change<br />
24. Although <strong>the</strong> <strong>Tasmanian</strong> Workplace Health and Safety Act 1995<br />
was passed by <strong>the</strong> <strong>Tasmanian</strong> Parliament just over a decade ago,<br />
it is firmly based on a world view that goes back at least thirty years<br />
and probably longer. This is because it is based upon <strong>the</strong><br />
recommendations set out in <strong>the</strong> 1970s by Lord Robens in <strong>the</strong><br />
United Kingdom.<br />
25. The changes that have taken place over <strong>the</strong> last ten to twenty<br />
years have been far-reaching. Social, political and economic<br />
changes on a global scale, driven by liberalisation and growth <strong>of</strong><br />
trade, intense competition and deregulation <strong>of</strong> <strong>the</strong> labour market,<br />
have inevitably affected <strong>the</strong> nature <strong>of</strong> work and workplaces, and<br />
thus workplace health and safety.<br />
26. The 1990s saw a wave <strong>of</strong> economic change in Australia driven by<br />
national reforms in industrial relations, infrastructure and network<br />
market reforms, and reforms driven by National Competition Policy<br />
to reduce regulation and increase competitiveness. After <strong>the</strong><br />
release <strong>of</strong> <strong>the</strong> OECD economic blueprint, The Jobs Study: Facts,<br />
Analysis, Strategies (1994) <strong>the</strong> pace <strong>of</strong> change in <strong>the</strong> labour market<br />
30
quickened. 1 As a result <strong>of</strong> reforms, Australia has seen accelerated<br />
productivity growth and changes in <strong>the</strong> composition <strong>of</strong> employment<br />
by industry. 2<br />
Industry Pr<strong>of</strong>ile<br />
27. The industry pr<strong>of</strong>ile that existed at <strong>the</strong> time that Robens made his<br />
recommendations in <strong>the</strong> 1970s has changed pr<strong>of</strong>oundly. Numbers<br />
<strong>of</strong> people employed in manufacturing have declined in Australia<br />
while service industries have grown.<br />
Structural changes to <strong>the</strong> Australian economy over<br />
recent decades are reflected in changes in <strong>the</strong><br />
composition <strong>of</strong> employment by industry. In 1985-86,<br />
one-third (33%) <strong>of</strong> all employed people were employed<br />
in goods producing industries* but this had dropped to<br />
one-quarter (25%) in 2005-06 (with <strong>the</strong> remaining 75%<br />
<strong>of</strong> employed people working in service industries*).<br />
While most jobs in goods producing industries were held<br />
by men (approximately 78% in both 1985-86 and 2005-<br />
06), <strong>the</strong> jobs in service industries were more evenly<br />
distributed between men and women. 3<br />
28. According to Dr. Ken Henry, Secretary <strong>of</strong> <strong>the</strong> federal Treasury<br />
(2006), manufacturing lost almost 50,000 jobs over <strong>the</strong> last two<br />
1 Organisation for Economic Co-operation and Development (1994) The Jobs Study: Facts,<br />
Analysis, Strategies, OECD, Paris.<br />
2 Ziegelschmidt, Helmut; Koutsogeorgopoulou, Vassiliki; Bjornerud Simen; & Wise, Michael<br />
(2005). OECD Economics <strong>Department</strong> Working Paper No. 451 “Product Market Competition<br />
and Economic Performance in Australia”, p. 14. (http://www.oecd.org/eco/Working_Papers/.)<br />
3 61050.0 Australian Labour Market Statistics (October 2006) “Changes in Where People<br />
Work Over Time” – Introduction. Australian Bureau <strong>of</strong> Statistics: Canberra.<br />
(* Goods producing industries are defined in endnotes 1 and 2 <strong>of</strong> <strong>the</strong> ABS <strong>report</strong> as<br />
Construction; Agriculture, forestry and fishing; Manufacturing; Mining; and Electricity, gas and<br />
water; while service industries are defined as [defined as Property and business services;<br />
Accommodation, cafes and restaurants; Cultural and recreational services; personal and<br />
o<strong>the</strong>r services; health and community services; Retail trade; Education; Wholesale trade;<br />
Government administration and defence; Finance and insurance; Transport and storage; and<br />
Communication services.) http://www.abs.gov.au/Ausstats/abs@.nsf/)<br />
31
years [2004-2006]. 4 The trend continues: in October 2006<br />
Mitsubishi announced plans to shed 2000 jobs and close down<br />
<strong>the</strong>ir automobile engine manufacturing plant in South Australia.<br />
29. Manufacturing and primary industries continue to rank high in terms<br />
<strong>of</strong> <strong>the</strong> number <strong>of</strong> people employed in Tasmania, but <strong>the</strong>ir<br />
dominance is being challenged by <strong>the</strong> emergence <strong>of</strong> tourism,<br />
communication and o<strong>the</strong>r service type industries. 5<br />
Downsizing<br />
30. Extensive and intensive organisational change took place in <strong>the</strong><br />
1990s. Many terms – including “business re-engineering”,<br />
“restructuring”, “strategic transformation” – are used to refer to <strong>the</strong><br />
phenomenon <strong>of</strong> reducing <strong>the</strong> size <strong>of</strong> organisations and reorganising<br />
<strong>the</strong> business as strategies to increase business efficiency and<br />
competitiveness. Gandolfi & Neck (2003) refer to <strong>the</strong> 1990s as <strong>the</strong><br />
“downsizing decade”. 6<br />
31. Ongoing downsizing is a variation <strong>of</strong> <strong>the</strong> “one-<strong>of</strong>f” mass staff<br />
reductions. This is downsizing by attrition, freezing <strong>of</strong> positions,<br />
conversion <strong>of</strong> full-time positions to part-time or “job-shared”<br />
4 Megalogenis, George “China-led boom to threaten factories”, The Weekend Australian, Sept<br />
30-Oct 1 2006; The Nation, p.6.<br />
5 According to <strong>the</strong> <strong>Department</strong> <strong>of</strong> Economic Development’s Annual Report 2004-05,<br />
<strong>Tasmanian</strong> manufacturing and services industry employed 23,000 people; Food, Agriculture<br />
and Fish industry employed 20,000 people; Forest industry employs 7,700 people; Mining and<br />
Minerals employed about 4,000 people; Construction industry employed 10,000 people; ICT<br />
employs 2,800 full-time equivalent employees; Energy related industry employs about 1,500<br />
people; business services and contact centre industry employs 5,300 people.<br />
(http://www.development.tas.gov.au.)<br />
6 Gandolfi, Franco & Neck, Philip A. (2003) “Organisational Downsizing”, Australasian Journal<br />
<strong>of</strong> Business & Social Inquiry Vol.1. Number 1, p. 4.<br />
Retrieved October 2006 from website: http://www.scu.edu.au/ajbsi/papers/vol1/gandolfi.pdf.<br />
32
positions as well as encouraging early retirement. It has a similar<br />
impact to one-<strong>of</strong>f downsizing or restructuring that involves loss <strong>of</strong><br />
staff. 7<br />
32. Many organisations, particularly in manufacturing, retail, finance<br />
and <strong>the</strong> public sector, experienced repeated downsizing or restructuring,<br />
thus compounding <strong>the</strong> effects.<br />
33. Downsizing in both <strong>the</strong> private and public sectors resulted in 3.3<br />
million full-time employees in Australia being retrenched between<br />
1986 and 1997. 8 Some involved forced redundancies; o<strong>the</strong>rs<br />
involved voluntary redundancies, early retirements or redeployment<br />
into lower paid jobs.<br />
34. Many <strong>of</strong> those who were made redundant re-entered <strong>the</strong> workforce<br />
ei<strong>the</strong>r as self-employed persons (accounting for a rise in <strong>the</strong><br />
number <strong>of</strong> small and micro businesses) or as hired out labour (onhired<br />
employees or sub-contractors). Some experienced<br />
unemployment; o<strong>the</strong>rs required re-training before <strong>the</strong>y could reenter<br />
<strong>the</strong> workforce in o<strong>the</strong>r occupations or o<strong>the</strong>r sectors.<br />
35. In 2000-01, 13.7% <strong>of</strong> all <strong>Tasmanian</strong> businesses were nonemploying<br />
and 96% <strong>of</strong> all <strong>Tasmanian</strong> businesses are classified as<br />
7 Ibid, p. 11.<br />
8 Gandolfi & Neck, p. 5.<br />
33
small to micro businesses thus reflecting <strong>the</strong> national growth <strong>of</strong><br />
“micro-business” after <strong>the</strong> downsizing phenomenon. 9<br />
36. Research on <strong>the</strong> impact <strong>of</strong> downsizing on <strong>the</strong> health <strong>of</strong> workers<br />
[Gandolfi and Neck (2003) and Quinlan (2001; 2006)], reveals that<br />
<strong>the</strong> workers who stayed behind as well as those who left <strong>the</strong><br />
organisations have been affected negatively.<br />
Health effects<br />
include mental stress as a consequence <strong>of</strong> job strain (increased job<br />
demand) and job insecurity. (Mental disorders are now recognised<br />
as a priority national occupational disease and risks to health are<br />
discussed fur<strong>the</strong>r in Chapter 5.)<br />
Ageing society<br />
37. We are witnessing an ageing, diminishing, labour force. As our<br />
ageing workers retire it is likely to create shortages in skills as well<br />
as numbers <strong>of</strong> workers. The Australian Bureau <strong>of</strong> Statistics Labour<br />
Force Survey <strong>report</strong> <strong>of</strong> October 2006 reveals “<strong>the</strong> proportion <strong>of</strong><br />
both men and women employed in higher skilled occupations<br />
increases with age”. 10 As <strong>the</strong>se employees retire <strong>the</strong>y are likely to<br />
leave workforce gaps in skills and experience that will be a<br />
challenge to fill.<br />
38. The departure <strong>of</strong> retirees from <strong>the</strong> workforce may see a recurrence<br />
<strong>of</strong> “risks to health” created by <strong>the</strong> “downsizing decade” <strong>of</strong> <strong>the</strong><br />
9 Australian Bureau <strong>of</strong> Statistics 2006, Cat. No. 1384.6 Statistics – Tasmania. Retrieved<br />
September 2006 from website: http://www.abs.gov.au/Ausstats/abs.<br />
10 Australian Bureau <strong>of</strong> Statistics 2006, Cat. No. 6105.0 Australian Labour Market Statistics<br />
“Introduction”. Australian Bureau <strong>of</strong> Statistics (ABS)<br />
(http://www.abs.gov.au/Ausstats/abs@nsf/.)<br />
34
nineties. As individual workforces reduce in size, attempts to<br />
spread <strong>the</strong> same workload across fewer people will repeat <strong>the</strong><br />
experience <strong>of</strong> <strong>the</strong> 1990s.<br />
Then <strong>the</strong> demand for increased<br />
productivity and more streamlined business led to increased pace,<br />
load, demand and intensity <strong>of</strong> work with resulting high psychosocial<br />
risk factors <strong>of</strong> work-related illness and injury. Consideration <strong>of</strong> <strong>the</strong><br />
health and safety <strong>of</strong> <strong>the</strong> ageing workforce will also need to factor in<br />
<strong>the</strong> fact that some, perhaps many, ageing workers will already be<br />
affected by <strong>the</strong> onset <strong>of</strong> chronic illness.<br />
39. One downside <strong>of</strong> <strong>the</strong> ageing workforce being felt now is difficulty in<br />
recruiting people with specialist skills in certain sectors. In sectors<br />
such as health services, where demand is increasing, shortages <strong>of</strong><br />
essential staff make it difficult for providers to meet demand without<br />
impacting negatively on <strong>the</strong> health and safety <strong>of</strong> workers.<br />
40. Various national policies and strategies have emerged in response<br />
to <strong>the</strong> ageing <strong>of</strong> <strong>the</strong> workforce. These include encouragement <strong>of</strong><br />
mature aged or older people (aged 55 – 60 years and beyond<br />
retirement age) to remain in <strong>the</strong> workforce; importing labour<br />
through skilled migration programs; and policies to return people to<br />
work who have been out <strong>of</strong> <strong>the</strong> labour market for extended periods.<br />
Migration<br />
41. One feature <strong>of</strong> <strong>the</strong> global economy is <strong>the</strong> mobility <strong>of</strong> <strong>the</strong> labour<br />
force: people move internationally, as well as within nations and<br />
within regions, to meet demands for labour.<br />
35
42. According to <strong>the</strong> ABS population statistics (2001), recent<br />
immigrants are more likely to work in <strong>the</strong> leading sectors <strong>of</strong> <strong>the</strong><br />
economy in jobs that are highly paid and settle in major urban<br />
areas. 11<br />
Tasmania is actively encouraging skilled migrants,<br />
particularly health specialists and general practitioners, to meet its<br />
needs. 12<br />
43. Figures released by <strong>the</strong> (<strong>the</strong>n) Commonwealth <strong>Department</strong> <strong>of</strong><br />
Immigration and Multicultural Affairs (DIMA) indicate that recent<br />
migrants to settle in Tasmania work in <strong>the</strong> energy industries, health<br />
and community services and some in agriculture, forestry and<br />
fishing, and mining. They are predominantly from <strong>the</strong> United<br />
Kingdom or India. 13<br />
Small numbers <strong>of</strong> refugees have settled in<br />
Tasmania from Sudan, Ethiopia and Sierra Leone. 14<br />
44. The agency needs to take <strong>the</strong> needs <strong>of</strong> ageing and migrant<br />
workers into account in developing strategic directions for<br />
preventing injury and illness in <strong>the</strong> workplace.<br />
45. Both private and public sector employers need to carefully consider<br />
<strong>the</strong> health and safety impacts <strong>of</strong> reducing/reduced workforces.<br />
11 Australian Bureau <strong>of</strong> Statistics (2001), Cat. No. 2053.0, Population Statistics Australian<br />
Census Analytic Program, “Australia’s Most Recent Immigrants”. Commonwealth <strong>of</strong><br />
Australia: Canberra.<br />
(http://www.abs.gov.au/AUSSTATS/abs@nsf/latestproducts/2053.0Media).<br />
12 The <strong>Department</strong> <strong>of</strong> Economic Development website provides a skills shortages list but also<br />
indicates potential business opportunities for skilled migrants.<br />
(http://www.development.tas.gov.au/migration/skilledmigration.html).<br />
13 ABC Tasmania (Monday, 25 September, 2006) “Tasmania’s migrants net highest wages”.<br />
(http://www.abc.net.au/news/items/200609/1747719.htm?tasmania).<br />
14 Peter Wels, Stateline “Refugees” 24 March 2006. ABC Radio<br />
(http://www.abc.net.au/stateline/tas/content/2006/s1600250.htm)<br />
36
Unless production or output is adjusted accordingly, remaining<br />
workers are likely to be at higher risks <strong>of</strong> injury and/or illness as a<br />
result <strong>of</strong> increased job demand, load and pace <strong>of</strong> work. Employers<br />
need to consider <strong>the</strong> needs <strong>of</strong> migrants in <strong>the</strong>ir workforce when<br />
fulfilling <strong>the</strong>ir duties <strong>of</strong> providing information, instruction, training<br />
and supervision.<br />
Recommendation 1:<br />
The health and safety needs <strong>of</strong> mature-aged persons, skilled<br />
migrants, refugees entering <strong>the</strong> <strong>Tasmanian</strong> workforce and o<strong>the</strong>r<br />
persons re-entering <strong>the</strong> workforce after a long absence, are<br />
issues that both industry and government need to consider<br />
carefully now in planning programs and strategies to prevent<br />
injury and illness.<br />
37
Changed employment arrangements<br />
46. Many people who took redundancies from downsizing companies<br />
during <strong>the</strong> late 1980s and `90s became independent contractors<br />
and sub-contractors, contributing to <strong>the</strong> increase in <strong>the</strong> numbers <strong>of</strong><br />
small, especially “micro” non-employing, businesses. A massive<br />
growth in casual and part-time employment arrangements replaced<br />
“full-time, permanent” employment.<br />
47. Chris Maxwell refers to <strong>the</strong> changed employment arrangements:<br />
It has been estimated that 85% <strong>of</strong> net employment<br />
growth is in “precarious employment” categories. Most<br />
<strong>of</strong> <strong>the</strong> job losses in <strong>the</strong> period from 1985 to 2001 were<br />
associated with industries which had traditionally<br />
provided full-time, permanent employment. By 2002<br />
employees with paid leave entitlements made up only<br />
58% <strong>of</strong> <strong>the</strong> Australian workforce. 15<br />
48. Among <strong>the</strong> increased numbers <strong>of</strong> people in “precarious<br />
employment” are those employed on a casual basis. This is<br />
employment based on working flexible hours without sickness or<br />
holiday benefits, <strong>of</strong>ten on an “on call” basis (such as in <strong>the</strong><br />
hospitality, entertainment and o<strong>the</strong>r service industry sectors but<br />
increasingly used also in <strong>the</strong> retail sector). O<strong>the</strong>r employment in<br />
this category includes fiercely contested fixed, short-term, contracts<br />
that frequently result in narrow margins. 16 )<br />
15 Chris Maxwell (2004), Occupational Health and Safety Act Review (State <strong>of</strong> Victoria,<br />
Australia), para.59, p. 26. [Maxwell’s footnotes within <strong>the</strong> quotation are deleted to avoid<br />
confusion.]<br />
16 Australian jurisdictions passed “unfair contract” legislation throughout <strong>the</strong> 1990s and early<br />
2000s to establish “fair”, minimum, contract conditions.<br />
38
49. The Australian Bureau <strong>of</strong> Statistics Labour Force Survey <strong>report</strong>s “it<br />
is widely agreed that casual employment has increased over <strong>the</strong><br />
last decade and will continue to do so. In 2004, 26% <strong>of</strong> employees<br />
[in Australia] were casual”. 17<br />
50. In Tasmania 28.5% <strong>of</strong> all employees are casual (2005). 18<br />
Impact <strong>of</strong> precarious employment on health<br />
51. The International Labour Organisation <strong>of</strong> <strong>the</strong> United Nations (ILO)<br />
published research on <strong>the</strong> effects <strong>of</strong> globalisation indicating that<br />
employment insecurity is a major contributing factor to work-related<br />
stress and stress-induced illnesses.<br />
52. The percentage <strong>of</strong> people employed/unemployed no longer<br />
indicates employment security, since “employment” includes all<br />
forms <strong>of</strong> temporary employment and includes very low and/or<br />
irregular hours. It is generally agreed that <strong>the</strong> “nine to five”, fulltime<br />
permanent employment <strong>of</strong> thirty years ago, when <strong>the</strong><br />
legislative framework was designed, is now relatively uncommon.<br />
53. There is consensus among researchers that <strong>the</strong> rewards <strong>of</strong> high<br />
levels <strong>of</strong> productivity have come with <strong>the</strong> emergence <strong>of</strong> new health<br />
and safety risks. 19<br />
17 Australian Bureau <strong>of</strong> Statistics 2006, Year Book Australia 2006, Cat. no. 1301.0, ABS,<br />
Canberra. Retrieved July 2006 from website:<br />
www.abs.gov.au/ausstats/abs@nsf/Latestproducts/1301.0Feature Article.<br />
18 Australian Bureau <strong>of</strong> Statistics 2005, Australian Social Trends 2005, Cat. no. 41102.0,<br />
ABS, Canberra. Retrieved July 2006 from website www.abs.gov.au/ausstats/abs.<br />
39
54. In Australia, many <strong>of</strong> those who are in full-time employment,<br />
particularly in senior or managerial roles, are working longer hours,<br />
mostly attributable to unpaid overtime and are feeling <strong>the</strong> effects in<br />
fatigue and stress. 20<br />
55. The United Nations International Labour Organisation (ILO) also<br />
cites changed work organisation and work practices, as well as <strong>the</strong><br />
emergence <strong>of</strong> more high-risk ventures, as features <strong>of</strong> <strong>the</strong> global<br />
economy that exert negative effects on health and safety<br />
considerations. 21<br />
Work intensification<br />
56. The effects <strong>of</strong> work intensification on health are substantiated by<br />
<strong>the</strong> findings <strong>of</strong> <strong>the</strong> Whitehall II Study (2002) commissioned by <strong>the</strong><br />
Health and Safety Executive in <strong>the</strong> United Kingdom. This study<br />
reveals that increased work intensification with low control (i.e.<br />
ability to control <strong>the</strong> pace and/or demand <strong>of</strong> work) leads to<br />
deterioration <strong>of</strong> mental health <strong>of</strong> workers. When insecurity <strong>of</strong><br />
employment is added to <strong>the</strong> equation, <strong>the</strong> potential for stress<br />
related illness is increased. 22<br />
19 There is a large body <strong>of</strong> work on this subject. See for example: Flaspoler, E., & Brun, E.<br />
(2005) Expert forecast on emerging physical risks related to occupational safety and health,<br />
pub. European Agency for Safety and Health at Work: William Cockburn, Luxembourg.<br />
20 Iain Campbell (2002) Cross-national Comparisons – Work Time Around <strong>the</strong> World (Centre<br />
for Applied Social Research, Royal Melbourne Institute <strong>of</strong> Technology University, Melbourne,<br />
Victoria). Accessed through ACTU web site<br />
(http://www.actu.asn.au/public/papers/crossnationalcomp.html).<br />
21 ILO (2006) Changing Patterns in <strong>the</strong> World <strong>of</strong> Work, Geneva. Retrieved July 2006 from<br />
website: http://www.ilo.org/public/english/standards/relm/ilc/ilc95/<strong>report</strong>s.htm.<br />
22 The influences <strong>of</strong> <strong>the</strong> psychosocial work environment on incident coronary heart disease<br />
and diabetes and <strong>the</strong> influences <strong>of</strong> change in work risk factors on health are <strong>report</strong>ed from <strong>the</strong><br />
40
57. The World Health Organisation World Health Report 2001 – Mental<br />
Health: New Understanding, New Hope cites widespread social,<br />
technological and economic changes in <strong>the</strong> late twentieth century<br />
as stressors associated with <strong>the</strong> global increase in mental<br />
disorders representing four out <strong>of</strong> ten <strong>of</strong> leading causes <strong>of</strong> disability<br />
world-wide. 23<br />
Clinical practitioners have <strong>report</strong>ed increasing stress-<br />
and mental illness-related morbidity and mortality as features<br />
“characterising societies in distress and undergoing dramatic<br />
change”. 24<br />
Decline in unionism<br />
58. The period from <strong>the</strong> late 1980s to <strong>the</strong> present has seen a steady<br />
decline in union membership in Australia and o<strong>the</strong>r OECD<br />
countries with economies similar to Australia’s. The ABS feature<br />
article on trade union membership links <strong>the</strong> decline in unionism<br />
with labour market changes that have occurred within <strong>the</strong> same<br />
period:<br />
In part, <strong>the</strong> decline in trade union membership in<br />
Australia is due to changes in <strong>the</strong> composition <strong>of</strong> <strong>the</strong><br />
labour market, with job growth tending to occur in<br />
industries (particularly in <strong>the</strong> services sector) where <strong>the</strong><br />
trade union membership rate has always been relatively<br />
longitudinal Whitehall II cohort study <strong>of</strong> 10308 British Civil Servants commissioned by <strong>the</strong><br />
Health and Safety Executive (HSE), United Kingdom. Listed as CRR 422/2002 Ill-Health -<br />
Work environment, alcohol consumption and ill-health: The Whitehall II study. Retrieved July<br />
2006 from website: http://www.hse.gov.uk/research/crr_htm/2002/crr02422.htm.<br />
23 World Health Organisation (WHO) (2001) The World Health Report 2001 – Mental Health:<br />
New Understanding, New Hope, World Health Organisation, Geneva: Chapter 1 “A public<br />
health approach to mental health”, p. 3. Retrieved June 2006 from website:<br />
http://www.who.int/whr/2001/en/.<br />
24 Rutz, Wolfgang (2003)“The European WHO mental health programme and <strong>the</strong> World<br />
Health Report 2001: input and implications”. The British Journal <strong>of</strong> Psychiatry 183: 73-74.<br />
The Royal College <strong>of</strong> Psychiatrists. (http://bjp.rcpsych.org/cgi/content/full/183).<br />
41
low. Conversely, <strong>the</strong>re has been a decline in jobs in<br />
industries that were traditionally highly unionised, such<br />
as mining and manufacturing. Coinciding with <strong>the</strong>se<br />
changes has been an increase in casual and part-time<br />
employment, both <strong>of</strong> which have tended to have lower<br />
unionisation rates.<br />
While compositional change in <strong>the</strong> Australian labour<br />
market has contributed to some <strong>of</strong> <strong>the</strong> decline, <strong>the</strong> trade<br />
union membership rate has also fallen within individual<br />
industries and occupations, and within full-time and parttime<br />
employment groups. This general decline in trade<br />
union membership rates may reflect <strong>the</strong> substantial<br />
changes to <strong>the</strong> industrial relations environment in recent<br />
times. …<br />
… In 2003, <strong>the</strong> trade union membership rate was higher<br />
for employees with leave entitlements (29%) and fulltime<br />
employees (26%) than for employees without leave<br />
entitlements (9%) and part-time employees (17%). 25<br />
59. There is divided opinion on <strong>the</strong> role and relevance <strong>of</strong> unions in<br />
workplace health and safety. Unions have played a major part in<br />
providing training, advice and assistance in workplace health and<br />
safety issues in <strong>the</strong> past, but some unions have also been accused<br />
<strong>of</strong> exploiting workplace health and safety as a means to advance<br />
o<strong>the</strong>r, industrial or political, agendas. 26<br />
60. Dr Steven McBride, Pr<strong>of</strong>essor and Director <strong>of</strong> <strong>the</strong> Centre for Global<br />
Political Economy, Simon Fraser University in British Columbia,<br />
working as an Honorary Research Fellow at Monash University<br />
(Victoria, Australia), identifies <strong>the</strong> decline in unionisation <strong>of</strong><br />
workplaces and restrictions on unions’ ability to represent workers’<br />
25 Australian Bureau <strong>of</strong> Statistics (2004) Australian Labour Market Statistics, Cat. No. 6105.0<br />
Feature Article – Trade Union Membership, Commonwealth <strong>of</strong> Australia, Canberra.<br />
(http://www.abs.gov.au/ausstats/abs@.nsf/0/592d2f759d9d38a9ca256ec1000766f7?OpenDo<br />
cument).<br />
26 Cole, T.R.H. QC, Commissioner, (2003) Final Report <strong>of</strong> <strong>the</strong> Inquiry into <strong>the</strong> Building and<br />
Construction Industry, Vol.6 “Reform – Occupational Health and Safety”.<br />
42
concerns as factors contributing to problems in workplace health<br />
and safety. He argues that <strong>the</strong> decline <strong>of</strong> unionism adds to <strong>the</strong><br />
problems <strong>of</strong> people in insecure employment who are afraid to<br />
express <strong>the</strong>ir concerns to employers for fear <strong>of</strong> retaliation, with<br />
resulting effects on poor health. 27<br />
Workplace relations and workplace health and safety<br />
61. For <strong>the</strong> purpose <strong>of</strong> this discussion ‘workplace relations’ is taken to<br />
be those arrangements or factors governing <strong>the</strong> terms or conditions<br />
<strong>of</strong> employment. It is argued that workplace relations make a<br />
significant contribution to <strong>the</strong> total social and management<br />
environment (or ‘climate’) <strong>of</strong> a workplace. Workplace relations, <strong>the</strong><br />
‘climate’ <strong>of</strong> <strong>the</strong> workplace and workplace health and safety are<br />
closely inter-related and all affect productivity. 28<br />
62. Changes to Australia’s industrial relations system over <strong>the</strong> last ten<br />
to twenty years have accompanied economic reforms. The pace <strong>of</strong><br />
change has quickened since <strong>the</strong> passage <strong>of</strong> <strong>the</strong> Industrial<br />
Relations Act 1993 (Cwlth) that introduced workplace and<br />
enterprise bargaining and agreements. The Workplace Relations<br />
Act 1996 (Cwlth) and <strong>the</strong> most recent reforms <strong>of</strong> <strong>the</strong> Workplace<br />
Relations (Work Choices) Amendments Act 2005 (Cwlth), have<br />
completed a steady movement to create an industrial relations<br />
27 McBride, Steven (n.d.) “Living precariously: A Canadian Perspective on Economic<br />
Security”, Research Centre on Work and Society in <strong>the</strong> Global Era, Monash University,<br />
Clayton, Victoria, Australia; p. 7.<br />
28 United Nations International Labour Organisation (March, 2006) Occupational safety and<br />
health: Synergies between security and productivity. ILO, Geneva.<br />
43
framework that emphasises a direct relationship between<br />
employers and individual employees.<br />
63. The Australian Workplace Relations (Work Choices) Amendments<br />
passed in 2005 exempt businesses that employ fewer than 100<br />
persons from <strong>the</strong> unfair dismissal provisions that had previously<br />
granted some protections and security for workers. Early reaction<br />
to <strong>the</strong> amendments appears to indicate that <strong>the</strong>re is uncertainty<br />
and a perception <strong>of</strong> increased insecurity for workers, though it may<br />
be too early to tell.<br />
64. In order to prevent injury and illness associated with contemporary<br />
workplaces in <strong>the</strong> twenty-first century, workers need to be able to<br />
negotiate freely about a wide range <strong>of</strong> potential and significant<br />
health and safety risk factors. The new workplace arrangements<br />
are intended to enable individual negotiation, however <strong>the</strong>re is a<br />
view that job security or winning a contract in a highly competitive<br />
market frequently takes higher priority over personal health and<br />
safety considerations.<br />
65. The workplace health and safety legislative framework is based on<br />
<strong>the</strong> principle enshrined in statutory duties and obligations that each<br />
person must take care that his or her actions do not harm<br />
<strong>the</strong>mselves or o<strong>the</strong>rs. Provisions <strong>the</strong>n enable collaborative effort to<br />
ensure that persons in <strong>the</strong> workplace are safe from injury and risks<br />
to health.<br />
44
66. Collaboration and co-operation operate especially in <strong>the</strong> application<br />
<strong>of</strong> democratic representative mechanisms in <strong>the</strong> workplace to<br />
enable employers and employees to work toge<strong>the</strong>r to solve<br />
workplace health and safety problems. Such principles and<br />
mechanisms may not fit comfortably with <strong>the</strong> current emphasis on<br />
singular relationships or individual workplace arrangements.<br />
67. In <strong>the</strong> early part <strong>of</strong> <strong>the</strong> federal government’s 2005 Work Choices<br />
campaign, <strong>the</strong> Prime Minister, <strong>the</strong> Hon. John Howard, described<br />
his vision <strong>of</strong> contemporary workplaces. The Prime Minister’s<br />
speech praises <strong>the</strong> dynamic and positive aspects <strong>of</strong> <strong>the</strong> new<br />
economy but it also reflects <strong>the</strong> value now placed upon<br />
individualism:<br />
These Australians do not fit neatly into categories based<br />
on age or geography, occupation or industry, income<br />
level or formal qualification.<br />
They are white collar and blue collar. They work each<br />
day in our factories, our small businesses, our great<br />
services companies, our farms and our mines. Some<br />
choose to be trade unionists; many do not. Most are<br />
traditional employees, while a growing number have<br />
embraced <strong>the</strong> independence and flexibility <strong>of</strong> working for<br />
<strong>the</strong>mselves.<br />
This new breed <strong>of</strong> enterprise workers includes <strong>the</strong><br />
knowledge workers who now make up roughly 40 per<br />
cent <strong>of</strong> our workforce. They include <strong>the</strong> providers <strong>of</strong><br />
personalised services, reshaping our society with little<br />
more than initiative, a mobile phone and a computer. But<br />
<strong>the</strong>y also include blue-collar workers in industries that<br />
only a few years ago were written <strong>of</strong>f as part <strong>of</strong> <strong>the</strong> ‘old<br />
economy’.<br />
They include <strong>the</strong> almost 2 million Australians working for<br />
<strong>the</strong>mselves, <strong>of</strong>ten as independent contractors,<br />
franchisees or consultants. More than a million<br />
Australians now run small businesses from home, <strong>of</strong>ten<br />
45
ecause <strong>the</strong>y can better balance work and family<br />
responsibilities. 29<br />
68. The Prime Minister’s description <strong>of</strong> <strong>the</strong> “new breed <strong>of</strong> enterprise<br />
workers” in contemporary workplaces is interesting. According to<br />
<strong>the</strong> ILO definition <strong>of</strong> “enterprise” as “a locus <strong>of</strong> productivity”, it might<br />
refer to an organisation or a single unit – a company or an<br />
individual – a small, medium or large enterprise. 30<br />
Used in <strong>the</strong><br />
context <strong>of</strong> <strong>the</strong> Prime Minister’ speech, <strong>the</strong> term would include selfemployed<br />
individuals, contractors or sub-contractors, on-hire<br />
employees and casual employees identified earlier as belonging to<br />
<strong>the</strong> category <strong>of</strong> precarious employment. Because <strong>the</strong> PM indicates<br />
that “most are traditional employees”, <strong>the</strong> term would <strong>the</strong>refore<br />
describe any worker who today might be engaged under<br />
individually negotiated workplace agreements or individual<br />
contracts.<br />
69. “Enterprise” captures an attitude or state <strong>of</strong> mind, describing<br />
“boldness or readiness in undertaking, adventurous spirit, or<br />
energy”. 31<br />
Used this way <strong>the</strong> term expresses <strong>the</strong> idea <strong>of</strong> individuals<br />
breaking new ground, taking risks (a “new breed” – as described by<br />
<strong>the</strong> PM).<br />
29 The Hon John Howard, PM., Address to <strong>the</strong> Sydney Institute, “Workplace Relations<br />
Reform: The Next Logical Step”, Four Seasons Hotel, Sydney, 11 July 2005. As retrieved<br />
August 2006 from <strong>the</strong> Prime Minister’s Speeches at<br />
www.pm.gov.au/news/speeches/speech1455.html.<br />
30 United Nations International Labour Organisation (March, 2006) Committee on Employment<br />
and Social Policy, 5 th Session, Agenda Paper 29; “Occupational safety and health: Synergies<br />
between security and productivity”. (Geneva: Switzerland); p. 2.<br />
31 The Concise Macquarie Dictionary (1982)<br />
46
70. The “new breed” <strong>of</strong> enterprise workers experiences both <strong>the</strong><br />
potential benefits and <strong>the</strong> risks <strong>of</strong> <strong>the</strong> brave new economy.<br />
71. The workplace health and safety legislative framework designed<br />
thirty years ago is <strong>the</strong>refore likely to be out <strong>of</strong> step with <strong>the</strong> new<br />
economy and its emphasis upon individualism and <strong>the</strong> new breed<br />
<strong>of</strong> enterprise workers.<br />
72. The extent and nature <strong>of</strong> <strong>the</strong> changes to <strong>the</strong> world <strong>of</strong> work that we<br />
have reviewed constitute challenges to be met in achieving <strong>the</strong><br />
objective to prevent work-related injury, illness and death. O<strong>the</strong>r<br />
States and Territories have contemplated <strong>the</strong>se changes in reviews<br />
<strong>of</strong> workplace health and safety and have responded by making<br />
amendments to <strong>the</strong>ir workplace health and safety legislation and<br />
<strong>the</strong> way in which it is administered. The <strong>Tasmanian</strong> review team is<br />
in <strong>the</strong> fortunate position <strong>of</strong> being able to benefit from <strong>the</strong>ir<br />
experience. The <strong>report</strong> turns now to consider o<strong>the</strong>r reviews.<br />
47
CHAPTER 2<br />
NATIONAL DEVELOPMENTS<br />
Reviews <strong>of</strong> workplace health and safety in o<strong>the</strong>r<br />
jurisdictions<br />
73. This chapter commences with a summary <strong>of</strong> reviews and recent<br />
legislative amendments in o<strong>the</strong>r jurisdictions and examines national<br />
policy relevant to this review.<br />
Australian Capital Territory: Occupational Health and Safety<br />
Act 1989<br />
74. The review <strong>of</strong> <strong>the</strong> ACT legislation and administration was<br />
conducted in two stages: <strong>the</strong> first, in 2003, examined compliance<br />
and enforcement provisions and resulted in amendments passed in<br />
2004. The second, resulting in a <strong>report</strong> released in September<br />
2005, examined <strong>the</strong> objects, boundaries and structure <strong>of</strong> <strong>the</strong> Act on<br />
<strong>the</strong> basis <strong>of</strong> <strong>the</strong> need for jurisdictional consistency as well as to<br />
account for changes that have occurred since <strong>the</strong> Act was first<br />
proclaimed.<br />
75. The issues examined are very similar to those examined by o<strong>the</strong>r<br />
reviews and take into account <strong>the</strong> impact <strong>of</strong> changes upon <strong>the</strong> duty<br />
<strong>of</strong> care, consultation and representation provisions, and <strong>the</strong><br />
administration <strong>of</strong> <strong>the</strong> Act.<br />
48
76. One aspect that is different from o<strong>the</strong>r reviews is <strong>the</strong> examination<br />
<strong>of</strong> <strong>the</strong> issue <strong>of</strong> public safety, and potential overlap between OHS<br />
and public safety legislation.<br />
77. Industrial manslaughter provisions for death in workplaces as a<br />
result <strong>of</strong> reckless conduct or negligence were included in <strong>the</strong> ACT’s<br />
Crimes Act 1951 in 2001.<br />
78. The Bill to amend <strong>the</strong> current Act is due to be introduced into <strong>the</strong><br />
Legislative Assembly by <strong>the</strong> last sitting day in 2006. 32<br />
Victoria: Occupational Health and Safety Act 1985 -<br />
Occupational Health and Safety Act 2004<br />
79. The review <strong>of</strong> <strong>the</strong> 1985 Victorian OHS Act by Mr Chris Maxwell QC<br />
resulted in a new Act – <strong>the</strong> Occupational Health and Safety Act<br />
2004 - proclaimed in July 2005.<br />
80. The new Act is based on Maxwell’s findings that <strong>the</strong> safety duties<br />
imposed by <strong>the</strong> Act and regulations must be clearly defined,<br />
properly targeted and that <strong>the</strong> safety duties are amended to take<br />
account <strong>of</strong> <strong>the</strong> changing nature <strong>of</strong> work relationships.<br />
81. In recognition <strong>of</strong> <strong>the</strong> connection between <strong>the</strong> changing nature <strong>of</strong><br />
work and poor health, Maxwell recommended specific reference to<br />
risks to psychological health.<br />
32 ACT Occupational Health & Safety Council, “Occupational Health and Safety Act 1989:<br />
Scope and Structure Review”, final Report September 2005; p. 2.<br />
49
82. In examining <strong>the</strong> limits <strong>of</strong> “practicability”, Maxwell recommended<br />
that guidance be provided to provide greater certainty for all<br />
workplaces and <strong>the</strong> Authority, and he concluded that “control”<br />
should be added as a factor in considering what is practicable. He<br />
recommended guidance be provided on determining <strong>the</strong> levels <strong>of</strong><br />
responsibility between a host employer and an on-hire labour<br />
services provider; and devoted considerable attention to <strong>the</strong> cost<br />
factor in determining what is practicable.<br />
83. Maxwell recommended clarification <strong>of</strong> <strong>the</strong> existing upstream duties<br />
on manufacturers, designers and suppliers and recommends <strong>the</strong><br />
imposition <strong>of</strong> a safety duty on designers as well as owners,<br />
managers and controllers <strong>of</strong> buildings that are used as workplaces.<br />
84. He also examined <strong>the</strong> role <strong>of</strong> company <strong>of</strong>ficers and recommended<br />
that a clear obligation should be imposed on company <strong>of</strong>ficers,<br />
equivalent to that imposed on employees, to take reasonable care,<br />
within <strong>the</strong> limits <strong>of</strong> <strong>the</strong>ir ability to exercise control.<br />
85. In relation to knowledge and compliance, Maxwell called for a<br />
major upgrading <strong>of</strong> <strong>the</strong> authority’s role in providing education and<br />
informing workplace parties about <strong>the</strong>ir duties, obligations and<br />
rights.<br />
86. Maxwell recommended a streng<strong>the</strong>ning <strong>of</strong> consultation,<br />
participation and representation provisions in <strong>the</strong> OHS Act.<br />
50
87. Union right <strong>of</strong> entry was established by <strong>the</strong> new Act, exercisable<br />
only by union <strong>of</strong>ficials who have been trained in OHS and who<br />
carry an entry permit issued by <strong>the</strong> Magistrate’s Court, to comply<br />
with Work Choices amendments.<br />
88. A number <strong>of</strong> Maxwell’s recommendations also addressed <strong>the</strong> need<br />
for changes in <strong>the</strong> roles, powers and functions <strong>of</strong> inspectors, <strong>the</strong><br />
introduction <strong>of</strong> infringement notices and <strong>the</strong> power to accept<br />
enforceable undertakings. (Infringement notices and enforceable<br />
undertakings are already provided for in <strong>the</strong> <strong>Tasmanian</strong> Act.)<br />
89. Penalties for OHS breaches in Victoria were found to be well below<br />
<strong>the</strong> levels recommended by <strong>the</strong> Industry Commission in 1995, and<br />
considerably lower than those in Queensland and NSW. Maxwell<br />
recommended an increase in penalties as well as alternatives to<br />
sentencing being introduced. He also recommended that <strong>the</strong> OHS<br />
Act be amended to make clear that <strong>the</strong> Crown has no immunity<br />
from prosecution.<br />
90. The “package” <strong>of</strong> changes implemented as a result <strong>of</strong> Maxwell’s<br />
review is contained in <strong>the</strong> Victorian Government’s initiative Working<br />
Toge<strong>the</strong>r for Safer, Healthier Workplaces as follows:<br />
modernising <strong>the</strong> language and layout <strong>of</strong> <strong>the</strong> Act, making<br />
it easier to understand<br />
providing greater clarity and certainty about <strong>the</strong><br />
obligations <strong>of</strong> duty holders<br />
fostering increased participation by employers,<br />
employees and <strong>the</strong>ir representatives in workplace health<br />
and safety issues<br />
51
promoting fairness, consistency and transparency in <strong>the</strong><br />
enforcement <strong>of</strong> <strong>the</strong> legislation, [and]<br />
bringing penalties broadly into line with o<strong>the</strong>r<br />
jurisdictions. 33<br />
91. The Commonwealth Regulatory Taskforce on Reducing Regulatory<br />
Burdens on Business in its <strong>report</strong> in January 2006 found that <strong>the</strong><br />
new Victorian Act provides a good model on which any effort to<br />
“harmonise” workplace health and safety legislation might be<br />
based. 34<br />
Queensland: Workplace Health and Safety Act 1995.<br />
92. To bring <strong>the</strong> Queensland Act into line with legislation in <strong>the</strong><br />
Australian Capital Territory, Victoria and New South Wales,<br />
Queensland’s review resulted in amendments to allow authorised<br />
representatives <strong>of</strong> unions to enter workplaces on workplace health<br />
and safety grounds. The legislation provides that union members<br />
will have to hold both a federal permit issued under <strong>the</strong> Work<br />
Choices legislation, and a state permit under <strong>the</strong> Workplace Health<br />
and Safety Act (Qld). It also identifies <strong>the</strong> powers <strong>of</strong> representatives<br />
and limits to <strong>the</strong>ir powers. The legislation is at<br />
http://www.legislation.qld.gov.au/.<br />
33 Victorian WorkCover Authority - www.workcover.vic.gov.au/vwa/home.nsf/pages/ohsact.<br />
34 Regulation Taskforce (2006) Rethinking Regulation – Report <strong>of</strong> <strong>the</strong> Taskforce on Reducing<br />
Regulatory Burdens on Business, Report to <strong>the</strong> Prime Minister and <strong>the</strong> Treasurer, Canberra;<br />
Recommendation 4.27, p.38.<br />
52
Commonwealth: Occupational Health and Safety<br />
(Commonwealth Employment) Act 1991 (OHS(CE) Act<br />
93. This review was announced in early April 2006. The OHS(CE) Act<br />
(Cwlth) covers employees working in Commonwealth government<br />
departments, statutory authorities and Government Business<br />
Enterprises.<br />
94. The Issues Paper sought comment on:<br />
• <strong>the</strong> level <strong>of</strong> guidance on reasonably practicable and risk<br />
management;<br />
• coverage <strong>of</strong> upstream duty holders; employee duties;<br />
• health and safety representative (HSR) training and<br />
powers, including <strong>the</strong> removal <strong>of</strong> <strong>the</strong> power for HSR to<br />
issue provisional improvement notices and <strong>the</strong> potential<br />
for new provisions allowing employers to seek<br />
compensation or damages for loss caused by <strong>the</strong> action<br />
<strong>of</strong> HSRs.<br />
95. Coinciding with <strong>the</strong> review, a Bill was introduced into <strong>the</strong> federal<br />
parliament to provide coverage to private sector corporations under<br />
<strong>the</strong> Occupational Health and Safety (Commonwealth Employment)<br />
Act if <strong>the</strong>y are also licensed to self-insure under Comcare, <strong>the</strong><br />
Commonwealth’s workers’ compensation scheme.<br />
NSW: Occupational Health and Safety Act 2000<br />
96. A number <strong>of</strong> amendments to clarify and improve <strong>the</strong> operation <strong>of</strong><br />
<strong>the</strong> NSW legislation were proposed by <strong>the</strong> review. Amendments<br />
insert <strong>the</strong> words reasonably practicable in <strong>the</strong> general duties<br />
applying to all duty holders in <strong>the</strong> Act, thus making <strong>the</strong> NSW Act<br />
53
consistent with terminology <strong>of</strong> <strong>the</strong> o<strong>the</strong>r States. A definition <strong>of</strong> <strong>the</strong><br />
phrase is included to ensure that <strong>the</strong> extent <strong>of</strong> reasonably<br />
practicable is clearly understood.<br />
97. The NSW amendments also aim to clarify <strong>the</strong> provisions relating to<br />
clothing industry outworkers so that <strong>the</strong>y have <strong>the</strong> same workplace<br />
health and safety protection provided for o<strong>the</strong>r employees in <strong>the</strong><br />
Act.<br />
98. NSW adopted provisions similar to <strong>the</strong> Victorian provisions<br />
imposing liability on directors and managers <strong>of</strong> corporations that<br />
ensure that <strong>of</strong>ficers will only be held liable for matters under <strong>the</strong>ir<br />
control. The definition <strong>of</strong> “<strong>of</strong>ficer” is based upon that used in <strong>the</strong><br />
Commonwealth Corporations Act.<br />
99. NSW also addressed <strong>the</strong> issue <strong>of</strong> consultation in <strong>the</strong> workplace on<br />
health and safety through amendments to streng<strong>the</strong>n and extend<br />
<strong>the</strong> current provisions, including a definition <strong>of</strong> what constitutes<br />
meaningful and effective consultation. Amendments also extend<br />
<strong>the</strong> powers <strong>of</strong> authorised employee representatives to include <strong>the</strong><br />
authority to enter a workplace to discuss a workplace health and<br />
safety matter as well as <strong>the</strong> powers to enter a workplace to<br />
investigate a suspected breach.<br />
100. Amendments also add an advisory role to <strong>the</strong> statutory functions <strong>of</strong><br />
NSW WorkCover, allowing WorkCover to issue guidelines on<br />
particular legislative provisions or how discretion will be exercised.<br />
54
101. NSW introduced provisions allowing WorkCover to enter into<br />
enforceable undertakings, provisions for resolving disputes about<br />
consultation arrangements; clarifying <strong>the</strong> employees’ duty <strong>of</strong> care;<br />
and o<strong>the</strong>r administrative matters relating to investigations and<br />
prosecutions.<br />
South Australia: Occupational Health, Safety and Welfare Act<br />
1986 - Occupational Health, Safety and Welfare (SafeWork SA)<br />
Amendment Act 2005<br />
102. Amendments passed in 2005 to <strong>the</strong> South Australian Act (by <strong>the</strong><br />
Occupational Health, Safety and Welfare (SafeWork SA)<br />
Amendment Act 2005) include:<br />
• The establishment <strong>of</strong> <strong>the</strong> SafeWork South Australia<br />
Advisory Committee to review, advise <strong>the</strong> Minister and<br />
provide a forum for stakeholder consultation (combining<br />
functions <strong>of</strong> Workplace Services and OHS functions from<br />
WorkCover);<br />
• Training for responsible <strong>of</strong>ficers, health and safety<br />
representatives and health and safety committee<br />
members;<br />
• Provisions for improvement notices and prohibition<br />
notices where <strong>the</strong>re could be immediate risk;<br />
• Provisions to enable an inspector, after investigating a<br />
workplace bullying matter, to refer <strong>the</strong> issue to <strong>the</strong><br />
Industrial Relations Commission for conciliation or<br />
mediation;<br />
• Alternative, non-pecuniary, penalties introduced; and<br />
• An amendment that allows prosecution <strong>of</strong> government<br />
departments by <strong>the</strong> Director <strong>of</strong> Public Prosecutions,<br />
Western Australia.<br />
55
103. A discussion paper on possible changes to <strong>the</strong> state’s OHS<br />
legislation was released in April 2006 for comment by May 2006.<br />
104. Issues canvassed in <strong>the</strong> Discussion Paper included:<br />
• <strong>the</strong> issue <strong>of</strong> “control” <strong>of</strong> <strong>the</strong> workplace and o<strong>the</strong>r aspects<br />
<strong>of</strong> <strong>the</strong> general duty <strong>of</strong> care provisions,<br />
• proposals to extend <strong>the</strong> coverage <strong>of</strong> <strong>the</strong> Act to a range <strong>of</strong><br />
alternative employment arrangements that may currently<br />
fall outside <strong>the</strong> traditional employer/employee relationship<br />
and <strong>the</strong> principal/contractor relationship provided for in<br />
<strong>the</strong> W.A. Act;<br />
• <strong>the</strong> impact <strong>of</strong> <strong>the</strong> federal Work Choices amendments on<br />
OHS legislation; and<br />
• <strong>the</strong> expansion <strong>of</strong> rights to initiate prosecution to include<br />
unions, as well as <strong>the</strong> place and process for prosecutions.<br />
105. The WA review also examined a range <strong>of</strong> issues associated with<br />
serious breaches <strong>of</strong> <strong>the</strong> WA OHS Act, including how to establish<br />
accountability <strong>of</strong> corporations, <strong>the</strong>ir directors and senior <strong>of</strong>ficers.<br />
The potential to increase maximum penalties to reflect levels in<br />
o<strong>the</strong>r jurisdictions and community expectations, including<br />
imprisonment for serious <strong>of</strong>fences involving negligence resulting in<br />
serious injury or death; and <strong>the</strong> development <strong>of</strong> sentencing<br />
guidelines, were issues discussed in relation to <strong>of</strong>fences and<br />
penalties.<br />
106. The WA review proposed changes to <strong>the</strong> operation <strong>of</strong> provisional<br />
improvement, improvement and prohibition notices; <strong>the</strong> status <strong>of</strong><br />
56
codes <strong>of</strong> practice; as well as recommendations relating to<br />
inspectorate activity that included recommending an increase in <strong>the</strong><br />
number <strong>of</strong> inspectors and employment <strong>of</strong> trainee inspectors.<br />
107. Administrative strategies were also recommended, aimed at<br />
promoting <strong>the</strong> effective <strong>report</strong>ing <strong>of</strong> OHS performance by<br />
companies and government agencies, including within annual<br />
<strong>report</strong>s. 35<br />
General conclusions drawn from <strong>the</strong>se reviews<br />
108. Each review examined <strong>the</strong> performance <strong>of</strong> <strong>the</strong> Robens style<br />
legislation in meeting <strong>the</strong> objectives <strong>of</strong> <strong>the</strong> Acts. Overall, <strong>the</strong><br />
outcomes <strong>of</strong> <strong>the</strong> reviews reveal remarkably little attempt to change<br />
radically <strong>the</strong> existing legislative structure by returning to a more<br />
detailed model. Instead, <strong>the</strong>re appears to be a surprising level <strong>of</strong><br />
consensus that <strong>the</strong> Robens style legislative framework remains <strong>the</strong><br />
most relevant and flexible framework within which <strong>the</strong> challenges to<br />
workplace health and safety may be met.<br />
109. The reviews found that <strong>the</strong> challenges to workplace health and<br />
safety created by economic and labour market changes must be<br />
addressed by making adjustments to clarify, streng<strong>the</strong>n and<br />
support both <strong>the</strong> legislative and administrative frameworks.<br />
110. The reviews also appear to recognise that <strong>the</strong> passage <strong>of</strong> <strong>the</strong> new<br />
Commonwealth workplace relations laws (“<strong>the</strong> Work Choices<br />
35 The discussion paper is online at:<br />
http://www.docep.wa.gov.au/Corporate/Content//Reviews/OSH/overview.html.<br />
57
amendments”) may increase <strong>the</strong> “precariousness” <strong>of</strong> employment<br />
and associated negative health and safety outcomes.<br />
111. They responded to <strong>the</strong> Work Choices provision that allows union<br />
representation <strong>of</strong> employees for health and safety purposes subject<br />
to corresponding provisions being included in <strong>the</strong> States’ and<br />
Territories’ health and safety Acts, by inserting such provisions in<br />
<strong>the</strong> OHS Acts.<br />
112. The reviews identified <strong>the</strong> need for regulators to become more<br />
active in <strong>the</strong>ir efforts to support <strong>the</strong> legislation by increasing<br />
inspector activity as well as providing more advisory and educative<br />
programs and services, to ensure greater understanding <strong>of</strong>, and<br />
compliance with, health and safety legislation.<br />
113. They also demonstrate that <strong>the</strong>re is a strong desire for consistency<br />
in workplace health and safety legislation across <strong>the</strong> jurisdictions<br />
by looking to developments in o<strong>the</strong>r jurisdictions and considering<br />
how <strong>the</strong>ir own legislation might be brought into line with o<strong>the</strong>rs.<br />
114. The concept <strong>of</strong> national consistency leads into <strong>the</strong> consideration <strong>of</strong><br />
<strong>the</strong> National Occupational Health and Safety Improvement Strategy<br />
- a significant part <strong>of</strong> <strong>the</strong> national context in which <strong>the</strong> <strong>Tasmanian</strong><br />
review is taking place.<br />
58
National Occupational Health and Safety Improvement<br />
Strategy 2002 – 2012<br />
115. According to a National Occupational Health and Safety<br />
Commission (NOHSC) <strong>report</strong>, The Cost <strong>of</strong> Work-related Injury and<br />
Illness for Australian Employers, Workers and <strong>the</strong> Community<br />
(2004), an estimated 2000 people die each year in Australia as a<br />
result <strong>of</strong> work-related injuries and diseases.<br />
116. The <strong>report</strong> estimates <strong>the</strong> economic costs <strong>of</strong> work-related illnesses<br />
and injuries at $34.3billion (2000-01) but when <strong>the</strong> “indirect” costs<br />
<strong>of</strong> pain, suffering and early death are included, it conservatively<br />
adds a fur<strong>the</strong>r $48.5 billion to <strong>the</strong> total cost, arriving at a cost<br />
estimate figure <strong>of</strong> $82.8 billion. 36<br />
117. The National Occupational Health and Safety Improvement<br />
Strategy 2002 – 2012 (National Strategy) is <strong>the</strong> “blueprint” for<br />
national workplace health and safety improvements, co-ordinated<br />
by <strong>the</strong> members <strong>of</strong> <strong>the</strong> Australian Safety and Compensation<br />
Council (ASCC) – comprising representatives <strong>of</strong> each State and<br />
Territory, <strong>the</strong> Commonwealth <strong>Department</strong> <strong>of</strong> Workplace Relations,<br />
<strong>the</strong> ACTU and ACCI.<br />
118. The national strategy sets national priorities and action areas in<br />
terms <strong>of</strong> hazards, industries, occupational injury or disease as well<br />
36 NOHSC (2004) “The Cost <strong>of</strong> Work-related Injury and Illness for Australian Employers, Workers<br />
and <strong>the</strong> Community”, Canberra. p. 4. The NOHSC estimate that 2000 people die each year in<br />
Australia as a result <strong>of</strong> work-related injuries and diseases compares to 1,636 people killed in road<br />
deaths (2005) according to <strong>the</strong> Australian Transport Safety Bureau (2005) Road Deaths Australia<br />
2005 Statistical Summary.<br />
59
as targets for Australian jurisdictions to reduce work-related<br />
fatalities and <strong>the</strong> incidence <strong>of</strong> workplace injury. 37<br />
National Priorities<br />
119. The five priority areas are to:<br />
1. reduce high incidence/severity risks;<br />
2. develop <strong>the</strong> capacity <strong>of</strong> business operators and workers to<br />
manage OHS effectively;<br />
3. prevent occupational disease more effectively;<br />
4. eliminate hazards at <strong>the</strong> design stage; and<br />
5. streng<strong>the</strong>n <strong>the</strong> capacity <strong>of</strong> government to influence OHS<br />
outcomes.<br />
120. The nine action areas are:<br />
National Standards<br />
1. Comprehensive OHS data collections;<br />
2. A coordinated research effort;<br />
3. A nationally consistent regulatory framework;<br />
4. Strategic enforcement;<br />
5. Effective incentives;<br />
6. Compliance support;<br />
7. Practical guidance;<br />
8. OHS awareness; and<br />
9. OHS skills development.<br />
121. The Strategy includes <strong>the</strong> development <strong>of</strong> priority National<br />
Standards in <strong>the</strong> areas <strong>of</strong> manual handling; occupational noise;<br />
hazardous substances; dangerous goods; major hazard facilities;<br />
asbestos; plant, and construction. Each National Standard is<br />
subject to review, endorsement by ASCC and agreement by<br />
Workplace Relations Ministers (meeting as <strong>the</strong> Workplace<br />
Relations Ministers’ Council (WRMC). The development and<br />
37 A copy <strong>of</strong> <strong>the</strong> National Strategy is available on <strong>the</strong> Australian Safety and Compensation<br />
Council website at http://www.ascc.gov.au.<br />
60
implementation processes associated with <strong>the</strong>se is slow, a fact that<br />
has been remarked upon by national inquiries and referred to <strong>the</strong><br />
Council <strong>of</strong> Australian Governments for action.<br />
National Targets<br />
122. The National Strategy establishes targets for national improvement.<br />
With 2001-02 Compensation Data used as <strong>the</strong> base line, <strong>the</strong><br />
targets are:<br />
to reduce work related fatalities by at least 20%; and<br />
to reduce workplace injury (including musculo-skeletal<br />
disorders) by at least 40% by 2012.<br />
123. Interim targets are to reduce work-related fatalities by 10% and<br />
reduce workplace injury by 20% by June 2007.<br />
Comparative Performance Monitoring<br />
124. The WRMC monitors <strong>the</strong> comparative performance <strong>of</strong> workplace<br />
health and safety and workers compensation schemes <strong>of</strong> each<br />
State, Territory, Commonwealth Government and New Zealand.<br />
Performance is measured according to workers compensation data<br />
collected in <strong>the</strong> National Data Set for Compensation-based<br />
Statistics (NDS) managed by <strong>the</strong> ASCC from data supplied by <strong>the</strong><br />
workers’ compensation schemes in all Australian jurisdictions.<br />
Comparative figures are published in <strong>the</strong> Comparative<br />
Performance Monitoring Report - a “Comparison <strong>of</strong> occupational<br />
health and safety and workers’ compensation schemes in Australia<br />
and New Zealand” (CPM Report) by <strong>the</strong> WRMC each year.<br />
61
125. The review team examined <strong>the</strong> 7 th CPM Report (based on 2003-04<br />
data, published in 2005) and 8 th CPM Report (based on 2004-05<br />
data published in September 2006) as well as published and<br />
unpublished <strong>Tasmanian</strong> workers’ compensation scheme<br />
information. 38<br />
The WorkCover Branch <strong>of</strong> Workplace Standards<br />
Tasmania kindly allowed us to have access to unpublished<br />
information used in <strong>the</strong> preparation <strong>of</strong> annual <strong>report</strong>s, to assist us in<br />
reaching conclusions about <strong>Tasmanian</strong> performance.<br />
126. The jurisdictional annual <strong>report</strong>s present data that relate to <strong>the</strong><br />
performance <strong>of</strong> <strong>the</strong> workers’ rehabilitation and compensation<br />
schemes and CPM Reports acknowledge that jurisdictional<br />
published data is quite different.<br />
127. We found that we could not easily compare performance <strong>report</strong>ed<br />
by <strong>the</strong> CPM Reports from one year to ano<strong>the</strong>r as a result <strong>of</strong><br />
changes that occur in <strong>the</strong> compilation and definition <strong>of</strong> data<br />
collected by each workers compensation scheme from year to year<br />
and reading <strong>the</strong> two kinds <strong>of</strong> <strong>report</strong>s to determine how Tasmania is<br />
performing was difficult.<br />
128. It is important to note that <strong>the</strong> statistics are based on workers’<br />
compensation claims so <strong>the</strong>y are incidence rates for compensable<br />
fatalities (based on <strong>the</strong> year <strong>report</strong>ed) and compensable injuries.<br />
38 The WorkCover Tasmania Board Annual Report is available at<br />
http://www.workcover.tas.gov.au/workcoverpublish/node/publications-13.htm.<br />
The CPM Reports are available at http://www.workplace.gov.au/cpm.<br />
62
Incidence rate <strong>of</strong> compensable fatalities<br />
129. Compensated fatalities include both traumatic fatalities (injury) and<br />
fatalities due to work-related disease.<br />
130. The CPM figures are based on <strong>the</strong> date <strong>of</strong> lodgement <strong>of</strong> a claim,<br />
not <strong>the</strong> year <strong>of</strong> death and <strong>the</strong> incidence rate is based on <strong>the</strong><br />
number <strong>of</strong> compensable fatalities in that year per 100,000<br />
compensable employees.<br />
131. Accordingly Tasmania’s incidence rate <strong>of</strong> compensated fatalities as<br />
published in CPM <strong>report</strong>s has declined from 4.1 per 100,000<br />
employees in 2001-02 to 1.7 per 100,000 employees in 2003-04.<br />
132. Jurisdictional figures for 2004-05 were not published in <strong>the</strong> 8 th CPM<br />
Report.<br />
133. We <strong>the</strong>refore turned to <strong>the</strong> incidence <strong>of</strong> compensated fatalities<br />
shown in <strong>the</strong> internal document we referred to earlier to find that<br />
<strong>the</strong> incidence rate for compensated fatalities has been quite<br />
volatile. The actual incidence rate <strong>of</strong> 2.7 in 2001-02 (<strong>the</strong> baseline<br />
figure); and an actual incidence rate <strong>of</strong> 3.0 for 2003-04, compare to<br />
<strong>the</strong> target set <strong>of</strong> 2.6.<br />
134. The unpublished graph depicting <strong>the</strong> actual incidence rate for<br />
fatalities and <strong>the</strong> corresponding <strong>Tasmanian</strong> national strategy<br />
targets is reproduced below:<br />
63
Fatalities per 100,000 Employees<br />
6<br />
5<br />
4<br />
3<br />
2<br />
1<br />
0<br />
Incidence Rate - Compensated Fatalities<br />
(Progress against National OHS Strategy)<br />
2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 2011-12<br />
Actual Incidence rate<br />
Strategy Target<br />
(Source: unpublished internal document provided by Scheme<br />
Improvement section, WorkCover Branch)<br />
Incidence rate for compensable work-related injury and<br />
disease<br />
135. The incidence rate for work-related injury and disease resulting in<br />
one week or more compensation published in <strong>the</strong> CPM <strong>report</strong>s is<br />
based on claims per 1000 employees.<br />
136. The national incidence and frequency rates <strong>of</strong> work-related injury<br />
and disease resulting in one week or more compensation<br />
continued a downward trend, representing an improvement<br />
nationally in <strong>the</strong> incidence <strong>of</strong> work-related injury. 39<br />
137. The work-related injury and disease incidence rates for Tasmania<br />
as published by CPM <strong>report</strong>s have remained fairly stable in <strong>the</strong> four<br />
years from <strong>the</strong> 2001-02 base-line figures. The incidence rate<br />
<strong>report</strong>ed for 2003-04 is 16.8 compensated claims per 1000<br />
employees, just above <strong>the</strong> national average incidence rate <strong>of</strong> 16.4.<br />
As commented previously, <strong>the</strong> absence <strong>of</strong> jurisdictional statistics in<br />
39 7 th CPM Report, p. 33<br />
64
<strong>the</strong> 8 th CPM Report does not allow us to compare <strong>the</strong> incidence<br />
rate for 2004-05 with <strong>the</strong> target.<br />
138. The incidence <strong>of</strong> workplace injury for Tasmania as calculated in <strong>the</strong><br />
internal document provided to us by <strong>the</strong> Scheme Improvement<br />
Section <strong>of</strong> <strong>the</strong> WorkCover Branch <strong>of</strong> WST is shown in <strong>the</strong> graph<br />
reproduced below (based on <strong>the</strong> chart that follows):<br />
Incidence Rate - Injuries and Musculoskeletal Disorders<br />
(Progress against National OHS Strategy)<br />
Claims per 10,000 Employees<br />
60<br />
50<br />
40<br />
30<br />
20<br />
10<br />
0<br />
2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 2011-12<br />
Actual Incidence rate<br />
Strategy Target<br />
R<br />
Incidence<br />
2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2011-12<br />
Injury & Musculoskeletal Claims 9,731 9,667 9,386 9,360 9,208 - -<br />
Employees 187,793 193,410 200,149 211,930 208,553 - -<br />
Actual Incidence Rate 51.8 50.0 46.9 44.2 44.2 - -<br />
Strategy Target Rate 51.8 49.7 47.7 45.6 43.5 44.1 31.1<br />
(Source: Unpublished internal document provided by Scheme<br />
Improvement section, WorkCover Branch, Workplace Standards<br />
Tasmania.)<br />
139. Despite being on or slightly below <strong>the</strong> actual injury incidence rate<br />
for <strong>the</strong> first three years <strong>of</strong> <strong>the</strong> Strategy, <strong>the</strong> incidence rate for last<br />
year (2005) shows a very slight upward variation from <strong>the</strong> target.<br />
65
This compares with what is <strong>report</strong>ed by <strong>the</strong> WorkCover Tasmania<br />
Board Annual Report:<br />
Across all industries, <strong>the</strong>re was an average <strong>of</strong> 48.04<br />
claims per thousand workers during 2005-06. This was<br />
only a slight decrease on 2004-05 <strong>of</strong> 0.7%, but<br />
continues a trend seen over <strong>the</strong> past 5 years in which<br />
<strong>the</strong> average incidence rate has fallen 14.6% from 56.26<br />
in 2001-02. 40<br />
140. The <strong>Tasmanian</strong> Workers Compensation Statistical Report July<br />
2005-June 2006 indicates a levelling in <strong>the</strong> number <strong>of</strong> claims over<br />
<strong>the</strong> period 2001-02 to 2005-06. 41<br />
It <strong>report</strong>s that <strong>the</strong> incidence rate,<br />
as measured by <strong>the</strong> number <strong>of</strong> claims per thousand workers, has<br />
continued a declining trend across all industries, with ten industries<br />
experiencing decreases in <strong>the</strong> incidence <strong>of</strong> claims per thousand<br />
workers while eight had increases. The <strong>report</strong> reveals that <strong>the</strong><br />
highest incidence rate in 2005-06 was in <strong>the</strong> Manufacturing<br />
industry, followed by Construction, Mining and Government<br />
Administration and Defence. 42<br />
141. The Occupational Black Spots Injury Report Update 2006 <strong>report</strong>s<br />
that “severe injuries as a proportion <strong>of</strong> all injuries has increased<br />
from 6.8% to 8.0%”. 43<br />
The top three types <strong>of</strong> severe injuries were<br />
S<strong>of</strong>t tissue injuries, accounting for more than half <strong>of</strong> all injuries<br />
40 WorkCover Tasmania Board (September 2006) Workers Compensation Statistical Report:<br />
July 2005 – June 2006, p. 9.<br />
41 Ibid, Chart 1: “Number <strong>of</strong> Claims Reported", p. 3.<br />
42 Ibid, p. 5.<br />
43 WorkCover Tasmania occupational Black Spots Injury Report: Update 2006, “Black Spot<br />
Occupations”, “Executive Summary” p. 1.<br />
66
(53.9%), followed by Fractures (10.8%) and Anxiety/stress disorder<br />
(5.2%). 44<br />
142. The continued inclusion <strong>of</strong> Nursing and care workers within <strong>the</strong><br />
occupational groups having <strong>the</strong> most severe injuries (surpassing<br />
Factory workers, Road transport drivers and Agricultural labourers)<br />
and <strong>the</strong> appearance <strong>of</strong> School teachers within <strong>the</strong> top thirteen<br />
occupational black spots are causes for concern. The <strong>Tasmanian</strong><br />
incidence <strong>of</strong> severe injury across occupations appears to be<br />
consistent with <strong>the</strong> distribution <strong>of</strong> incidence rate <strong>of</strong> compensable<br />
injury for o<strong>the</strong>r Australian jurisdictions. 45<br />
143. From our examination <strong>of</strong> <strong>the</strong> different sources <strong>of</strong> information about<br />
<strong>Tasmanian</strong> performance, we conclude that <strong>the</strong> CPM <strong>report</strong>s do not<br />
appear to be stable from year to year as individual workers<br />
compensation schemes are modified and data definitions appear to<br />
change. This results in inconsistency in measuring comparative<br />
performance <strong>of</strong> jurisdictions against <strong>the</strong> targets <strong>of</strong> <strong>the</strong> National<br />
Strategy.<br />
144. Samples and data definitions for <strong>the</strong> <strong>Tasmanian</strong> workers<br />
compensation scheme, by comparison, have stayed more stable.<br />
We believe that <strong>the</strong> commitment to achieving percentage<br />
improvements in health and safety based on <strong>the</strong> incidence rates <strong>of</strong><br />
44 WorkCover Tasmania Occupational Black Spots Injury Report: Update 2006 “Executive<br />
Summary”, p. 1. (The percentages in brackets are taken from <strong>the</strong> Chart “Severe Injuries by<br />
Type <strong>of</strong> Injury 2002—03 to 2004-05, p. 6.)<br />
45 Workplace Relations Ministers’ Council Comparative Performance Monitoring Report,<br />
Eighth Edition September 2006, “Indicator 11 – Incidence rate <strong>of</strong> compensated claims<br />
resulting in one week or more compensation by injury” p. 12.<br />
67
fatalities and injuries would be more accurately and safely<br />
measured using <strong>the</strong> local workers compensation data.<br />
145. Work is currently proceeding on <strong>the</strong> national harmonisation <strong>of</strong><br />
workers compensation schemes as a Council <strong>of</strong> Australian<br />
Governments (COAG) priority. This work may ultimately lead to<br />
more meaningful <strong>report</strong>s on national workplace health and safety<br />
achievements against <strong>the</strong> National Targets.<br />
68
CHAPTER 3<br />
WORKPLACE HEALTH AND SAFETY: ROBENS<br />
FRAMEWORK<br />
“The primary responsibility for doing something about<br />
<strong>the</strong> present levels <strong>of</strong> occupational accidents and disease<br />
lies with those who create <strong>the</strong> risks and those who work<br />
with <strong>the</strong>m.” Lord Robens (1972) 46<br />
Robens’s Principles<br />
146. Workplace health and safety law in OECD countries is based on<br />
<strong>the</strong> recommendations <strong>of</strong> Lord Robens who was commissioned as<br />
Chairman <strong>of</strong> <strong>the</strong> Committee <strong>of</strong> Inquiry on Safety and Health at<br />
Work in 1970 to investigate and <strong>report</strong> on “<strong>the</strong> provision made for<br />
<strong>the</strong> safety and health <strong>of</strong> persons in <strong>the</strong> course <strong>of</strong> <strong>the</strong>ir employment”<br />
to <strong>the</strong> United Kingdom Parliament.<br />
147. His <strong>report</strong> (1972) provided <strong>the</strong> principles – for both form and<br />
content – <strong>of</strong> <strong>the</strong> legislative framework (<strong>the</strong> UK Health and Safety at<br />
Work Act 1974) that is <strong>the</strong> basis <strong>of</strong> most workplace health and<br />
safety legislation today. In reviewing workplace health and safety<br />
in Tasmania 2006 it is worth reminding ourselves <strong>of</strong> <strong>the</strong> elements<br />
<strong>of</strong> that framework.<br />
148. Robens found that “<strong>the</strong> fundamental defect <strong>of</strong> <strong>the</strong> statutory system<br />
is simply that <strong>the</strong>re is too much law”. 47<br />
In <strong>the</strong> UK at <strong>the</strong> time <strong>of</strong><br />
46 Lord Robens (1972) (Chairman) Safety and Health at Work: Report <strong>of</strong> <strong>the</strong> Committee 1970-<br />
72, HMSO, London; para. 28, p.7.<br />
47 Robens, p. 6<br />
69
Robens’s review <strong>the</strong>re were nine main groups <strong>of</strong> statutes<br />
supported by nearly 500 subordinate statutory instruments, some<br />
<strong>of</strong> which dated back to <strong>the</strong> middle <strong>of</strong> <strong>the</strong> nineteenth century, and<br />
<strong>the</strong>se were being added to every year. These were characterised<br />
by rigid, detailed specifications that prescribed how to deal with<br />
every health or safety contingency. They imposed arbitrary<br />
prescriptions that quickly became obsolete and did not allow for<br />
innovation.<br />
149. Robens found that such a mass <strong>of</strong> law had a conditioning effect on<br />
people to think that health and safety was a matter <strong>of</strong> “detailed<br />
rules imposed by external agencies”. He encountered attitudes<br />
and arguments in <strong>the</strong> course <strong>of</strong> his inquiry that <strong>the</strong> way to improve<br />
standards <strong>of</strong> health and safety is to impose more rules, more<br />
stringent laws, or to increase <strong>the</strong> frequency <strong>of</strong> <strong>the</strong> visits <strong>of</strong><br />
inspectors. 48<br />
Robens’s words thirty years ago have uncanny<br />
echoes in <strong>the</strong> present.<br />
150. Robens also found that <strong>the</strong> Acts and Regulations were badly<br />
structured, attempting to cover every contingency resulting in<br />
elaborate detail and complexity -<br />
that deters even <strong>the</strong> most determined reader. It is<br />
written in a language and style that renders it largely<br />
unintelligible to those whose actions it is intended to<br />
influence. Line managers, supervisors and shop-floor<br />
operatives are not legal experts. Even <strong>the</strong> personnel <strong>of</strong><br />
48 Robens, para 28, p.7.<br />
70
<strong>the</strong> inspectorates experience difficulty in picking <strong>the</strong>ir<br />
way through it all. 49<br />
151. He also noted that <strong>the</strong> civil service and Parliament could not cope<br />
with <strong>the</strong> enormous task <strong>of</strong> keeping this body <strong>of</strong> law up to date.<br />
152. Robens found that <strong>the</strong> administration <strong>of</strong> <strong>the</strong> laws was fragmented<br />
across many different agencies with little co-ordination between<br />
<strong>the</strong>m, resulting in one workplace being subject to several, <strong>of</strong>ten<br />
conflicting and confusing, pieces <strong>of</strong> health and safety legislation.<br />
153. The situation Robens found is similar to <strong>the</strong> present situation in<br />
regard to health and safety laws applying in Australia. The States<br />
and Territories have difficulty keeping up with requirements to draft<br />
new regulations each time a national body amends provisions<br />
relating to public or occupational safety. Examples in recent years<br />
have been in <strong>the</strong> regulation <strong>of</strong> electricity safety, gas safety,<br />
dangerous goods (with distinct regulation <strong>of</strong> storage/handling and<br />
transport); major hazard facilities; <strong>of</strong>f-shore petroleum facilities; rail<br />
safety as well as building and construction safety regulation. This<br />
has resulted in a proliferation <strong>of</strong> legislation dealing with separate<br />
aspects <strong>of</strong> workplace health and safety.<br />
154. The need to keep up with national regulatory developments is<br />
ongoing. For example, Tasmania last amended legislation relating<br />
to dangerous goods in 2005 to meet national commitments to<br />
implement <strong>the</strong> National Standard for <strong>the</strong> Storage and Handling <strong>of</strong><br />
49 Robens, para 29, p. 7.<br />
71
Dangerous Goods and <strong>the</strong> National Standard for <strong>the</strong> Control <strong>of</strong><br />
Major Hazard Facilities.<br />
Recently <strong>the</strong> National Transport<br />
Commission completed a review <strong>of</strong> <strong>the</strong> Australian Dangerous<br />
Goods Code that classifies dangerous goods and has drafted<br />
amended national regulations with <strong>the</strong> expectation that <strong>the</strong><br />
jurisdictions will introduce amended transport regulations for<br />
dangerous goods.<br />
155. The combination <strong>of</strong> fragmentation and frequent amendments is<br />
likely to have a negative impact upon <strong>the</strong> ability <strong>of</strong> those who are<br />
regulated to understand <strong>the</strong> legislative requirements and thus on<br />
<strong>the</strong> achievement <strong>of</strong> <strong>the</strong> objectives <strong>of</strong> <strong>the</strong> legislation.<br />
Change in focus<br />
156. Robens saw <strong>the</strong> pace <strong>of</strong> change in <strong>the</strong> 1970s would outstrip <strong>the</strong><br />
narrow technical focus and prescriptive detail <strong>of</strong> <strong>the</strong> legislation. He<br />
believed that <strong>the</strong> way to improve workplace health and safety was<br />
to focus <strong>the</strong> responsibility for health and safety on those whose<br />
main undertakings in business are <strong>the</strong> source <strong>of</strong> <strong>the</strong> hazards and<br />
risks to health and safety.<br />
157. He concluded that <strong>the</strong> objective <strong>of</strong> greatest importance in reform <strong>of</strong><br />
statutory arrangements is to provide for more effective selfregulation:<br />
This calls for <strong>the</strong> acceptance and exercise <strong>of</strong> appropriate<br />
responsibilities at all levels within industry and<br />
commerce. It calls for better systems <strong>of</strong> safety<br />
organization, for more management initiatives, and for<br />
72
more involvement <strong>of</strong> workpeople <strong>the</strong>mselves. The<br />
objectives <strong>of</strong> future policy must <strong>the</strong>refore include not<br />
only increasing <strong>the</strong> effectiveness <strong>of</strong> <strong>the</strong> state’s<br />
contribution to safety and health at work but also, and<br />
more importantly, creating <strong>the</strong> conditions for more<br />
effective self-regulation. 50<br />
Duty to take reasonable care<br />
158. The Robens legislative framework provides <strong>the</strong> conditions within<br />
which workplace parties <strong>the</strong>mselves must take necessary action to<br />
prevent injury, illness or death occurring – based on <strong>the</strong> legal and<br />
moral principle that in our actions we must take reasonable care<br />
not to do harm to o<strong>the</strong>rs. This principle was expressed by Lord<br />
Atkin (UK) as a duty owed by one person to take reasonable care<br />
that his activities not injure or harm ano<strong>the</strong>r [Donoghue v<br />
Stevenson (1932)], and applied later to workplaces by Wilson’s &<br />
Clyde Coal Co. v English (1937). 51<br />
50 Robens, para 40, p. 12.<br />
51 In Donoghue v Stevenson (1932) AC 562, Lord Atkin observed at 579-580: "The rule that you are to<br />
love your neighbour becomes in law, you must not injure your neighbour; and <strong>the</strong> lawyer's question,<br />
Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or<br />
omissions which you can reasonably foresee would be likely to injure your neighbour. Who, <strong>the</strong>n, in<br />
law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my<br />
act that I ought reasonably to have <strong>the</strong>m in contemplation as being so affected when I am directing my<br />
mind to <strong>the</strong> acts or omissions which are called in question ."<br />
73
Three Elements <strong>of</strong> <strong>the</strong> Framework<br />
159. The Robens framework is constructed on three principles or<br />
elements: general duties (based on <strong>the</strong> duty <strong>of</strong> care); good<br />
management; and involvement <strong>of</strong> workpeople.<br />
1. “General Duties”<br />
160. The first element <strong>of</strong> <strong>the</strong> framework comprises <strong>the</strong> part that<br />
establishes <strong>the</strong> duties and obligations <strong>of</strong> <strong>the</strong> parties in <strong>the</strong><br />
workplace, traditionally employers and employees, but extended to<br />
persons in control <strong>of</strong> <strong>the</strong> workplace (those to whom <strong>the</strong> day to day<br />
responsibility for managing affairs at <strong>the</strong> workplace is given by <strong>the</strong><br />
employer).<br />
161. The duties extend to those “upstream” <strong>of</strong> <strong>the</strong> workplace (such as<br />
designers, manufacturers, suppliers and installers) whose activity<br />
may affect <strong>the</strong> health and safety <strong>of</strong> those who must work with plant,<br />
substances etc., in <strong>the</strong> workplace. The duty also has limited<br />
extension to those who may be visitors to <strong>the</strong> workplace and to<br />
those outside <strong>the</strong> workplace so that <strong>the</strong>y are protected from injury<br />
or illness resulting from activities at <strong>the</strong> workplace.<br />
2. “Good Management”<br />
162. Robens contemplated that, in fulfilling this duty, <strong>the</strong> main<br />
prerequisites were not legal responsibilities, but good<br />
management. He foresaw that in managing for health and safety,<br />
employers must make workplace health and safety an aspect <strong>of</strong> <strong>the</strong><br />
74
usiness that needs to be managed routinely. He fur<strong>the</strong>r saw that<br />
employers must adopt a systematic approach designed to control<br />
risks to health and safety that arise from <strong>the</strong> workplace and <strong>the</strong><br />
performance <strong>of</strong> work. 52<br />
163. He also recommends that <strong>the</strong> enabling Act should contain an<br />
obligation for company directors’ <strong>report</strong>s to include information<br />
about accidents and industrial diseases suffered by <strong>the</strong> company’s<br />
employees and about <strong>the</strong> company’s preventative measures. 53<br />
He<br />
saw this as a means <strong>of</strong> drawing attention to <strong>the</strong> importance <strong>of</strong><br />
health and safety and generating fur<strong>the</strong>r improvement efforts.<br />
3. “The involvement <strong>of</strong> workpeople” 54<br />
164. In assigning <strong>the</strong> principal duty to manage health and safety at work<br />
to management, Robens does not limit health and safety to a<br />
management prerogative. He warns:<br />
real progress is impossible without <strong>the</strong> full co-operation<br />
and commitment <strong>of</strong> all employees [who must] be able to<br />
participate fully in <strong>the</strong> making and monitoring <strong>of</strong><br />
arrangements for safety and health at <strong>the</strong>ir place <strong>of</strong><br />
work. Moreover, if <strong>the</strong> new inspection approaches . . .<br />
are to work, increasing reliance will have to be placed on<br />
<strong>the</strong> contribution that workpeople <strong>the</strong>mselves can make<br />
towards safety monitoring. 55<br />
165. According to Robens, involvement <strong>of</strong> workpeople means securing<br />
<strong>the</strong>ir co-operation, commitment and participation. Robens noted<br />
52 Robens, paras 46-48, pp. 14-16.<br />
53 ibid, para 76, p. 24.<br />
54 Ibid, subheading to para 59, p. 18.<br />
55 Ibid, para 59, p. 19.<br />
75
<strong>the</strong> progress that was made in health and safety in manufacturing<br />
and coal mining in <strong>the</strong> 1970s through mechanisms that involved<br />
workers and increased joint commitment and co-operation between<br />
employers and employees in making <strong>the</strong> workplace safer.<br />
166. He observed “<strong>the</strong> typical method <strong>of</strong> involving workpeople is through<br />
<strong>the</strong> voluntary establishment <strong>of</strong> joint safety committees in which<br />
representatives <strong>of</strong> management and employees meet periodically<br />
to discuss safety and health problems and measures”. 56<br />
167. While he saw <strong>the</strong> benefits <strong>of</strong> <strong>the</strong>se joint committees, he also points<br />
out:<br />
health and safety committees are not <strong>the</strong> only way to<br />
increase <strong>the</strong> involvement and commitment <strong>of</strong><br />
workpeople. Some firms have arrangements whereby<br />
all employees in a particular working unit meet<br />
periodically for discussions about safety. This approach,<br />
sometimes referred to as “total involvement”, lays stress<br />
on participation by every individual employee. O<strong>the</strong>r<br />
ways in which employees can take a direct part in <strong>the</strong><br />
actual work <strong>of</strong> safety assessment and accident<br />
prevention are by participation in exercises such as<br />
safety sampling and hazard spotting. 57<br />
168. Communication, through <strong>the</strong> provision <strong>of</strong> information, is essential to<br />
effective involvement, and indeed to <strong>the</strong> effectiveness <strong>of</strong> all three<br />
elements <strong>of</strong> <strong>the</strong> legislative framework.<br />
169. At <strong>the</strong> level <strong>of</strong> <strong>the</strong> individual workplace Robens discusses <strong>the</strong><br />
practical value <strong>of</strong> firms having written health and safety policies as<br />
a means <strong>of</strong> providing information to employees. He goes on to say<br />
56 Robens, para 61, p. 19<br />
57 Ibid, para 62, p. 19.<br />
76
that if employees are to participate in <strong>the</strong> health and safety<br />
arrangements <strong>of</strong> <strong>the</strong>ir own workplace, <strong>the</strong>y must know and<br />
understand those policies and arrangements. 58<br />
He recommends<br />
“<strong>the</strong>re should be a legal obligation on all employers employing<br />
more than a specified number <strong>of</strong> workpeople . . . to set out <strong>the</strong>ir<br />
safety and health policy and rules in writing and to make such<br />
statements available to all employees”. 59<br />
Flexibility<br />
170. The strength <strong>of</strong> <strong>the</strong> Robens legislative framework lies in its<br />
flexibility, in that <strong>the</strong> “one size fits all” framework is designed to<br />
enable workplaces to develop specific solutions to suit <strong>the</strong>ir<br />
particular needs ra<strong>the</strong>r than having specific detail dictated in<br />
numerous confusing pieces <strong>of</strong> legislation.<br />
171. Robens envisaged that <strong>the</strong> enabling Act should contain a statutory<br />
declaration <strong>of</strong> <strong>the</strong> three major principles (general duties, good<br />
management and involvement <strong>of</strong> workpeople) but o<strong>the</strong>rwise be<br />
limited to provisions for administering <strong>the</strong> Act; a general regulation<br />
making power; powers to undertake and promote research and<br />
training; provisions for dealing with <strong>of</strong>fences; definitions <strong>of</strong><br />
application and scope etc.; and transitional provisions.<br />
172. The enabling Act would provide <strong>the</strong> first tier <strong>of</strong> <strong>the</strong> framework.<br />
58 Robens, “Written safety and health policies”, para. 73, p. 23.<br />
59 Ibid, para 74, p.23.<br />
77
173. To support <strong>the</strong> first tier, Robens recommended statutory<br />
regulations that prescribe only in terms <strong>of</strong> outcomes to be achieved<br />
as <strong>the</strong> second tier <strong>of</strong> <strong>the</strong> framework.<br />
174. Non-statutory, industry standards and codes were intended as <strong>the</strong><br />
third tier <strong>of</strong> <strong>the</strong> framework. Robens saw <strong>the</strong>se industry standards<br />
as <strong>the</strong> means for firms to develop and adopt relevant standards<br />
that would keep pace with changing technology, improved<br />
knowledge and market variation for <strong>the</strong> specific industry. As nonstatutory<br />
instruments <strong>the</strong>y would fulfil <strong>the</strong> requirement for “less law<br />
and more provision for voluntary self-regulation”. 60<br />
175. The Australian pattern <strong>of</strong> workplace health and safety legislation<br />
has not followed <strong>the</strong> Robens framework exactly. Standards,<br />
particularly for high pr<strong>of</strong>ile hazards, have been included in <strong>the</strong><br />
statutory framework. Most are “performance” standards, setting<br />
forth <strong>the</strong> outcomes to be achieved (e.g. National Standards<br />
developed by WorkSafe Australia); while certain “process”<br />
standards (e.g. Australian Standards developed by Standards<br />
Australia) are also referenced by <strong>the</strong> legislation.<br />
176. Codes <strong>of</strong> practice are o<strong>the</strong>r instruments provided for by <strong>the</strong><br />
framework. These are intended to be subsidiary documents<br />
providing guidance on <strong>the</strong> steps necessary for taking “reasonable<br />
60 Robens, Chapter 5, paras 126-139, pp40 – 44.<br />
78
care” in fulfilment <strong>of</strong> <strong>the</strong> general duties. Such steps may be stated<br />
“precisely and succinctly”. 61<br />
177. Codes <strong>of</strong> practice that are approved by <strong>the</strong> regulator (in Tasmania<br />
by <strong>the</strong> Minister responsible for workplace health and safety) have<br />
evidentiary status only, so that when <strong>the</strong> practice outlined by <strong>the</strong><br />
approved code is followed, it is evidence that “reasonable care” has<br />
been taken.<br />
178. To maintain proper balance between regulations and voluntary<br />
instruments, Robens recommended that an “Advisory Committee<br />
on Regulations and Codes” advise <strong>the</strong> “Authority” in <strong>the</strong><br />
administration <strong>of</strong> <strong>the</strong> framework. 62<br />
O<strong>the</strong>r frameworks<br />
179. Since <strong>the</strong> introduction <strong>of</strong> <strong>the</strong> general workplace health and safety<br />
legislation based upon <strong>the</strong> Robens framework, and in response to<br />
high pr<strong>of</strong>ile accidents, we have seen a return to <strong>the</strong> earlier<br />
approach <strong>of</strong> applying new regulatory frameworks to identified<br />
individual problems.<br />
180. Safety case style legislation emerged in <strong>the</strong> 1980s that applies to<br />
specific industries whose hazardous activities, if not effectively<br />
controlled, present risks <strong>of</strong> a greater magnitude to persons, within<br />
and outside <strong>the</strong> workplace, property and <strong>the</strong> environment.<br />
61 Adrian Brooks (1993) Occupational Health and Safety Law in Australia 4 th Edition, CCH<br />
Australia Limited, North Ryde, NSW Australia, para 2505, p. 934.<br />
62 Ibid, para 1161, p. 50.<br />
79
Safety Case<br />
181. A safety case comprises a documented, detailed risk assessment,<br />
mitigation strategy and emergency plan (<strong>the</strong> “safety case”) required<br />
by legislation to be prepared by <strong>the</strong> operator <strong>of</strong> <strong>the</strong> facility and<br />
approved by <strong>the</strong> regulator, prior to granting a licence to operate.<br />
182. The responsibility to implement, monitor and review <strong>the</strong> safety case<br />
resides firmly with <strong>the</strong> operator or employer (depending on <strong>the</strong> term<br />
used).<br />
183. The advantage <strong>of</strong> this type <strong>of</strong> framework is that it forces <strong>the</strong><br />
employer or operator to conduct a detailed analysis <strong>of</strong> potential<br />
risks associated with <strong>the</strong> hazards as well as identifying mitigating<br />
strategies that will be applied to control <strong>the</strong> risks. It also compels<br />
<strong>the</strong> employer or operator to consult with <strong>the</strong> community and with<br />
o<strong>the</strong>r industry and government bodies in matters that are relevant<br />
to <strong>the</strong> management <strong>of</strong> emergencies and potential environmental or<br />
property harm.<br />
184. One disadvantage is that once <strong>the</strong> facility is operating under<br />
licence, health and safety depends upon <strong>the</strong> strength and flexibility<br />
<strong>of</strong> <strong>the</strong> safety case in meeting actual circumstances, ra<strong>the</strong>r than<br />
<strong>the</strong>oretical ones. Robens’s principles <strong>of</strong> duty, good management<br />
and involvement <strong>of</strong> workpeople remain important even to <strong>the</strong> safety<br />
case framework.<br />
80
Preventing major accidents<br />
185. Safety case frameworks replaced general workplace health and<br />
safety legislation for certain industries after high-level inquiries into<br />
major accidents. 63<br />
186. The Royal Commission <strong>of</strong> Inquiry conducted by former High Court<br />
judge Sir Daryl Dawson into <strong>the</strong> Longford Gas Explosion that<br />
occurred in Victoria (Australia) in 1998, resulted in <strong>the</strong> adoption <strong>of</strong><br />
safety case legislation for major hazard facilities.<br />
187. The Royal Commission found that <strong>the</strong> employer, Esso, was solely<br />
responsible for <strong>the</strong> accident causing <strong>the</strong> deaths <strong>of</strong> two people and<br />
cutting <strong>the</strong> state’s gas supply for two weeks following <strong>the</strong> explosion.<br />
188. It was found that Esso had failed to comply with its management<br />
responsibilities and duty <strong>of</strong> care under <strong>the</strong> Victorian OHS Act,<br />
including a failure to provide information, supervision, training, and<br />
effective communication with supervisors and employees; it had<br />
failed to perform regular internal audits <strong>of</strong> safety procedures and<br />
failed to monitor and maintain equipment condition.<br />
189. It was also found that Esso had relied upon a safety system<br />
developed by its parent company without adequate internal or<br />
external safety audits or any o<strong>the</strong>r adequate procedure for <strong>the</strong><br />
63 The safety case regime emerged as a recommendation <strong>of</strong> <strong>the</strong> Public Inquiry into <strong>the</strong> Piper<br />
Alpha <strong>of</strong>f-shore oil rig disaster (Lord Cullen, 1990).<br />
81
identification and control <strong>of</strong> hazards. 64<br />
The inquiry also revealed<br />
that <strong>the</strong> problems at Esso had not happened overnight, but had<br />
mounted over a long period during which <strong>the</strong> company and <strong>the</strong><br />
regulator should have detected and corrected <strong>the</strong> problems.<br />
190. Even though <strong>the</strong> Australian Capital Territory (ACT) Coroner, Shane<br />
Madden, investigating <strong>the</strong> death <strong>of</strong> Katie Bender in <strong>the</strong> accident<br />
known as <strong>the</strong> Canberra Hospital Implosion, found gross negligence<br />
on <strong>the</strong> part <strong>of</strong> <strong>the</strong> contractor and sub-contractor in failing to comply<br />
with <strong>the</strong>ir duty <strong>of</strong> care under <strong>the</strong> ACT OHS Act, he also found<br />
deficiencies on <strong>the</strong> part <strong>of</strong> WorkCover ACT inspectors in not acting<br />
upon doubts about safety work plans and failing to issue prohibition<br />
notices. 65<br />
Lessons from failures<br />
191. The Longford Royal Commission findings and <strong>the</strong> ACT Coroner’s<br />
findings demonstrate <strong>the</strong> indispensable need for industry to comply<br />
with <strong>the</strong>ir own internal policies developed to comply with <strong>the</strong> law.<br />
They also demonstrate that <strong>the</strong> authorities administering <strong>the</strong><br />
legislation have vital responsibilities in enforcing compliance with<br />
all aspects <strong>of</strong> those duties.<br />
192. Thus <strong>the</strong> achievement <strong>of</strong> <strong>the</strong> objectives <strong>of</strong> workplace health and<br />
safety legislation depends upon strong support given to <strong>the</strong>m by<br />
64 Parliament <strong>of</strong> Victoria (1999) The Esso Longford Gas Plant Accident: Report <strong>of</strong> <strong>the</strong><br />
Longford Royal Commission, p. 235.<br />
65 ACT Coroner’s Findings (Section 56 Coroners Act 1956) and Conclusions: Role <strong>of</strong><br />
Regulatory Agencies, par.7.<br />
(http://www.courts.act.gov.au/magistrates/dec/bender/Sect07.htm)<br />
82
oth industry in implementing <strong>the</strong> duties and obligations and <strong>the</strong><br />
State in administering <strong>the</strong> legislation.<br />
193. The clearest message to emerge from <strong>the</strong> transcripts <strong>of</strong> <strong>the</strong>se<br />
inquiries is that a company’s failure to comply on a small scale<br />
leads to emerging and growing health and safety problems. If no<br />
correction occurs, ei<strong>the</strong>r through internal management checking<br />
mechanisms or through regulatory enforcement, <strong>the</strong> problems will<br />
almost certainly grow in magnitude.<br />
194. The Esso inquiry revealed that internal checking systems are only<br />
as good as <strong>the</strong> basic communication between <strong>the</strong> people who work<br />
within <strong>the</strong> system and <strong>the</strong> response <strong>of</strong> management, highlighting<br />
<strong>the</strong> importance <strong>of</strong> “good management” as a central feature <strong>of</strong><br />
workplace health and safety. It was found that management at <strong>the</strong><br />
Longford plant had allowed itself to become distracted from health<br />
and safety concerns by o<strong>the</strong>r management prerogatives, notably<br />
how to maintain production within severe budget limits.<br />
195. It was also found that <strong>the</strong> local management did not listen, or<br />
respond, to <strong>report</strong>s <strong>of</strong> problems at <strong>the</strong> plant and <strong>the</strong>refore<br />
neglected important maintenance and repair that would have<br />
mitigated <strong>the</strong> risks <strong>of</strong> an accident occurring.<br />
This finding<br />
emphasises <strong>the</strong> importance <strong>of</strong> <strong>the</strong> involvement <strong>of</strong> workpeople as a<br />
central principle <strong>of</strong> health and safety frameworks. Some o<strong>the</strong>r<br />
pressure needed to be applied to change <strong>the</strong>ir focus from <strong>the</strong><br />
budgetary prerogative, such as pressure from <strong>the</strong> regulator to<br />
83
comply with workplace health and safety legislation. Thus <strong>the</strong><br />
findings reiterate Robens’s original view that both <strong>the</strong> State and<br />
industry need to support <strong>the</strong> framework.<br />
196. In circumstances such as <strong>the</strong>se, it is not enough for a government<br />
to depend upon market forces, shareholder pressure, or o<strong>the</strong>r<br />
indirect influences to support compliance in workplace health and<br />
safety. Where competitive pressures within a dynamic economy<br />
are great, it could be argued that governments, through <strong>the</strong><br />
regulators, need to assign more, ra<strong>the</strong>r than fewer, resources to<br />
support and enforce <strong>the</strong> regulatory framework.<br />
Some conclusions so far<br />
197. This chapter summarises how Lord Robens saw health and safety<br />
as a responsibility for workplaces <strong>the</strong>mselves and recommended<br />
legislation based upon three central elements (general duties, good<br />
management and involvement <strong>of</strong> workpeople). Robens’s<br />
framework included an enabling Act to be supported by regulations<br />
stating <strong>the</strong> outcomes to be achieved and more detailed nonstatutory<br />
industry standards and/or codes that industry itself was to<br />
maintain.<br />
He supported <strong>the</strong> inclusion <strong>of</strong> established and<br />
recognised industry standards as statutory requirements within<br />
legislation.<br />
198. Australian workplace health and safety legislation did not follow <strong>the</strong><br />
Robens framework entirely. Elements <strong>of</strong> <strong>the</strong> earlier (pre 1970s)<br />
style <strong>of</strong> legislation survived.<br />
84
199. The discussion <strong>of</strong> frameworks concluded with a brief look at <strong>the</strong><br />
appearance <strong>of</strong> ano<strong>the</strong>r kind <strong>of</strong> legislative framework, <strong>the</strong> safety<br />
case framework, and emergence <strong>of</strong> legislation dealing with<br />
individual industry sectors.<br />
200. The current legislative trend unfortunately represents a return to<br />
<strong>the</strong> proliferation <strong>of</strong> separate legislation for individual industries or<br />
types <strong>of</strong> health and safety hazards that Robens found in 1970-1972<br />
created confusion and administrative inefficiency, <strong>the</strong>refore not<br />
contributing to <strong>the</strong> desired outcomes.<br />
201. Any recommendations we might make about <strong>the</strong> need for<br />
legislative amendment may be constrained by commitments or<br />
agreements that <strong>the</strong> State has made at a national level to<br />
regulatory reform, depending, <strong>of</strong> course, on <strong>the</strong> legal status <strong>of</strong><br />
those agreements or commitments.<br />
202. Some respondents to <strong>the</strong> review asked us to take account <strong>of</strong><br />
national commitments and so we have considered <strong>the</strong> national<br />
developments carefully. The discussion <strong>of</strong> <strong>the</strong> framework turns<br />
now to examine <strong>the</strong> progress and impact <strong>of</strong> regulatory reform in<br />
Australia on <strong>the</strong> Robens workplace health and safety legislative<br />
framework.<br />
85
The path <strong>of</strong> regulatory reform<br />
National consistency versus national uniformity<br />
203. Since 1995 workplace health and safety regulation has been<br />
subjected to <strong>the</strong> pressure <strong>of</strong> regulatory reform to remove regulation<br />
that imposes unnecessary burdens on business. At <strong>the</strong> same time,<br />
informal as well as formal co-operation and consultation has taken<br />
place between jurisdictions and social partners through <strong>the</strong><br />
previous National Occupation Health and Safety Commission<br />
(NOHSC) – now <strong>the</strong> Australian Safety and Compensation Council –<br />
to work towards <strong>the</strong> achievement <strong>of</strong> shared objectives.<br />
204. All Australian workplace health and safety Acts are based on <strong>the</strong><br />
Robens model, so <strong>the</strong> general framework and principles are<br />
consistent. (This is borne out by <strong>the</strong> positive factor that, while <strong>the</strong><br />
representatives <strong>of</strong> two large national employers who met with us<br />
may not have been entirely familiar with <strong>the</strong> detail <strong>of</strong> <strong>the</strong><br />
<strong>Tasmanian</strong> legislation, <strong>the</strong>y were able to apply <strong>the</strong>ir knowledge <strong>of</strong><br />
o<strong>the</strong>r States’ OHS Acts and implement similar safety management<br />
systems in <strong>the</strong>ir <strong>Tasmanian</strong> operations.)<br />
205. Since <strong>the</strong> early 1990s, a succession <strong>of</strong> federal inquiries has called<br />
for uniformity. The Industry Commission in 1995 agreed with large<br />
national employers (“multi-State” employers who make up <strong>the</strong><br />
smallest percentage <strong>of</strong> <strong>the</strong> total businesses in Australia but who<br />
employ <strong>the</strong> greatest number <strong>of</strong> employees) that multiple workplace<br />
health and safety regimes impose additional costs on national<br />
86
employers, concluding that national uniformity in OHS law was<br />
preferable. By “uniformity” it is understood that <strong>the</strong>re should be<br />
one health and safety law applying to all workplaces and to all<br />
jurisdictions.<br />
206. The pressure for uniformity has been applied selectively. The<br />
adoption <strong>of</strong> o<strong>the</strong>r frameworks and legislation for specific industries<br />
are examples <strong>of</strong> how workplace health and safety legislation has<br />
become fragmented, resulting in numerous pieces <strong>of</strong> legislation in<br />
each jurisdiction.<br />
207. For example, <strong>the</strong> Final Report <strong>of</strong> <strong>the</strong> Cole Royal Commission<br />
Inquiry into <strong>the</strong> Building and Construction Industry (2003)<br />
recommended that <strong>the</strong> building and construction industry be<br />
regulated separately in recognition that “powerful competitive<br />
forces in <strong>the</strong> building and construction industry worked against<br />
occupational health and safety” and that <strong>the</strong>se needed to be<br />
controlled if <strong>the</strong> industry were to improve its safety records. 66<br />
208. The passing <strong>of</strong> <strong>the</strong> Commonwealth Building and Construction<br />
Industry Improvement Act 2005 and <strong>the</strong> establishment <strong>of</strong> a<br />
separate OHS framework specifically for <strong>the</strong> building and<br />
construction industry, two important outcomes <strong>of</strong> <strong>the</strong> Cole Royal<br />
Commission, provide national uniformity in workplace health and<br />
safety for one industry sector.<br />
66 Cole, T.R.H. (2003) Final Report <strong>of</strong> <strong>the</strong> Inquiry into <strong>the</strong> Building and Construction Industry,<br />
Vol.6 “Reform – Occupational Health and Safety”, p. 41; Commonwealth <strong>of</strong> Australia, Victoria.<br />
87
209. It does so by establishing a separate framework regulated by <strong>the</strong><br />
Commonwealth that imposes a federal occupational health and<br />
safety accreditation scheme in relation to persons in <strong>the</strong> building<br />
and construction industry that contract with <strong>the</strong> Commonwealth<br />
(including those contracted by States and Territories for projects<br />
that are partly or fully funded by <strong>the</strong> Commonwealth). It also<br />
created a national <strong>of</strong>fice with OHS functions to administer <strong>the</strong><br />
legislation, overseen by a federal Safety Commissioner and with<br />
<strong>the</strong> creation <strong>of</strong> a federal inspectorate dedicated to this industry.<br />
210. This structure (like <strong>the</strong> safety case legislation applying to o<strong>the</strong>r<br />
industries) is in addition to <strong>the</strong> general workplace health and safety<br />
regulatory framework in each State and Territory, leading to <strong>the</strong><br />
conclusion that uniformity does not necessarily mean simplicity or<br />
greater clarity in regulation.<br />
211. Commissioner Cole’s views about <strong>the</strong> imperative for cultural and<br />
behavioural change as an overall driver <strong>of</strong> industry performance<br />
sends a strong message about how all industries might improve<br />
health and safety outcomes.<br />
212. He also identifies an important role for governments in using <strong>the</strong><br />
competitive forces within an industry in pre-tendering activities to<br />
achieve cultural and behavioural change by demanding evidence <strong>of</strong><br />
high levels <strong>of</strong> OHS performance.<br />
88
213. It is also worth considering his view that greater inspection and<br />
prosecution activities are needed to maintain improved health and<br />
safety.<br />
214. The push for national uniformity took ano<strong>the</strong>r step in 2004 when<br />
<strong>the</strong> successor to <strong>the</strong> Industry Commission, <strong>the</strong> Productivity<br />
Commission, was asked to assess possible models for establishing<br />
national frameworks for OHS and workers compensation<br />
arrangements.<br />
215. The Productivity Commission Report on National Workers<br />
Compensation and Occupational Health and Safety Frameworks<br />
2004 concluded that “[a] uniform national regime would make it<br />
much more efficient for multi-state employers to ensure that <strong>the</strong>ir<br />
management and employees understand <strong>the</strong> one set <strong>of</strong><br />
requirements [and] any changes to it. 67<br />
216. It favoured <strong>the</strong> establishment <strong>of</strong> a nationally uniform legislative<br />
approach based on <strong>the</strong> adoption <strong>of</strong> template legislation developed<br />
by <strong>the</strong> Commonwealth similar to that which has been used to<br />
create nationally uniform transport and food standards laws,<br />
however <strong>the</strong> Commission recognised <strong>the</strong>re were constitutional and<br />
process difficulties involved in such an approach. To overcome<br />
<strong>the</strong>se, <strong>the</strong> Productivity Commission advocated a “two-pronged”<br />
strategy to achieve uniformity:<br />
67 Commonwealth Government Productivity Commission Inquiry and Report National Workers<br />
Compensation and Occupational Health and Safety Frameworks, No. 27, 16 March 2004;<br />
p.28; Commonwealth <strong>of</strong> Australia, Canberra.<br />
89
The Commission considers that a single uniform<br />
national OHS regime, which is focused on preventing<br />
workplace injury and illness, should be <strong>the</strong> medium term<br />
reform objective for OHS. It would build on <strong>the</strong> initiative<br />
<strong>of</strong> <strong>the</strong> recently agreed national strategy.<br />
To achieve this <strong>the</strong> Commission is proposing two broad<br />
approaches, to operate in parallel. The first approach<br />
adapts <strong>the</strong> current cooperative model by streng<strong>the</strong>ning<br />
<strong>the</strong> national institutional structure based on NOHSC and<br />
<strong>the</strong> WRMC — emphasising <strong>the</strong> timely development <strong>of</strong><br />
best-practice national OHS standards and <strong>the</strong>ir<br />
implementation uniformly throughout Australia. Such an<br />
approach should be commenced immediately. The<br />
second approach is to progressively open up access to<br />
<strong>the</strong> existing Australian Government OHS regime, giving<br />
firms <strong>the</strong> choice <strong>of</strong> a single set <strong>of</strong> national OHS rules.<br />
The two approaches are not dependant on each o<strong>the</strong>r.<br />
Each has merits that would warrant <strong>the</strong>ir independent<br />
introduction. 68<br />
217. The Productivity Commission’s position is reflected in <strong>the</strong>ir<br />
proposal for a stronger national body to replace <strong>the</strong> NOHSC. This<br />
was realised with <strong>the</strong> establishment <strong>of</strong> <strong>the</strong> Australian Safety and<br />
Compensation Council (ASCC), a tri-partite body that sits<br />
according to Commonwealth administrative arrangements within<br />
<strong>the</strong> broad structure <strong>of</strong> <strong>the</strong> federal <strong>Department</strong> <strong>of</strong> Workplace<br />
Relations.<br />
Thus it comes under <strong>the</strong> overall direction and<br />
responsibility <strong>of</strong> <strong>the</strong> federal Minister for Workplace Relations, “to<br />
provide leadership and coordination <strong>of</strong> national efforts to prevent<br />
workplace death, injury and disease; and advice on directions to<br />
improve national workers’ compensation arrangements,<br />
rehabilitation and return to work <strong>of</strong> injured employees”. 69<br />
68 Ibid, p. 141.<br />
69 ASCC Communiqué, 6 April 2006, departmental correspondence.<br />
90
218. The Office <strong>of</strong> <strong>the</strong> ASCC, although having no regulatory jurisdiction<br />
in its own right, describes itself having a major focus on “…national<br />
legislative provisions, regulations and standards for approval by <strong>the</strong><br />
Workplace Relations Ministers’ Council.” 70 [Emphasis added.]<br />
219. The <strong>report</strong> <strong>of</strong> <strong>the</strong> federal Regulatory Taskforce on Reducing <strong>the</strong><br />
Regulatory Burden on Business (G. Banks, 31 January 2006)<br />
echoed <strong>the</strong> Productivity Commission’s earlier recommendations in<br />
referring OHS and National Standards as two regulatory “hot spots”<br />
to <strong>the</strong> Council <strong>of</strong> Australian Governments (COAG). In discussing<br />
<strong>the</strong> regulation <strong>of</strong> workplace health and safety, <strong>the</strong> Taskforce<br />
<strong>report</strong>ed:<br />
While employers and <strong>the</strong>ir representatives confirmed<br />
<strong>the</strong>ir support for <strong>the</strong> policy objectives underlying OHS<br />
regulation, <strong>the</strong>y were concerned that inconsistency<br />
across jurisdictions adds significantly to compliance<br />
costs for businesses operating nationally, that liability is<br />
not reasonably shared between employers and<br />
employees, that OHS training is not embedded in<br />
industry training packages, and that regulators are<br />
reluctant to provide advice and support on compliance<br />
and changes to <strong>the</strong> rules”. 71<br />
220. While commenting upon occupational health and safety matters,<br />
<strong>the</strong> Taskforce’s comments appear not to differentiate between<br />
workplace health and safety and workers rehabilitation and<br />
compensation, particularly in its statement that “liability is not<br />
reasonably shared between employers and employees”.<br />
70 Productivity Commission (2004), p. 142.<br />
71 Regulation Taskforce 2006, Rethinking Regulation: Report <strong>of</strong> <strong>the</strong> Taskforce on Reducing<br />
Regulatory Burdens on Business, Report to <strong>the</strong> Prime Minister and <strong>the</strong> Treasurer,<br />
Commonwealth <strong>of</strong> Australia, Canberra; p. 36.<br />
91
221. “Liability” in <strong>the</strong> workers rehabilitation and compensation framework<br />
attaches to <strong>the</strong> employer (not <strong>the</strong> employee) because <strong>of</strong> <strong>the</strong> “no<br />
fault” basis <strong>of</strong> <strong>the</strong> workers compensation schemes that operate in<br />
each jurisdiction.<br />
222. Duties (and <strong>the</strong>refore “liability”) in <strong>the</strong> preventive workplace health<br />
and safety framework, by contrast, attach to all parties both in, and<br />
upstream from, <strong>the</strong> workplace.<br />
223. The prevention duties are based on employers, principals,<br />
manufacturers, designers, suppliers et al doing what is reasonably<br />
practicable and employees taking reasonable care.<br />
224. At <strong>the</strong> time that <strong>the</strong> Regulatory Taskforce <strong>report</strong>ed employers’<br />
complaints about absolute liability in workplace health and safety,<br />
NSW was <strong>the</strong> only jurisdiction ostensibly to have workplace health<br />
and safety legislation based on absolute liability, however, <strong>the</strong><br />
perception that it was absolute may have been incorrect. 72<br />
225. The NSW review <strong>of</strong> workplace health and safety never<strong>the</strong>less<br />
made <strong>the</strong> situation quite clear by <strong>the</strong> insertion and definition <strong>of</strong><br />
“reasonably practicable” into <strong>the</strong> Occupational Health and Safety<br />
Amendment Act 2006 (passed 17 September 2006).<br />
226. Never<strong>the</strong>less, an agreement reached by <strong>the</strong> States and Territories<br />
in <strong>the</strong> newly created Council <strong>of</strong> Australian Federation on 13<br />
72 We say “ostensibly” because Brooks (1993) disputes this. Brooks argues that <strong>the</strong> effect <strong>of</strong><br />
<strong>the</strong> NSW legislative provisions at sections 15(1) and 53 <strong>of</strong> <strong>the</strong> 1983 OHS Act is <strong>the</strong> same as<br />
o<strong>the</strong>r jurisdictions’ legislation. (Brooks, paras 1005 – 1008, pp 432-434.<br />
92
October 2006 on Harmonisation <strong>of</strong> Workers Compensation and<br />
Occupational Health and Safety Arrangements promises greater<br />
administrative co-operation and harmonisation in workplace health<br />
and safety as well as compensation matters. 73<br />
To date, workers<br />
compensation items dominate <strong>the</strong> agenda.<br />
73 Council for <strong>the</strong> Australian Federation Communiqué 13 October 2006 Agreement by <strong>the</strong><br />
States and Territories on Harmonisation <strong>of</strong> Workers Compensation and Occupational Health<br />
and Safety Arrangements, p.15.<br />
93
COAG Regulatory principles<br />
227. The principles for regulation are expressed in <strong>the</strong> COAG Principles<br />
and Guidelines for National Standard Setting and Regulatory<br />
Action by Ministerial Councils and Standard-Setting Bodies (<strong>the</strong><br />
Regulatory Principles). They require that all regulation be subject<br />
to analysis based on transparency, accountability, efficiency,<br />
adaptability and coherence.<br />
228. New regulations are required to be pro-competitive and outcomes<br />
focused, and subject to rigorous cost-benefit analysis. 74<br />
In<br />
Tasmania, <strong>the</strong>se processes are overseen by <strong>the</strong> Economic Reform<br />
Branch <strong>of</strong> <strong>the</strong> <strong>Department</strong> <strong>of</strong> Treasury, which requires Regulatory<br />
Impact Statements to be developed for any regulatory reform that<br />
may have an impact on competition.<br />
229. These principles apply equally to those instruments <strong>of</strong> a voluntary<br />
nature (such as industry codes <strong>of</strong> practice or guidelines issued by<br />
<strong>the</strong> State)<br />
where <strong>the</strong>re is a reasonable expectation that <strong>the</strong>ir<br />
promotion and dissemination by standard-setting bodies<br />
or by government could be interpreted as requiring<br />
compliance. For example, should non-compliance with<br />
provisions <strong>of</strong> a voluntary code be considered as<br />
evidence by a court or an administrative body when<br />
determining compliance with statutory obligations, such<br />
advisory documents are subject to <strong>the</strong> review process”. 75<br />
74 COAG (1995, as amended 2004), Principles and Guidelines for National Standard Setting<br />
and Regulatory Action by Ministerial Councils and Standard-Setting Bodies.<br />
http://www.coag.gov.au/meetings/250604/coagpg04.pdf<br />
75 ibid, p. 2.<br />
94
230. It is not clear whe<strong>the</strong>r non-statutory industry standards issued by<br />
industry bodies must be subject to <strong>the</strong> same regulatory principles.<br />
Implementation <strong>of</strong> National Standards<br />
231. Regulatory reforms and movement towards centralising workplace<br />
health and safety regulation converge upon <strong>the</strong> COAG agreement<br />
in April 2006 to focus on workplace health and safety and National<br />
Standard development as regulatory “hot spots” by:<br />
(a) agreeing specific time frames for implementation so<br />
that each jurisdiction will implement <strong>the</strong> standard or<br />
code within an agreed time frame [and]<br />
(b) <strong>the</strong> Workplace Relations Ministerial Council to<br />
identify priority areas in principal OHS Acts in each State<br />
and Territory that should be harmonised. 76<br />
232. The agreement assigns responsibility to <strong>the</strong> ASCC for undertaking<br />
“<strong>the</strong> review <strong>of</strong> all national OHS legislation to identify priority areas<br />
that should be harmonised and <strong>report</strong> to WRMC in December this<br />
year”. 77<br />
The future <strong>of</strong> <strong>the</strong> legislative framework for workplace<br />
health and safety will <strong>the</strong>refore depend on <strong>the</strong> outcome <strong>of</strong> this<br />
work.<br />
233. The status <strong>of</strong> National Standards within <strong>the</strong> workplace health and<br />
safety legislative framework is problematic.<br />
234. It is salutary to recall that <strong>the</strong> intention <strong>of</strong> <strong>the</strong> Robens framework is<br />
to enable workplace parties <strong>the</strong>mselves to determine how <strong>the</strong>y<br />
should achieve <strong>the</strong> outcomes prescribed by <strong>the</strong> enabling Act (<strong>the</strong><br />
76 COAG Communiqué, 10 February 2006, Decision 5.6.<br />
77 Communiqué <strong>of</strong> <strong>the</strong> ASCC 6 April 2006.<br />
95
first tier <strong>of</strong> <strong>the</strong> framework) and <strong>the</strong> regulations (forming <strong>the</strong> second<br />
tier). Industry standards and codes <strong>of</strong> practice that are <strong>the</strong><br />
responsibility <strong>of</strong> industry to develop and maintain were intended to<br />
provide a supportive, largely non-statutory, third tier.<br />
235. Robens explains <strong>the</strong> value <strong>of</strong> industry standards thus:<br />
…standards and codes developed within industry and by<br />
independent bodies are, over a large part <strong>of</strong> <strong>the</strong> field,<br />
more practical and <strong>the</strong>refore potentially more effective<br />
instruments <strong>of</strong> progress than statutory regulations. . . . .<br />
[however], <strong>the</strong> constant multiplication <strong>of</strong> non-statutory<br />
codes <strong>of</strong> diverse origin and authority can be as<br />
confusing and unhelpful as <strong>the</strong> multiplication <strong>of</strong> statutory<br />
regulations.” 78<br />
236. Robens <strong>the</strong>refore suggests making explicit reference in statutory<br />
regulations to existing and recognised industry standards and<br />
codes, or where none exists, “to <strong>the</strong> preparation <strong>of</strong> an approved<br />
non-statutory code as an alternative to preparing statutory<br />
regulation. 79<br />
237. Consistent with <strong>the</strong> first part <strong>of</strong> his recommendation, some industry<br />
standards (such as those created by Standards Australia or<br />
National Standards created by WorkSafe Australia) are referenced<br />
in legislation for Tasmania and o<strong>the</strong>r jurisdictions. This means that<br />
all workplaces, regardless <strong>of</strong> type or size, must comply with <strong>the</strong><br />
standards that are referenced. (Clearly that would make <strong>the</strong><br />
requirements far more onerous for smaller businesses than for <strong>the</strong><br />
larger.)<br />
78 Robens, “The use <strong>of</strong> non-statutory codes and standards”, paras 149-150, p. 47.<br />
79 Ibid, para 151, p. 47.<br />
96
238. The question now confronting regulators is whe<strong>the</strong>r <strong>the</strong> growing<br />
number <strong>of</strong> National Standards should be given statutory status by<br />
being adopted as regulation, or whe<strong>the</strong>r <strong>the</strong>y should remain<br />
advisory in nature and adopted as non-statutory codes by relevant<br />
industries.<br />
239. The ASCC position is that National Standards developed through<br />
<strong>the</strong> ASCC are intended to be “model regulations” to be adopted as<br />
additional regulation or incorporated into legislation by <strong>the</strong><br />
jurisdictions that have responsibility for administering workplace<br />
health and safety:<br />
A national standard is a document that sets<br />
requirements for preventing occupational deaths,<br />
injuries and diseases from particular workplace hazards,<br />
and is intended to be taken up by jurisdictions into<br />
legislation.<br />
National standards contain <strong>the</strong> obligations <strong>of</strong> duty<br />
holders, definitions, technical and administrative<br />
requirements. The provisions could be taken up in<br />
ei<strong>the</strong>r OHS Acts or Regulation. 80<br />
240. There are real difficulties with this position. Firstly, as <strong>the</strong> ASCC<br />
itself acknowledges (above), <strong>the</strong> National Standards contain<br />
statements <strong>of</strong> duties and obligations, definitions and administrative<br />
responsibilities that are matters already prescribed by <strong>the</strong><br />
legislation, and very <strong>of</strong>ten <strong>the</strong>y are inconsistent with <strong>the</strong> legislation.<br />
These statements <strong>of</strong> duties etc. also have a way <strong>of</strong> being different<br />
80 ASCC Draft Report to <strong>the</strong> Council <strong>of</strong> Australian Governments, provided to members 17<br />
August 2006, departmental correspondence.<br />
97
from one National Standard to ano<strong>the</strong>r. They simply cannot be<br />
adopted as <strong>the</strong>y are without risking confusion and/or contradiction.<br />
241. Secondly, but perhaps more seriously, <strong>the</strong>ir adoption as regulation<br />
would inevitably lead to greater proliferation <strong>of</strong> regulation as each<br />
standard becomes a new set <strong>of</strong> regulations.<br />
242. One respondent to <strong>the</strong> review, who prefers to remain anonymous,<br />
supports our view that <strong>the</strong> proliferation <strong>of</strong> statutory instruments<br />
such as standards and codes is problematic. The respondent<br />
writes:<br />
… a significant contributor to <strong>the</strong> problems which we<br />
encounter today in achieving desired outcomes is that<br />
<strong>the</strong> path to <strong>the</strong>m is strewn with so much regulation that<br />
<strong>the</strong>y cannot be reached. In Tasmania alone we have<br />
some thousands <strong>of</strong> pages <strong>of</strong> new legislation each year,<br />
and in <strong>the</strong> Commonwealth several thousand pages.<br />
Loaded on top <strong>of</strong> that are countless pages <strong>of</strong> codes,<br />
directions, guidelines, standards and so forth. The<br />
proliferation <strong>of</strong> material is just too great for most people<br />
to cope with, so <strong>the</strong>y give up and do nothing when really<br />
all that was wanted, at least in <strong>the</strong> workplace, was that<br />
reasonable care be taken to prevent injury. (Anon.)<br />
243. The conversion <strong>of</strong> standards to regulations attached to <strong>the</strong> Act<br />
would also add to an ever-increasing administrative load for <strong>the</strong><br />
States and Territories as <strong>the</strong>y attempt to keep <strong>the</strong> regulations up to<br />
date with frequently changing industry developments. Parliaments<br />
would become processors <strong>of</strong> a stream <strong>of</strong> regulations developed<br />
elsewhere.<br />
244. Each National Standard is accompanied by a National Code <strong>of</strong><br />
Practice (and Guidance Notes in some cases) so that, in total,<br />
98
<strong>the</strong>re are hundreds <strong>of</strong> pages <strong>of</strong> potential regulations, that would<br />
add to <strong>the</strong> regulatory and administrative burden for both <strong>the</strong> State<br />
and industry.<br />
245. Thus <strong>the</strong> position on national standards contradicts <strong>the</strong> aim <strong>of</strong><br />
reducing <strong>the</strong> volume and complexity <strong>of</strong> regulation.<br />
246. Thirdly, <strong>the</strong> conversion <strong>of</strong> industry standards to statutory regulation<br />
would remove <strong>the</strong> vital non-statutory pillar supporting <strong>the</strong><br />
framework - <strong>the</strong> role <strong>of</strong> industry. In taking away <strong>the</strong> non-statutory<br />
role <strong>of</strong> industry, it would place all initiative and far greater<br />
responsibility with <strong>the</strong> State.<br />
247. In considering <strong>the</strong> possible impact <strong>of</strong> <strong>the</strong>se national developments<br />
on workplace health and safety in Tasmania, <strong>the</strong> review team is<br />
<strong>the</strong>refore concerned that <strong>the</strong>y may work against <strong>the</strong> health and<br />
safety outcomes that we are seeking.<br />
248. Recent European experience <strong>of</strong> centralised “harmonisation” <strong>of</strong><br />
workplace health and safety law is relevant to this discussion.<br />
Cullen, as <strong>the</strong> Lord Chief <strong>Justice</strong> <strong>of</strong> Scotland, comments upon<br />
European “harmonisation” processes:<br />
In health and safety legislation a great deal has been<br />
achieved in putting into practice and maintaining <strong>the</strong><br />
principles <strong>of</strong> <strong>the</strong> Robens Report. However, much <strong>of</strong> <strong>the</strong><br />
legislation is more complex, pervasive and specific than<br />
he envisaged. The process <strong>of</strong> change in <strong>the</strong> regulatory<br />
system, which was always going to take a long time, has<br />
99
een distorted and disrupted by introduction <strong>of</strong> EC<br />
based provisions. 81<br />
249. To sum up, we appear to be witnessing simultaneous movement to<br />
deregulate (particularly in <strong>the</strong> labour market); pressure for<br />
centralisation <strong>of</strong> regulation; and a return to <strong>the</strong> piecemeal creation<br />
<strong>of</strong> more regulation applying to specific problems, so criticised by<br />
Robens in his <strong>report</strong> Safety and Health at Work.<br />
250. In workplace health and safety matters we seem to have<br />
blundered our way full circle back to <strong>the</strong> period before Robens. If<br />
we really want to prevent work-related death, injury or illness in <strong>the</strong><br />
complex and confusing times we live in now, we need at least to<br />
rediscover <strong>the</strong> wisdom <strong>of</strong> Robens.<br />
Recommendation 2:<br />
In negotiating at a high level on <strong>the</strong> national harmonisation <strong>of</strong><br />
workplace health and safety legislation, ei<strong>the</strong>r within COAG or<br />
within <strong>the</strong> Australian Council for Federation, it is recommended<br />
that Tasmania urgently seeks a sensible resolution to <strong>the</strong><br />
dilemma <strong>of</strong> national and/or industry standards that avoids<br />
adding fur<strong>the</strong>r regulation to <strong>the</strong> health and safety legislation<br />
framework.<br />
81 Lord Cullen (1996) “The Development <strong>of</strong> Safety Legislation”, Royal Academy <strong>of</strong><br />
Engineering and Royal Society <strong>of</strong> Edinburgh Lecture.<br />
100
CHAPTER 3<br />
ACCOUNTING FOR CHANGES<br />
To ensure that <strong>the</strong> workplace health and safety<br />
legislative framework takes account <strong>of</strong> changes that<br />
affect, or may affect, workplace health and safety, such<br />
as changes in <strong>the</strong> labour market, industrial relations and<br />
new and emerging risks in <strong>the</strong> workplace … (Term <strong>of</strong><br />
reference 1)<br />
251. The <strong>Tasmanian</strong> review is to consider <strong>the</strong> general workplace health<br />
and safety framework as provided by <strong>the</strong> Workplace Health and<br />
Safety Act 1995 and <strong>the</strong> Workplace Health and Safety Regulations<br />
1998. Our terms <strong>of</strong> reference direct us to both <strong>the</strong> legislation and<br />
<strong>the</strong> way in which it is administered “to ensure <strong>the</strong>y are designed to<br />
meet <strong>the</strong> changing circumstances <strong>of</strong> workplaces and <strong>the</strong><br />
developing economy effectively”.<br />
252. The previous chapter looked at <strong>the</strong> framework that Robens<br />
originally recommended and, by tracing legislative reform since<br />
<strong>the</strong>n, concluded that we have departed significantly from <strong>the</strong><br />
simplicity that Robens recommended.<br />
253. We believe that Robens’s findings and recommendations <strong>of</strong> 1972<br />
are as relevant today as <strong>the</strong>y ever were and that good health and<br />
safety at work is still a normal management function that must flow<br />
through from <strong>the</strong> directors in <strong>the</strong> boardroom to <strong>the</strong> supervisors on<br />
<strong>the</strong> shop floor. As much as things may change, very little has<br />
101
changed in terms <strong>of</strong> <strong>the</strong> need for business to apply preventive<br />
measures to ensure that people at work are healthy and safe.<br />
254. Ernst & Young conducted <strong>the</strong> last review <strong>of</strong> occupational health<br />
and safety in Tasmania <strong>report</strong>ing to <strong>the</strong> State Government in June<br />
1991. Their recommendations for a single Act regulating health<br />
and safety and a single administrative body produced <strong>the</strong><br />
legislative and administrative frameworks that <strong>the</strong> review team is<br />
required to examine at this time. 82<br />
<strong>Tasmanian</strong> legislative framework<br />
255. The <strong>Tasmanian</strong> legislative framework comprises <strong>the</strong> principal Act,<br />
<strong>the</strong> Workplace Health and Safety Act 1995 (<strong>the</strong> Act) – as “[a]n Act<br />
to provide for <strong>the</strong> health and safety <strong>of</strong> persons employed in,<br />
engaged in or affected by industry, to provide for <strong>the</strong> safety <strong>of</strong><br />
persons using amusement structures and temporary public stands<br />
and to repeal certain enactments” 83<br />
and <strong>the</strong> accompanying<br />
Workplace Health and Safety Regulations 1998. The framework<br />
repealed <strong>the</strong> Mines Inspection Act 1968, <strong>the</strong> Industrial Safety,<br />
Health and Welfare Act 1977, <strong>the</strong> Scaffolding Act 1960, and <strong>the</strong><br />
Inspection <strong>of</strong> Machinery Act 1960.<br />
256. O<strong>the</strong>r Acts apply to workplace health and safety in specific<br />
circumstances.<br />
The Dangerous Goods Act 1998, and <strong>the</strong><br />
Dangerous Substances Act 2005, for example, apply to health and<br />
82 Ernst & Young, (1991) OH&S review – Tasmania, Final Report, <strong>Department</strong> <strong>of</strong><br />
Employment, Industrial Relations and Training, Government <strong>of</strong> Tasmania.<br />
83 Long Title <strong>of</strong> <strong>the</strong> Act.<br />
102
safety in dealing with dangerous goods and substances that are<br />
transported, stored or handled. These Acts are based on nationally<br />
agreed frameworks designed to control <strong>the</strong> higher level <strong>of</strong> risks to<br />
health and safety to persons, property and <strong>the</strong> environment posed<br />
by dangerous goods and hazardous substances. The <strong>Tasmanian</strong><br />
Electricity Industry Safety and Administration Act 1997, Gas Act<br />
2000 and Gas Pipelines Act 2000, regulate safety in <strong>the</strong>se specific<br />
industries. These Acts are not part <strong>of</strong> this review.<br />
257. The Workplace Health and Safety Act 1995 is constructed loosely<br />
upon <strong>the</strong> principles and framework recommended by Lord Robens,<br />
discussed in <strong>the</strong> previous chapters, and certain provisions are<br />
based on <strong>the</strong> International Labour Organisation (ILO) Conventions<br />
ratified by Australia, particularly ILO Convention 155 –<br />
Occupational Health and Safety Convention.<br />
258. The scope <strong>of</strong> <strong>the</strong> legislative framework is broadly defined to extend<br />
to all workplaces and is in addition to o<strong>the</strong>r legislation that<br />
regulates workplaces (s3A). (Thus any workplace regulated by<br />
o<strong>the</strong>r legislation, is also, for general health and safety purposes,<br />
regulated by <strong>the</strong> Workplace Health and Safety Act.)<br />
259. Workplaces are defined by <strong>the</strong> Act to include “any premises or<br />
place (including any mine, aircraft, vessel or vehicle) where an<br />
employee, contractor or self-employed person is or was employed<br />
or engaged in industry” (s3).<br />
103
Objectives<br />
260. The objective <strong>of</strong> <strong>the</strong> framework is not <strong>the</strong> total elimination <strong>of</strong> injury,<br />
illness or death. While it would be ideal that not a single person<br />
should die or be hurt or become ill as a result <strong>of</strong>, or in <strong>the</strong> course<br />
<strong>of</strong>, performing work, zero tolerance is unfortunately not a realistic<br />
goal. As one respondent put it:<br />
Because workplaces involve, by definition, human<br />
beings, human error will always be found <strong>the</strong>re, and thus<br />
<strong>the</strong>re will always be accidents. The objective <strong>of</strong> <strong>the</strong><br />
legislation is to minimize <strong>the</strong>ir number and impact.<br />
(Anon.)<br />
261. The objective <strong>of</strong> <strong>the</strong> <strong>Tasmanian</strong> framework is to prevent workrelated<br />
deaths, injury, or illness by applying general duties and<br />
obligations to persons, which when complied with, reduce <strong>the</strong> level<br />
<strong>of</strong> health and safety risks associated with workplaces.<br />
262. Sections 9 through to 16 speak to <strong>the</strong> purpose <strong>of</strong> <strong>the</strong> Act in<br />
prescribing <strong>the</strong> duties <strong>of</strong> <strong>the</strong> employer, beginning with <strong>the</strong> general<br />
safety duty at s(9)(1)(a):<br />
An employer must, in respect <strong>of</strong> each employee<br />
employed by <strong>the</strong> employer, ensure so far as is<br />
reasonably practicable that <strong>the</strong> employee is, while at<br />
work, safe from injury and risks to health and, in<br />
particular, must –<br />
(a) provide and maintain so far as is reasonably<br />
practicable –<br />
a safe working environment; and<br />
safe systems <strong>of</strong> work; and<br />
plant and substances in a safe condition; ” &c<br />
104
263. Acts for workplace health and safety passed by o<strong>the</strong>r States and<br />
Territory parliaments are written in different language and drafting<br />
style and some have expressed <strong>the</strong> objectives explicitly ra<strong>the</strong>r than<br />
allowing <strong>the</strong> Act to “speak for itself”. For example, <strong>the</strong> Victorian<br />
Occupational Health and Safety Act 2004 details its “objects” in<br />
section 2 <strong>of</strong> that Act, as follows:<br />
(1) The objects <strong>of</strong> this Act are—<br />
(a) to secure <strong>the</strong> health, safety and welfare <strong>of</strong><br />
employees and o<strong>the</strong>r persons at work; and<br />
(b) to eliminate, at <strong>the</strong> source, risks to <strong>the</strong> health, safety<br />
or welfare <strong>of</strong> employees and o<strong>the</strong>r persons at work; and<br />
(c) to ensure that <strong>the</strong> health and safety <strong>of</strong> members <strong>of</strong><br />
<strong>the</strong> public is [sic] not placed at risk by <strong>the</strong> conduct <strong>of</strong><br />
undertakings by employers and self-employed persons;<br />
and<br />
(d) to provide for <strong>the</strong> involvement <strong>of</strong> employees,<br />
employers, and organisations representing those<br />
persons, in <strong>the</strong> formulation and implementation <strong>of</strong><br />
health, safety and welfare standards — having regard to<br />
<strong>the</strong> principles <strong>of</strong> health and safety protection set out in<br />
section 4.<br />
(2) It is <strong>the</strong> intention <strong>of</strong> <strong>the</strong> Parliament that in <strong>the</strong><br />
administration <strong>of</strong> this Act regard should be had to <strong>the</strong><br />
principles <strong>of</strong> health and safety protection set out in<br />
section 4.<br />
264. The NSW Occupational Health and Safety Act 2000 details <strong>the</strong><br />
“objects” as follows:<br />
a) to secure and promote <strong>the</strong> health, safety and welfare<br />
<strong>of</strong> people at work,<br />
(b) to protect people at a place <strong>of</strong> work against risks to<br />
health or safety arising out <strong>of</strong> <strong>the</strong> activities <strong>of</strong> persons at<br />
work,<br />
(c) to promote a safe and healthy work environment for<br />
people at work that protects <strong>the</strong>m from injury and illness<br />
and that is adapted to <strong>the</strong>ir physiological and<br />
psychological needs,<br />
105
(d) to provide for consultation and co-operation between<br />
employers and employees in achieving <strong>the</strong> objects <strong>of</strong><br />
this Act,<br />
(e) to ensure that risks to health and safety at a place <strong>of</strong><br />
work are identified, assessed and eliminated or<br />
controlled,<br />
(f) to develop and promote community awareness <strong>of</strong><br />
occupational health and safety issues,<br />
(g) to provide a legislative framework that allows for<br />
progressively higher standards <strong>of</strong> occupational health<br />
and safety to take account <strong>of</strong> changes in technology and<br />
work practices,<br />
(h) to deal with <strong>the</strong> impact <strong>of</strong> particular classes or types<br />
<strong>of</strong> dangerous goods and plant at, and beyond, places <strong>of</strong><br />
work<br />
265. The objects <strong>of</strong> <strong>the</strong> South Australian Occupational Health, Safety<br />
and Welfare Act 1986 are:<br />
(a) to secure <strong>the</strong> health, safety and welfare <strong>of</strong> persons at<br />
work; and<br />
(b) to eliminate, at <strong>the</strong>ir source, risks to <strong>the</strong> health,<br />
safety and welfare <strong>of</strong> persons at work; and<br />
(c) to protect <strong>the</strong> public against risks to health or safety<br />
arising out <strong>of</strong> or in connection with—<br />
(i) <strong>the</strong> activities <strong>of</strong> persons at work; or<br />
(ii) <strong>the</strong> use or operation <strong>of</strong> various types <strong>of</strong> plant;<br />
(d) to involve employees and employers in issues<br />
affecting occupational health, safety and welfare; and<br />
(e) to encourage registered associations to take a<br />
constructive role in promoting improvements in<br />
occupational health, safety and welfare practices and<br />
assisting employers and employees to achieve a<br />
healthier and safer working environment.<br />
266. While detailed objectives written into <strong>the</strong> Act may be helpful to <strong>the</strong><br />
courts if <strong>the</strong>re were any ambiguity contained in <strong>the</strong> provisions<br />
<strong>the</strong>mselves, <strong>the</strong>y are not strictly necessary. The review team<br />
believes <strong>the</strong> objective <strong>of</strong> <strong>the</strong> <strong>Tasmanian</strong> Act to prevent injury,<br />
106
illness or death is sufficiently clear and we do not see any benefit in<br />
including specific objectives in <strong>the</strong> Act.<br />
267. Very few submissions commented upon <strong>the</strong> nature <strong>of</strong> <strong>the</strong><br />
framework. Two union submissions (AWU, CFMEU) commented<br />
on <strong>the</strong>ir preference for a prescriptive legislative framework and one,<br />
from <strong>the</strong> <strong>Tasmanian</strong> Minerals Council (TMC) observed that <strong>the</strong>y<br />
opposed “self-regulation”, preferring our description <strong>of</strong> “regulated<br />
self-regulation”. O<strong>the</strong>r submissions provide strong support for<br />
retaining <strong>the</strong> current framework based on duty provisions that allow<br />
flexibility for duty holders to determine how those duties are to be<br />
met within <strong>the</strong>ir workplace.<br />
268. Some acknowledge that <strong>the</strong> adoption <strong>of</strong> <strong>the</strong> Robens model has<br />
seen significant improvement in workplace health and safety, and:<br />
We should be careful not to tinker with it too much,<br />
although at <strong>the</strong> same time recognising that <strong>the</strong>re is<br />
always room for improvement. (Anon.)<br />
269. Many individual employers acknowledge that <strong>the</strong> review <strong>of</strong> <strong>the</strong><br />
legislation is timely and commented that issues raised for<br />
discussion reflect changing circumstances and highlighted <strong>the</strong><br />
importance <strong>of</strong> sustaining legislation that is relevant to contemporary<br />
needs. These employers unanimously support <strong>the</strong> Robens style<br />
framework, but indicated some adjustment is needed for it to<br />
operate more effectively.<br />
107
270. Unions Tasmania, <strong>the</strong> peak body representing unions in Tasmania,<br />
acknowledges that <strong>the</strong> review is occurring at a time when many<br />
economic, social and political changes are occurring that make it<br />
“timely to consider <strong>the</strong> fine tuning <strong>of</strong> <strong>the</strong> 1995 Act to determine<br />
whe<strong>the</strong>r or not it delivers <strong>the</strong> structures, powers and tools needed<br />
to achieve safer workplaces”. (Unions Tasmania)<br />
271. Hydro Tasmania submits that “<strong>the</strong> discussion paper provides no<br />
compelling rationale to move to a more prescriptive regulatory<br />
regime”, while <strong>the</strong> <strong>Tasmanian</strong> Branch <strong>of</strong> <strong>the</strong> Australian Workers’<br />
Union, in its general comments, takes a contrary view:<br />
Through its experience with <strong>the</strong> current legislative and<br />
administrative frameworks for workplace health and<br />
safety as it has applied in <strong>the</strong> State’s Metalliferous<br />
Mining Industry <strong>the</strong> AWU has been a consistent critic <strong>of</strong><br />
<strong>the</strong> Robens model and consistently urged a more<br />
prescriptive approach to workplace health and safety, if<br />
not generally, <strong>the</strong>n at <strong>the</strong> least, in <strong>the</strong> State’s mining<br />
industry. (The Australian Workers’ Union, <strong>Tasmanian</strong><br />
Branch)<br />
108
‘Self-regulatory’ or ‘Prescriptive’ Framework?<br />
272. Understanding <strong>the</strong> meaning <strong>of</strong> “prescription” or “prescriptive” as<br />
terms used in describing legislative frameworks is very important in<br />
approaching our discussion <strong>of</strong> <strong>the</strong> Act.<br />
273. All provisions <strong>of</strong> an Act or regulation prescribe what must be<br />
complied with. Thus duty holders must comply with <strong>the</strong> prescribed<br />
duties and obligations created by <strong>the</strong> legislation.<br />
274. However, in common parlance “prescriptive” is used to describe<br />
narrow, rigid rules or laws that specify in exact detail what must be<br />
done. Robens found that <strong>the</strong> laws he examined were “prescriptive”<br />
in this sense and were inflexible in dealing with change.<br />
275. The idea that <strong>the</strong> workplace health and safety framework needs to<br />
be more prescriptive may derive from <strong>the</strong> fact that it is described as<br />
“self-regulatory”, based on <strong>the</strong> Act providing general duties and <strong>the</strong><br />
Regulations prescribing <strong>the</strong> outcomes expected, leaving <strong>the</strong> detail<br />
up to <strong>the</strong> duty holders.<br />
276. The self-regulatory framework is criticised on two fronts – that it is<br />
insufficiently clear in prescribing duties or obligations; and that it<br />
amounts to a laissez faire approach equivalent to virtually no<br />
regulation at all. Then <strong>the</strong>re is <strong>the</strong> view that “reliance on selfregulation<br />
for small business was excessively optimistic”. (Unions<br />
Tasmania)<br />
109
277. Opposition to self-regulation is not really surprising, given <strong>the</strong><br />
decline in trust that has occurred as a result <strong>of</strong> some outstanding<br />
examples <strong>of</strong> self-regulatory failure – in <strong>the</strong> communication and<br />
finance industries particularly – and in <strong>the</strong> potential for corruption<br />
where “watchdogs” composed <strong>of</strong> representatives <strong>of</strong> those being<br />
regulated are found to be at fault. 84<br />
278. The legislative framework for workplace health and safety is more<br />
strictly described as “co-regulation” that enables industry to<br />
develop non–statutory codes <strong>of</strong> practice or industry standards that<br />
provide detail <strong>of</strong> <strong>the</strong> risk management strategies <strong>the</strong>y will use to<br />
comply with <strong>the</strong>ir statutory duties to prevent workplace injury,<br />
illness or death.<br />
279. Such standards and codes may be as stringent and as detailed as<br />
industry considers necessary and once agreed and approved,<br />
compliance with <strong>the</strong>se standards and codes should provide both<br />
<strong>the</strong> “level playing field” that some employers want, as well as<br />
assurance to employee representatives and <strong>the</strong> regulator, that<br />
industry is meeting its statutory obligations.<br />
280. The State is accountable to <strong>the</strong> community for enforcement <strong>of</strong> <strong>the</strong><br />
framework and “clear arrangements have to be made, <strong>the</strong>refore, for<br />
effective relations between <strong>the</strong> regulators and <strong>the</strong> regulated in<br />
designing and maintaining self-regulatory systems which meet<br />
84 Examples include <strong>the</strong> collapse <strong>of</strong> <strong>the</strong> insurance company HIH and <strong>the</strong> sensational collapse<br />
<strong>of</strong> Enron Corporation (USA). The <strong>report</strong> <strong>of</strong> <strong>the</strong> Royal Commission into <strong>the</strong> failure <strong>of</strong> HIH was<br />
highly critical <strong>of</strong> APRA, <strong>the</strong> regulator.<br />
110
public interest regulatory requirements and deliver good<br />
outcomes”. 85<br />
281. Agencies that have responsibility for administering <strong>the</strong> regulatory<br />
framework, must ensure that:<br />
They are explicit about how enforcement regimes are to<br />
be applied to meet <strong>the</strong>ir public interest obligations and<br />
duties;<br />
The mechanisms for monitoring and performance<br />
measurement are relevant and explicit; and<br />
The statutory framework is well understood and fit for<br />
purpose. 86<br />
282. The roles and function <strong>of</strong> <strong>the</strong> State in administering <strong>the</strong> framework<br />
(whe<strong>the</strong>r it is described as “regulated self-regulatory” or “coregulatory”)<br />
are <strong>the</strong>refore crucial. Those roles involve not only<br />
detecting and penalising failures to comply but also involve a very<br />
active role in educating, advising, motivating, and correcting<br />
workplaces to improve <strong>the</strong>ir effectiveness. In o<strong>the</strong>r words, <strong>the</strong><br />
framework requires ongoing effort by both industry and <strong>the</strong> State to<br />
support it.<br />
283. If its objectives are not being achieved effectively it may actually be<br />
related to <strong>the</strong> way that industry and <strong>the</strong> State are performing in<br />
<strong>the</strong>ir efforts to uphold <strong>the</strong> framework ra<strong>the</strong>r than a problem inherent<br />
in <strong>the</strong> framework itself.<br />
85 Bartle, Ian & Vass, Peter (2005) Self-regulation and <strong>the</strong> Regulatory State: A Survey <strong>of</strong><br />
Policy and Practice, Centre for <strong>the</strong> Study <strong>of</strong> Regulated Industries, University <strong>of</strong> Bath (UK),<br />
p. 5.<br />
86 Ibid, p.5.<br />
111
284. The review team does not favour a return to “more prescription”, as<br />
in specifying more statutory detail, as an alternative to <strong>the</strong> existing<br />
framework. The reasons are as follows:<br />
• Specific detail may work well in application to quite<br />
distinct and separate circumstances but such<br />
circumstances are not likely to be identical in, or even<br />
relevant to, all workplaces;<br />
• The need for detail may be met by <strong>the</strong> adoption and<br />
implementation <strong>of</strong> specific industry standards and codes<br />
by industry itself 87 ;<br />
• Administration <strong>of</strong> multiple, separate Acts based on<br />
individual industries or classified types <strong>of</strong> workplaces<br />
(back to <strong>the</strong> pre-Robens period) does not meet public<br />
expectations <strong>of</strong> cost-effectiveness;<br />
• With specific regulation it is possible that some industries,<br />
particularly newly developing (yet unknown) industry,<br />
would fall outside <strong>the</strong> framework;<br />
• Difficulty in determining where <strong>the</strong> line <strong>of</strong> specificity is<br />
drawn: in extreme, <strong>the</strong> current trend for separate<br />
legislation could extend to every separate occupation (as<br />
it did in some British nineteenth century laws, which for<br />
example, included an Act for “tripe cleaners”) and to<br />
every possible occupational hazard – as <strong>the</strong> national<br />
standard setting process is threatening to do;<br />
• Specific detailed regulation would rapidly become<br />
obsolete and would stifle competitive innovation as<br />
circumstances change;<br />
87 The CFMEU opposed <strong>the</strong> current framework as not being suitable for “pillar coal extraction”<br />
– a specific activity. On <strong>the</strong> contrary, <strong>the</strong> framework enables industry to develop a standard<br />
or code <strong>of</strong> practice for “pillar coal extraction” without needing to create a new Act or<br />
regulation.<br />
112
• With different health and safety prescriptions for each<br />
industry, inequities would be created between industries,<br />
and for employees engaged by those industries; and<br />
• Such specific detail relies upon specialist advice which<br />
Recommendation 3:<br />
<strong>the</strong> State would have to retain.<br />
It is recommended that <strong>the</strong> current framework and its objectives<br />
to prevent work-related injury, illness or death be retained and<br />
defended against attempts to return to <strong>the</strong> old piecemeal<br />
approach <strong>of</strong> prolific regulation. The State must work to achieve<br />
industry’s commitment to uphold <strong>the</strong> framework as <strong>the</strong> most<br />
flexible and appropriate for regulating contemporary<br />
workplaces.<br />
113
Meeting <strong>the</strong> need for national consistency<br />
285. Coles Myer Ltd., identifying itself as “Australia’s largest single<br />
employer in <strong>the</strong> private sector nationally and a major employer in<br />
Tasmania” supports:<br />
[An] OHS regulatory framework that is consistent across<br />
jurisdictions, that is not prescriptive on how results may<br />
be achieved but enables companies to develop solutions<br />
that best fit <strong>the</strong>ir needs, is flexible, and that encourages<br />
continuous improvement in <strong>the</strong> face <strong>of</strong> an ever-changing<br />
environment. (Coles Myer Ltd.)<br />
286. Coles Myer advises that it has been able to apply one national<br />
program to all its workplaces across all eight jurisdictions: “[t]he<br />
company’s Safety Right Now – everybody everyday program has<br />
introduced a nationally consistent approach in all its work centres<br />
that recognises <strong>the</strong> shared responsibility <strong>of</strong> management and<br />
employees to create a safe workplace . . . . [with a] 50%<br />
improvement across all safety metrics [sic]”. (Coles Myer Ltd)<br />
287. In discussions with <strong>the</strong> regional manager who has responsibility for<br />
OHS in Tasmania and Victoria, we understand that Coles Myer is<br />
able to apply its close knowledge <strong>of</strong> <strong>the</strong> Victorian OHS Act to its<br />
operations in Tasmania without problem. We are encouraged by<br />
this information.<br />
288. O<strong>the</strong>r respondents asked us to note national developments in<br />
regulatory reform and apply <strong>the</strong>se to <strong>the</strong> review <strong>of</strong> <strong>the</strong> legislative<br />
framework. A written submission from Dallas Booth, writing as an<br />
individual and not as a WorkCover Tasmania Board member,<br />
114
eferred <strong>the</strong> review team to <strong>the</strong> COAG communiqués (April and<br />
July 2006) and asked <strong>the</strong> review “to clarify what role, if any, it will<br />
play in implementing <strong>the</strong>se commitments in Tasmania” since <strong>the</strong><br />
review seems to be “an ideal opportunity through which <strong>the</strong>se<br />
commitments …. can be implemented”. (Dallas Booth, personal<br />
comment.)<br />
289. National Standards have been identified as one <strong>of</strong> <strong>the</strong> means for<br />
achieving national uniformity and, with workers’ compensation<br />
issues, have been included for “harmonisation” by <strong>the</strong> COAG<br />
commitments. <strong>Tasmanian</strong> workplace health and safety legislation,<br />
like that <strong>of</strong> o<strong>the</strong>r States and Territories, references many Australian<br />
Standards (issued by Standards Australia) and National Standards<br />
(issued by WorkSafe Australia).<br />
290. The ASCC put forward <strong>the</strong> proposal to adopt National Standards as<br />
regulation, however we believe that this would be contrary to <strong>the</strong><br />
policy <strong>of</strong> reducing regulation and has a number <strong>of</strong> o<strong>the</strong>r<br />
weaknesses. It is possible to meet <strong>the</strong> requirements for national<br />
consistency, <strong>the</strong> COAG regulatory principles (particularly <strong>the</strong> goal<br />
<strong>of</strong> reducing regulation) and satisfying industry’s need for practical<br />
detail, by encouraging industry to adopt relevant National<br />
Standards and accompanying Codes <strong>of</strong> Practice as non-statutory<br />
industry standards or codes <strong>of</strong> practice.<br />
291. Excellent quality materials have been developed and published by<br />
o<strong>the</strong>r jurisdictions that aim to assist understanding and contribute<br />
115
to <strong>the</strong> knowledge <strong>of</strong> available, practical solutions.<br />
Scarce<br />
administrative and enforcement resources could be used more<br />
effectively and efficiently, while meeting <strong>the</strong> need for national<br />
consistency, if <strong>the</strong> jurisdictions were to present <strong>the</strong> best <strong>of</strong> <strong>the</strong>se<br />
nationally. Better still, <strong>the</strong> role <strong>of</strong> <strong>the</strong> ASCC in co-ordinating<br />
national consistency might be achieved by performing <strong>the</strong> task <strong>of</strong><br />
providing central guidance material (without references to any<br />
specific legislation or contact details) nationally. We understand<br />
that <strong>the</strong>se options are being explored.<br />
292. The October 2006 Agreement <strong>of</strong> <strong>the</strong> Council for <strong>the</strong> Australian<br />
Federation on Harmonisation <strong>of</strong> Workers Compensation and<br />
Occupational Health and Safety Arrangements identified <strong>the</strong><br />
potential for <strong>the</strong> jurisdictions to collaborate in such matters.<br />
293. Two <strong>of</strong> <strong>the</strong>se establish agreement to “[s]hare advertising<br />
campaigns focussed on improving safety at work” and “[u]se<br />
common guidance material for employers to help improve<br />
workplace safety and compliance with workers compensation” –<br />
aspects that are sensible and had already been substantially<br />
agreed upon prior to <strong>the</strong> COAG and CAF processes.<br />
294. Item 5, “States and territories agree that <strong>the</strong> Council for <strong>the</strong><br />
Australian Federation (CAF) will give fur<strong>the</strong>r consideration to <strong>the</strong><br />
harmonisation <strong>of</strong> enforcement, compliance and administrative<br />
arrangements <strong>of</strong> workers compensation and occupational health<br />
and safety schemes” contains potential for improvement.<br />
116
295. Never<strong>the</strong>less, fur<strong>the</strong>r reductions in <strong>the</strong> incidence <strong>of</strong> work-related<br />
injury, illness or death are dependent upon giving priority to<br />
workplace health and safety – increasing awareness <strong>of</strong>, and<br />
facilitating or enforcing compliance with <strong>the</strong> workplace health and<br />
safety legislation – ra<strong>the</strong>r than concentrating resources upon a<br />
national workers’ compensation model.<br />
Recommendation 4:<br />
The review recommends that industry be strongly encouraged<br />
to adopt existing relevant standards (including National<br />
Standards) as a means <strong>of</strong> accessing practical detail to support<br />
<strong>the</strong>ir workplace health and safety efforts.<br />
Recommendation 5:<br />
It is also recommended that proposals put forward for<br />
“harmonisation” <strong>of</strong> workplace health and safety ei<strong>the</strong>r within<br />
<strong>the</strong> COAG or CAF processes, be carefully considered to ensure<br />
that proposals do not increase <strong>the</strong> level and number <strong>of</strong><br />
regulation. If proposals have <strong>the</strong> potential for increasing<br />
regulation, <strong>the</strong>y should be rejected.<br />
Recommendation 6:<br />
It is fur<strong>the</strong>r recommended that in all national and local fora, that<br />
workplace health and safety matters should be given balanced<br />
attention.<br />
117
CHAPTER 4<br />
RELATIONSHIP BETWEEN LEGISLATION AND<br />
OUTCOMES<br />
Each successive statute aimed at remedying a single<br />
ascertained evil.<br />
In an age <strong>of</strong> rapid change in industrial structures and<br />
technologies as well as in social attitudes and<br />
expectations, this traditional empirical approach cannot<br />
keep pace. That it leads eventually to confusion is, we<br />
think, apparent on any view …. 88<br />
296. This chapter recalls <strong>the</strong> conclusions <strong>of</strong> <strong>the</strong> previous major<br />
workplace health and safety review conducted by Ernst & Young in<br />
1991 that gave rise to <strong>the</strong> current legislation and administrative<br />
arrangements.<br />
297. We comment on <strong>the</strong> generally low levels <strong>of</strong> awareness <strong>of</strong><br />
workplace health and safety legislation and consider how to forge a<br />
closer relationship between <strong>the</strong> State and industry to support <strong>the</strong><br />
framework to prevent work-related death, injury or illness. We <strong>the</strong>n<br />
analyse <strong>the</strong> issue <strong>of</strong> “control” that was raised by respondents to <strong>the</strong><br />
review and discuss <strong>the</strong> issue <strong>of</strong> on-hired employee services in<br />
relation to “control”. We examine Part 3 <strong>of</strong> <strong>the</strong> Act – Duties and<br />
Obligations Relating to Workplace Health and Safety, giving most<br />
attention to Section 9, “Duties <strong>of</strong> employers”, to determine how well<br />
88 Lord Robens (Chairman) quoting Sidney Webb’s preface to A History <strong>of</strong> Factory<br />
Legislation, in Report <strong>of</strong> <strong>the</strong> Committee, Safety and Health at Work (1972), Chapter 1 “What<br />
is Wrong with <strong>the</strong> System?”, para. 22, p. 5. HMSO, London. Subsequent references will refer<br />
to “Robens”.<br />
118
<strong>the</strong> message <strong>of</strong> <strong>the</strong> legislation is conveyed and how readily <strong>the</strong><br />
message may be understood and <strong>the</strong>refore carried out. 89<br />
Legislation, administration and compliance<br />
298. In considering <strong>the</strong> legislation itself, we bear in mind Lord Robens<br />
again, this time as he quotes Sidney Webb’s comment on <strong>the</strong><br />
English empirical approach to workplace legislation in <strong>the</strong><br />
nineteenth century.<br />
(This appears as <strong>the</strong> quotation at <strong>the</strong><br />
beginning <strong>of</strong> this chapter.) Thinking about Webb’s remark, Robens<br />
asked:<br />
… how much can and should be looked for through <strong>the</strong><br />
medium <strong>of</strong> legislation and state intervention, and how<br />
much through <strong>the</strong> voluntary efforts <strong>of</strong> employers and<br />
workpeople? [and] “What sort <strong>of</strong> contribution can<br />
legislation and state intervention usefully make?” 90<br />
299. The legislative framework (described earlier in this <strong>report</strong>) is<br />
<strong>the</strong>refore designed for workplaces to regulate <strong>the</strong>mselves by<br />
establishing statutory duties and obligations <strong>of</strong> persons. The<br />
legislation also defines <strong>the</strong> role <strong>of</strong> <strong>the</strong> State by creating an authority<br />
and authorised <strong>of</strong>ficers whose role and functions are to uphold <strong>the</strong><br />
statutory framework. The roles <strong>of</strong> industry and <strong>the</strong> roles <strong>of</strong> <strong>the</strong><br />
State <strong>the</strong>refore should be in balance to ensure a stable framework.<br />
300. Compliance with <strong>the</strong> law depends on knowing what is required.<br />
Parliaments enact new laws every session at State and federal<br />
levels, with a constant turn over <strong>of</strong> new legislation on so many<br />
89 To access <strong>the</strong> Act go to http://www.<strong>the</strong>law.tas.gov.au.<br />
90 Robens, Chapter 2 “Safety and Health at <strong>the</strong> Workplace”, para. 43, p. 14.<br />
119
matters, <strong>of</strong>ten in such a routine manner that it barely seems to<br />
raise a single paragraph in <strong>the</strong> newspaper. There are nowadays<br />
so many laws that most <strong>of</strong> us are not, and could not possibly be,<br />
aware <strong>of</strong> <strong>the</strong>m. We are unlikely to be familiar with <strong>the</strong> laws that<br />
apply directly to us, let alone those that do not. There are<br />
fundamental issues related to <strong>the</strong> amount <strong>of</strong> law and <strong>the</strong> role <strong>of</strong><br />
Parliaments that deserve to be debated; however, this review is not<br />
<strong>the</strong> place. Suffice to say that if we do not know, and do not<br />
observe, our legal duties and obligations, we stand to be penalised.<br />
In <strong>the</strong> mass <strong>of</strong> law being churned out each year, how do we keep<br />
up to date with it all and avoid “breaking <strong>the</strong> law”?<br />
301. We turn to o<strong>the</strong>rs for guidance when we have a need to know. As<br />
employers with workplace health and safety duties and obligations<br />
to uphold we would endeavour to find out about our obligations and<br />
how to fulfil <strong>the</strong>m and thus we might approach OHS advisers, or<br />
business associations providing information and advice to<br />
members, to assist us in understanding our relevant duties and<br />
obligations.<br />
302. Mostly, though, we would be dependent on <strong>the</strong> administering<br />
agency to educate us about our duties and obligations, help us<br />
understand and take <strong>the</strong> appropriate action, to reinforce <strong>the</strong><br />
message <strong>of</strong> <strong>the</strong> law and to penalise us when we fail.<br />
120
303. A close relationship between <strong>the</strong> legislation, its administrators and<br />
those to whom <strong>the</strong> legislation is addressed, is <strong>the</strong>refore important<br />
to achieving <strong>the</strong> legislation’s objectives.<br />
304. In approaching <strong>the</strong> legislation, <strong>the</strong> review team makes<br />
recommendations for change where we believe an amendment<br />
would streng<strong>the</strong>n and clarify it, making compliance with it more<br />
likely. But simply amending <strong>the</strong> legislation and doing nothing else<br />
will have little effect in preventing work-related injury, illness and<br />
death in Tasmania. We <strong>the</strong>refore do not recommend legislative<br />
amendment in isolation.<br />
Previous reviews and amendments<br />
305. The (<strong>the</strong>n) Minister for Employment, Industrial Relations and<br />
Training, <strong>the</strong> Hon. Michael Aird, MHA commissioned <strong>the</strong> last major<br />
review <strong>of</strong> workplace health and safety in Tasmania in 1991. The<br />
review was conducted by Sydney consultants, Ernst & Young and<br />
covered all aspects <strong>of</strong> OHS legislation and services provided within<br />
<strong>the</strong> State. It also considered <strong>the</strong> appropriateness <strong>of</strong> workers’<br />
compensation insurance provisions.<br />
306. Ernst & Young repeated <strong>the</strong> lessons <strong>of</strong> Robens in <strong>the</strong>ir statement<br />
that: “recognition <strong>of</strong> <strong>the</strong> workplace, and employers and employees<br />
jointly, [is] <strong>the</strong> foundation for enduring improvements in<br />
occupational health and safety standards”. 91<br />
They were highly<br />
critical <strong>of</strong> <strong>the</strong> <strong>Department</strong> <strong>of</strong> Employment, Industrial Relations and<br />
91 Ernst & Young, p. 2.<br />
121
Training (<strong>the</strong> agency administering workplace health and safety at<br />
<strong>the</strong> time) for having elected to adopt a “policing” role, concentrating<br />
available resources on statutory inspections and investigations<br />
largely in reaction to received complaints, and concluded that much<br />
more pro-active support should be provided. 92<br />
307. Ernst & Young concludes:<br />
The overwhelming evidence <strong>of</strong> international experience<br />
suggests that a traditional policing and enforcement role<br />
is inadequate. Such a role tends to concentrate on <strong>the</strong><br />
consequences <strong>of</strong> occupational health and safety<br />
matters, ra<strong>the</strong>r than addressing <strong>the</strong>ir root cause. The<br />
emerging consensus suggests that government can<br />
more productively secure <strong>the</strong> aim <strong>of</strong> improving <strong>the</strong> social<br />
and economic well being <strong>of</strong> <strong>the</strong> community by adopting<br />
a systemic approach which ensures <strong>the</strong> nature <strong>of</strong><br />
occupational risks are properly understood and<br />
responded to within <strong>the</strong> workplace. 93 [Emphasis<br />
added]<br />
308. Ernst & Young envisaged that <strong>the</strong> administration <strong>of</strong> <strong>the</strong> legislation<br />
would involve different approaches for different workplaces: <strong>the</strong><br />
promotion and implementation <strong>of</strong> relevant standards and systems<br />
for larger organisations, particularly those in higher risk industries;<br />
and <strong>the</strong> provision <strong>of</strong> education and support for smaller<br />
organisations. 94<br />
309. Later amendments to <strong>the</strong> Workplace Health and Safety Act 1995<br />
occurred in 2002 as a result <strong>of</strong> <strong>the</strong> Joint Select Committee <strong>of</strong><br />
Inquiry into <strong>the</strong> <strong>Tasmanian</strong> Workers’ Compensation System (which<br />
92 Ernst & Young, p. 18.<br />
93 Ernst & Young, p.46.<br />
94 Ernst & Young, p. 47.<br />
122
eported in 1998) ra<strong>the</strong>r than as an outcome <strong>of</strong> a dedicated review<br />
<strong>of</strong> <strong>the</strong> Workplace Health and Safety Act.<br />
310. The most significant <strong>of</strong> <strong>the</strong> 2002 amendments included <strong>the</strong><br />
introduction <strong>of</strong> infringement notices (“on <strong>the</strong> spot fines”) for<br />
breaches <strong>of</strong> certain regulations and an amendment extending <strong>the</strong><br />
duties <strong>of</strong> employers to contractors and any subcontractors engaged<br />
by <strong>the</strong> contractor. An important amendment was a provision<br />
prescribing that where a number <strong>of</strong> contractors and sub-contractors<br />
operate in <strong>the</strong> same workplace, a co-operative approach must be<br />
adopted to ensure health and safety <strong>of</strong> all persons at <strong>the</strong><br />
workplace.<br />
123
Prevailing attitudes<br />
311. The current review reveals two characteristic attitudes towards<br />
workplace health and safety: firstly, that it is a matter <strong>of</strong> providing<br />
detailed or precise rules and regulations imposed by <strong>the</strong> State and<br />
supported by more inspections conducted by more inspectors and<br />
punished by more stringent penalties. Secondly, that workplace<br />
health and safety depends upon <strong>the</strong> State providing more<br />
information, more assistance, more advice, more guidance, more<br />
education and more training, fewer regulations but not more<br />
penalties.<br />
312. Both attitudes reflect <strong>the</strong> State’s role in facilitating compliance and<br />
raising awareness, two key Outputs adopted by <strong>the</strong> agency to<br />
prevent illness and injury; however, an expectation that <strong>the</strong> State<br />
would adopt <strong>the</strong> dominant role in prevention overlooks <strong>the</strong> central<br />
premise on which <strong>the</strong> legislative framework is based, that it is<br />
designed for workplace parties <strong>the</strong>mselves to take action according<br />
to <strong>the</strong>ir statutory duties and obligations.<br />
Raising awareness and facilitating compliance<br />
313. The Discussion Paper (at pages 26 – 29) discussed <strong>the</strong> two<br />
Outputs – raising awareness and facilitating compliance –<br />
according to <strong>the</strong> activities <strong>of</strong> <strong>the</strong> Inspectorate. The objective <strong>of</strong><br />
raising awareness is to “raise community awareness <strong>of</strong> <strong>the</strong><br />
requirements <strong>of</strong> <strong>the</strong> legislation and provide guidance on how to<br />
comply” (DP, p. 26) while <strong>the</strong> objective <strong>of</strong> facilitating compliance is<br />
124
to “ensure compliance with legislation administered by WST<br />
through inspections, audits, investigations and o<strong>the</strong>r enforcement<br />
activities” (DP, page 27).<br />
314. Raising awareness involves different activities listed as awareness<br />
programs; advice; advisory services; awards; campaigns and<br />
events; data administration; media relations; policy; promotions;<br />
publications; <strong>report</strong>ing; research; and training. The Inspectorate<br />
participates in some, but not all, <strong>of</strong> <strong>the</strong>se activities. Their major role<br />
and activities are involved in <strong>the</strong> second Output, facilitating<br />
compliance.<br />
315. Facilitating compliance involves <strong>the</strong> activities <strong>of</strong> advice; awareness<br />
programs; innovative solutions; inspection and investigation<br />
(broken down into investigation <strong>of</strong> accidents, incidents and<br />
complaints and issuing <strong>of</strong> directions and infringement notices);<br />
resolution; prosecution (fur<strong>the</strong>r involving preparation <strong>of</strong> cases for<br />
prosecution <strong>of</strong> alleged <strong>of</strong>fences leading to imposition <strong>of</strong> penalties);<br />
and <strong>report</strong>ing. The final Chapter <strong>of</strong> this <strong>report</strong> discusses <strong>the</strong> role <strong>of</strong><br />
<strong>the</strong> Inspectorate in delivering this Output.<br />
Familiarity, knowledge and understanding<br />
316. The review team found that <strong>the</strong> level <strong>of</strong> awareness <strong>of</strong> <strong>the</strong><br />
<strong>Tasmanian</strong> legislation is generally low. In his review <strong>of</strong> <strong>the</strong><br />
Victorian Occupational Health and Safety Act, Chris Maxwell<br />
similarly found a lack <strong>of</strong> awareness <strong>of</strong> <strong>the</strong> Victorian Act:<br />
125
It is axiomatic that <strong>the</strong> extent <strong>of</strong> compliance with OHSA<br />
is dependent on <strong>the</strong> degree <strong>of</strong> awareness in Victorian<br />
workplaces <strong>of</strong> what <strong>the</strong> Act requires. Most employers<br />
and employees are generally aware that <strong>the</strong>y have<br />
safety duties, but few know what is required <strong>of</strong> <strong>the</strong>m in<br />
order to discharge those duties. 95<br />
317. One submission to <strong>the</strong> <strong>Tasmanian</strong> review reflected greater<br />
awareness <strong>of</strong> <strong>the</strong> Victorian Act than <strong>the</strong> <strong>Tasmanian</strong>, reflected in a<br />
comment that <strong>the</strong> <strong>Tasmanian</strong> Act needed to apply more broadly<br />
and include a definition, comparable to <strong>the</strong> Victorian definition, that<br />
recognises that a workplace includes “a car, truck, ship, boat,<br />
airplane and any o<strong>the</strong>r vehicle”.<br />
318. Section 3, <strong>the</strong> Interpretation section <strong>of</strong> <strong>the</strong> Act, defines “workplace”<br />
as “any premises or place (including any mine, aircraft, vessel or<br />
vehicle) where an employee, contractor or self-employed person is<br />
or was employed or engaged in industry”.<br />
319. Large employers, branches <strong>of</strong> unions and employer associations<br />
<strong>of</strong>ten have a regional focus with <strong>the</strong>ir headquarters in Victoria or<br />
New South Wales, so it is reasonable to expect that <strong>the</strong>y would be<br />
more familiar with, or have a greater awareness <strong>of</strong>, <strong>the</strong> legislation<br />
<strong>of</strong> that State. This appears to underline a desire, expressed by<br />
some respondents to <strong>the</strong> <strong>Tasmanian</strong> review, for features <strong>of</strong> o<strong>the</strong>r<br />
legislation.<br />
320. The CFMEU (Mining and Energy Division) <strong>Tasmanian</strong> Branch, for<br />
example, submitted for <strong>the</strong> inclusion <strong>of</strong> “check inspector” provisions<br />
95 Maxwell, p. 9.<br />
126
that are features <strong>of</strong> <strong>the</strong> NSW and Queensland Acts that regulate<br />
coal mining separately from <strong>the</strong> general workplace health and<br />
safety Acts. The check inspector provisions allow for <strong>the</strong> election<br />
<strong>of</strong> employee representatives whose functions are associated with<br />
<strong>the</strong> review <strong>of</strong> health, safety and welfare measures at a coal mining<br />
operation.<br />
321. Tasmania regulates all workplaces, including mining operations,<br />
through <strong>the</strong> Workplace Health and Safety Act 1995.<br />
322. Sections 26 to 29 <strong>of</strong> <strong>the</strong> <strong>Tasmanian</strong> Act (allowing for <strong>the</strong><br />
establishment <strong>of</strong> Health and Safety Committees) and section 32<br />
(allowing for <strong>the</strong> election <strong>of</strong> “employees’ safety representatives”)<br />
are substantially <strong>the</strong> same as <strong>the</strong> NSW coal mine “check<br />
inspectors” provisions. Section 26 provides that if a majority <strong>of</strong><br />
persons at a workplace employing more than 20 persons decide<br />
<strong>the</strong>y want a health and safety committee, <strong>the</strong>y may request such a<br />
committee, and <strong>the</strong> employer must establish it within two months <strong>of</strong><br />
<strong>the</strong> request. A person nominated by <strong>the</strong> committee may inspect<br />
<strong>the</strong> workplace.<br />
323. Likewise, if <strong>the</strong>re are ten or more persons working at a workplace,<br />
section 32 <strong>of</strong> <strong>the</strong> Act allows employees to elect one <strong>of</strong> <strong>the</strong>ir number<br />
to be <strong>the</strong>ir health and safety representative. The health and safety<br />
representative may also inspect <strong>the</strong> workplace.<br />
324. If <strong>the</strong>re is a need for employee representatives or committees in<br />
<strong>Tasmanian</strong> coal mines (or metalliferous mines) or, indeed any<br />
127
workplace, to bring about improvements in health and safety <strong>the</strong>n<br />
we strongly recommend that employees take advantage <strong>of</strong> <strong>the</strong>se<br />
provisions <strong>of</strong> <strong>the</strong> Act. However, <strong>the</strong>y need to be aware <strong>of</strong> <strong>the</strong><br />
provision in order to make use <strong>of</strong> it. Facilitating awareness <strong>of</strong> <strong>the</strong><br />
legislative framework and <strong>the</strong> purpose <strong>of</strong> enabling provisions is<br />
thus a vital aspect <strong>of</strong> preventing work-related injury, illness and<br />
death.<br />
325. The consultation conducted on <strong>the</strong> Discussion Paper provides a<br />
snapshot <strong>of</strong> stakeholders who, by responding to <strong>the</strong> Discussion<br />
Paper, have demonstrated a key interest in workplace health and<br />
safety, never<strong>the</strong>less <strong>the</strong> level <strong>of</strong> awareness, understanding, or<br />
familiarity with <strong>the</strong> legislation, could be improved.<br />
326. Some respondents share this view:<br />
… understanding <strong>of</strong> OHS legislation is minimal. In<br />
bigger organisations <strong>the</strong>re may be an adequate<br />
understanding but too <strong>of</strong>ten this is kept at <strong>the</strong> higher<br />
level <strong>of</strong> <strong>the</strong> organisation and not disseminated down to<br />
<strong>the</strong> workplace level. (A. Ayling)<br />
327. The Australian Chamber <strong>of</strong> Commerce and Industry (ACCI) states<br />
in its “OH&S Blueprint” that many small and medium business<br />
operators do not understand <strong>the</strong> legislation and that OHS laws are<br />
too complex. 96<br />
The WorkCover Board responded to <strong>the</strong> needs <strong>of</strong><br />
small businesses in 2006 by establishing a small advisory unit <strong>of</strong><br />
three FTEs within <strong>the</strong> WorkCover Branch to assist small business.<br />
96 ACCI (2005), Modern Workplace: Safer Workplace – An Australian Industry Blueprint for<br />
Improving OHS 2005 – 2015. ACCI, Canberra.<br />
128
This small beginning is commended, and to ensure a long-term,<br />
sustained effort <strong>of</strong> preventive action, we would like to see this<br />
expanded into a bolder initiative - a stronger, strategic, partnership<br />
approach.<br />
328. Two respondents to <strong>the</strong> Discussion Paper disagreed with <strong>the</strong> view<br />
that workplace health and safety legislation was too complex and<br />
difficult to understand. They stated that, despite limited education,<br />
<strong>the</strong>y had no difficulty understanding <strong>the</strong> legislation. (G. & K.<br />
Hudson)<br />
Community commitment<br />
329. The inclusion <strong>of</strong> “safe workplaces” within <strong>the</strong> revised Tasmania<br />
Toge<strong>the</strong>r goals and targets (2006) indicates that <strong>the</strong> community<br />
has acknowledged <strong>the</strong> importance <strong>of</strong> workplace health and safety. 97<br />
The Indicator established for safe workplaces is <strong>the</strong> “incidence <strong>of</strong><br />
workplace injuries” based on 2001/02 injury incidence rate <strong>of</strong> 51.8<br />
claims per 1000 workers. It is assumed that “injury” includes illness.<br />
(Targets are: for 2010 – 35/1000; 2015 – 28/1000; and 2020 –<br />
23/1000.) 98<br />
330. Despite this, some respondents share <strong>the</strong> belief that “<strong>the</strong><br />
community remains distanced from workplace health and safety”.<br />
(S. R. Porter.) If this were true, some things apparently do not<br />
97 Goal 2 “confident, friendly and safe communities” / Standard 1 “To support safe and<br />
responsible behaviour and ensure that community facilities and spaces, transport systems,<br />
workplaces and private homes are, and are perceived to be, safe environments”.<br />
98 (http://www.tasmaniatoge<strong>the</strong>r.tas.gov.au/_data/assets/pdf_file/18509/Tasmania_Toge<strong>the</strong>r_B<br />
ooklet).<br />
129
change: <strong>the</strong> Committee <strong>of</strong> Inquiry chaired by Lord Robens was in<br />
no doubt that “<strong>the</strong> most important single reason for accidents at<br />
work is apathy”. 99<br />
331. Distance is unfortunately shortened abruptly when serious injury,<br />
illness, or death occurs. Headline accidents attract our attention<br />
and safety campaigns bring health and safety matters into focus for<br />
a short period but afterwards people settle back into <strong>the</strong>ir everyday<br />
attitudes and behaviours. We are human.<br />
332. We conclude that <strong>the</strong>re is a need for <strong>the</strong> agency to engage closely<br />
with <strong>the</strong> <strong>Tasmanian</strong> community and to forge close links and work<br />
more collaboratively with industry. The objective would be to build<br />
<strong>the</strong> commitment <strong>of</strong> <strong>the</strong> community and <strong>the</strong> confidence <strong>of</strong> industry to<br />
greatly increase levels <strong>of</strong> awareness <strong>of</strong> <strong>the</strong> legislative framework.<br />
From improved levels <strong>of</strong> awareness and commitment, we would<br />
anticipate that workplaces would embrace <strong>the</strong>ir responsibility to<br />
apply <strong>the</strong> framework to prevent injury, illness and death.<br />
Strategic Alliances or Partnerships<br />
333. Our view is reflected in <strong>the</strong> <strong>Tasmanian</strong> Minerals Council’s belief<br />
that strategic alliances <strong>of</strong>fer <strong>the</strong> best way forward for improvement:<br />
Strategic alliances are important in such a competitive<br />
and changing world, so we encourage fur<strong>the</strong>r<br />
development <strong>of</strong> arrangements that build relationships<br />
across <strong>the</strong> [mining] industry; enabling greater<br />
involvement will no doubt help achieve good outcomes<br />
while avoiding unnecessary paperwork. (TMC)<br />
99 Robens, Chapter 1 “What is wrong with <strong>the</strong> system?”, para. 13, p. 1.<br />
130
334. This is sound advice and applies as much to alliances between<br />
industry and government as it does to alliances forged within<br />
industry itself.<br />
335. The importance <strong>of</strong> alliances is also expressed in <strong>the</strong> TCCI’s<br />
submission that “<strong>the</strong> key problem is <strong>the</strong> failure <strong>of</strong> Workplace<br />
Standards to genuinely engage with employers and work<br />
collaboratively with <strong>the</strong>m to improve health and safety outcomes”.<br />
(TCCI)<br />
336. One respondent noted, “<strong>the</strong> WorkCover Tasmania Board has<br />
amongst its membership representatives <strong>of</strong> <strong>Tasmanian</strong> industry. It<br />
is this body that needs to take ownership and develop a<br />
partnership with Government to develop and implement strategy to<br />
improve OHS performance”.<br />
337. The WorkCover Tasmania Board’s focus has been predominantly<br />
on workers’ rehabilitation and compensation issues in <strong>the</strong> past,<br />
despite its considerable role and acknowledged effort in fulfilling its<br />
function to promote workplace health and safety through<br />
publications and campaigns.<br />
The Board’s membership is<br />
composed to reflect <strong>the</strong> stakeholders having a particular interest in<br />
workers compensation matters.<br />
338. Since 1991 <strong>the</strong>re have been regular and ongoing state reviews into<br />
<strong>the</strong> workers rehabilitation and compensation scheme. The current<br />
state review and <strong>the</strong> national harmonisation <strong>of</strong> workers’<br />
131
compensation (subject to <strong>the</strong> COAG timetable and processes) are<br />
matters that currently require <strong>the</strong> WorkCover Board’s close<br />
attention, in addition to <strong>the</strong> major responsibility to manage <strong>the</strong><br />
workers compensation fund.<br />
339. In this context, <strong>the</strong>re is an urgent need for a body to take on a<br />
strategic role for workplace health and safety issues in <strong>the</strong>ir own<br />
right, unfettered by <strong>the</strong> added burden or urgency <strong>of</strong> workers’<br />
compensation issues.<br />
340. O<strong>the</strong>r jurisdictions have recognised <strong>the</strong> importance <strong>of</strong> prevention in<br />
<strong>the</strong> creation <strong>of</strong> workplace health and safety councils as advisory or<br />
strategic bodies, and <strong>the</strong>re are established <strong>Tasmanian</strong> precedents<br />
in o<strong>the</strong>r areas, such as road safety for example.<br />
Workplace Health and Safety Council –partnership or alliance<br />
341. A workplace health and safety council would, we believe, create a<br />
strong alliance <strong>of</strong> government, industry and <strong>the</strong> community with a<br />
strategic focus on workplace health and safety issues to uphold <strong>the</strong><br />
legislative framework and significantly improve workplace health<br />
and safety outcomes.<br />
342. Potentially such a council could do much in terms <strong>of</strong> “building<br />
bridges” in relationships and knowledge and understanding with <strong>the</strong><br />
business community, <strong>the</strong>refore increasing confidence and<br />
commitment to workplace health and safety throughout <strong>the</strong><br />
community.<br />
132
343. It is emphasised that <strong>the</strong> proposed council would need to have<br />
greater status than an “advisory committee”. The provision under<br />
<strong>the</strong> Workplace Health and Safety Act for advisory committees<br />
(section 7) to be established by <strong>the</strong> WorkCover Board lacks<br />
sufficient strength for <strong>the</strong> creation <strong>of</strong> <strong>the</strong> proposed council.<br />
Purpose<br />
344. It is important that <strong>the</strong> proposed council should be a forum for close<br />
engagement <strong>of</strong> <strong>the</strong> members dedicated to ensuring that <strong>the</strong> current<br />
framework operates to its maximum effectiveness. The purpose <strong>of</strong><br />
such a council would <strong>the</strong>refore be to work collaboratively and cooperatively<br />
to support <strong>the</strong> objective <strong>of</strong> <strong>the</strong> legislation (to prevent<br />
work-related death, injury and illness).<br />
345. As a strategic alliance, it would devise strategies, programs,<br />
products and services for which government and industry would<br />
have joint responsibility to deliver.<br />
346. It could, for example, design strategies to promote understanding<br />
and awareness <strong>of</strong> <strong>the</strong> legislative framework as well as increasing<br />
<strong>the</strong> knowledge and adoption <strong>of</strong> standards to meet legislative<br />
objectives.<br />
347. Similarly it could develop advisory programs and services designed<br />
to meet <strong>the</strong> specific needs <strong>of</strong> small business.<br />
348. We emphasise that It would not derogate from <strong>the</strong> State’s<br />
responsibilities in administering <strong>the</strong> legislation, nor would it diminish<br />
133
<strong>the</strong> important role <strong>of</strong> <strong>the</strong> WorkCover Board <strong>of</strong> Tasmania, ra<strong>the</strong>r, it<br />
would create an additional mechanism to bring <strong>the</strong> State and<br />
industry toge<strong>the</strong>r as partners to work towards <strong>the</strong> same objective at<br />
a time when <strong>the</strong>re are many significant and competing demands for<br />
attention.<br />
Membership<br />
349. The membership <strong>of</strong> <strong>the</strong> council would be drawn from industry and<br />
government (both from <strong>the</strong> administering agency and potentially<br />
o<strong>the</strong>r agencies) reflecting a broad spectrum <strong>of</strong> types and sizes <strong>of</strong><br />
business as well as different industry sectors. The aim should be<br />
to get a membership structure that is as close to workplaces as<br />
possible. It should certainly include representatives <strong>of</strong>, and<br />
promote <strong>the</strong> interests <strong>of</strong>, small business as well as large business.<br />
350. There is potential value in inviting major category award winners <strong>of</strong><br />
<strong>the</strong> WorkCover Safety Awards to a rotational membership <strong>of</strong> <strong>the</strong><br />
council (i.e. for twelve months following <strong>the</strong> receipt <strong>of</strong> <strong>the</strong>ir award)<br />
so that <strong>the</strong> benefit <strong>of</strong> <strong>the</strong>ir practical experience might be passed on,<br />
perhaps extending to, or including, a mentoring program.<br />
351. With <strong>the</strong> emphasis upon collaboration, <strong>the</strong> council needs to be<br />
composed so that it does not create rival “camps”. Nor should its<br />
membership necessarily be determined according to traditional<br />
“peak body” representation. Membership could, in fact, be decided<br />
by consensus <strong>of</strong> interested industry, community and government<br />
representatives in a first process <strong>of</strong> agreement.<br />
134
352. In <strong>the</strong> establishment and governance <strong>of</strong> <strong>the</strong> proposed workplace<br />
health and safety council, including its relationship to <strong>the</strong><br />
WorkCover Tasmania Board, it may be possible to benefit from<br />
examining models provided by o<strong>the</strong>r councils to discover and apply<br />
what works most effectively.<br />
For example, <strong>the</strong> existing State<br />
Industry Councils and <strong>the</strong> Road Safety Council could be<br />
considered.<br />
353. A close examination <strong>of</strong> <strong>the</strong> way in which similar OHS councils<br />
operate in o<strong>the</strong>r jurisdictions also may be helpful in determining<br />
matters to do with functions, representation, governance and<br />
potential funding <strong>of</strong> <strong>the</strong> council.<br />
354. A central principle for membership <strong>of</strong> <strong>the</strong> council would be for<br />
industry members to act as “ambassadors” for good health and<br />
safety practice in <strong>the</strong> business community. They should <strong>the</strong>refore<br />
be exemplary in practice and could, with <strong>the</strong>ir agreement, operate<br />
as mentors <strong>of</strong> good workplace health and safety practice to o<strong>the</strong>r<br />
industry members.<br />
355. For close collaboration and co-operation between <strong>the</strong> agency and<br />
industry, it is important that <strong>the</strong>re be active agency representatives<br />
on <strong>the</strong> council and administrative support must be provided to<br />
assist <strong>the</strong> council.<br />
356. The State Service is a significant employer in Tasmania.<br />
Representation <strong>of</strong> <strong>the</strong> State Service Commissioner who has<br />
responsibility for administering <strong>the</strong> State Service Act, under which<br />
135
State government employees and <strong>of</strong>ficers are employed, would<br />
assist in making progress towards <strong>the</strong> National Strategy priority “to<br />
streng<strong>the</strong>n <strong>the</strong> capacity <strong>of</strong> government to influence OHS<br />
outcomes”.<br />
357. To provide a balanced constituency, consideration should also be<br />
given to how employees, contractors, and on-hire employee<br />
bodies, and representation <strong>of</strong> unions might be achieved.<br />
Strategic direction<br />
358. The National OHS Improvement Strategy provides <strong>the</strong> overall<br />
strategic priorities and action areas; never<strong>the</strong>less, a strategic plan<br />
should be developed that co-ordinates and maximises available<br />
resources and integrates activities <strong>of</strong> <strong>the</strong> WorkCover Board, <strong>the</strong><br />
Workplace Health and Safety Council and Workplace Standards<br />
Tasmania.<br />
Legislative amendments to establish <strong>the</strong> workplace health<br />
and safety council<br />
359. To facilitate <strong>the</strong> establishment <strong>of</strong> <strong>the</strong> council, certain amendments<br />
would need to be made to <strong>the</strong> Act at Part 2 “Functions and Powers<br />
<strong>of</strong> Secretary and Board”. A provision would be needed to establish<br />
<strong>the</strong> functions, powers, membership etc., <strong>of</strong> <strong>the</strong> council. A separate<br />
fund would need to be established to support <strong>the</strong> activities <strong>of</strong> <strong>the</strong><br />
council.<br />
360. In giving consideration to <strong>the</strong> recommendation for a workplace<br />
health and safety council, <strong>the</strong> agency should consider <strong>the</strong> effect <strong>of</strong><br />
136
sections 5, 6 and 7 <strong>of</strong> <strong>the</strong> Act in respect to <strong>the</strong> workplace health<br />
and safety functions <strong>of</strong> <strong>the</strong> Secretary and <strong>the</strong> WorkCover Board <strong>of</strong><br />
Tasmania (under both this Act and <strong>the</strong> Workers Rehabilitation and<br />
Compensation Act 1988). The objective should be to ensure that<br />
<strong>the</strong>re is clarity in defining <strong>the</strong> purpose <strong>of</strong> <strong>the</strong> Secretary (and<br />
agency), <strong>the</strong> Board and <strong>the</strong> proposed council, so <strong>the</strong>y may work<br />
closely toge<strong>the</strong>r to <strong>the</strong> achievement <strong>of</strong> common strategic direction.<br />
361. Although outside <strong>the</strong> terms <strong>of</strong> reference, an amendment is also<br />
likely to be needed to <strong>the</strong> Workers Rehabilitation and<br />
Compensation Act 1988 to account for changed functions and roles<br />
<strong>of</strong> <strong>the</strong> WorkCover Board in respect <strong>of</strong> <strong>the</strong> new council.<br />
Recommendation 7:<br />
It is recommended that <strong>the</strong> Government establish a workplace<br />
health and safety council <strong>of</strong> agency and industry partners with a<br />
purpose, functions, roles and membership along <strong>the</strong> lines<br />
proposed. Relevant amendments would need to be made to <strong>the</strong><br />
Act (and likely to <strong>the</strong> Workers Rehabilitation and Compensation<br />
Act) as indicated.<br />
Recommendation 8:<br />
It is recommended that <strong>the</strong> workplace health and safety council<br />
work cooperatively to develop a Workplace Health and Safety<br />
Charter setting out <strong>the</strong> general principles to underpin <strong>the</strong><br />
objectives <strong>of</strong> <strong>the</strong> Act. The first principle could be “in any<br />
employment arrangement and any workplace, prevention <strong>of</strong><br />
work-related injury, illness or death is paramount”.<br />
137
Prevention Duties, Obligations and Accountability<br />
Differentiating <strong>the</strong> concepts – prevention and compensation<br />
362. The common law ‘duty <strong>of</strong> care” principle is <strong>the</strong> obligation to take<br />
reasonable care that your activities do not cause harm to ano<strong>the</strong>r<br />
(Donoghue v Stevenson 1932 SC (HL) 31). It is based on <strong>the</strong><br />
relationship <strong>of</strong> <strong>the</strong> parties, a negligent act or omission and <strong>the</strong><br />
reasonable foreseeability <strong>of</strong> loss to <strong>the</strong> individual.<br />
363. Liability for compensation to be paid if harm does occur is worked<br />
out according to whe<strong>the</strong>r <strong>the</strong>re is a duty <strong>of</strong> care owed in <strong>the</strong><br />
relationship <strong>of</strong> <strong>the</strong> parties. A “control test” applied by <strong>the</strong> courts<br />
determines <strong>the</strong> nature <strong>of</strong> <strong>the</strong> relationship and whe<strong>the</strong>r a contract <strong>of</strong><br />
employment exists.<br />
364. In Chapter 3 we observed that COAG (2006) agreed to consider<br />
“<strong>the</strong> OHS duty <strong>of</strong> care” nationally for “harmonisation” in response to<br />
recommendations by <strong>the</strong> Taskforce on Reducing Regulatory<br />
Burdens on Business – (recommendation 4.27).<br />
365. In writing about “harmonising employer liability requirements in<br />
OHS”, <strong>the</strong> Regulation Taskforce (likely with its sights set on NSW)<br />
noted that “in some jurisdictions” workplace health and safety<br />
liability has been interpreted as “absolute”.<br />
366. Unlike <strong>the</strong> “no fault liability” <strong>of</strong> workers compensation schemes,<br />
separately legislated health and safety duties apply to all parties in<br />
<strong>the</strong> workplace and upstream <strong>of</strong> <strong>the</strong> workplace. In Tasmania (as for<br />
138
all jurisdictions now we believe), <strong>the</strong>y are based on what is<br />
“reasonably practicable”. Employers have <strong>the</strong> lion’s share <strong>of</strong><br />
statutory duties in recognition that <strong>the</strong>y manage matters at <strong>the</strong><br />
workplace, which o<strong>the</strong>r parties cannot and do not, but <strong>the</strong>y do not<br />
have sole accountability.<br />
367. The review team is concerned that <strong>the</strong> Regulation Taskforce has<br />
not clearly differentiated two separate objectives, prevention<br />
(embodied in <strong>the</strong> workplace health and safety statutory duties) and<br />
compensation (provided for by separate workplace rehabilitation<br />
and compensation legislation). This concern rests on <strong>the</strong> way in<br />
which <strong>the</strong> Taskforce writes about workplace health and safety and<br />
compensation in <strong>the</strong> same breath in <strong>the</strong> statement that it “is unable<br />
to consider ACCI’s recommendation that OH&S legislation be<br />
based on a general duty. This would entail a significant change to<br />
current no fault policy …”. 100<br />
368. Is it possible that much <strong>of</strong> <strong>the</strong> confusion or misunderstanding about<br />
workplace health and safety is because <strong>the</strong> latter is being identified<br />
with compensation? That <strong>the</strong> two systems are regarded as one?<br />
Or, perhaps that <strong>the</strong> objectives <strong>of</strong> <strong>the</strong> two are <strong>the</strong> same?<br />
369. Comments made by J. R. Sidebottom <strong>of</strong> Penfold Buscombe (a<br />
printing business) about <strong>the</strong> success <strong>of</strong> a workers’ compensation<br />
injury claims management program appear to confirm that some<br />
confusion and identification <strong>of</strong> <strong>the</strong> two separate frameworks exists,<br />
100 Regulation Task Force (2006), p.38.<br />
139
ut it is difficult to ascertain how prevalent this might be. J. R.<br />
Sidebottom wrote that <strong>the</strong> company’s program to manage workers’<br />
compensation injury claims had been successful in seeing a<br />
marked reduction in <strong>the</strong> number <strong>of</strong> workplace injuries, lost days<br />
due to sick leave and a decline in <strong>the</strong> number <strong>of</strong> workers<br />
compensation claims.<br />
370. Yet, he commented, <strong>the</strong> program had been introduced at a cost to<br />
<strong>the</strong> business<br />
“without savings in premiums or incentives, and unless<br />
<strong>the</strong> ongoing costs <strong>of</strong> <strong>the</strong> initiatives can be factored into<br />
our workers compensation premium, it will be harder for<br />
<strong>the</strong> business to justify <strong>the</strong> continuation <strong>of</strong> <strong>the</strong>se<br />
[program] costs”. (J. Sidebottom, Penfold Buscombe)<br />
371. On <strong>the</strong> issue <strong>of</strong> costs associated with complying with workplace<br />
health and safety legislation, <strong>the</strong>re is an alternative view that <strong>the</strong>re<br />
is synergy between workplace health and safety and productivity.<br />
In this view, <strong>the</strong> costs <strong>of</strong> creating a safe and healthy workplace to<br />
prevent injury, illness or death are outweighed by <strong>the</strong> direct and<br />
indirect costs associated with workplace accidents, injuries and<br />
illnesses, some <strong>of</strong> which are borne by o<strong>the</strong>rs.<br />
372. This view is put by <strong>the</strong> ILO in stating that “just as occupational<br />
accidents and ill health are clearly bad for productivity, <strong>the</strong> opposite<br />
is also true: providing safe and healthy working conditions actually<br />
140
makes enterprises more productive. Good safety and health is<br />
good business”. 101<br />
373. We believe that it is important for <strong>the</strong> business community to<br />
understand that workplace health and safety and compensation<br />
have two distinct and separate objectives – <strong>the</strong> objective <strong>of</strong> <strong>the</strong><br />
former is prevention - to prevent workplace injury, illness and<br />
death; <strong>the</strong> objective <strong>of</strong> <strong>the</strong> latter is to provide compensation to<br />
people who are injured or made ill as a result <strong>of</strong> work.<br />
374. They are governed by two entirely separate pieces <strong>of</strong> legislation in<br />
Tasmania, as in o<strong>the</strong>r States and Territories: <strong>the</strong> Workplace Health<br />
and Safety Act 1995 and <strong>the</strong> Workers Rehabilitation and<br />
Compensation Act 1988 respectively.<br />
375. Much <strong>of</strong> <strong>the</strong> workers compensation case law centres on arguments<br />
about employers’ liability, defined according to <strong>the</strong> relationship<br />
between <strong>the</strong> employer and <strong>the</strong> worker. Liability and control are<br />
integral to <strong>the</strong> common law duty <strong>of</strong> care principle from which<br />
workers compensation developed.<br />
Shared accountability<br />
376. Comments on <strong>the</strong> issue <strong>of</strong> participation <strong>of</strong> employees in <strong>the</strong><br />
processes <strong>of</strong> hazard identification, assessment and control <strong>of</strong> risks<br />
(raised in <strong>the</strong> Discussion Paper) show that some employer bodies<br />
101 United Nations International Labour Organisation (ILO) Committee on Employment and<br />
Social Policy 295 th session, Agenda Paper “Occupational safety and health: Synergies<br />
between security and productivity” (Geneva: Switzerland); p. 5.<br />
141
elieve that “sharing” such processes should also involve sharing<br />
accountability or liability.<br />
377. For example, <strong>the</strong> <strong>Tasmanian</strong> Minerals Council (TMC) raised <strong>the</strong><br />
issue <strong>of</strong> accountability in relation to risk management:<br />
A fundamental principle <strong>of</strong> risk management is that<br />
every decision-maker is accountable. We do not agree<br />
that this should apply only to employers or management<br />
and we are not going to get better if <strong>the</strong>re is a difference<br />
<strong>of</strong> accountability for different people. We can only move<br />
to a higher level <strong>of</strong> performance if accountability is<br />
understood and shared. (TMC)<br />
378. We agree that every decision-maker is accountable in a<br />
management sense, but we do not agree that involving workers in<br />
risk management processes makes all workers “decision-makers”.<br />
Some, <strong>of</strong> course, are decision-makers, such as individual<br />
independent contractors, who see <strong>the</strong>mselves as nei<strong>the</strong>r<br />
“employees” nor “workers”. They are self-employed individuals<br />
contracted to work at workplaces where o<strong>the</strong>r categories <strong>of</strong><br />
persons also work.<br />
379. As noted by R. Laing 102 and Chris Maxwell 103 <strong>the</strong> workplace health<br />
and safety legislation provides a duty to be observed by<br />
employees, so accountability is not limited to employers. The<br />
<strong>Tasmanian</strong> legislation provides this at section 16 <strong>of</strong> <strong>the</strong> Act.<br />
Employees must<br />
102 Laing, R. (2002) Review <strong>of</strong> <strong>the</strong> Occupational Safety and Health Act 1984 – Final Report,<br />
State <strong>of</strong> Western Australia, Perth; paras 291–300, pp.73-75.<br />
103 Maxwell, Chris (2004) Chapter 16 “Duties <strong>of</strong> Employees”, paras 720 – 727, pp 163 – 164.<br />
142
take reasonable care for <strong>the</strong> employee’s own health and<br />
safety and for <strong>the</strong> health and safety <strong>of</strong> o<strong>the</strong>r persons,<br />
including persons working under <strong>the</strong> direction or<br />
supervision <strong>of</strong> <strong>the</strong> employee, who may be affected by<br />
<strong>the</strong> employee’s acts or omissions at <strong>the</strong> workplace; and<br />
comply with any direction given to <strong>the</strong> employee by an<br />
employer or responsible <strong>of</strong>ficer with respect to any<br />
matter relating to health and safety under this Act.<br />
380. Robens envisaged that employees’ accountability would be defined<br />
not only by <strong>the</strong>ir need to comply with a general statutory duty but<br />
also by a requirement for employers to develop workplace health<br />
and safety policies. Once developed, employees would have to<br />
comply with such policies, thus streng<strong>the</strong>ning <strong>the</strong>ir level <strong>of</strong><br />
accountability.<br />
381. Although <strong>the</strong> <strong>Tasmanian</strong> legislation does not prescribe <strong>the</strong> making<br />
<strong>of</strong> workplace policies, employers might never<strong>the</strong>less use <strong>the</strong>m<br />
where relevant.<br />
382. At <strong>the</strong> level <strong>of</strong> small business where formal policies may be nei<strong>the</strong>r<br />
<strong>the</strong> norm nor appropriate, simple processes or procedures would<br />
have value in preventing illness and injury. Such processes,<br />
procedures and/or policies might be regarded as information which<br />
employers are required to provide employees by s9(2)(c) <strong>of</strong> <strong>the</strong><br />
Act.<br />
383. Ano<strong>the</strong>r view expressed in submissions is that employees must<br />
share <strong>the</strong> penalty if a business is prosecuted for a breach <strong>of</strong> <strong>the</strong><br />
legislation. It should be remembered that each case is judged on<br />
its own merits and magistrates will examine all aspects <strong>of</strong> a case in<br />
143
determining who are <strong>the</strong> accountable parties and who is to be<br />
penalised.<br />
384. Concerns about liability or accountability occur if multiple duty<br />
holders on one site employ different “systems” for managing risks<br />
to health and safety, yet we find that <strong>the</strong> legislation anticipates <strong>the</strong><br />
potential for multiple accountability.<br />
385. Where <strong>the</strong>re are multiple duty holders, <strong>the</strong> accountability for coordinating<br />
<strong>the</strong> management <strong>of</strong> health and safety is with employers<br />
or principal according to s9(4) and (5) <strong>of</strong> <strong>the</strong> Act, while section 21<br />
makes it clear that each person must satisfy <strong>the</strong>ir duty or obligation.<br />
Where <strong>the</strong>re is a principal and several contractors, <strong>the</strong> duties <strong>of</strong> <strong>the</strong><br />
principal are <strong>the</strong> same as an employer’s. Thus, in making a<br />
determination about how risks are to be controlled, or which safety<br />
system(s) should apply on a complex site, clearly <strong>the</strong> “accountable<br />
person” making <strong>the</strong> final decision is <strong>the</strong> employer or principal.<br />
386. The Act establishes <strong>the</strong> prevention duties owed by persons in Part<br />
3 – Duties and Obligations Relating to Workplace Health and<br />
Safety, from section 9 through to <strong>the</strong> end <strong>of</strong> section 22. The<br />
degree <strong>of</strong> protection afforded by <strong>the</strong> Act depends on how and to<br />
whom it speaks about duties and obligations to prevent workplace<br />
illness, injury or death.<br />
387. We find that <strong>the</strong> Act in this Part, by speaking to “employers”;<br />
“responsible <strong>of</strong>ficers”; “self-employed persons”; “designers,<br />
manufacturers, importers, suppliers and installers”; “service<br />
144
providers”; “persons in control <strong>of</strong> workplaces”; “principals”,<br />
“employees” and “any person”, attempts to be as universal as<br />
possible in this respect so that accountability is well-distributed,<br />
never<strong>the</strong>less employers have <strong>the</strong> lion’s share <strong>of</strong> duties as outlined<br />
in section 9.<br />
Employers and employees<br />
388. The major parties involved in workplace health and safety are<br />
defined by <strong>the</strong> legislation as employers and employees.<br />
“Employer” is defined in section 3 as “a person by whom an<br />
employee is employed under a contract <strong>of</strong> service” and “employee”<br />
means “(a) a natural person employed under a contract <strong>of</strong> service;<br />
or (b) a natural person who uses substances or plant in an<br />
educational or o<strong>the</strong>r training establishment”.<br />
389. The duties <strong>of</strong> employers to prevent work-related injury, illness or<br />
death in respect <strong>of</strong> each employee employed by <strong>the</strong> employer are<br />
provided for in much greater detail at s9(1) and (2) than <strong>the</strong> rest <strong>of</strong><br />
<strong>the</strong> section.<br />
390. There are now many persons working in <strong>the</strong> same workplace<br />
whose relationship to <strong>the</strong> workplace employer is not that <strong>of</strong> an<br />
employee as defined and <strong>the</strong> lack <strong>of</strong> detail about duties in regard to<br />
<strong>the</strong>m might make a significant difference to <strong>the</strong>ir health and safety<br />
outcomes.<br />
145
391. In our scan <strong>of</strong> labour market changes, we have seen that<br />
employment arrangements for a growing number <strong>of</strong> people<br />
unfortunately define not only <strong>the</strong>ir “flexibility” in labour market terms<br />
but may also determine <strong>the</strong>ir degree <strong>of</strong> vulnerability to work-related<br />
health and safety problems (ILO, 2006; Bohle, Quinlan & Mayhew,<br />
2001).<br />
392. The Discussion Paper <strong>the</strong>refore asked whe<strong>the</strong>r any change in<br />
terminology was needed to update <strong>the</strong> Act and suggested that a<br />
change ought to take into account <strong>the</strong> issue <strong>of</strong> control. At least we<br />
believed that some accommodation ought to be taken <strong>of</strong> <strong>the</strong><br />
different employment arrangements that now exist. Categories <strong>of</strong><br />
people now called “independent contractors” or on-hired<br />
employees for example, now generally outnumber “employees” in<br />
certain workplaces. The person having “control” <strong>of</strong> <strong>the</strong> workplace<br />
is not <strong>the</strong>ir “employer” in <strong>the</strong> way in which that term is defined in <strong>the</strong><br />
Act.<br />
393. Submissions supporting <strong>the</strong> retention <strong>of</strong> existing terminology stated<br />
that our examination <strong>of</strong> <strong>the</strong> prevention duty should aim at<br />
streng<strong>the</strong>ning and clarifying existing provisions ra<strong>the</strong>r than adding<br />
new definitions. This advice is accepted; however, concerns about<br />
clarity and inclusiveness ought none<strong>the</strong>less to be addressed.<br />
394. Responses to <strong>the</strong> Discussion Paper contained various<br />
interpretations <strong>of</strong> “control”, one <strong>of</strong> <strong>the</strong> most hotly debated issues in<br />
relation to prevention.<br />
146
395. Statutory prevention duties provided by <strong>the</strong> Act, like compensation,<br />
are based upon <strong>the</strong> employment relationship that in turn, is<br />
determined by <strong>the</strong> courts according to <strong>the</strong> application <strong>of</strong> a “control<br />
test”.<br />
396. We turn now to look at <strong>the</strong> various aspects <strong>of</strong> control that were<br />
raised by respondents and explore how such interpretations <strong>of</strong><br />
“control” may relate to statutory workplace health and safety duties.<br />
Concepts <strong>of</strong> control<br />
Control test and employment contracts<br />
397. The first aspect <strong>of</strong> “control” is concerned with <strong>the</strong> employment<br />
relationship. The Act defines employer and employee in terms <strong>of</strong> a<br />
contract <strong>of</strong> service. The level <strong>of</strong> control exerted by one person over<br />
ano<strong>the</strong>r (called <strong>the</strong> “control test”) is used to determine <strong>the</strong><br />
existence <strong>of</strong> an employment relationship – whe<strong>the</strong>r it is a contract<br />
<strong>of</strong> service or a contract for service - and this test identifies liability<br />
for compensation where injury or illness occurs when prevention<br />
has failed. This is now largely replaced by <strong>the</strong> multi-factor test that<br />
is used to determine <strong>the</strong> existence <strong>of</strong> a contract <strong>of</strong> employment.<br />
Control risks<br />
398. Ano<strong>the</strong>r vital aspect is <strong>the</strong> control <strong>of</strong> risk. Health and safety duty<br />
holders are required to control risks to safety and health, <strong>the</strong> extent<br />
<strong>of</strong> which is based on what is “reasonably practicable” - that is, an<br />
objective estimation <strong>of</strong> what <strong>the</strong> person ought reasonably do to<br />
147
control <strong>the</strong> level <strong>of</strong> risk <strong>of</strong> injury, illness or death occurring. (This is<br />
explored in <strong>the</strong> next chapter.)<br />
Management control<br />
399. Both aspects <strong>of</strong> control mentioned in previous paragraphs are<br />
related to control or management <strong>of</strong> <strong>the</strong> workplace which,<br />
depending upon <strong>the</strong> size and complexity <strong>of</strong> <strong>the</strong> workplace, may<br />
involve hierarchical levels <strong>of</strong> control or direction by <strong>the</strong> person<br />
(corporation or natural person) whose business undertaking it is.<br />
The discussion <strong>of</strong> <strong>the</strong> Esso – Longford accident earlier in this <strong>report</strong><br />
illustrates how <strong>the</strong> corporate “controlling mind” <strong>of</strong> executive<br />
management may be very remote from <strong>the</strong> actual workplace, yet<br />
high level control (“direction”) <strong>of</strong> <strong>the</strong> company can be seen to<br />
extend to what actually happens at <strong>the</strong> workplace.<br />
400. Corporate direction flows down <strong>the</strong> chain <strong>of</strong> command through all<br />
levels <strong>of</strong> management <strong>of</strong> <strong>the</strong> company to <strong>the</strong> immediate manager<br />
<strong>of</strong> <strong>the</strong> worker performing <strong>the</strong> task. This “control” is significant in<br />
making decisions about health and safety, particularly in<br />
determining <strong>the</strong> level <strong>of</strong> control to be applied to a recognised risk,<br />
as in Esso’s case.<br />
401. Such control has been acknowledged in provisions in legislation <strong>of</strong><br />
o<strong>the</strong>r States and Territories where company <strong>of</strong>ficers may be held<br />
criminally liable.<br />
148
402. In <strong>the</strong> investigation <strong>of</strong> accidents it is not unusual for all <strong>of</strong> <strong>the</strong>se<br />
aspects <strong>of</strong> control to be carefully analysed and untangled in<br />
determining whe<strong>the</strong>r an <strong>of</strong>fence has been committed and by whom.<br />
Influence<br />
403. The Australian Finance Conference (AFC) introduces ano<strong>the</strong>r<br />
aspect <strong>of</strong> “control” when <strong>the</strong>y write<br />
… as a general principle, <strong>the</strong> law should impose duties<br />
on <strong>the</strong> individuals and organisations who are in a<br />
position to influence health and safety outcomes. We<br />
<strong>the</strong>refore agree with <strong>the</strong> suggestion [in <strong>the</strong> Discussion<br />
Paper] that <strong>the</strong> Act and Regulations use terminology<br />
based on <strong>the</strong> concept <strong>of</strong> degrees <strong>of</strong> control <strong>of</strong> <strong>the</strong><br />
workplace, and hence on capacity to discharge duties<br />
under <strong>the</strong> Act. (AFC) [Emphasis added.]<br />
404. The AFC explained that as a finance organisation involved in<br />
financing <strong>the</strong> acquisition <strong>of</strong> plant or structures for use in a<br />
workplace, for legal and taxation or security reasons, <strong>the</strong>y are <strong>the</strong><br />
“owner” <strong>of</strong> <strong>the</strong> financial property. (Just as a bank is <strong>the</strong> “owner” <strong>of</strong><br />
any mortgaged property and may seize <strong>the</strong> property in <strong>the</strong> event<br />
that scheduled payments are not made.) Yet <strong>the</strong>ir influence in<br />
workplace health and safety matters is very limited: <strong>the</strong>y do not<br />
select <strong>the</strong> plant or equipment that is financed and would have no<br />
control over <strong>the</strong> manner <strong>of</strong> use or maintenance <strong>of</strong> <strong>the</strong> plant<br />
financed.<br />
405. The AFC would like to see <strong>the</strong> position <strong>of</strong> <strong>the</strong> financier clarified<br />
through <strong>the</strong> inclusion <strong>of</strong> a provision into <strong>the</strong> <strong>Tasmanian</strong> Act similar<br />
to section 30(2) <strong>of</strong> <strong>the</strong> Victorian Occupational Health and Safety<br />
149
Act to “transfer <strong>the</strong> relevant duties from <strong>the</strong> financier to <strong>the</strong> person<br />
whose plant is acquired under <strong>the</strong> finance arrangement”. (AFC)<br />
406. As far as we can see <strong>the</strong> financier has no prevention duty. There<br />
are no prevention duties applying to an “owner”. According to<br />
section 14 <strong>of</strong> <strong>the</strong> <strong>Tasmanian</strong> Act, designers, manufacturers,<br />
importers, suppliers and installers have a duty so far as is<br />
reasonably practicable to ‘ensure that <strong>the</strong> design and construction<br />
<strong>of</strong> <strong>the</strong> plant or structure is such that persons who use <strong>the</strong> plant or<br />
structure properly are not, in doing so, exposed to risks to <strong>the</strong>ir<br />
health and safety”.<br />
407. A financier is in none <strong>of</strong> <strong>the</strong>se categories. Although for o<strong>the</strong>r<br />
purposes <strong>the</strong> financier is <strong>the</strong> “owner” <strong>of</strong> <strong>the</strong> financed property, <strong>the</strong><br />
transaction has simply been <strong>the</strong> loan <strong>of</strong> money to purchase <strong>the</strong><br />
plant.<br />
408. Section 15(1) applies a duty to “a person who has control <strong>of</strong> any<br />
premises, plant …. [etc.] (Emphasis added.) It seems clear<br />
enough that <strong>the</strong> issue <strong>of</strong> control is <strong>the</strong> important aspect in<br />
determining who has <strong>the</strong> prevention duty here as elsewhere. If<br />
doubt remains, <strong>the</strong>n a guidance note could be issued by <strong>the</strong><br />
agency to provide assurance for financiers.<br />
150
Social responsibility and shareholder control<br />
409. Many persons, including shareholders and consumers, could be<br />
said to exert influence over health and safety outcomes and<br />
working conditions through exercising <strong>the</strong>ir social responsibility,<br />
particularly where corporate reputation is involved.<br />
410. By way <strong>of</strong> example, <strong>the</strong> Finnish corporation Nokia responded<br />
directly to concerns about factory and employment conditions <strong>of</strong><br />
workers making Nokia products in Asia. A team <strong>of</strong> European<br />
managers from Nokia were filmed visiting and conducting “product<br />
quality control” exercises in <strong>the</strong> factories <strong>of</strong> Chinese manufacturers<br />
making <strong>the</strong>ir goods, meeting with workers and local managers,<br />
explaining <strong>the</strong>ir (Nokia’s) requirements. The Nokia managers were<br />
motivated to do this by <strong>the</strong> importance attached to corporate<br />
reputation and shareholder expectation.<br />
411. The quality control exercises provided <strong>the</strong> opportunity for <strong>the</strong> Nokia<br />
managers to comment upon o<strong>the</strong>r matters at <strong>the</strong> Chinese factory,<br />
including <strong>the</strong> safety record, health and welfare conditions. Nokia’s<br />
intervention led to <strong>the</strong> Chinese contractors agreeing to make much<br />
needed improvements in <strong>the</strong> general working conditions and<br />
health, safety and welfare <strong>of</strong> <strong>the</strong> workers. 104<br />
Shareholder influence<br />
in corporate management was <strong>the</strong>refore exerted serendipitously to<br />
improve not only <strong>the</strong> quality <strong>of</strong> <strong>the</strong> product but also <strong>the</strong> health,<br />
safety and o<strong>the</strong>r matters <strong>of</strong> <strong>the</strong> people involved in <strong>the</strong> production.<br />
104 SBS Television documentary, “Nokia: A Decent Factory”, broadcast Thursday<br />
20 April 2006.<br />
151
412. Any corporation and, indeed governments, might exert similar<br />
strong influence over <strong>the</strong> improvement <strong>of</strong> health and safety<br />
outcomes through <strong>the</strong>ir contracting or purchasing practices. This is<br />
recognised by one <strong>of</strong> <strong>the</strong> National OHS Improvement Strategy<br />
priorities to motivate governments to exert such influence.<br />
413. To assign prevention duties and possible criminal liability to<br />
shareholders on <strong>the</strong> grounds <strong>of</strong> “influence”; however, would extend<br />
<strong>the</strong> duties ra<strong>the</strong>r too broadly to be ei<strong>the</strong>r meaningful or fair.<br />
Authority<br />
414. Ano<strong>the</strong>r variation on <strong>the</strong> notion <strong>of</strong> control advanced by<br />
stakeholders is “authority”.<br />
For example, Unions Tasmania<br />
submitted:<br />
The Act must create a duty <strong>of</strong> care so that those who<br />
hold authority and power in a workplace are charged<br />
with that duty <strong>of</strong> care. The duty <strong>of</strong> care must apply to<br />
every person who exercises authority and power and at<br />
all levels <strong>of</strong> a business including <strong>the</strong> directors <strong>of</strong> a<br />
corporation. No person should be able to delegate that<br />
duty <strong>of</strong> care although it will be exercised in different<br />
ways at different levels <strong>of</strong> an organisation. (Unions<br />
Tasmania)<br />
415. The idea that <strong>the</strong>re are persons exercising authority at different<br />
levels <strong>of</strong> management in a business and that <strong>the</strong> duty should<br />
extend to <strong>the</strong>m, is reflected in <strong>the</strong> definition <strong>of</strong> person in <strong>the</strong> Act as<br />
a natural person or a corporation. The concepts <strong>of</strong> “responsible<br />
<strong>of</strong>ficer” or “accountable person” as <strong>the</strong>y are included in <strong>the</strong> Act and<br />
Regulations respectively also fit <strong>the</strong> idea <strong>of</strong> duties assigned to<br />
152
persons who exercise management authority in or for <strong>the</strong><br />
undertaking.<br />
Management<br />
416. Many <strong>of</strong> <strong>the</strong>se concepts <strong>of</strong> control coalesce in <strong>the</strong> idea and<br />
practices <strong>of</strong> management. As Chapter 2 explains, <strong>the</strong> Robens<br />
legislative framework is based on <strong>the</strong> important assumption that<br />
workplaces depend on good management and that workplace<br />
health and safety should become a matter <strong>of</strong> management.<br />
417. The Act partly follows a management approach. It proceeds from<br />
<strong>the</strong> duty to provide a safe workplace, safe systems <strong>of</strong> work and<br />
safe plant and substances through duties to provide instructions,<br />
information, supervision, training, monitoring and keeping records<br />
where necessary, as well as managing relationships between<br />
different parties. (These duties are fur<strong>the</strong>r elaborated upon by<br />
prescribing obligations in <strong>the</strong> Regulations to carry out systematic<br />
management <strong>of</strong> health and safety risks.)<br />
418. Where <strong>the</strong> Act inadequately responds to <strong>the</strong> management cycle is<br />
its failure to make it a duty <strong>of</strong> employers to involve workpeople in<br />
contributing to, as well as understanding and implementing,<br />
workplace health and safety policies; and it stops short <strong>of</strong> requiring<br />
managerial or company <strong>report</strong>ing <strong>of</strong> performance in prevention.<br />
The Act allows for employee health and safety representative<br />
mechanisms and prescribes how affairs within <strong>the</strong>se mechanisms<br />
153
must be managed, but <strong>the</strong> mechanisms <strong>the</strong>mselves depend upon<br />
<strong>the</strong> employees, not <strong>the</strong> management, taking <strong>the</strong> initiative.<br />
Inherent control – specialist skills<br />
419. The Australian Chamber <strong>of</strong> Commerce and Industry (ACCI) writes<br />
in a draft paper discussing yet ano<strong>the</strong>r aspect <strong>of</strong> control. ACCI<br />
writes that control is a concept that has traditionally defined <strong>the</strong><br />
employment relationship <strong>of</strong> employer and employee but also asks<br />
how this same notion can be used in occupational health and<br />
safety “when employees invested with particular skills will<br />
inherently control <strong>the</strong>ir work”. 105<br />
420. The debate about control may contribute to, or be part <strong>of</strong>, <strong>the</strong><br />
attitude or belief that we mentioned earlier where prevention is<br />
“someone else’s responsibility” and so it is worth looking at this<br />
idea <strong>of</strong> “inherent control” a little more closely.<br />
421. ACCI’s reference to inherent control appears to recall a <strong>the</strong>ory <strong>of</strong><br />
accident causation called <strong>the</strong> “domino <strong>the</strong>ory”. It also relates to <strong>the</strong><br />
doctrine <strong>of</strong> volenti non fit iniuria or voluntary assumption <strong>of</strong> risk that<br />
limits <strong>the</strong> employer’s liability for compensation payment. 106<br />
In<br />
105 The review team acknowledges <strong>the</strong> submission received from <strong>the</strong> Housing Industry<br />
Association (25 July 2006) that appended a copy <strong>of</strong> a discussion paper prepared by <strong>the</strong><br />
Australian Chamber <strong>of</strong> Commerce and Industry (ACCI) (2006) “Definition <strong>of</strong> Control and<br />
Person in Control – Introduced into Revised National Standards and Codes <strong>of</strong> Practice”, p. 2.<br />
The paper had been prepared in response to a paper by <strong>the</strong> Office <strong>of</strong> Australian Safety &<br />
Compensation Council to <strong>the</strong> Chemical Standards Sub-Committee <strong>of</strong> NOHSC on <strong>the</strong><br />
possibility <strong>of</strong> introducing <strong>the</strong> concept <strong>of</strong> “person in control” into a revised national standard for<br />
hazardous substances. The review team understands that <strong>the</strong> latter paper was withdrawn.<br />
106 Brooks, Adrian (1993) Occupational Health and Safety Law in Australia 4 th Edition, Chapter<br />
1, “Employers” Liability: The Laissez-Faire Phase”, para. 102, pp. 13-14. (CCH Australia Ltd.<br />
North Ryde Australia).<br />
154
finding that 88% <strong>of</strong> accidents arise from an unsafe act by a person,<br />
<strong>the</strong> developer <strong>of</strong> <strong>the</strong> domino <strong>the</strong>ory, H. W. Heinrich, places <strong>the</strong><br />
focus <strong>of</strong> accident causation upon <strong>the</strong> person whose final unsafe act<br />
gives rise to an accident or injury. 107<br />
422. His <strong>the</strong>ory likens <strong>the</strong> occurrence <strong>of</strong> an accident to a row <strong>of</strong><br />
dominoes beginning with <strong>the</strong> domino representing a person who<br />
does <strong>the</strong> work whose behaviour is due to antecedent social<br />
environment or ancestry (first domino), and who (inexplicably) is<br />
inherently “at fault” (second domino). The third domino represents<br />
an unsafe act performed by that person in relation to a mechanical<br />
or physical hazard; that in turn leads to an accident (fourth<br />
domino), that causes <strong>the</strong> injury (final domino).<br />
423. The “unsafe act” <strong>of</strong> <strong>the</strong> person “at fault” is <strong>the</strong> domino that causes<br />
<strong>the</strong> o<strong>the</strong>rs to fall over in sequence. According to <strong>the</strong> <strong>the</strong>ory <strong>the</strong><br />
accident or injury can be prevented if you remove any <strong>of</strong> <strong>the</strong> middle<br />
dominoes (<strong>the</strong> unsafe act or <strong>the</strong> mechanical or physical hazard)<br />
separating <strong>the</strong> person from <strong>the</strong> injury. This <strong>the</strong>ory gives rise to <strong>the</strong><br />
idea that inherent control over <strong>the</strong> work being performed is <strong>the</strong><br />
crucial element in fixing <strong>the</strong> label <strong>of</strong> liability on <strong>the</strong> performer <strong>of</strong> <strong>the</strong><br />
unsafe act.<br />
424. The domino <strong>the</strong>ory <strong>of</strong> accident causation was updated in <strong>the</strong> 1980s<br />
however, to include recognition <strong>of</strong> <strong>the</strong> importance <strong>of</strong> management<br />
107 Heinrich, H.W., Peterson, D. & Roos, N. (1980) Industrial Accident Prevention. McGraw-<br />
Hill: New York.<br />
155
and managerial error; and to include <strong>the</strong> concept <strong>of</strong> loss<br />
(production loss, property damage or o<strong>the</strong>r wastage <strong>of</strong> assets as<br />
well as injuries that are classed as “losses”). 108<br />
So management<br />
control is a vital element in statutory prevention duties as well as in<br />
determining who owes <strong>the</strong> common law duty <strong>of</strong> care.<br />
425. Chris Maxwell concluded that <strong>the</strong> Victorian Authority (WorkCover<br />
Victoria) responsible for <strong>the</strong> administration <strong>of</strong> <strong>the</strong> Victorian<br />
Occupational Health and Safety Act must provide guidance on <strong>the</strong><br />
issues <strong>of</strong> control for each <strong>of</strong> <strong>the</strong> duty holders. He goes fur<strong>the</strong>r to<br />
recommend that <strong>the</strong> “reasonable practicability” condition in <strong>the</strong> Act<br />
itself must explicitly refer to control.<br />
496. In my view, “control” should be added to <strong>the</strong> list <strong>of</strong><br />
practicability factors. The definition <strong>of</strong> “control” will need<br />
to include <strong>the</strong> capacity to control, even where control is<br />
not in fact being exercised. It will also need to be made<br />
clear that an ability to influence decisions is a species <strong>of</strong><br />
control. Moreover, <strong>the</strong> extent <strong>of</strong> a duty holder’s control<br />
must be assessed in light <strong>of</strong> <strong>the</strong> control actually<br />
exercised by, or capable <strong>of</strong> being exercised by, any<br />
person in respect <strong>of</strong> whose acts or omissions <strong>the</strong> duty<br />
holder may properly be regarded as responsible. This<br />
obviously includes its employees and agents.<br />
497. By making explicit <strong>the</strong> relevance <strong>of</strong> control, <strong>the</strong> Act<br />
will enable appropriate consideration to be given – by<br />
duty holders, by inspectors and <strong>the</strong> courts – to ano<strong>the</strong>r<br />
issue which has frequently arisen during <strong>the</strong><br />
consultations. It is <strong>the</strong> issue <strong>of</strong> whe<strong>the</strong>r, or when, it is<br />
reasonable for a duty holder to relinquish control, or to<br />
refrain from exercising control, on <strong>the</strong> ground that a<br />
contractor with particular skills or expertise has been<br />
engaged to carry out <strong>the</strong> relevant activity. The answer to<br />
that question will depend, as usual, upon <strong>the</strong><br />
circumstances <strong>of</strong> <strong>the</strong> case. Of particular relevance would<br />
be matters such as <strong>the</strong> respective levels <strong>of</strong> expertise <strong>of</strong><br />
108 Bird, F.E & Germain, G.L. (1986), Practical Loss Control Leadership, International Loss<br />
Control Institute, Loganville, Georgia USA.<br />
156
<strong>the</strong> duty holder and <strong>the</strong> contractor, <strong>the</strong> severity <strong>of</strong> <strong>the</strong><br />
risk and <strong>the</strong> duty holder’s knowledge <strong>of</strong> <strong>the</strong> contractor’s<br />
safety procedures.<br />
498. Once <strong>the</strong> concept <strong>of</strong> control is explicitly addressed,<br />
<strong>the</strong> practicability qualification will be able to moderate<br />
overlapping duties to take into account modern work<br />
arrangements. 109<br />
426. Tasmania’s legislation already takes account <strong>of</strong> <strong>the</strong> issue <strong>of</strong> control<br />
in section 9(4) and section 15, however if it would provide greater<br />
clarity, this could be provided through <strong>the</strong> usual channels <strong>of</strong><br />
providing guidance or support.<br />
427. In concluding this section, it is reiterated that <strong>the</strong> statutory<br />
prevention duties in <strong>the</strong> Act are intended to reflect agreement that<br />
<strong>the</strong> “[t]he primary responsibility for doing something about present<br />
levels <strong>of</strong> occupational accidents and diseases lies with those who<br />
create <strong>the</strong> risks and those who work with <strong>the</strong>m”. 110<br />
428. Traditionally this has been taken to mean employers (those whose<br />
business activities create <strong>the</strong> health and safety risks) and<br />
employees (those who perform work for employers in that business<br />
and whose health and safety may be negatively affected by<br />
uncontrolled health and safety risks).<br />
429. It was intended by <strong>the</strong> Parliament <strong>of</strong> <strong>the</strong> day that <strong>the</strong> Act’s objective<br />
<strong>of</strong> preventing work-related injury, illness and death should be<br />
extended to relevant parties at <strong>the</strong> workplace, with more limited<br />
and general forms <strong>of</strong> protection extended to o<strong>the</strong>rs whose health<br />
109 Maxwell (2004), paras. 496-498, pp.118-119.<br />
110 Robens, Chapter 18 “Summary”, para. 457, p. 151.<br />
157
and safety may be affected, such as visitors, adjoining properties or<br />
businesses, or customers.<br />
430. In assigning duties to prevent work-related injury, illness or death<br />
<strong>the</strong> Act acknowledges that <strong>the</strong> primary preventive duty rests with<br />
<strong>the</strong> employer although it also recognises that all o<strong>the</strong>r parties to a<br />
greater or lesser extent, have duties that must be satisfied<br />
severally, so far as is reasonably practicable, and all <strong>the</strong>se parties<br />
in <strong>the</strong> workplace are accountable according to <strong>the</strong> Act.<br />
Reasonably practicable<br />
431. The review team emphasised <strong>the</strong> importance <strong>of</strong> <strong>the</strong> “so far as is<br />
reasonably practicable” phrase that defines <strong>the</strong> extent to which<br />
duty holders must comply with <strong>the</strong> duties under <strong>the</strong> Act. 111<br />
432. It is interpreted to mean that employers must do everything that<br />
<strong>the</strong>y reasonably can to ensure that <strong>the</strong>ir employees and any<br />
persons at a workplace under <strong>the</strong>ir control or management are safe<br />
from injury and risks to health.<br />
433. The Discussion paper explored potential sources <strong>of</strong> uncertainty,<br />
one <strong>of</strong> which was <strong>the</strong> reasonably practicable provision (DP pp9-<br />
10). We concluded by suggesting that <strong>the</strong> Act might be amended<br />
“to clarify or define `reasonably practicable’ in such a way that <strong>the</strong><br />
111 Adrian Brooks (1993) Occupational Health and Safety Law in Australia 4 th Edition (CCH<br />
Australia Limited, North Ryde, NSW Australia), Chapter 2 “Employers’ Liability: The Modern<br />
Law” para. 202 “Duty to take reasonable care”, p. 35.<br />
158
extent <strong>of</strong> <strong>the</strong> duty is not subject to uncertainty or unreasonably<br />
limited to affordability”. (DP, suggestion 3, p. 14).<br />
434. The agency website explains “reasonable practicability” thus:<br />
The 'reasonable practicability' test must take into<br />
account:<br />
The nature <strong>of</strong> <strong>the</strong> employment or, as <strong>the</strong> case may be,<br />
<strong>the</strong> particular aspect <strong>of</strong> <strong>the</strong> employment concerned; and<br />
(a) <strong>the</strong> severity <strong>of</strong> any potential injury or harm to health<br />
or safety that may be involved, and <strong>the</strong> degree <strong>of</strong> risk<br />
that exists in relation to such potential injury or harm;<br />
and<br />
(b) <strong>the</strong> state <strong>of</strong> knowledge about <strong>the</strong> injury or harm to<br />
health or safety that may be involved; <strong>the</strong> risk <strong>of</strong> <strong>the</strong><br />
occurrence <strong>of</strong> that injury or harm to health or safety; and<br />
any methods <strong>of</strong> preventing, removing or mitigating that<br />
injury, harm or risk; and<br />
(c) <strong>the</strong> availability and suitability <strong>of</strong> ways to prevent,<br />
remove or mitigate that injury or harm to health or safety<br />
or risk; and<br />
(d) whe<strong>the</strong>r <strong>the</strong> cost <strong>of</strong> preventing, removing or<br />
mitigating that injury or harm to health or safety or that<br />
risk is prohibitive in <strong>the</strong> circumstances.<br />
As <strong>the</strong> risk increases, it is reasonable to increase<br />
substantially <strong>the</strong> time, effort and cost needed to reduce<br />
or eliminate that risk.<br />
(http://www.workcover.tas.gov.au/resource/polduty<strong>of</strong>car.<br />
htm)<br />
435. While <strong>the</strong> website explanation appears to be comprehensive, it<br />
reveals ano<strong>the</strong>r aspect that may contribute to <strong>the</strong> perception that<br />
workplace health and safety is complex and difficult to understand.<br />
That is <strong>the</strong> language <strong>of</strong> workplace health and safety. As <strong>the</strong> website<br />
explanation illustrates, <strong>the</strong> use <strong>of</strong> legalistic style or technical<br />
terms may make it difficult for a layperson to understand. If we<br />
159
wish to reduce workplace injury, illness and death, we need to<br />
communicate in language that everyone can understand.<br />
160
On-hired services (on-hired employees and on-hired<br />
contractors)<br />
436. The issues <strong>of</strong> control and reasonably practicable intersect at <strong>the</strong><br />
issue <strong>of</strong> on-hired employees. The limited protection afforded to any<br />
person as “o<strong>the</strong>rs” in <strong>the</strong> workplace is insufficient for those persons<br />
who are engaged in work at <strong>the</strong> workplace itself and who are<br />
<strong>the</strong>reby more exposed to risks to safety and health, but whose<br />
employment arrangements do not fit <strong>the</strong> definition <strong>of</strong> “employee”.<br />
437. The health and safety <strong>of</strong> on-hired employees, whose services are<br />
engaged through on-hire employment services, has been a matter<br />
<strong>of</strong> concern to many people, and we raised it in <strong>the</strong> Discussion<br />
Paper:<br />
There is potential for confusion as to who may be <strong>the</strong><br />
duty-holder according to <strong>the</strong> duties currently assigned by<br />
<strong>the</strong> Act in situations where a person with control <strong>of</strong> a<br />
workplace engages independent contractors (who have<br />
a degree <strong>of</strong> control over <strong>the</strong>ir own work), or where <strong>the</strong><br />
actual employer <strong>of</strong> <strong>the</strong> person is not in control <strong>of</strong> <strong>the</strong><br />
workplace (as occurs when labour is engaged through<br />
an employment agency or labour hire organisation).<br />
(DP, p. 13)<br />
438. For <strong>the</strong> legislation to provide <strong>the</strong> greatest preventive benefit we<br />
argued that <strong>the</strong> terminology used should be inclusive.<br />
439. This issue is important to <strong>the</strong> Recruitment and Consulting Services<br />
Association Limited (RCSA), <strong>the</strong> peak body for <strong>the</strong> on-hire<br />
employment services industry throughout Australia and New<br />
Zealand.<br />
161
440. This association represents members who are responsible for <strong>the</strong><br />
placement in workplaces <strong>of</strong> on-hired workers whose precarious<br />
employment contributes to poor health and safety outcomes<br />
according to researchers such as Quinlan, Bohle & Mayhew (2001)<br />
and McNamara (2006). It is <strong>the</strong>refore important that we give close<br />
consideration to <strong>the</strong> issues that <strong>the</strong> RCSA raises.<br />
441. The RCSA responded to <strong>the</strong> Discussion Paper in strong terms:<br />
. . . inappropriate regulation <strong>of</strong> occupational health and<br />
safety in relation to third party employment services has<br />
dire consequences, particularly for on-hired employees<br />
and independent contractors. Inappropriate and<br />
outdated occupational health and safety legislation will<br />
not only threaten <strong>the</strong> lives <strong>of</strong> workers within Tasmania, it<br />
also has <strong>the</strong> capacity to threaten employment<br />
opportunities, skill development and employment<br />
flexibility and as such Tasmania’s competitive edge in<br />
<strong>the</strong> national market (RCSA)<br />
442. The RCSA <strong>the</strong>refore seeks “a regulatory system where employer,<br />
client, employee and workplace colleague work in cooperation” to<br />
ensure that <strong>the</strong> health, safety and welfare <strong>of</strong> on-hired employees<br />
are protected effectively.<br />
443. Section 21 <strong>of</strong> <strong>the</strong> Act prescribes that when duties imposed by Part<br />
3 <strong>of</strong> <strong>the</strong> Act are owed by more than one person, each person must<br />
satisfy <strong>the</strong>ir duties “without regard to <strong>the</strong> fact that ano<strong>the</strong>r person<br />
may also be responsible for satisfying that duty or obligation”; and<br />
that <strong>the</strong>y must “co-operate with any o<strong>the</strong>r person who is performing<br />
that duty or obligation”.<br />
162
444. In practice however, such co-operation (or agreement) may be<br />
difficult to achieve.<br />
445. Hobart Water, an employer in Sou<strong>the</strong>rn Tasmania, supported <strong>the</strong><br />
notion <strong>of</strong> making adjustments to <strong>the</strong> legislation to take into account<br />
<strong>the</strong> changing nature <strong>of</strong> workplace relationships. It points out<br />
though “<strong>the</strong> fact [that] <strong>the</strong> labour hire firm places employees at a<br />
specific location carries with it a duty for <strong>the</strong>m to ensure <strong>the</strong><br />
placement is not going to put <strong>the</strong> individual at risk”. (Hobart Water)<br />
446. RCSA anticipated this expectation and submitted<br />
“any amendment <strong>of</strong> <strong>the</strong> Act to reflect duties based on<br />
control must ultimately recognise <strong>the</strong> limited capacity <strong>of</strong><br />
on-hired employee service providers to effectively<br />
control risks within client workplaces following <strong>the</strong><br />
placement <strong>of</strong> such employees”. (RCSA)<br />
447. RCSA furnished a survey <strong>the</strong>y commissioned to support <strong>the</strong>ir<br />
position that members were <strong>of</strong>ten prevented from gaining access to<br />
workplaces to conduct health and safety assessments prior to<br />
placement. They asserted that <strong>the</strong> problem is compounded after<br />
placement, where “36% <strong>of</strong> clients [workplace employers] believe<br />
that on-hire employee service providers should rarely or never<br />
have <strong>the</strong> right to instruct clients in how to manage workplace safety<br />
for <strong>the</strong> protection <strong>of</strong> <strong>the</strong>ir own employees”. (RCSA)<br />
448. There are three parties ra<strong>the</strong>r than two who need to co-operate:<br />
(1) <strong>the</strong> on-hire services provider;<br />
(2) <strong>the</strong> workplace or host employer; and<br />
163
(3) <strong>the</strong> on-hired employee / contractor.<br />
449. The Act provides for this kind <strong>of</strong> situation through <strong>the</strong> duty <strong>of</strong><br />
employers towards employees at s9(1) (a) (b) and (c) to provide a<br />
safe workplace, safe systems <strong>of</strong> work and safe plant and/or<br />
substances; providing facilities for welfare; providing information,<br />
instruction, training and supervision reasonably necessary; all to<br />
“ensure that each employee is safe from injury and risks to health”.<br />
450. This is elaborated upon in section 9(2) – an extensive provision<br />
that meanders from s9(2)(a), a requirement to monitor health when<br />
directed to do so by <strong>the</strong> Director, through to ensuring that<br />
accommodation or any o<strong>the</strong>r facilities provided are maintained “in a<br />
safe and healthy condition” at s9(2)(i). (Surely hygienic ra<strong>the</strong>r than<br />
healthy facilities is meant, but that is not <strong>the</strong> point.)<br />
451. Section 9(3) would appear to exclude on-hired employees if <strong>the</strong>y<br />
are “a contractor” or “employed or engaged by a contractor”. In this<br />
provision employers must:<br />
ensure so far as is reasonably practicable that <strong>the</strong> health<br />
and safety <strong>of</strong> any person, o<strong>the</strong>r than an employee <strong>of</strong> <strong>the</strong><br />
employer or a contractor or any person employed or<br />
engaged by a contractor, is not adversely affected as a<br />
result <strong>of</strong> <strong>the</strong> work carried on at a workplace.<br />
452. Section 9(4), however, extends <strong>the</strong> employer’s duty to any person<br />
at that workplace based on <strong>the</strong> issue <strong>of</strong> control as <strong>the</strong> significant<br />
factor in determining who must exercise <strong>the</strong> duty.<br />
164
Any employer who exercises, or is in a position to<br />
exercise, management or control over a workplace<br />
must ensure that, so far as is reasonably practicable<br />
any person at that workplace is safe from injury and<br />
risks to health. (Emphasis added.)<br />
453. Thus <strong>the</strong> Act does speak about <strong>the</strong> issue <strong>of</strong> on-hired employees in<br />
section 9(4) and does so by referring specifically to <strong>the</strong> issue that<br />
<strong>the</strong> RCSA is concerned about – <strong>the</strong> “management or control <strong>of</strong> <strong>the</strong><br />
workplace”.<br />
454. To satisfy s9(4) what must workplace/host employers do to ensure<br />
that on-hired employees are “safe from injury and risks to health”?<br />
Must <strong>the</strong>y act towards <strong>the</strong>m in <strong>the</strong> same way as <strong>the</strong>y must towards<br />
<strong>the</strong>ir direct employees by providing instruction, information,<br />
training, facilities for welfare, supervision reasonably necessary,<br />
monitoring health etc?<br />
455. The Act does not say specifically. In not specifying, <strong>the</strong> Act allows<br />
flexibility and <strong>the</strong>rein may also lie potential uncertainty for not only<br />
employers but potentially also for on-hired employees. The level <strong>of</strong><br />
uncertainty may be clarified by negotiation between <strong>the</strong> parties or<br />
through guidance provided by <strong>the</strong> State agency.<br />
456. The workplace or host employer who provides <strong>the</strong> workplace, is<br />
<strong>the</strong> most able to carry out <strong>the</strong> duty at s9 (1)(a) – fulfilling <strong>the</strong><br />
requirement for a safe place. In negotiating a placement, <strong>the</strong> onhire<br />
employment service providers may <strong>the</strong>oretically satisfy<br />
<strong>the</strong>mselves that <strong>the</strong> host employer has fulfilled this duty before<br />
agreeing to provide <strong>the</strong> on-hired employee service. They may also<br />
165
satisfy <strong>the</strong>mselves that facilities are provided for <strong>the</strong> welfare <strong>of</strong><br />
employees, including <strong>the</strong> on-hire employees, according to s9(1)(b).<br />
457. It may also be reasonably practicable for <strong>the</strong> on-hire<br />
employee/contractor service providers to ensure that <strong>the</strong> on-hired<br />
contractor or on-hired employee is properly trained, experienced,<br />
and instructed in safe methods <strong>of</strong> work etc. before <strong>the</strong>y are referred<br />
to a workplace employer – thus satisfying part <strong>of</strong> s9(1)(c).<br />
458. Providing information (such as pointing out hazards, providing<br />
workplace health and safety policies; or information about <strong>the</strong> plant<br />
and substances, etc.); as well as providing supervision to ensure<br />
that <strong>the</strong> persons are safe from injury and risks to health, can only<br />
reasonably be done by <strong>the</strong> workplace/host -employer.<br />
459. It must also be considered that employees (whe<strong>the</strong>r on-hired or<br />
not) cannot reasonably be expected to exercise <strong>the</strong>ir own duties in<br />
respect <strong>of</strong> <strong>the</strong>ir own, or any o<strong>the</strong>r person’s, health and safety if <strong>the</strong>y<br />
are not given clear direction in <strong>the</strong> matter. That takes involvement,<br />
<strong>the</strong> third principle enshrined in Robens’s framework, in order to<br />
reach understandings and for co-operation to prevail.<br />
460. To avoid any doubt, or rely on perhaps an unrealistic view <strong>of</strong><br />
workplaces, we believe <strong>the</strong> Act should define <strong>the</strong> duties <strong>of</strong><br />
employers in relation to <strong>the</strong> health and safety <strong>of</strong> persons who are<br />
employed or engaged. A person’s employment arrangements<br />
should not disqualify <strong>the</strong>m from reasonable preventive action.<br />
166
461. Maxwell articulates this subject:<br />
587. The focus <strong>of</strong> health and safety protection, and<br />
<strong>the</strong>refore <strong>of</strong> <strong>the</strong> corresponding obligations, must surely<br />
be to protect each person who is at work in a workplace.<br />
It hardly seems relevant, at least at this general level, to<br />
enquire into <strong>the</strong> precise legal basis <strong>of</strong> a person’s<br />
employment.<br />
588. What matters is that, for <strong>the</strong> period during which a<br />
person is at work in a workplace, <strong>the</strong>re is a responsibility<br />
to ensure that –<br />
(a) <strong>the</strong> work which that person undertakes does not<br />
create health and safety risks for him or her or for o<strong>the</strong>rs<br />
in that workplace (or non-workers who are affected by<br />
<strong>the</strong> activity in that workplace); and<br />
(b) that person’s health, safety and welfare are not put at<br />
risk by hazards in that workplace.<br />
589. In <strong>the</strong> course <strong>of</strong> <strong>the</strong> consultations, it has been<br />
suggested that a definition <strong>of</strong> “worker” should be<br />
introduced into <strong>the</strong> Act. Such a term could<br />
accommodate <strong>the</strong> whole range <strong>of</strong> different workplace<br />
relationships in <strong>the</strong> new economy – including<br />
contractors, casual workers, outworkers and labour hire<br />
workers – but would not seek to draw any distinctions<br />
between <strong>the</strong>m where <strong>the</strong>ir rights and responsibilities with<br />
respect to occupational health and safety are<br />
concerned. 112<br />
462. We agree with Maxwell. The health and safety <strong>of</strong> workers, whose<br />
employment arrangements do not meet <strong>the</strong> definition <strong>of</strong> “employee”<br />
according to <strong>the</strong> Act, should not potentially be compromised<br />
because <strong>the</strong> Act provides a diminished or less specific protection<br />
for <strong>the</strong>m.<br />
463. Before leaving <strong>the</strong> discussion <strong>of</strong> <strong>the</strong> prevention duties in relation to<br />
employees and on-hired employees, <strong>the</strong>re is one more issue to<br />
explore – <strong>the</strong> issue <strong>of</strong> supervision and experience.<br />
112 Chris Maxwell (2004), Chapter 11, “Control and responsibility”; paras 586 – 588, p.136.<br />
167
Inexperienced employees<br />
464. An issue associated with Tasmania’s ageing workforce which we<br />
suspect will become increasingly important as retirees leave <strong>the</strong><br />
workforce to be replaced by less experienced persons, is <strong>the</strong> issue<br />
<strong>of</strong> providing supervision and training to inexperienced workers.<br />
465. Inexperienced employees may be young, such as persons on work<br />
experience, apprentices or persons in a training scheme <strong>of</strong> any<br />
kind. 113<br />
466. They may also be employees who have not had previous<br />
experience with some aspect <strong>of</strong> <strong>the</strong> work to be undertaken or may<br />
be unfamiliar with <strong>the</strong> part <strong>of</strong> <strong>the</strong> workplace where <strong>the</strong>y are<br />
assigned. Lack <strong>of</strong> familiarity may be resolved through induction,<br />
however, training and supervision are also vital where inexperience<br />
is a key factor.<br />
Training and experience<br />
467. Training in how to prevent injury, illness or death while performing<br />
<strong>the</strong> job competently should commence at any post-secondary<br />
113 This group is particularly at risk. The ABS <strong>report</strong>s “young men were most likely to<br />
experience a work-related injury or illness. ….Men aged 20-24 years had <strong>the</strong> highest rate <strong>of</strong><br />
all (98 per 1,000 men who worked in <strong>the</strong> last 12 months had experienced a work-related injury<br />
or illness), while for women <strong>the</strong> highest rate occurred among those aged 15-19 years (65 per<br />
1000 women”). Australian Bureau <strong>of</strong> Statistics (2006), Cat.No. 6324.0 Work-Related Injuries,<br />
Australia 2005-06 (released 20 December 2006), Commonwealth <strong>of</strong> Australia, Canberra.<br />
168
education or training institution and should <strong>the</strong>n continue in <strong>the</strong><br />
workplace. 114<br />
468. Once in <strong>the</strong> workplace, preventing injury, illness or death may<br />
depend on knowing what to look out for, how to deal with certain<br />
aspects <strong>of</strong> <strong>the</strong> workplace, as well as how to perform <strong>the</strong> job<br />
competently. Induction into <strong>the</strong> workplace, an aspect <strong>of</strong> good<br />
management (<strong>the</strong> second element <strong>of</strong> <strong>the</strong> Robens framework)<br />
<strong>the</strong>refore may be vital in <strong>the</strong> prevention <strong>of</strong> injury, illness or death for<br />
inexperienced employees.<br />
469. Inexperienced on-hired employees are most vulnerable to injury or<br />
illness or death because <strong>the</strong> Act does not specifically prescribe<br />
what workplace/host employers must provide for <strong>the</strong>m. While <strong>the</strong>re<br />
is nothing in Act to prevent employers or accountable persons from<br />
providing <strong>the</strong> same level <strong>of</strong> protection to on-hired employees, we<br />
understand that <strong>the</strong> RCSA has genuine concerns.<br />
470. We conclude that induction, (on-site instruction and information)<br />
and supervision are crucial aspects <strong>of</strong> <strong>the</strong> duty to ensure that any<br />
inexperienced person, regardless <strong>of</strong> <strong>the</strong> nature <strong>of</strong> <strong>the</strong> employment<br />
arrangement, is “safe from injury and risks to health”..<br />
471. While it may not be within <strong>the</strong> province <strong>of</strong> <strong>the</strong> Act to stipulate<br />
competent management, we also believe that where instruction<br />
and supervision are to be provided, it must also be competent. We<br />
114 ABS, Cat.No. 6324.0 Work-Related Injuries, Australia 2005-06 <strong>report</strong>s that more than tw<strong>of</strong>ifths<br />
(43%) <strong>of</strong> those people who experienced work-related injury or illness had not received<br />
any occupational, health and safety training in <strong>the</strong> job where <strong>the</strong> injury or illness occurred.<br />
169
ely on <strong>the</strong> assumption that <strong>the</strong> employer, in appointing a<br />
management team (accountable persons), will give due<br />
consideration to <strong>the</strong> need to manage health and safety as well as<br />
o<strong>the</strong>r business risks.<br />
472. We conclude this discussion by observing that <strong>the</strong> Act’s intent, as<br />
announced by its Long Title, is to be inclusive: it is an Act “to<br />
provide for <strong>the</strong> health and safety <strong>of</strong> persons employed in, engaged<br />
in or affected by industry ….”. (Long Title <strong>of</strong> <strong>the</strong> Act)<br />
473. The objective <strong>of</strong> <strong>the</strong> Act to prevent work-related injury, illness or<br />
death should <strong>the</strong>refore be equally inclusive. If it is to achieve its<br />
objective in contemporary workplaces, <strong>the</strong> Act must acknowledge<br />
or accommodate changed employment arrangements in assigning<br />
general duties.<br />
Recommendation 9:<br />
The review team recommends that an amendment to <strong>the</strong> Act be<br />
made to extend <strong>the</strong> duties <strong>of</strong> employers in section 9 <strong>of</strong> <strong>the</strong> Act<br />
to all persons employed or engaged to perform work for <strong>the</strong><br />
employer and who are exposed to health and safety risks at <strong>the</strong><br />
workplace under <strong>the</strong> employer’s control or management.<br />
This amendment would deal with <strong>the</strong> majority <strong>of</strong> concerns that<br />
<strong>the</strong> Act does not presently provide sufficient prevention duties<br />
to classes <strong>of</strong> workers who do not fit <strong>the</strong> definition <strong>of</strong> “employee<br />
<strong>of</strong> <strong>the</strong> employer”.<br />
It may be achieved by amending <strong>the</strong> commencement <strong>of</strong> Part 3,<br />
section 9 so that a new opening statement <strong>of</strong> general principle<br />
is inserted to replace <strong>the</strong> existing first paragraph <strong>of</strong> s9(1) - viz:<br />
“employers must ensure so far as is reasonably<br />
practicable, that all persons employed or engaged by<br />
employers to perform work for <strong>the</strong> employer, are, while<br />
at work, safe from injury and risks to health and, in<br />
particular, must – (&c) …”.<br />
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The amendment needs to be drafted so that <strong>the</strong> new opening<br />
statement applies to all <strong>the</strong> identifiable duties (currently<br />
outlined in subsection 2).<br />
Recommendations 10:<br />
If recommendation 9 is not agreed or adopted, <strong>the</strong>n:<br />
it is recommended that <strong>the</strong> provisions for instruction and<br />
information that only apply currently to employees <strong>of</strong><br />
employers, be extended to include on-hired employees and onhired<br />
contractors (as “any persons”) whose health and safety<br />
may depend upon appropriate instruction and information<br />
about <strong>the</strong> workplace being provided directly by <strong>the</strong> workplace<br />
employer.<br />
Recommendation 11:<br />
Likewise, if recommendation 9 is not agreed or adopted, <strong>the</strong>n it<br />
is recommended that <strong>the</strong> employers’ duty at section 9(2)(e) be<br />
extended to include all inexperienced persons whe<strong>the</strong>r <strong>the</strong>y are<br />
employees or engaged as on-hired employees, in order to<br />
satisfy <strong>the</strong> need to prevent injury, illness and death <strong>of</strong> any<br />
person in <strong>the</strong> workplace.<br />
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Clarifying <strong>the</strong> message<br />
474. Having explored <strong>the</strong> issues associated with how <strong>the</strong> legislation<br />
takes account <strong>of</strong> changes (term <strong>of</strong> reference 1), this chapter turns<br />
now to analyse section 9 (duties <strong>of</strong> employers to employees) in<br />
greater detail to see how clearly <strong>the</strong> Act prescribes duties to<br />
prevent injury, illness and death (according to term <strong>of</strong> reference 2).<br />
475. Since employers stand to be penalised if <strong>the</strong>y do not meet <strong>the</strong>ir<br />
duties and obligations, it is reasonable to expect that <strong>the</strong> legislation<br />
is clear. They may approach <strong>the</strong> legislation with a number <strong>of</strong><br />
questions in mind. What constitutes a safe working environment?<br />
What are safe systems <strong>of</strong> work? What sort <strong>of</strong> facilities? What<br />
should be in <strong>the</strong> information I provide? And so on.<br />
476. Respondents to <strong>the</strong> review unanimously agreed that some<br />
clarification <strong>of</strong> duties and obligations <strong>of</strong> persons was needed. We<br />
approach <strong>the</strong> Act with this in mind.<br />
Safety<br />
477. Close analysis <strong>of</strong> <strong>the</strong> language <strong>of</strong> <strong>the</strong> primary duty at section 9(1)<br />
reveals a connection between <strong>the</strong> concepts <strong>of</strong> safety, health and<br />
welfare, which were <strong>the</strong> subjects <strong>of</strong> <strong>the</strong> previous Act: <strong>the</strong> Industrial<br />
Safety, Health, and Welfare Act 1977.<br />
478. We can determine <strong>the</strong> meaning <strong>of</strong> safety, health and welfare from<br />
<strong>the</strong> way in which <strong>the</strong> Act “speaks” to us in section 9(1).<br />
The<br />
language <strong>of</strong> <strong>the</strong> Act has an interesting effect. When <strong>the</strong> Act<br />
172
“speaks” in this provision, <strong>the</strong> duty holders will <strong>of</strong>ten “hear” safety.<br />
The duty <strong>of</strong> <strong>the</strong> employer to ensure that each employee is “safe<br />
from injury and risks to health” is expanded in sub-subsection (a)<br />
(i), (ii) and (iii) to connect <strong>the</strong> repetition <strong>of</strong> <strong>the</strong> word “safe” with <strong>the</strong><br />
working environment, systems <strong>of</strong> work and plant and substances.<br />
Welfare<br />
479. At section 9, sub-subsection (1)(b) <strong>the</strong> concept <strong>of</strong> welfare is<br />
introduced, in that <strong>the</strong> employer is to “provide facilities <strong>of</strong> a<br />
prescribed kind for <strong>the</strong> welfare <strong>of</strong> employees”. Welfare is taken to<br />
mean general “well being” which can be associated with health (as<br />
commonly understood in <strong>the</strong> phrase “health and wellbeing”).<br />
480. To see what facilities are prescribed for welfare, we look to <strong>the</strong><br />
Workplace Health and Safety Regulations (<strong>the</strong> Regs). Regulation<br />
116 makes it an obligation <strong>of</strong> an “accountable person” to provide a<br />
supply <strong>of</strong> drinkable water; providing and keeping clean, sanitary,<br />
washing, changing, seating and dining amenities and facilities; and<br />
ensuring a comfortable temperature at an enclosed workplace and<br />
appropriate seating for employees who must work while seated.<br />
481. These are minimum facilities and employers may, if <strong>the</strong>y choose,<br />
provide o<strong>the</strong>r facilities for <strong>the</strong> welfare <strong>of</strong> <strong>the</strong>ir employees.<br />
482. Where <strong>the</strong> workplace comprises buildings or structures, duty<br />
holders must look to Regulation 7 (“Compliance with o<strong>the</strong>r<br />
legislation”) as well as Regs 27, 28 and 29 to see what <strong>the</strong>ir<br />
173
obligations are in certain circumstances. Ins<strong>of</strong>ar as <strong>the</strong> workplace<br />
comprises or has a building or structure, <strong>the</strong> duties and obligations<br />
appear to be clear.<br />
483. What about providing for <strong>the</strong> welfare <strong>of</strong> employees where no<br />
building or structure is involved? The requirement for welfare<br />
provided by <strong>the</strong> Act is equally important to people who are<br />
employed outdoors on building and construction sites or in forestry<br />
coupes, or farms, parks and gardens or anywhere where<br />
employees are likely to be exposed to <strong>the</strong> elements.<br />
484. The provision <strong>of</strong> “dining amenities and facilities” might sound ra<strong>the</strong>r<br />
grand, but in reality and in practice, <strong>the</strong> provisions do no more than<br />
establish <strong>the</strong> general duty and obligation and it is <strong>the</strong>n up to <strong>the</strong><br />
employer or accountable person to determine what is reasonably<br />
practicable in <strong>the</strong> circumstances. The Act’s provisions “enable”,<br />
that is <strong>the</strong>y permit great flexibility for duty holders to interpret <strong>the</strong>m<br />
from <strong>the</strong> perspective <strong>of</strong> <strong>the</strong>ir own individual workplaces or<br />
locations.<br />
Health<br />
485. The analysis <strong>of</strong> s9(1) reveals that <strong>the</strong> Act says very little specifically<br />
about <strong>the</strong> duty to prevent risks to health in <strong>the</strong> same way as it does<br />
about safety and welfare.<br />
486. Section 9, subsection (2)(a) and (b) begins to speak about health<br />
by prescribing a duty <strong>of</strong> employers to monitor <strong>the</strong> health <strong>of</strong><br />
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employees, but only if <strong>the</strong> Director <strong>of</strong> Industry Safety identifies<br />
hazards in writing and notifies <strong>the</strong> employer.<br />
487. Monitoring is described in <strong>the</strong> Annotated Regulations, annotation<br />
r21, as:<br />
The checking, observation or recording <strong>of</strong> hazards, how<br />
<strong>the</strong>y may be affecting a workplace and persons in that<br />
workplace, <strong>the</strong> efficiency <strong>of</strong> any control mechanisms<br />
implemented and <strong>the</strong> health and safety <strong>of</strong> persons in <strong>the</strong><br />
workplace. 115<br />
488. Monitoring is explained as a process that may need to be done “if it<br />
has been determined during an assessment that it is necessary to<br />
establish <strong>the</strong> level <strong>of</strong> a hazard in a workplace, or that it is<br />
necessary to ensure that any control measures implemented in <strong>the</strong><br />
workplace are effective”. 116<br />
489. On <strong>the</strong> face <strong>of</strong> it, <strong>the</strong> provision appears to indicate that monitoring<br />
<strong>the</strong> health <strong>of</strong> employees is a duty that only needs to be undertaken<br />
if and when notified to do so by <strong>the</strong> Director <strong>of</strong> Industry Safety. The<br />
inclusion <strong>of</strong> “work related injuries” in this section is also somewhat<br />
confusing if <strong>the</strong> provision intends to speak about monitoring health<br />
and preventing illness.<br />
490. With this provision <strong>the</strong> focus <strong>of</strong> section 9 has transferred to <strong>the</strong><br />
Director in this sub-section making it inconsistent with <strong>the</strong><br />
construction <strong>of</strong> <strong>the</strong> rest <strong>of</strong> section 9.<br />
115 WorkCover Tasmania / Workplace Standards Tasmania, (n.d.) Annotated Workplace<br />
Health and Safety Regulations 1998, Annotation r21, “Monitoring”. Retrieved February 2007<br />
from website: http://www.workcover.tas.gov.au/AnnotatedRegs/Annotated/newpage2.htm.<br />
116 Annotated Regulations, Annotation r21, “Monitoring”.<br />
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491. For <strong>the</strong> duty to safeguard health (to prevent illness) to be clear it<br />
should not be dependent upon <strong>the</strong> Director’s administrative action<br />
in identifying and notifying employers about hazards to health.<br />
While it may be necessary to give a power to <strong>the</strong> Director to direct<br />
employers to monitor health in certain circumstances, this power<br />
would be more appropriately located within a section dealing with<br />
<strong>the</strong> powers <strong>of</strong> <strong>the</strong> Director. 117<br />
492. The provision could be clarified by explicitly creating a duty to<br />
control risks to health associated with any hazard in <strong>the</strong> workplace<br />
or associated with <strong>the</strong> nature and organisation <strong>of</strong> <strong>the</strong> work<br />
performed and to monitor conditions giving rise to hazards or “risks<br />
to health”.<br />
493. Keeping records relating to exposure levels, work-related injuries<br />
and illnesses and retaining those records is likewise important.<br />
494. We conclude that Section 9, sub-subsection 2(a) and (b) might be<br />
clarified by amendment to remove <strong>the</strong> words that make it<br />
conditional to monitor <strong>the</strong> health <strong>of</strong> employees as a response to<br />
administrative action <strong>of</strong> <strong>the</strong> Director, action that appears to be<br />
duplicated in s39(2)(a).<br />
117 The provision was useful in <strong>the</strong> action <strong>of</strong> <strong>the</strong> Director to identify working hours in <strong>the</strong> mining<br />
industry as hazardous to <strong>the</strong> health <strong>of</strong> mining employees. In notifying employers, it also<br />
required <strong>the</strong>m to take action to address <strong>the</strong> hazard, resulting in <strong>the</strong> development <strong>of</strong> an agreed<br />
plan that can be found at www.tasminerals.com.au\fatigueguideline.pdf.<br />
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Recommendation 12:<br />
It is recommended that section 9(2)(a) and (b) that allow <strong>the</strong><br />
Director administrative power to notify employers and require<br />
appropriate action about health hazards be removed and<br />
replaced with a provision that prescribes firstly a duty <strong>of</strong><br />
employers to protect <strong>the</strong> health <strong>of</strong> persons employed or<br />
engaged in <strong>the</strong> workplace and secondly, where hazards or risks<br />
to health exist, to monitor <strong>the</strong> health <strong>of</strong> those persons to<br />
prevent illness.<br />
Recommendation 13:<br />
It is also recommended that “work-related injury” be removed<br />
from <strong>the</strong> content <strong>of</strong> a provision whose main intent is to talk<br />
about preventing work-related illness.<br />
General information - s9(2)(c).<br />
495. Five sub-subsections follow in section 9 that deal with <strong>the</strong> duty <strong>of</strong><br />
employers to provide information - <strong>of</strong> different kinds and in different<br />
circumstances.<br />
496. In relation to <strong>the</strong> duties <strong>of</strong> employers to employees at subsection<br />
(2)(c), employers are required to provide information about health,<br />
safety and welfare in <strong>the</strong> workplace in languages that are<br />
appropriate, including <strong>the</strong> names <strong>of</strong> persons to whom employees<br />
may make enquiries about a health and safety matter or to whom a<br />
complaint may be made.<br />
497. This provision is very general and may also apply to subsequent<br />
provisions about information, instruction and training – i.e. in<br />
complying with following sub-subsections about providing<br />
instruction or training to inexperienced employees or information to<br />
be given about change, employers must comply with <strong>the</strong><br />
177
equirements <strong>of</strong> sub-subsection (c) so that all information,<br />
instruction, training, etc is provided in appropriate language.<br />
498. Appropriateness could refer to languages o<strong>the</strong>r than English where<br />
<strong>the</strong>re are employees who do not have a strong grasp <strong>of</strong> English<br />
(important when considering migrants <strong>of</strong> a non-English speaking<br />
background). It could also refer to <strong>the</strong> level and style <strong>of</strong> <strong>the</strong><br />
language used, so that <strong>the</strong> information provided is couched in<br />
language that is simple, clear and easy to understand.<br />
499. Since information comes in many forms and for many purposes,<br />
<strong>the</strong> provision speaks very broadly to <strong>the</strong> duty <strong>of</strong> employers to make<br />
known any relevant information. Information might include health<br />
and safety policies, procedures to be followed, or workplace rules<br />
to be observed, information about standards or codes to be<br />
followed, or it might include simple signs, directions and so forth.<br />
500. Similarly, <strong>the</strong> Act makes no requirement that such information<br />
needs to be written, although it may be reasonably practicable for<br />
certain information to be written down and, in <strong>the</strong> case <strong>of</strong> a<br />
workplace that is in a building or structure, placed where it can<br />
easily be seen or accessed. Written information might more easily<br />
and consistently be provided where contractors or agents like onhire<br />
employment services are involved.<br />
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Information, instruction, training and supervision about<br />
hazardous work – s9(2)(d), (e) and (f)<br />
501. The next sub-subsections (d), (e) and (f), relate to <strong>the</strong> duty <strong>of</strong><br />
employers to ensure that employees are properly informed about,<br />
instructed, trained and supervised in, work <strong>of</strong> a hazardous nature.<br />
Such information is necessarily more specific than <strong>the</strong> general<br />
information provided for in sub-subsection (c).<br />
502. The duty must be complied with before employees commence<br />
hazardous work, but <strong>the</strong>re is clearly value in exercising this duty for<br />
any work, whe<strong>the</strong>r hazardous or not. For example, <strong>the</strong> provision <strong>of</strong><br />
information, instruction, training and supervision might relate to <strong>the</strong><br />
need for employers to properly induct new or inexperienced<br />
persons employed or engaged so that <strong>the</strong>y are able to exercise<br />
<strong>the</strong>ir duty to prevent injury or illness.<br />
503. The following sub-subsection (f), that requires <strong>the</strong> employer to<br />
provide information, instruction and training in regard to any<br />
change that may be proposed ei<strong>the</strong>r to <strong>the</strong> workplace itself, or in<br />
any work or work practice, activity or process <strong>of</strong> <strong>the</strong> workplace may<br />
apply. It could be argued that change occurs when new or<br />
inexperienced persons are introduced to <strong>the</strong> workplace as much as<br />
it does to change in organisation, process, plant or activity.<br />
504. To ensure that such changes do not negatively affect <strong>the</strong> health<br />
and safety <strong>of</strong> employees, employers are required to provide<br />
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“proper” information, instruction, and training before <strong>the</strong> change<br />
occurs, as well as providing supervision reasonably necessary.<br />
505. The remaining duty <strong>of</strong> employers about information, instruction and<br />
training concerns <strong>the</strong> duty <strong>of</strong> employers towards persons who are<br />
responsible <strong>of</strong>ficers, managers or supervisors.<br />
Responsible<br />
<strong>of</strong>ficers, managers and supervisors must be provided with any<br />
information, instruction and training reasonably necessary to<br />
ensure that employees under <strong>the</strong>ir management or supervision are<br />
safe from injury and risks to health. The Act does not limit <strong>the</strong> kind<br />
<strong>of</strong> information, instruction or training, nor how it should be provided.<br />
These are all subject to decisions to be made by employers in<br />
complying with <strong>the</strong>ir general duties as far as is reasonably<br />
practicable and <strong>the</strong>y complete <strong>the</strong> Act’s emphasis on <strong>the</strong> second<br />
element <strong>of</strong> <strong>the</strong> Robens framework - “good management”.<br />
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Presentation <strong>of</strong> <strong>the</strong> general duties at section 9<br />
506. The style, presentation or format <strong>of</strong> any written direction has a<br />
bearing upon how well that direction is understood. The style in<br />
which section 9 is presented is <strong>the</strong>refore an important factor in<br />
determining how well <strong>the</strong> general duties <strong>of</strong> employers are both<br />
understood and complied with.<br />
507. Section 9 is by far <strong>the</strong> longest and most complex <strong>of</strong> <strong>the</strong> provisions<br />
dealing with general duties. The review team believes that if s92(a)<br />
and (b) were to be amended as a duty to monitor conditions that<br />
may give rise to illness, <strong>the</strong>n <strong>the</strong> sub-subsections following could<br />
be grouped toge<strong>the</strong>r into easily identifiable sections distinguished<br />
by sub-headings – for example, “duty to provide information”; “duty<br />
to provide instruction and training”, “duty to provide supervision”<br />
etc.<br />
508. This would not necessarily change <strong>the</strong> substance or content <strong>of</strong> <strong>the</strong><br />
provisions but would break up <strong>the</strong> employer’s duties so that <strong>the</strong>y<br />
stand out clearly. Clear presentation would reduce <strong>the</strong> risk that<br />
employers would overlook important aspects <strong>of</strong> <strong>the</strong>ir duty – thus<br />
contributing to <strong>the</strong> overall objective <strong>of</strong> preventing injury and illness.<br />
Recommendation 14:<br />
It is recommended that to streng<strong>the</strong>n and clarify <strong>the</strong> employers’<br />
duties to provide information etc, after removing s9(2)(a) and (b)<br />
from this section and placed elsewhere in <strong>the</strong> Act, <strong>the</strong> duties <strong>of</strong><br />
employers at sub-subsections (c), (d), (e) and (f) be placed in a<br />
separate section under <strong>the</strong> heading something like “duties <strong>of</strong><br />
employers to provide information to employees”.<br />
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Recommendation 15:<br />
It is also recommended that ano<strong>the</strong>r separate section be<br />
provided for <strong>the</strong> duty <strong>of</strong> employers to responsible <strong>of</strong>ficers at (g),<br />
headed “duty <strong>of</strong> employers to provide information &c to<br />
responsible <strong>of</strong>ficers, managers and supervisors “.<br />
These duties are to retain <strong>the</strong> practicability provision.<br />
Recommendation 16:<br />
It is also recommended that <strong>the</strong> agency provide guidance as to<br />
<strong>the</strong> type <strong>of</strong> information that should be provided, to allow for<br />
relevant workplace health and safety policies etc.<br />
509. The duty to monitor working conditions and <strong>the</strong> duty to provide<br />
facilities for <strong>the</strong> welfare <strong>of</strong> employees (which relate to s9(1)(b)) are<br />
spelt out in sub-subsections (h) and (i). Like <strong>the</strong> previous<br />
recommendation about distinguishing <strong>the</strong>se duties, <strong>the</strong>y might also<br />
be written as separate sections marked by sub-headings.<br />
Recommendation 17:<br />
This recommendation relates to <strong>the</strong> previous recommendations<br />
made about section 9(2). Sub-subsections (h) and (i) <strong>of</strong><br />
subsection (2) should be written as separate sections.<br />
In effect if all recommendations about subsection (2) were to be<br />
taken up, <strong>the</strong>re would be separate sections dealing with<br />
separately identified types <strong>of</strong> duties.<br />
Duty <strong>of</strong> employers to ‘o<strong>the</strong>r persons’<br />
510. Section 9, subsection (3) commences prescribing <strong>the</strong> duties <strong>of</strong><br />
employers to ‘o<strong>the</strong>r persons’ who are not identified as employees.<br />
Accordingly employers must ensure so far as is reasonably<br />
practicable, that <strong>the</strong> health and safety <strong>of</strong> any person o<strong>the</strong>r than an<br />
employee <strong>of</strong> <strong>the</strong> employer or a contractor or any person employed<br />
182
or engaged by a contractor, is not adversely affected as a result <strong>of</strong><br />
<strong>the</strong> work carried on at a workplace.<br />
511. Such a person is not specified because it is intended to be fully<br />
inclusive – <strong>the</strong> ‘o<strong>the</strong>r person’ might be a supplier who is not a<br />
contractor, or a person in a neighbouring business, or a resident, or<br />
a consumer, or a pedestrian, or a volunteer.<br />
512. It <strong>the</strong>refore applies to anyone who may be adversely affected as a<br />
result <strong>of</strong> <strong>the</strong> work carried on at <strong>the</strong> workplace occupied by <strong>the</strong><br />
business.<br />
513. This provision goes back to <strong>the</strong> pre-1970s legislation that sought to<br />
control public health and safety aspects <strong>of</strong> workplaces. For<br />
example uncontrolled noise, smoke, heat, vapours, gases, dusts,<br />
liquids, wastes, falling objects, that may affect <strong>the</strong> health <strong>of</strong> persons<br />
who are “outside” <strong>the</strong> workplace.<br />
Recommendation 18:<br />
It is recommended that s9(3) be rewritten as a separate section<br />
clearly titled as a duty <strong>of</strong> employers to o<strong>the</strong>r persons not at <strong>the</strong><br />
workplace.<br />
514. As already mentioned, subsection (4) introduces <strong>the</strong> concept that<br />
any employer who exercises, or is in a position to exercise,<br />
management or control over a workplace must ensure that, so far<br />
as is reasonably practicable, any person at that workplace is safe<br />
from injury and risks to health.<br />
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515. Subsections (6) and (7) that deal with “a person who is a principal<br />
but is not an employer” are relevant to situations whereby<br />
independent contractors are engaged to perform work at a<br />
workplace. Subsection (6) prescribes that a principal who is not an<br />
employer is required to comply with subsections (4) and (5) as if<br />
<strong>the</strong>y were employers, and “ensure that, so far as is reasonably<br />
practicable, any person at that workplace is safe from injury and<br />
risks to health”.<br />
516. Subsection (7) goes on to speak about <strong>the</strong> duties <strong>of</strong> a contractor in<br />
relation to any persons employed or engaged by <strong>the</strong> contractor.<br />
We understand from this subsection that <strong>the</strong> contractor’s duties to<br />
any person employed by <strong>the</strong> contractor are <strong>the</strong> same as <strong>the</strong> duties<br />
<strong>of</strong> an employer as provided for in subsections (1), (2), (3) (4) and<br />
(8). Both employers and principals have a duty to visitors to a<br />
workplace according to s9(8).<br />
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Obligations set out by <strong>the</strong> Regulations<br />
517. Duty holders may proceed to <strong>the</strong> Workplace Health and Safety<br />
Regulations (<strong>the</strong> Regs.) to find out more about <strong>the</strong>ir duties in<br />
relation to ensuring that persons are “safe from injury and risks to<br />
health”. Part 3 – OBLIGATIONS, Division 1 – General obligations<br />
in relation to workplace hazards prescribes <strong>the</strong> obligations <strong>of</strong><br />
“accountable persons”.<br />
518. One respondent pointed out that <strong>the</strong> introduction <strong>of</strong> <strong>the</strong> term<br />
“accountable person” in <strong>the</strong> Regs is a source <strong>of</strong> difficulty. Whereas<br />
<strong>the</strong> Act defines duties <strong>of</strong> employers and responsible <strong>of</strong>ficers<br />
(sections 9 and 10 <strong>of</strong> <strong>the</strong> Act), <strong>the</strong> Regs talk about <strong>the</strong> obligations<br />
<strong>of</strong> an accountable person (Reg 5).<br />
Accountable person<br />
519. An accountable person is defined by Reg 5 as:<br />
(a) any person who is responsible for <strong>the</strong> management<br />
or control <strong>of</strong> <strong>the</strong> relevant place at which work is<br />
undertaken; or<br />
(b) any person temporarily acting in <strong>the</strong> capacity <strong>of</strong> a<br />
person referred to in paragraph (a); or<br />
(c) any o<strong>the</strong>r person on whom <strong>the</strong> Act imposes a duty or<br />
an obligation relevant to <strong>the</strong> regulation containing <strong>the</strong><br />
reference.<br />
520. It <strong>the</strong>refore appears to be <strong>the</strong> intent <strong>of</strong> <strong>the</strong> legislation to give broad<br />
scope to <strong>the</strong> interpretation <strong>of</strong> “accountable person”, so that <strong>the</strong> term<br />
is fully inclusive <strong>of</strong> all duty holders named in <strong>the</strong> Act; however to<br />
provide clarity, some guidance could be given.<br />
185
Recommendation 19:<br />
It is recommended that guidance and/or education be provided<br />
to raise <strong>the</strong> level <strong>of</strong> awareness <strong>of</strong> who are “accountable<br />
persons” according to <strong>the</strong> legislation.<br />
Conclusions so far<br />
521. This chapter opens with Robens’s question about what contribution<br />
can legislation make to health and safety in workplaces. It<br />
discussed <strong>the</strong> issue <strong>of</strong> compliance based on familiarity with <strong>the</strong><br />
general framework and understanding and knowledge <strong>of</strong> <strong>the</strong><br />
legislative provisions. It also commented that <strong>the</strong> effectiveness <strong>of</strong><br />
<strong>the</strong> legislation in achieving its objectives is dependant upon <strong>the</strong><br />
level <strong>of</strong> commitment.<br />
522. In turn, commitment means close involvement and engagement –<br />
<strong>of</strong> <strong>the</strong> community, duty holders and <strong>the</strong> agency – in increasing <strong>the</strong><br />
levels <strong>of</strong> awareness, taking responsibility and initiative, to apply <strong>the</strong><br />
enabling provisions <strong>of</strong> <strong>the</strong> legislation.<br />
523. We considered <strong>the</strong> Act and Regulations in light <strong>of</strong> <strong>the</strong> comments<br />
made in Chapter 1 about <strong>the</strong> changes that have taken place in <strong>the</strong><br />
labour market. We analysed <strong>the</strong> legislation in detail to see how<br />
well <strong>the</strong> objective <strong>of</strong> <strong>the</strong> Act to prevent work-related injury, illness or<br />
death applies to new employment arrangements and <strong>the</strong> issue <strong>of</strong><br />
“control or management <strong>of</strong> <strong>the</strong> workplace”.<br />
186
524. The analysis <strong>of</strong> section 9 identified <strong>the</strong> need for numerous minor<br />
amendments, particularly in <strong>the</strong> setting out or presentation <strong>of</strong><br />
section 9, that we believe would clarify and streng<strong>the</strong>n <strong>the</strong><br />
prevention capacity <strong>of</strong> <strong>the</strong> Act. These amendments address terms<br />
<strong>of</strong> reference 2 and 4.<br />
525. To support legislative amendments, <strong>the</strong> agency needs to ensure<br />
that sufficient ongoing guidance and education are provided to<br />
increase <strong>the</strong> levels <strong>of</strong> familiarity with, and awareness <strong>of</strong>, <strong>the</strong><br />
framework and its specific provisions.<br />
526. The consideration <strong>of</strong> <strong>the</strong> legislative framework continues in <strong>the</strong> next<br />
chapter.<br />
187
CHAPTER 5<br />
SAFE FROM INJURY AND RISKS TO HEALTH<br />
…. we have successfully focused on <strong>the</strong> safety aspects<br />
<strong>of</strong> <strong>the</strong> Act, but have let slide <strong>the</strong> associated health<br />
issues. …. We need to focus on <strong>the</strong> broader context <strong>of</strong><br />
both issues with regard to <strong>the</strong> application <strong>of</strong> OHS. 118<br />
Adjusting <strong>the</strong> OHS work environment to suit <strong>the</strong> needs<br />
<strong>of</strong> older workers must be a key priority in order to<br />
encourage <strong>the</strong>ir participation beyond traditional<br />
retirement age. 119<br />
527. This chapter continues <strong>the</strong> analysis <strong>of</strong> <strong>the</strong> legislation by looking at<br />
how <strong>the</strong> Regulations direct accountable persons to prevent injury<br />
and illness. It identifies <strong>the</strong> major occupational diseases and<br />
associated risk factors, many <strong>of</strong> which are connected to <strong>the</strong><br />
changes in work and workplaces surveyed in Chapter 1.<br />
528. We find that in order to fulfil <strong>the</strong> duties and obligations <strong>of</strong> <strong>the</strong><br />
legislation, duty holders need <strong>the</strong> involvement <strong>of</strong> workers and <strong>the</strong><br />
agency administering <strong>the</strong> legislation in addressing complex<br />
hazards to safety and health. This can take place through informal<br />
and formal mechanisms <strong>of</strong> co-operation and collaboration at <strong>the</strong><br />
workplace supported by a range <strong>of</strong> enforcement and assistance<br />
methods.<br />
118 Transport Workers’ Union (Victoria/Tasmania Branch) submission to <strong>the</strong> review.<br />
119 Kevin Andrews MP, Commonwealth Minister for Employment and Workplace Relations (28<br />
April, 2005) Speech “Key workplace OHS policy issues for <strong>the</strong> next decade”. Commonwealth<br />
Government Media release:<br />
http://mediacentre.dewr.gov.au/mediacentre/AllReleases/2005/April/KeyworkplaceO<br />
188
Changing work environment, changing workplace<br />
health risks<br />
529. Laing (2002) and Maxwell (2005) noted that <strong>the</strong> workplace health<br />
and safety legislative framework is predicated on quite a different<br />
work environment to <strong>the</strong> one that currently exists. Since <strong>the</strong><br />
economy was manufacturing-based at <strong>the</strong> time that <strong>the</strong> legislative<br />
framework was designed, <strong>the</strong> inclination <strong>of</strong> <strong>the</strong> legislation would<br />
have been towards eliminating physical hazards associated with<br />
production processes <strong>of</strong> factories, mines, agriculture and to a<br />
lesser extent, shops.<br />
530. The growth <strong>of</strong> service industries; proliferation <strong>of</strong> small business,<br />
particularly self-employed “micro” businesses; new technologies;<br />
new work practices and employment arrangements may all involve<br />
new hazards and new challenges which <strong>the</strong> legislative framework<br />
probably could not have anticipated.<br />
531. Dr Ellen Rosskam, Senior Work Security Specialist with <strong>the</strong> United<br />
Nations International Labour Organisation (ILO), presented<br />
alarming statistics about <strong>the</strong> negative effects <strong>of</strong> global economic<br />
change on work and health at a conference held in Oregon, USA in<br />
April 2005. Based on statistics collected by <strong>the</strong> ILO from member<br />
states, Rosskam concludes that <strong>the</strong> top occupational illnesses <strong>of</strong><br />
<strong>the</strong> twenty-first century are expected to be heart attacks, suicide<br />
189
and stroke with work-related stress identified as a major<br />
contributory factor. 120<br />
532. Australian OHS researchers, Quinlan, Mayhew & Bohle, (2001);<br />
and McNamara, (2006) also highlight <strong>the</strong> association <strong>of</strong> new<br />
working arrangements with adverse OHS outcomes. They list<br />
increased fatalities, illnesses, occupational violence and<br />
psychological distress as work-related issues for both workplaces<br />
and regulators to address in <strong>the</strong> prevention <strong>of</strong> work-related illness.<br />
They also cite o<strong>the</strong>r changes, such as “decreased <strong>report</strong>ing (<strong>of</strong><br />
incidents and injury); fewer training and career opportunities<br />
available for workers; as well as inferior knowledge <strong>of</strong>, or<br />
compliance with, OHS entitlements, standards and regulations” as<br />
obstacles to <strong>the</strong> effort to prevent injury and illness. 121<br />
533. “Safe from injury and risks to health” in contemporary workplaces<br />
takes on new meaning in light <strong>of</strong> <strong>the</strong>se findings.<br />
120 Ellen Rosskam (ILO) (2005). “Surviving Work in Modern Times? Global Trends in Workers’<br />
Health” presented to <strong>the</strong> Workplace Health & Safety in <strong>the</strong> Global Economy conference,<br />
University <strong>of</strong> Oregon, April 29 2005.<br />
121 McNamara, M (2006), “The Hidden Health and Safety Costs <strong>of</strong> Casual Employment”,<br />
Industrial Relations Research Centre University <strong>of</strong> New South Wales, p. 5. See also Quinlan,<br />
M., Mayhew, C & Bohle, P. (2001) “The Global Expansion <strong>of</strong> Precarious Employment, Work<br />
Disorganisation, and Consequences for Occupational Health: A Review <strong>of</strong> Recent Research”,<br />
International Journal <strong>of</strong> Health Services, vol. 31 no.2, pp.335-414.<br />
190
What respondents said<br />
534. In <strong>the</strong> consultation conducted so far in <strong>the</strong> review, we found that<br />
<strong>the</strong> majority <strong>of</strong> respondents expressed genuine concerns for safety.<br />
535. O<strong>the</strong>rs also expressed genuine concerns about <strong>the</strong> impact <strong>of</strong> o<strong>the</strong>r<br />
work-related stressors that, if uncontrolled, lead to ill health. 122<br />
536. Unions Tasmania wrote:<br />
The great promise <strong>of</strong> technology providing increased<br />
leisure time has not been delivered on; current trends<br />
are in fact in <strong>the</strong> opposite direction. Employers are<br />
happily accepting massive increases in productivity<br />
through technology, improved work practices and higher<br />
skill levels but are now demanding, and getting,<br />
increases in working hours, reductions in recreation<br />
leave and significant encroachment into weekends and<br />
public holidays. The small gains made by workers in<br />
working hour reductions are being reclaimed. At <strong>the</strong><br />
same time work is performed at unprecedented intensity<br />
and in some cases in a tedious, rote and repetitive<br />
manner with limited control. There is a conflict between<br />
<strong>the</strong> constant drive for more output and lower inputs and<br />
<strong>the</strong> possible health outcome for workers. (Unions<br />
Tasmania)<br />
537. Hydro Tasmania acknowledges <strong>the</strong> importance <strong>of</strong> <strong>the</strong> challenge<br />
facing business to find ways to effectively control <strong>the</strong> risks<br />
associated with <strong>the</strong> “new hazards” <strong>of</strong> today’s workplace. They<br />
wrote:<br />
…<strong>the</strong> recognition that hazards arising from factors o<strong>the</strong>r<br />
than physical facilities and plant, has particular<br />
122 This term is <strong>the</strong> term used by <strong>the</strong> World Health Organisation to describe <strong>the</strong> risk factors in<br />
<strong>the</strong> workplace or in <strong>the</strong> nature <strong>of</strong> work leading to stress and many stress-induced illnesses.<br />
(http://www.who.int/occupational_health/topics/risks_psychosocial/en/)<br />
Similarly it is used by clinicians – see for example: Stephen J. Bunker et al, (2003) “Stress”<br />
and coronary heart disease: psychosocial risk factors, The National Heart Foundation <strong>of</strong><br />
Australia position statement, The Medical Journal <strong>of</strong> Australia Vol. 178 (6): pp 272-276.<br />
191
elevance in today’s changing work environment. The<br />
ability <strong>of</strong> business to recognise and find effective means<br />
<strong>of</strong> controlling such hazards can be a significant<br />
challenge. The current test <strong>of</strong> reasonable practicability<br />
is particularly relevant to <strong>the</strong> management <strong>of</strong> emerging<br />
hazards. (Hydro Tasmania)<br />
538. The Housing Industry Association (HIA) expressed a view that<br />
workplace health and safety is not achieved through <strong>the</strong> imposition<br />
<strong>of</strong> bureaucratic or administrative procedures. HIA wrote: “safer<br />
workplaces are not achieved by completing forms, complying with<br />
endless regulations and heavy-handed enforcement. Education<br />
ra<strong>the</strong>r than punishment creates a healthier climate, an approach<br />
that makes a positive contribution to safer workplaces”.<br />
539. We agree with this observation. It applies as much to <strong>the</strong> way in<br />
which duty holders manage workplace health and safety in <strong>the</strong><br />
workplace as it does to <strong>the</strong> way in which <strong>the</strong> State administers <strong>the</strong><br />
legislation.<br />
540. Robens saw that one <strong>of</strong> <strong>the</strong> key elements in preventing injury and<br />
illness is good management. Translated into practice, this means<br />
giving equal consideration to establishing and maintaining healthy<br />
social and management environments wherein o<strong>the</strong>r measures,<br />
such as workplace health and safety policies or safety systems can<br />
work effectively. Administrative policies, practices or systems on<br />
paper are likely to fall short without good relationships and<br />
involvement <strong>of</strong> workpeople to back <strong>the</strong>m up.<br />
192
541. This chapter looks at some <strong>of</strong> <strong>the</strong> ways in which risks to health are<br />
nowadays manifested in contemporary workplaces, it identifies <strong>the</strong><br />
major illnesses that must be prevented and some <strong>of</strong> <strong>the</strong><br />
contributory risk factors, and analyses how <strong>the</strong> legislative<br />
framework might address <strong>the</strong>m. Finally we recommend how injury<br />
and illness arising from <strong>the</strong>m might be prevented.<br />
193
Work-related psychosocial hazards and risk factors<br />
Violence in <strong>the</strong> workplace<br />
542. Violence may be overt – involving <strong>the</strong> threat <strong>of</strong> or actual physical<br />
violence - or covert, involving repeated behaviour intended to<br />
cause distress, intimidate, humiliate and/or isolate ano<strong>the</strong>r person,<br />
frequently referred to as “bullying”. 123<br />
543. The Report <strong>of</strong> <strong>the</strong> Queensland Government workplace bullying<br />
taskforce confirms that most contributory risk factors for workplace<br />
violence are associated with work organisation, <strong>the</strong> nature <strong>of</strong> work<br />
and work practices. Such factors are within <strong>the</strong> realm <strong>of</strong><br />
management control. The taskforce also <strong>report</strong>s high direct and<br />
indirect costs to <strong>the</strong> employer associated with bullying/workplace<br />
harassment and resultant stress, with flow on impact on public<br />
health and medical services, thus persuasively supporting <strong>the</strong> case<br />
for accountable persons to control such risks. 124<br />
544. The ACT Workcover publication “Guidance on Workplace Violence”<br />
(October 2002) states:<br />
National occupational health and safety and workers’<br />
compensation data show that nearly half <strong>the</strong> workplace<br />
123 Violence involves a range <strong>of</strong> behaviours from actual physical assault (which may be a one<strong>of</strong>f<br />
incident or, in worst case scenarios, may involve repeated physical violence) through<br />
verbal abuse and bullying in different forms (overt and covert), which is repeated, sustained<br />
behaviour calculated to cause distress. All forms <strong>of</strong> violence may cause injury or illness<br />
(physiological and psychological). It may occur between employers/managers and workers,<br />
between workers or it may involve persons external to workforce (clients, customers, patients,<br />
intruders).<br />
124 Report <strong>of</strong> <strong>the</strong> Queensland Government Workplace Bullying Taskforce (March 2002)<br />
“Creating Safe and Fair Workplaces: Strategies to Address Workplace Harassment in<br />
Queensland”. <strong>Department</strong> <strong>of</strong> Industrial Relations, Queensland Government.<br />
194
assaults resulting in injuries or lost time from work are in<br />
<strong>the</strong> health and community services industry. This<br />
includes workplaces such as hospitals, institutions for<br />
<strong>the</strong> intellectually handicapped, aged care facilities and<br />
prisons. Overall, <strong>the</strong> workers most frequently assaulted<br />
are nurses and o<strong>the</strong>r hospital staff, welfare <strong>of</strong>ficers,<br />
security guards, prison <strong>of</strong>ficers, childcare workers,<br />
teachers aides and teachers. 125<br />
545. Early in December 2006, The Mercury <strong>report</strong>ed an incident that<br />
occurred at <strong>the</strong> Royal Hobart Hospital in which a patient violently<br />
attacked and caused serious injuries to hospital staff.<br />
546. In <strong>Tasmanian</strong> schools, respondents told us, students verbally or<br />
physically abuse teachers; sometimes intimidating <strong>the</strong>m so much<br />
<strong>the</strong>y are fearful <strong>of</strong> entering <strong>the</strong> classroom. We have also been told<br />
that persons, working alone, ei<strong>the</strong>r at night or in isolated or remote<br />
places, fear for <strong>the</strong>ir personal safety. One respondent described<br />
how a new board <strong>of</strong> management engaged in a campaign <strong>of</strong> covert<br />
and sustained violence that isolated and intimidated a manager<br />
causing extreme distress, leading ultimately to stress-induced<br />
physical illness as well as depression and anxiety.<br />
These<br />
anecdotal “stories” about <strong>the</strong> incidence <strong>of</strong> violence in workplaces<br />
also reflect <strong>the</strong> variety <strong>of</strong> ways in which it may be manifested, both<br />
overtly and covertly.<br />
547. Preventing such violence is an essential aspect <strong>of</strong> <strong>the</strong> duty to<br />
provide and maintain a safe working environment.<br />
125 Australian Capital Territory Workcover Guidance on Workplace Violence.<br />
(http://www.workcover.act.gov.au/pdfs/guides_cop/workplace_violence_guide.pdf).<br />
195
548. A common <strong>the</strong>me <strong>of</strong> guidance material prepared by workplace<br />
health and safety regulators for employers and workers on<br />
workplace violence is <strong>the</strong> need for awareness and understanding <strong>of</strong><br />
<strong>the</strong> issues contributing to workplace violence as a first step.<br />
549. Broad management skills are necessary to create a safe working<br />
environment wherein <strong>the</strong> psychosocial risk factors for stress and/or<br />
violence are controlled. Control <strong>of</strong> risk may also depend upon<br />
o<strong>the</strong>r, more specific, skills to mediate or resolve conflict, or secure<br />
<strong>the</strong> workplace from violence arising from “outside”.<br />
550. We have seen that <strong>the</strong> legislation prescribes that employers must<br />
ensure that <strong>the</strong>ir managers and supervisors are trained. Training<br />
applies to effective management and supervisory knowledge and<br />
skills as much as it does to o<strong>the</strong>r, more technical, aspects <strong>of</strong> <strong>the</strong><br />
job. Thus <strong>the</strong> Act does indirectly provide for <strong>the</strong> prevention <strong>of</strong><br />
illness and/or injury associated with <strong>the</strong>se risks.<br />
551. Monitoring, an important aspect <strong>of</strong> controlling risks to health<br />
according to <strong>the</strong> duties prescribed by <strong>the</strong> Act, means in this<br />
instance, monitoring <strong>the</strong> conditions within <strong>the</strong> organisation or within<br />
<strong>the</strong> workplace to ensure a healthy social and management<br />
environment.<br />
552. If a workplace is planning change, <strong>the</strong> Act provides that employers<br />
must consult with employees. Recommended amendments will,<br />
we hope, if agreed to, make consultation a routine part <strong>of</strong> <strong>the</strong> way<br />
in which <strong>the</strong> workplace is managed so that any risks to safety or<br />
196
health may be dealt with early and effectively. Consultation can be<br />
an effective tool in monitoring “climate” that may give rise to<br />
incidents <strong>of</strong> violence.<br />
Long working hours<br />
553. Working hours <strong>of</strong> those Australians with full-time jobs have steadily<br />
increased over <strong>the</strong> last decade. 126<br />
Increasing working hours<br />
appear closely linked to forms <strong>of</strong> employment, downsizing, high<br />
levels <strong>of</strong> unpaid overtime, and employment agreements. 127<br />
554. Iain Campbell’s study <strong>of</strong> cross-national comparisons <strong>of</strong> working<br />
hours in comparable countries found that Australian full-time<br />
working hours have been leng<strong>the</strong>ning since <strong>the</strong> early 1990s, and<br />
that Australia is <strong>the</strong> only country where <strong>the</strong> trend in leng<strong>the</strong>ning<br />
working hours is driven by increases in unpaid overtime. 128<br />
555. Campbell notes that elsewhere in <strong>the</strong> developed world, working<br />
hours are actually coming down. In Japan and Korea where long<br />
working hours and intense working conditions have been<br />
associated with very poor health outcomes including stressinduced<br />
depression and suicide, hours <strong>of</strong> work are now declining.<br />
Australia’s working hours are set to overtake <strong>the</strong>m.<br />
126 Sharon Beder (2001) “Working Long Hours”, Engineers Australia<br />
(http://www.uow.edu.au/arts/sts/sbeder/columns/probe15.html).<br />
127 ACIRRT, University <strong>of</strong> Sydney Report prepared by J.Buchanan, B van Wanrooy et al<br />
(2001) Working time Arrangements in Australia: A Statistical Overview for <strong>the</strong> Victorian<br />
Government, Chapter 5 “conclusion”, pp 61-65.<br />
128 Iain Campbell (August 2002)”Cross-National Comparisons – Work Time Around <strong>the</strong> World”<br />
(Centre for Applied Social Research RMIT University, Melbourne, Victoria; p. 1.<br />
197
556. Campbell notes “Australia appears to have had by far <strong>the</strong> largest<br />
increase in average hours for full-time employees since <strong>the</strong> early<br />
1980s”. 129<br />
Fur<strong>the</strong>r, he notes that <strong>the</strong>re is an overlap between<br />
extended hours and intensification <strong>of</strong> work in Australia. 130<br />
557. Extended hours <strong>of</strong> work have effects on health (as a result <strong>of</strong><br />
fatigue and stress) and are also cited as causative <strong>of</strong> imbalance<br />
between working life and o<strong>the</strong>r aspects <strong>of</strong> life, particularly in <strong>the</strong><br />
decline <strong>of</strong> family and community life. 131<br />
Fatigue associated with hours <strong>of</strong> work and o<strong>the</strong>r conditions<br />
558. WorkplaceOHS (an Australian web-based OHS subscription<br />
service) recently <strong>report</strong>ed research in <strong>the</strong> United States <strong>of</strong> America<br />
that confirms <strong>the</strong> prevalence <strong>of</strong> fatigue in <strong>the</strong> workplace. A study <strong>of</strong><br />
29,000 adults employed across a range <strong>of</strong> industry sectors and<br />
occupations in <strong>the</strong> USA revealed that fatigue was a common<br />
problem with health-related lost productive time manifested in<br />
“absenteeism” as well as “presenteeism”. (The latter is <strong>the</strong> term<br />
applied to days that <strong>the</strong> employee is at work but performing at less<br />
than full capacity because <strong>of</strong> health reasons). 132<br />
559. The effects <strong>of</strong> long working hours are extended to families,<br />
exacerbated by <strong>the</strong> participation <strong>of</strong> women in <strong>the</strong> workforce and<br />
129 Campbell, p. 7.<br />
130 Campbell, p. 17.<br />
131 Ibid, p.64.<br />
132 “Fatigue in <strong>the</strong> US Workforce: Prevalence and Implications for lost productive work time”<br />
Journal <strong>of</strong> Occupational & Environmental Medicine, 49(1): 1-10, January 2007. Reported in<br />
WorkplaceOHS 12 January 2007–a subscription service. http://www.workplaceohs.com.au/.<br />
198
access to technology which keeps workers “in touch” with <strong>the</strong>ir<br />
place <strong>of</strong> employment, making it more difficult to disengage from<br />
work. 133<br />
560. A local study <strong>of</strong> working hours in <strong>the</strong> mining industry found<br />
extended hours and shifts to be a major cause <strong>of</strong> fatigue and<br />
resultant health problems with associated impacts on family and<br />
community life.<br />
561. More significantly perhaps, <strong>the</strong> <strong>report</strong> found that health and safety<br />
systems to prevent fatigue in <strong>the</strong> industry were absent or<br />
ineffective, and that <strong>the</strong> regulatory arrangements were also<br />
ineffective in dealing with <strong>the</strong> issue <strong>of</strong> working hours and fatigue. 134<br />
562. The effects <strong>of</strong> fatigue are felt in reducing work performance, lost<br />
productivity and health-related costs. Fatigue is <strong>report</strong>ed for<br />
workers at both ends <strong>of</strong> <strong>the</strong> scale, but workers with “high control”<br />
jobs – relatively well-paid jobs with high levels <strong>of</strong> responsibility –<br />
<strong>report</strong>ed higher levels <strong>of</strong> fatigue in <strong>the</strong> USA study according to<br />
WorkplaceOHS.<br />
563. Hours are not <strong>the</strong> only factor that may lead to fatigue. The nature<br />
<strong>of</strong> <strong>the</strong> work being performed, working with computers and o<strong>the</strong>r<br />
display equipment, noise and vibration also contribute to both<br />
133 Ruth Weston, Mat<strong>the</strong>w Gray, Lixia Qu & David Stanton (2004) Long work hours and <strong>the</strong><br />
wellbeing <strong>of</strong> fa<strong>the</strong>rs and <strong>the</strong>ir families. Research Paper No. 35. Australian Institute <strong>of</strong> Family<br />
Studies – Commonwealth <strong>of</strong> Australia, Melbourne; p. 2.<br />
134 Kathryn Heiler (2002) The Struggle for Time – a review <strong>of</strong> extended shifts in <strong>the</strong><br />
<strong>Tasmanian</strong> mining industry. ACCIRT, University <strong>of</strong> Sydney.<br />
199
fatigue and stress. Transport workers comprise an occupational<br />
group that is at risk <strong>of</strong> fatigue or stress-induced injury or illness.<br />
564. The Health and Safety Executive in <strong>the</strong> United Kingdom recognised<br />
stress and fatigue as hazards in <strong>the</strong> workplace arising from <strong>the</strong> use<br />
<strong>of</strong> display screen equipment in amendments to <strong>the</strong> UK Health and<br />
Safety (Display Screen Equipment) Regulations 1992,<br />
implementing <strong>the</strong> European Community Directive 90/270/EEC.<br />
565. Long hours are not restricted to specific occupations or industry<br />
sectors. It emerges in both blue- and white-collar occupations.<br />
The Medical Journal <strong>of</strong> Australia (MJA) (1998) <strong>report</strong>ed on fatigue<br />
and stress experienced by junior doctors in public hospitals working<br />
extended hours with inadequate provision for rest and recovery.<br />
The MJA article <strong>report</strong>s that long working hours were having an<br />
impact on junior doctors’ ability to establish effective relationships<br />
with patients, <strong>the</strong>ir colleagues, and with <strong>the</strong>ir families.<br />
566. Attributable partly to organisational culture and partly to work<br />
practices <strong>of</strong> hospitals, <strong>the</strong> problem was subject to a policy adopted<br />
by <strong>the</strong> Australian Medical Association (AMA) in 1996 to promote a<br />
safer workplace for junior doctors and patients in public hospitals. 135<br />
567. Long hours and fatigue may be increasingly associated with <strong>the</strong><br />
impact <strong>of</strong> shortages <strong>of</strong> certain skills and reduced numbers in <strong>the</strong><br />
workforce as a consequence <strong>of</strong> <strong>the</strong> ageing workforce.<br />
135 Gerry Holmes (1998) “Junior doctors’ working hours: an unhealthy tradition?” MJA; 168:<br />
587-588. (http://www.mja.com.au/public/issues/jun15/holmes/holmes.html).<br />
200
568. Health services workers, nursing staff and general practitioners,<br />
especially in rural practices, for example, are now feeling <strong>the</strong><br />
impact <strong>of</strong> long hours <strong>of</strong> work without relief. There is an obligation<br />
on governments to take note that certain skills shortages will<br />
impact not only on <strong>the</strong> availability <strong>of</strong> services but also on <strong>the</strong> health<br />
and safety <strong>of</strong> workers.<br />
569. In order to meet <strong>the</strong>ir duty to employees and any persons to<br />
provide and maintain so far as is reasonably practicable, a safe<br />
working environment, employers have a duty to ensure that<br />
working conditions, including hours <strong>of</strong> work, do not cause fatigue<br />
and resultant health and safety problems.<br />
570. The foregoing discussion introduced some <strong>of</strong> <strong>the</strong> factors that are<br />
recognised as contributing to injury and potential “risks to health”.<br />
In <strong>the</strong> literature on <strong>the</strong> subject <strong>of</strong> emerging risks much is written on<br />
“psychosocial risk factors”. These are not well understood. The<br />
very term itself is a mouthful.<br />
571. “Psychosocial risk factors” arise from a wide range <strong>of</strong> hazards in<br />
<strong>the</strong> workplace that are connected to <strong>the</strong> nature <strong>of</strong> work and levels<br />
<strong>of</strong> individual control over <strong>the</strong> demand <strong>of</strong> work. The European<br />
Agency for Safety and Health at Work (European Union) <strong>report</strong>ed<br />
in 2005 on <strong>the</strong> links between <strong>the</strong> growing incidence <strong>of</strong> psychosocial<br />
risk factors for poor health and <strong>the</strong> increase <strong>of</strong> chronic disease:<br />
The far-reaching changes that have been occurring in<br />
work organisation and design, and in contractual<br />
relationships at work, are associated with <strong>the</strong><br />
201
emergence or aggravation <strong>of</strong> psychosocial problems.<br />
There is growing concern for <strong>the</strong> negative effects this<br />
may have on employees’ health and well-being, <strong>the</strong><br />
quality <strong>of</strong> work, and <strong>the</strong> creativity and innovation needed<br />
by organisations in current markets. There is, <strong>the</strong>refore,<br />
a pressing need to monitor and research <strong>the</strong> `changing<br />
world <strong>of</strong> work’ and its impact on health and safety. At<br />
<strong>the</strong> same time, research is needed to develop and test<br />
organisational interventions to improve <strong>the</strong> psychosocial<br />
work environment, with a special emphasis on <strong>the</strong><br />
prevention <strong>of</strong> work-related stress and physical and<br />
psychological violence. It is also important to investigate<br />
<strong>the</strong> role <strong>of</strong> psychosocial factors in <strong>the</strong> occurrence <strong>of</strong><br />
errors and accidents, and in <strong>the</strong> <strong>report</strong>ing and aetiology<br />
<strong>of</strong> musculoskeletal disorders (MSDs). 136<br />
572. The following are recognised work-related “psychosocial” risk<br />
factors:<br />
• Job content - work strain associated with work intensity,<br />
demand and control <strong>of</strong> work, pace <strong>of</strong> work, fragmented or<br />
meaningless work, high uncertainty, frequent exposure to<br />
“difficult” situations or difficult people (e.g. working in<br />
emergency, police, health, hospitality or entertainment<br />
services or certain types <strong>of</strong> government services) or a<br />
combination <strong>of</strong> any or all <strong>of</strong> <strong>the</strong>se factors;<br />
• Workload – over/underload, time pressure that cannot be<br />
controlled;<br />
• Work schedule – shift work, inflexible or unpredictable<br />
work schedules, long or unsocial hours <strong>of</strong> work that may<br />
lead to fatigue and physical and/or mental exhaustion;<br />
• Job control and job insecurity – including employment<br />
arrangements, participation in decision;<br />
• Physical environment and equipment – inadequate or<br />
faulty equipment, physical conditions and exposures;<br />
136 European Agency for Safety and Health at Work (2005), Risk Observatory No. 5. “Expert<br />
forecast on emerging physical risks related to occupational safety and health”. European<br />
Union, Bilbao; p. 7. (http://osha.eu.int).<br />
202
• Social and organisational aspects <strong>of</strong> work – a broad<br />
range <strong>of</strong> factors including organisational culture (that may<br />
be difficult to pinpoint but can be very influential in<br />
establishing “healthy workplaces”.<br />
• Individual risk factors include individual differences,<br />
home/work interface, interpersonal relationships, roles<br />
and functions in organisation, career development,<br />
meaningful reward and recognition etc. 137<br />
573. These risk factors are all associated with work organisation.<br />
Quinlan (2006) (unpub.) considers that changes in work<br />
organisation have had a major impact upon workplace health and<br />
safety in Australia and overseas. 138<br />
Ageing workforce<br />
574. While work demands appear to be increasing, <strong>the</strong> workforce is<br />
ageing. The workplace health and safety implications <strong>of</strong> an ageing<br />
workforce should be a high priority for workplace health and safety<br />
agencies.<br />
575. The national policy <strong>of</strong> encouraging workers to remain in <strong>the</strong><br />
workforce must consider a range <strong>of</strong> issues to do with training, work<br />
137 These are recognised by:<br />
• European Agency for Safety and Health at Work (2005) Priorities for occupational<br />
safety and health research in <strong>the</strong> EU-25. Luxembourg: Office for Official Publications<br />
<strong>of</strong> <strong>the</strong> European Communities. (http://www.europa.eu.int);<br />
• <strong>the</strong> International Labour Organisation (ILO) (2003) Global Strategy on Occupational<br />
Safety and Health<br />
(http://www.ilo.org/public/english/protection/safework/globstrat_e.pdf);<br />
• and <strong>the</strong> Australian Safety and Compensation Council (ASCC) (2005) National<br />
Occupational Disease Pr<strong>of</strong>iles “Executive Summaries <strong>of</strong> Each Disease Category”.<br />
138 Michael Quinlan (2006) (unpub.) “Organisational Restructuring/Downsizing, OHS<br />
regulation and worker health and wellbeing”. School <strong>of</strong> Organisation and Management,<br />
University <strong>of</strong> New South Wales, Sydney, Australia.<br />
203
practices and <strong>the</strong> impact <strong>of</strong> work environment on health, especially<br />
on exacerbating <strong>the</strong> emergence <strong>of</strong> chronic disease. Horizontal<br />
collaboration is needed between agencies responsible for public<br />
health, industrial relations, retirement and taxation issues, and<br />
workplace health and safety, as well as vertical policy and political<br />
co-operation between State and federal agencies to strategically<br />
manage any extension <strong>of</strong> working life and <strong>the</strong> impact on health and<br />
safety.<br />
576. Thus far, we have identified <strong>the</strong> major “new” work-related risks to<br />
health that apply to contemporary workplaces. We turn now to<br />
examine <strong>the</strong> legislation to see how well it relates to <strong>the</strong> risk factors<br />
identified.<br />
Recommendation 20:<br />
It is recommended that <strong>the</strong> agency gives close consideration at<br />
a strategic level to how to raise levels <strong>of</strong> awareness <strong>of</strong> <strong>the</strong> risks<br />
to health associated with contemporary workplaces and how<br />
workplace health and safety training may best be provided.<br />
204
Legislative obligations to identify hazards and control<br />
risks<br />
577. The analysis <strong>of</strong> <strong>the</strong> legislation in <strong>the</strong> previous chapter concentrated<br />
upon <strong>the</strong> duties prescribed by <strong>the</strong> Act. The Workplace Health and<br />
Safety Regulations 1998 (<strong>the</strong> Regs) at Part 3 – OBLIGATIONS –<br />
Division 1 General Obligations in relation to workplace hazards<br />
prescribe how hazards must be identified and <strong>the</strong> risks to safety or<br />
health assessed and controlled.<br />
578. Part 4 - HAZARDS – GENERALISED are organised according to<br />
distinct Divisions that identify traditional physical hazards that are<br />
known to involve serious risks to safety or health unless exposure<br />
to <strong>the</strong>m is controlled. These Divisions are:<br />
• Division 1 - Manual handling<br />
• Division 2 – Control <strong>of</strong> workplace hazardous substances<br />
• Division 3 – Plant<br />
• Division 4 – Noise<br />
• Division 5 – Confined spaces<br />
• Division 6 – Fire and emergency<br />
• Division 7 – Facilities<br />
• Division 8 – Remote or isolated places<br />
• Division 9 – Asbestos<br />
• Division 10 – Diving<br />
• Division 11 – Construction Notification.<br />
579. Divisions 6 and 7 are a little different, but in <strong>the</strong> main, each Division<br />
prescribes <strong>the</strong> obligations <strong>of</strong> “accountable persons” in respect <strong>of</strong><br />
certain traditional, physical hazards.<br />
205
580. The majority <strong>of</strong> <strong>the</strong>se are hazards to safety. (Noise, hazardous<br />
substances and asbestos being traditional hazards to health.)<br />
Each hazard named in <strong>the</strong> legislation was associated with <strong>the</strong><br />
typical industrial workplaces <strong>of</strong> <strong>the</strong> 1970s – <strong>the</strong> factories, railways,<br />
mines, construction sites, shipyards, workshops, shops, transport<br />
operations, farms, fisheries, laboratories, hospitals and educational<br />
establishments. 139<br />
581. Of course, <strong>the</strong>se types <strong>of</strong> workplaces still exist. The hazards still<br />
exist, workpeople still need to be protected from risks associated<br />
with <strong>the</strong>m, and <strong>the</strong> current legislation continues, and needs to<br />
continue, that earlier focus. Manual handling, for example,<br />
continues to be a common hazard.<br />
Manual handling<br />
582. Manual handling gives rise to <strong>the</strong> highest number <strong>of</strong> compensable<br />
injuries recorded as “body stressing” according to <strong>the</strong> mechanism<br />
<strong>of</strong> injury or disease <strong>report</strong>ed in <strong>the</strong> Compendium <strong>of</strong> Workers’<br />
Compensation Statistics Australia 2003-04. 140<br />
583. The most recent update <strong>of</strong> <strong>the</strong> WorkCover Tasmania publication on<br />
severe injuries and <strong>the</strong> occupational distribution <strong>of</strong> <strong>report</strong>ed<br />
compensable injuries, <strong>the</strong> Occupational Black Spots: Injury Report<br />
Update 2006 (Black Spots Update 2006) identifies “body stressing”<br />
139 Robens identifies <strong>the</strong>se types <strong>of</strong> workplaces in Chapter 6 “The Application and Scope <strong>of</strong><br />
new legislation”, pp 51 – 58.<br />
140 <strong>Department</strong> <strong>of</strong> Employment and Workplace Relations, Australian Safety and<br />
Compensation Council (2006) Compendium <strong>of</strong> Workers’ Compensation Statistics Australia<br />
2003-04, Commonwealth <strong>of</strong> Australia, Canberra.<br />
206
as <strong>the</strong> most common cause <strong>of</strong> severe injuries accounting for 44.7%<br />
<strong>of</strong> all severe injuries. 141<br />
The second and third most common severe<br />
injuries are “falls, trips and slips” (22.3%) and “being hit by moving<br />
objects” (14.3%).<br />
584. Since <strong>the</strong> early 1990s, however, MSDs have also been associated<br />
increasingly with display screen equipment. 142<br />
According to <strong>the</strong><br />
Black Spots Update 2006, <strong>the</strong> most common severe injury type<br />
was “s<strong>of</strong>t tissue injuries” which made up more than half <strong>of</strong> all<br />
severe injuries, consistent with <strong>the</strong> high incidence <strong>of</strong> body stressing<br />
associated with manual handling activities. 143<br />
The most commonly<br />
affected part <strong>of</strong> <strong>the</strong> body from severe injuries were <strong>report</strong>ed as <strong>the</strong><br />
back (21.3% <strong>of</strong> all severe injuries), followed by knee (11.8%),<br />
shoulder (9.4%) and hand, fingers and thumb (8.2%). 144<br />
585. The (<strong>the</strong>n) Workplace Safety Board <strong>of</strong> Tasmania acknowledged <strong>the</strong><br />
need to raise awareness <strong>of</strong> manual handling and launched its Body<br />
Strain Prevention Kit: Your Guide to Avoiding Manual Handling<br />
Injuries in <strong>the</strong> Workplace in October 2001. This was later<br />
withdrawn and redeveloped as part <strong>of</strong> <strong>the</strong> “It’s Working –<br />
Workplace Safe” campaign that commenced in August 2003.<br />
586. As <strong>the</strong> Black Spots Injury Report: Update 2006 reveals manual<br />
handling to be a continuing major source <strong>of</strong> injury, <strong>the</strong>re will need<br />
141 WorkCover Tasmania (2006) Occupational Black Spots Injury Report: Update 2006, p. 5.<br />
142 The UK Health and Safety Executive identifies display screen equipment with MSDs,<br />
stress and visual fatigue leading to eye problems.<br />
143 WorkCover Tasmania (2006) Black Spots Injury Report: Update 2006, p. 6.<br />
144 Ibid, pp 7 – 8.<br />
207
to be an ongoing effort by both <strong>the</strong> agency and by duty holders to<br />
prevent injury associated with manual handling.<br />
587. The legislation anticipates <strong>the</strong> need to prevent such injuries by<br />
prescribing <strong>the</strong> National Standard for Manual Handling issued by<br />
Worksafe Australia [NOHSC:1001(1990)] at Reg 65 to reduce <strong>the</strong><br />
risk <strong>of</strong> injury caused by manual handling. It is understood that <strong>the</strong><br />
National Standard for Manual Handling is currently under review.<br />
O<strong>the</strong>r standards prescribed by <strong>the</strong> Regulations are similarly subject<br />
to periodic review and <strong>the</strong>re is an ongoing administrative need for<br />
<strong>the</strong> agency to inform duty holders <strong>of</strong> changes as well as to promote<br />
<strong>the</strong>ir use.<br />
588. The Regulations require accountable persons to follow a<br />
systematic process <strong>of</strong> hazard identification, risk assessment and<br />
control <strong>of</strong> risk; and standards are based on this methodology. If<br />
standards or codes <strong>of</strong> practice are not prescribed for industry to<br />
follow, <strong>the</strong>n industry must follow <strong>the</strong> general systematic process<br />
prescribed. We turn now to look at <strong>the</strong>se processes and systems<br />
more closely.<br />
208
Systematic processes<br />
589. The huge volume <strong>of</strong> literature on <strong>the</strong> subject <strong>of</strong> systematic risk<br />
management in workplace health and safety testifies that if it is not<br />
<strong>the</strong> core element <strong>of</strong> workplace health and safety <strong>the</strong>n it is a very<br />
significant part <strong>of</strong> it. Therefore understanding risk management as<br />
it applies to workplace health and safety, and being able to put it<br />
into practice, are crucial to complying with <strong>the</strong> legislation and<br />
preventing injury and illness.<br />
590. Risk management is variously defined, but one definition, general<br />
enough to be suitable to this discussion at least, is put forward:<br />
The management <strong>of</strong> <strong>the</strong> working environment to control<br />
those aspects <strong>of</strong> work that will lead to undesirable health<br />
and safety outcomes. It involves an explicit analysis and<br />
determination <strong>of</strong> an acceptable level <strong>of</strong> risk. 145<br />
Risk management – Regulations 17 – 19<br />
591. The Regulations (<strong>the</strong> Regs) make it a general obligation <strong>of</strong> all<br />
accountable persons to identify all hazards arising, or which may<br />
arise, in a workplace; to assess <strong>the</strong> level <strong>of</strong> risk associated with<br />
those hazards; and to implement appropriate measures to control<br />
<strong>the</strong> level <strong>of</strong> risk (Reg. 17). (This process was simplified in <strong>the</strong><br />
Workplace Health and Safety Board’s SAFE campaign in August<br />
1998 – Spot <strong>the</strong> hazard; Assess <strong>the</strong> risk; Fix <strong>the</strong> problem; Evaluate<br />
<strong>the</strong> result.)<br />
145 Gary Ch Ma, Fenkins Ly Chow & Jonathan F Chung (n.d) Minimum Effort and Shortest<br />
Development Time to Safety and Health Management System (Hong Kong Polytechnic<br />
University: Hong Kong; quotes Edward Emmett and Colin Hickling, (1995) “Integrating<br />
Management Systems and Risk Management Approaches”, Journal <strong>of</strong> Occupational Health<br />
and Safety, Vol.11, no. 6, p. 617.<br />
209
592. By mandating a risk management approach, <strong>the</strong> Regs not only<br />
prescribe <strong>the</strong> outcome (i.e. to minimise <strong>the</strong> risks <strong>of</strong> injury and<br />
illness associated with hazards) but <strong>the</strong>y also prescribe <strong>the</strong> manner<br />
in which <strong>the</strong> outcome is to be achieved in detail.<br />
593. Risk assessment must be timely –<br />
• it must be done as soon as reasonably practicable;<br />
• it must be done before introducing new plant or new<br />
substances into <strong>the</strong> workplace;<br />
• it must be done when work, not previously performed, is<br />
commenced;<br />
• it must be done before <strong>the</strong>re is any change in <strong>the</strong> type <strong>of</strong><br />
work, work practices, or plant;<br />
• it must be done when any new information becomes<br />
available about work, work practices, plant or substances<br />
that may impact on <strong>the</strong> health or safety <strong>of</strong> an employee or<br />
any person at <strong>the</strong> workplace. (Reg. 18).<br />
594. Certain generally agreed criteria have emerged in <strong>the</strong> risk<br />
management industry that proponents consider must be included<br />
when reducing risk, adding fur<strong>the</strong>r to <strong>the</strong> complexity <strong>of</strong> <strong>the</strong> process.<br />
These criteria include: whe<strong>the</strong>r to use quantitative or qualitative<br />
assessment; <strong>the</strong> consideration <strong>of</strong> severity <strong>of</strong> consequences;<br />
foreseeability; whe<strong>the</strong>r means are available to control <strong>the</strong> risk; <strong>the</strong><br />
extent <strong>of</strong> knowledge about <strong>the</strong> risk and whe<strong>the</strong>r <strong>the</strong> cost <strong>of</strong> controls<br />
is justified on <strong>the</strong> basis <strong>of</strong> severity and likelihood <strong>of</strong> risk. 146<br />
What<br />
146 Hopkins, Andrew (2001) Safety, Culture and Risk: The Organisational Causes <strong>of</strong> Disasters<br />
Chapter 12, “Quantitative risk assessment and acceptable risk: a critique”, CCH Australia<br />
Ltd., Sydney, p. 113.<br />
210
might have seemed to be a straightforward and simple approach to<br />
preventing injury is rendered complicated by all <strong>the</strong>se<br />
considerations.<br />
595. To ensure that <strong>the</strong> risk assessment process is adequate and<br />
updated regularly, Regulation 18 prescribes that an accountable<br />
person must ensure that a competent person undertakes <strong>the</strong> risk<br />
assessment. (That may raise fur<strong>the</strong>r questions for accountable<br />
persons about <strong>the</strong> level <strong>of</strong> competence required, including <strong>the</strong><br />
possibility that risk assessment may be a task to be performed by<br />
an “expert”.) Finally <strong>the</strong> accountable person must regularly review<br />
<strong>the</strong> risk assessment and keep a written record <strong>of</strong> it.<br />
596. Each sub-section <strong>of</strong> <strong>the</strong> two Regulations examined so far is subject<br />
to a penalty if <strong>the</strong> obligations are not met.<br />
597. Regulation 19 (1) <strong>the</strong>n prescribes “<strong>the</strong> exposure <strong>of</strong> any person to<br />
an identified hazard at a workplace is controlled to eliminate or<br />
minimise <strong>the</strong> risk to <strong>the</strong> health or safety <strong>of</strong> <strong>the</strong> person”.<br />
598. One respondent to <strong>the</strong> review (Inspector) pointed out that <strong>the</strong><br />
wording <strong>of</strong> Reg 19 specifying “an identified hazard” allows an<br />
accountable person to avoid <strong>the</strong> obligation on <strong>the</strong> basis that if <strong>the</strong><br />
hazard is not identified, <strong>the</strong> risks associated with it do not need to<br />
be assessed or controlled.<br />
599. Reg 17 talks about “all hazards”, Reg 18 talks about “a hazard” and<br />
finally Reg 19 talks about “an identified hazard”. In o<strong>the</strong>r words,<br />
211
<strong>the</strong> Regs move from <strong>the</strong> general to <strong>the</strong> particular. We do not<br />
believe that Reg 19 intends accountable persons to avoid <strong>the</strong>ir<br />
obligations: it is clear in a systematic process that if all hazards are<br />
identified as <strong>the</strong> first step in <strong>the</strong> process, each must <strong>the</strong>n be subject<br />
to risk assessment and control. If <strong>the</strong> Reg is susceptible to<br />
misinterpretation generally it may be worth looking at Reg 19(1) to<br />
ensure it does not create that impression.<br />
600. Reg 19(2) continues <strong>the</strong> expansion <strong>of</strong> how to control risks: <strong>the</strong>y<br />
must be controlled systematically by applying hierarchical methods<br />
<strong>of</strong> control. These are elimination; substitution; isolation; control by<br />
engineering means; control by administrative means; or, at <strong>the</strong><br />
lowest level <strong>of</strong> control, when all o<strong>the</strong>r methods <strong>of</strong> control are<br />
demonstrated to be not reasonably practicable, <strong>the</strong> use <strong>of</strong> personal<br />
protective equipment.<br />
601. The systematic control <strong>of</strong> risk is emphasised by all jurisdictions in<br />
<strong>the</strong>ir approach to workplace health and safety. The ASCC website<br />
provides a diagram <strong>of</strong> <strong>the</strong> control <strong>of</strong> risk incorporating o<strong>the</strong>r<br />
management processes prescribed by <strong>the</strong> legislation (including<br />
consultation, instruction and training) as well as <strong>the</strong> management<br />
cycle processes <strong>of</strong> planning, implementing, and review. 147<br />
602. It is here, in Reg 19(2), that <strong>the</strong> legislation appears to introduce<br />
complexity, uncertainty and confusion for accountable persons. If<br />
147 ASSC n.d. Control <strong>of</strong> Risk diagram, Retrieved October 2006 from website:<br />
(http://www.ascc.gov.au/ascc/healthsafety/managinghealthsafety/ohsbestpractice/healthsafet<br />
yresearch<strong>report</strong>/3types<strong>of</strong>healthandsafetymanagementsystems.htm).<br />
212
<strong>the</strong> hazard cannot be eliminated (removed, not used) what does<br />
<strong>the</strong> regulation mean by “<strong>the</strong> substitution <strong>of</strong> <strong>the</strong> hazard”; “<strong>the</strong><br />
isolation <strong>of</strong> <strong>the</strong> hazard”; “<strong>the</strong> control <strong>of</strong> <strong>the</strong> hazard by engineering<br />
means”; or “<strong>the</strong> control <strong>of</strong> <strong>the</strong> hazard by administrative means,<br />
including <strong>the</strong> adoption <strong>of</strong> safe working practices”? If <strong>the</strong> source <strong>of</strong><br />
a hazard is not a physical object such as machinery or a substance<br />
or noise that could be eliminated, replaced, isolated, etc., how is<br />
<strong>the</strong> regulation to be applied?<br />
603. Regs 18 and 19 may draw accountable persons into a tangle <strong>of</strong><br />
legal and financial considerations motivated by trying to find <strong>the</strong><br />
“answer” to <strong>the</strong> relatively simple question <strong>of</strong> “what must we do to<br />
make <strong>the</strong> workplace safe from injury and risks to health?” It cannot<br />
be forgotten that <strong>the</strong> Reg makes it mandatory to comply with <strong>the</strong><br />
process as prescribed. Each sub-part <strong>of</strong> <strong>the</strong> Reg is subject to a<br />
penalty for non-compliance.<br />
604. Regs 18-19 also impose onerous requirements upon small and<br />
micro-businesses who form <strong>the</strong> majority <strong>of</strong> duty holders or<br />
accountable persons and who may not have <strong>the</strong> capacity or<br />
resources to fulfil <strong>the</strong> detailed requirements.<br />
605. What should be a simple and clear direction from <strong>the</strong> legislation<br />
becomes, by virtue <strong>of</strong> Reg 18 and Reg 19(2), a formidable<br />
prospect. The process <strong>of</strong> ensuring that <strong>the</strong> workplace is, so far as<br />
is reasonably practicable, safe from injury and risks to health,<br />
becomes fraught with, dare we say? – risk.<br />
213
Need for experts<br />
606. The prescribed risk management approach is not intuitive and <strong>the</strong><br />
language it uses sets it up as an arcane process. It appears to be<br />
written with technical persons in mind or to be more relevant to<br />
those workplaces having access to risk management “experts”.<br />
(This recalls <strong>the</strong> much earlier comment about <strong>the</strong> quantity <strong>of</strong> law<br />
and <strong>the</strong> need for experts to inform and advise employers about<br />
<strong>the</strong>ir regulatory obligations.)<br />
607. Liz Bluff and Richard Johnstone agree that <strong>the</strong> requirement for<br />
systematic control <strong>of</strong> risk is a source <strong>of</strong> much uncertainty in<br />
preventing injury and illness in Australian workplaces:<br />
The OHS risk management process is a modified<br />
version <strong>of</strong> risk management principles applied more<br />
widely in business. The latter typically involves <strong>the</strong><br />
holistic identification <strong>of</strong> hazards and o<strong>the</strong>r threats to an<br />
organisation or entity, analysis and evaluation <strong>of</strong> <strong>the</strong><br />
risks, and determination <strong>of</strong> strategies to treat risks<br />
through risk avoidance, limitation, reduction, transfer,<br />
retention, deferment or mitigation (Cross et al 1999, p.<br />
366; SAA/SNZ 1999, pp. 3-4, 7-8; Waring and Glendon<br />
1998, pp. 9 & 14). The form <strong>of</strong> risk management applied<br />
under Australian OHS legislation involves fewer process<br />
steps but elaborates <strong>the</strong> strategy <strong>of</strong> risk reduction,<br />
applying a hierarchy <strong>of</strong> control measures which gives<br />
priority to controlling risks at source by elimination,<br />
redesign, substitution, isolation or engineering means, in<br />
preference to administrative controls or use <strong>of</strong> personal<br />
protective clothing and equipment. In this respect, OHS<br />
risk management draws on <strong>the</strong> disciplines <strong>of</strong><br />
occupational hygiene, safety engineering and<br />
ergonomics which adopt such a preferential approach to<br />
risk control (Bohle and Quinlan 2000, pp. 92-100; Hale<br />
et al 1997). While in broad terms risk management is<br />
concerned with identifying, assessing and treating risks,<br />
it is a collective term applied to many different activities<br />
and approaches, to many different kinds <strong>of</strong> risks, and<br />
using variable terminology. Moreover, “<strong>the</strong> recursive<br />
214
nature <strong>of</strong> terms such as ‘hazard’ and ‘risk’ and terms<br />
such as ‘assessment’, ‘analysis’, ‘estimation’ and<br />
‘evaluation’ in everyday speech, creates fertile ground<br />
for ambiguity and confusion” (Waring and Glendon<br />
1998, p. 22). All <strong>of</strong> this suggests that OHS risk<br />
management principles could be difficult for duty holders<br />
to engage with, quite apart from <strong>the</strong> uncertainty about<br />
how <strong>the</strong> risk management process relates to <strong>the</strong> general<br />
duties. 148<br />
608. Our consideration <strong>of</strong> Reg 19(2) commented that it was addressed<br />
to technical persons. Bluff and Johnstone, quoted above, identify<br />
that <strong>the</strong> methodology is drawn from <strong>the</strong> fields <strong>of</strong> occupational<br />
hygiene, safety engineering and ergonomics. 149<br />
609. We conclude that <strong>the</strong> legislation has narrowed its focus<br />
considerably. It is speaking to a limited audience (experts and<br />
large businesses) and <strong>the</strong> process <strong>of</strong> preventing injury and illness<br />
appears to be complex and difficult to understand.<br />
610. The way in which <strong>the</strong> Regs prescribe <strong>the</strong> management <strong>of</strong><br />
workplace health and safety seriously excludes <strong>the</strong> majority <strong>of</strong><br />
businesses in Tasmania. According to ABS statistics, in 2000-01<br />
“<strong>the</strong>re were an estimated 24,700 private sector, non-agricultural<br />
business [sic] in Tasmania. Of <strong>the</strong> 24,700 businesses in 2000-02,<br />
some 23,700 (96.0%) were classified as small businesses with<br />
148 Bluff, Liz & Johnstone, Richard (2004) “The Relationship between `Reasonably<br />
Practicable’ and Risk Management Regulation”. Working Paper 27; p. 4. National Research<br />
Centre for OHS Regulation, Australian National University, Canberra.<br />
149 By coincidence or o<strong>the</strong>rwise, <strong>the</strong> <strong>the</strong>me <strong>of</strong> <strong>the</strong> December 2-6 Conference <strong>of</strong> <strong>the</strong> Australian<br />
Institute <strong>of</strong> Occupational Hygienists (Surfers’ Paradise, Queensland) is “The role <strong>of</strong> risk<br />
assessment and management within occupational hygiene and its allied fields”.<br />
(http://www.aioh.org.au/conference/2006/defult.htm).<br />
215
employment <strong>of</strong> less than 20.” A high percentage, 13.7%, <strong>of</strong><br />
<strong>Tasmanian</strong> businesses is non-employing. 150<br />
611. These businesses are unlikely to have <strong>the</strong> technical expertise, or<br />
access to such, to be able to comply. In wrestling with <strong>the</strong><br />
difficulties comprehending and applying risk assessment and <strong>the</strong><br />
systematic control <strong>of</strong> risk introduced by <strong>the</strong> Regs, <strong>the</strong> majority <strong>of</strong><br />
accountable persons may even overlook <strong>the</strong> simple duties<br />
prescribed by <strong>the</strong> Act and <strong>the</strong> health and safety benefits that are<br />
derived from <strong>the</strong>m.<br />
612. In this event, <strong>the</strong> very real risk is that, not understanding what else<br />
to do, <strong>the</strong>y will apply <strong>the</strong> very last measure to control <strong>the</strong> risk – that<br />
is, to provide personal protective equipment - or do nothing at all.<br />
Safety systems<br />
613. One submission to <strong>the</strong> review observed that in Tasmania “<strong>of</strong> most<br />
concern, is <strong>the</strong> considerable lack <strong>of</strong> formal systems for hazard<br />
identification, assessment, control and evaluation – pivotal in<br />
ensuring good health and safety”. (A. Ayling)<br />
614. The idea that formal systems should be “pivotal in ensuring health<br />
and safety” again reflects a belief that health and safety is a<br />
technical, perhaps even an engineering, domain. Pr<strong>of</strong>essions<br />
involved in health and safety, such as occupational hygienists,<br />
150 ABS 92006) Cat. No.1384.6 – Statistics – Tasmania, Commonwealth <strong>of</strong> Australia,<br />
Canberra.<br />
(http://www.abs.gov.au/AUSSTATS/abs@.nsf/2f762f95845417aeca25706c00834efa/65C7BA<br />
8A2C6CDE68CA25710E007563D0?opendocument).<br />
216
ergonomists and engineers have predominantly a technical and<br />
systems focus. The systems traditional to that domain (particularly<br />
<strong>the</strong> risk management system that is <strong>the</strong> basis <strong>of</strong> Reg 19) are<br />
inherently technical or engineering systems.<br />
615. In approaching <strong>the</strong> systematic control <strong>of</strong> risk and <strong>the</strong> concept <strong>of</strong><br />
systems to be used for managing health and safety, we open up a<br />
Pandora’s Box <strong>of</strong> issues and complexities. To begin with, <strong>the</strong>re are<br />
so many different types <strong>of</strong> health and safety management<br />
systems. 151<br />
616. According to <strong>the</strong> ASCC research <strong>report</strong> (“Types <strong>of</strong> Health and<br />
Safety Management Systems”) <strong>the</strong>re are broadly speaking two<br />
major groups <strong>of</strong> systems described as “traditional” and “innovative”.<br />
Regulation 19(2) prescribing <strong>the</strong> systematic control <strong>of</strong> risk is very<br />
traditional in focus.<br />
617. Traditional systems are safety focused and are sub-divided into <strong>the</strong><br />
following types:<br />
• Prevention strategy focused on <strong>the</strong> control <strong>of</strong> hazards at<br />
source through attention at <strong>the</strong> design stage and<br />
application <strong>of</strong> hazard identification, assessment and<br />
control principles; and<br />
• Those based on <strong>the</strong> idea <strong>of</strong> a “safe person” - concerned<br />
with <strong>the</strong> control <strong>of</strong> “unsafe acts” or behaviour, with a<br />
strong focus on selection, training and supervision <strong>of</strong><br />
151 For a detailed analysis <strong>of</strong> <strong>the</strong> various types <strong>of</strong> health and safety systems see<br />
http://www.ascc.gov.au/ascc/HealthSafety/ManagingHealthSafety/OHSbestPractice/HealthSa<br />
fetyResearchReport/3Types<strong>of</strong>HealthandSafetyManagementSystems.htm#3.3.1_The_Four_T<br />
ypes.<br />
217
employees to eliminate risks (e.g. Heinrich). These are<br />
traditionally rules based, “top down” and management<br />
driven with little if any scope for employee involvement,<br />
save for <strong>the</strong> traditional health and safety committee.<br />
618. Innovative systems incorporate broader management concepts<br />
(that is, incorporating principles adapted from human resources<br />
management, quality management and strategic planning and<br />
development) providing a more holistic approach to health and<br />
safety. 152<br />
619. Innovative systems might be described as being more<br />
contemporary, given that <strong>the</strong> management <strong>of</strong> health and safety is<br />
integrated into <strong>the</strong> wider management <strong>of</strong> <strong>the</strong> organisation.<br />
Employee or worker involvement is seen as being critical to <strong>the</strong><br />
system operation and <strong>the</strong>re are mechanisms in place to give effect<br />
to a high level <strong>of</strong> involvement.<br />
620. To <strong>the</strong> reader <strong>of</strong> this <strong>report</strong>, <strong>the</strong>re is purpose in this apparent<br />
digression.<br />
621. Robens’s principles for a legislative framework that enables <strong>the</strong><br />
parties in workplaces to sort out <strong>the</strong>ir solutions to specific problems<br />
based on <strong>the</strong> reasonable care that one person should have for<br />
ano<strong>the</strong>r would appear to favour predominantly “innovative” systems<br />
152 Management concepts such as “Total Quality Management”, “Best Practice”,<br />
“Benchmarking”, “Networking and Alliances”, “Organisational Development” may take in<br />
workplace health and safety. Again, <strong>the</strong>se are familiar and relevant to large organisations<br />
ra<strong>the</strong>r than smaller ones.<br />
218
where management control is translated into a workplace<br />
democracy.<br />
622. In this approach executive management provides <strong>the</strong> strategic<br />
direction and outcomes to be achieved while managers facilitate,<br />
co-ordinate and involve staff in applying <strong>the</strong> solutions to workplace<br />
health and safety issues.<br />
623. The Discussion Paper commented “<strong>the</strong> Robens principles <strong>of</strong> selfregulation<br />
were grafted onto <strong>the</strong> rootstock <strong>of</strong> <strong>the</strong> earlier factory<br />
regulation” (DP, p.10). Close analysis <strong>of</strong> <strong>the</strong> legislation bears this<br />
out.<br />
624. The Act focuses primarily on safety – safe place, safe systems - a<br />
very traditional approach.<br />
It assigns responsibilities to “key<br />
persons” (employers, responsible <strong>of</strong>ficers, accountable persons); it<br />
enables employee involvement through a representational health<br />
and safety committee but only if a majority <strong>of</strong> employees wish to be<br />
represented by ei<strong>the</strong>r a committee or an individual representative,<br />
so it does not make involvement <strong>of</strong> workpeople critical. It<br />
prescribes traditional management processes such as <strong>the</strong> provision<br />
<strong>of</strong> instruction, information and supervision. In all <strong>the</strong>se aspects<br />
<strong>the</strong>n, <strong>the</strong> Act adopts an approach to safety and management that is<br />
“traditional command and control”.<br />
625. The Regs are also very traditional in both structure and content by<br />
prescribing a strong risk management focus that is safety oriented<br />
219
and by prescribing standards for traditional, nominated hazards,<br />
usually (but not exclusively) associated with manufacturing.<br />
Relevance to small businesses<br />
626. Traditional and <strong>of</strong>ten complex risk management processes and<br />
safety systems are universally recognised as being more suitable<br />
to large businesses. Small businesses make up <strong>the</strong> lion’s share <strong>of</strong><br />
<strong>the</strong> number <strong>of</strong> businesses in Tasmania. Yet, when <strong>the</strong> legislation<br />
prescribes detailed process, all accountable persons must comply<br />
with <strong>the</strong> requirements, regardless <strong>of</strong> <strong>the</strong> size <strong>of</strong> <strong>the</strong>ir business.<br />
Traditional safety systems not appropriate to new risks to<br />
health<br />
627. A fur<strong>the</strong>r issue is whe<strong>the</strong>r <strong>the</strong> traditional systematic risk<br />
management approach is sufficiently adaptable to control <strong>the</strong> risks<br />
associated with workplace hazards <strong>of</strong> <strong>the</strong> twenty-first century.<br />
628. Traditional systems that <strong>of</strong>ten deal with one contributory risk factor<br />
(ra<strong>the</strong>r than many) and have a strong physical hazard focus, may<br />
not apply well to <strong>the</strong> present and emerging health and safety risks<br />
that are multi-factorial and include psychosocial as well as physical<br />
risk factors.<br />
Recommendation 21:<br />
It is recommended that <strong>the</strong> agency encourages industry to<br />
adopt existing industry standards or codes <strong>of</strong> practice as<br />
recognised practical non-statutory instruments. Large<br />
industries and businesses could, by following this principle, be<br />
encouraged to adopt relevant national standards; while small<br />
businesses could develop simple health and safety measures or<br />
relevant codes <strong>of</strong> practice that apply to <strong>the</strong>ir operations.<br />
220
The recommended workplace health and safety council could<br />
be an appropriate body to advance <strong>the</strong> adoption <strong>of</strong> standards by<br />
large businesses and <strong>the</strong> encouragement <strong>of</strong> relevant simple<br />
solutions for small businesses in Tasmania.<br />
Guidance materials, whe<strong>the</strong>r published electronically or in<br />
paper form, must be simply written in “plain English”.<br />
Recommendation 22:<br />
It is recommended that fur<strong>the</strong>r consideration be given to <strong>the</strong><br />
internal inconsistencies <strong>of</strong> <strong>the</strong> legislation that prescribes both<br />
innovative and traditional safety systems; and how<br />
organisations can overcome problems created by having to<br />
comply with a “system” that is incompatible with <strong>the</strong> way in<br />
which <strong>the</strong>ir organisation is managed.<br />
Recommendation 23:<br />
It is recommended that Regulations 18 and 19 be considered<br />
closely by <strong>the</strong> agency with a view to remove those aspects that<br />
are not strictly necessary to preventing injury or illness.<br />
Administrative processes, for example <strong>the</strong> requirements at<br />
Reg18 (3), (4), and (5) should be considered for removal.<br />
Reg 19(1) prescribing general control <strong>of</strong> risk could stand;<br />
however it is recommended that Reg 19(2) which is complex<br />
and confusing for most duty holders and which imposes<br />
unnecessarily onerous requirements subject to a penalty, be<br />
removed.<br />
The review team recognises that changes to <strong>the</strong> prescription <strong>of</strong><br />
risk management processes is potentially an area for national<br />
attention ra<strong>the</strong>r than something pertaining only to Tasmania<br />
and it could be referred to <strong>the</strong> ASCC for action for “national<br />
harmonisation”.<br />
Recommendation 24:<br />
If <strong>the</strong> message to prevent injury or illness is to get through to<br />
<strong>the</strong> maximum number <strong>of</strong> people, it is important to avoid using<br />
jargon (or language that is only understood by a small group)<br />
ei<strong>the</strong>r in <strong>the</strong> legislation or in guidance provided by <strong>the</strong> agency.<br />
221
Involvement <strong>of</strong> workers<br />
59. We have stressed that <strong>the</strong> promotion <strong>of</strong> safety and<br />
health at work is first and foremost a matter <strong>of</strong> efficient<br />
management. But it is not a management prerogative.<br />
In this context more than most, real progress is<br />
impossible without <strong>the</strong> full co-operation and commitment<br />
<strong>of</strong> all employees. How can this be encouraged? We<br />
believe that if workpeople are to accept <strong>the</strong>ir full share <strong>of</strong><br />
responsibility (again, we are not speaking <strong>of</strong> legal<br />
responsibilities) <strong>the</strong>y must be able to participate fully in<br />
<strong>the</strong> making and monitoring <strong>of</strong> arrangements for safety<br />
and health at <strong>the</strong>ir place <strong>of</strong> work. (Lord Robens (1972)<br />
Chapter 2 “Safety and Health at <strong>the</strong> Workplace”, para.<br />
59, p.21.)<br />
629. In <strong>the</strong> course <strong>of</strong> <strong>the</strong>ir discussions, <strong>the</strong> Committee <strong>of</strong> Inquiry chaired<br />
by Lord Robens found that firms used many different arrangements<br />
for <strong>the</strong> participation <strong>of</strong> employees in health and safety matters.<br />
Lord Robens himself was already aware <strong>of</strong> <strong>the</strong> positive contribution<br />
to health, safety and welfare made by worker representatives in <strong>the</strong><br />
coal mining industry.<br />
630. The Committee also found that “most <strong>of</strong> <strong>the</strong> employers, inspectors,<br />
trade unionists and o<strong>the</strong>rs [were] in no doubt about <strong>the</strong> importance<br />
<strong>of</strong> bringing workpeople more directly into <strong>the</strong> actual work <strong>of</strong> selfinspection<br />
and self-regulation”, and in deciding whe<strong>the</strong>r legislation<br />
could help in this matter, Robens concluded “involvement <strong>of</strong><br />
employees in safety and health measures is too important for new<br />
occupational health and safety legislation to remain entirely silent<br />
on <strong>the</strong> matter”. 153<br />
153 Robens, paras. 68-69, pp 21-22.<br />
222
631. Robens <strong>the</strong>refore recommended that <strong>the</strong>re should be a statutory<br />
duty on every employer to consult with his employees or <strong>the</strong>ir<br />
representatives at <strong>the</strong> workplace on measures for promoting safety<br />
and health at work, and to provide arrangements for <strong>the</strong><br />
participation <strong>of</strong> employees in <strong>the</strong> development <strong>of</strong> such measures:<br />
The form and manner <strong>of</strong> such consultation and<br />
participation would not be specified in detail, so as to<br />
provide <strong>the</strong> flexibility needed to suit a wide variety <strong>of</strong><br />
particular circumstances. … Guidance should, however,<br />
be given in a code <strong>of</strong> practice outlining model<br />
arrangements, including advice on joint safety<br />
committees and <strong>the</strong> appointment <strong>of</strong> employees’ safety<br />
representatives. 154<br />
632. The Discussion Paper raised <strong>the</strong> issue <strong>of</strong> <strong>the</strong> involvement <strong>of</strong><br />
workers and o<strong>the</strong>r parties in preventing injury and illness in <strong>the</strong><br />
workplace and it was suggested that “<strong>the</strong> Act needed to be<br />
streng<strong>the</strong>ned to ensure better workplace health and safety<br />
outcomes through greater involvement in <strong>the</strong> processes <strong>of</strong> hazard<br />
identification and risk control as well as representational<br />
mechanisms”. It was also suggested that changes to workplace<br />
relations have increased worker insecurity - a major factor in<br />
preventing workers from speaking up about health and safety<br />
matters. (DP pp. 14-16).<br />
154 Ibid, para. 70, p.22.<br />
223
What respondents said about ‘involvement <strong>of</strong> workpeople’<br />
633. Many respondents support <strong>the</strong> principle <strong>of</strong> involvement <strong>of</strong> all<br />
relevant parties in <strong>the</strong> workplace, however it was <strong>of</strong>ten conditional<br />
upon distributing accountability and sharing penalties.<br />
634. The <strong>Tasmanian</strong> Forest Contractors Association (TFCA) wrote:<br />
Active involvement by all parties present at <strong>the</strong><br />
workplace must occur to achieve <strong>the</strong> best outcomes.<br />
Indeed, involvement by advisers, assessors or<br />
inspectors to assist should be <strong>the</strong> norm not <strong>the</strong><br />
exception as it is now.<br />
TFCA supports any regulation that ensures all parties at<br />
<strong>the</strong> workplace are responsible for health and safety.<br />
…Sharing responsibility and <strong>the</strong> corresponding<br />
apportionment <strong>of</strong> penalties is a fairer and more even<br />
way <strong>of</strong> achieving workplace safety. (TFCA)<br />
635. This view recognises <strong>the</strong> positive value <strong>of</strong> active involvement <strong>of</strong><br />
different parties to achieve <strong>the</strong> best health and safety outcomes but<br />
links involvement to sharing responsibility and liability.<br />
Yet<br />
responsibilities are already distributed as duties owed by all<br />
workplace parties including employers, employees, responsible<br />
<strong>of</strong>ficers, contractors, self-employed persons, manufacturers,<br />
suppliers, etc. Penalties apply to <strong>of</strong>fences committed by any party.<br />
Thus both responsibility and accountability are apportioned.<br />
636. Because all workplace parties have statutory duties and<br />
obligations, including <strong>the</strong> prescription for multiple duty holders to<br />
co-operate in satisfying <strong>the</strong>ir duties (and remember that employees<br />
are duty holders too), it is sensible if employers, employees,<br />
contractors etc. communicate and work toge<strong>the</strong>r in order to satisfy<br />
224
<strong>the</strong>ir duties. Communication is basic to any involvement. To<br />
demonstrate <strong>the</strong>ir compliance, especially in <strong>the</strong> event <strong>of</strong> any doubt<br />
about “liability” should an accident occur, it is also prescribed by<br />
<strong>the</strong> Regulations that a record <strong>of</strong> <strong>the</strong> risk management processes be<br />
kept.<br />
637. The RCSA writes<br />
Any objects should extend <strong>the</strong> requirement for<br />
consultation and co-operation beyond employer and<br />
employee to include third parties whose employees may<br />
be affected by <strong>the</strong> actions, omissions and decisions <strong>of</strong><br />
principals and host organisations (clients <strong>of</strong> on-hired<br />
employee service providers). (RCSA)<br />
638. The RCSA also submitted that incidents involving on-hired<br />
employees should be <strong>report</strong>ed to <strong>the</strong> on-hire service provider as<br />
well as notifying <strong>the</strong> agency.<br />
639. The Master Builders Association <strong>of</strong> Tasmania (MBAT)<br />
believes that <strong>the</strong> mandating <strong>of</strong> involvement by<br />
employees would help all parties understand that safety<br />
at work is a shared responsibility. Regardless <strong>of</strong><br />
whe<strong>the</strong>r changes are made to <strong>the</strong> wording <strong>of</strong> <strong>the</strong> Act,<br />
members would support fur<strong>the</strong>r education about <strong>the</strong><br />
rights and responsibilities <strong>of</strong> all parties involved in this<br />
aspect… (MBAT)<br />
640. Unions Tasmania supported our suggestion that all parties in <strong>the</strong><br />
workplace should be involved in processes <strong>of</strong> hazard identification<br />
and risk management “subject to not in any way transferring<br />
responsibility down <strong>the</strong> chain <strong>of</strong> command to relieve <strong>the</strong> employer<br />
<strong>of</strong> <strong>the</strong> duty <strong>of</strong> care”. (Unions Tasmania)<br />
225
641. Similarly ano<strong>the</strong>r respondent believes that “[t]he proposed idea that<br />
an employer may consult with an employee to consider a problem<br />
and issue an agreed opinion could affect <strong>the</strong> employer’s duty <strong>of</strong><br />
care responsibility”. (S. R. Porter)<br />
642. There is nowadays a general fear that “being involved” will incur a<br />
legal liability. Inspectors <strong>the</strong>mselves have been directed not to<br />
provide advice to workplaces “because <strong>of</strong> liability problems”.<br />
643. Inspectors have no statutory protection according to <strong>the</strong> workplace<br />
health and safety legislation, to prevent <strong>the</strong>m being drawn into<br />
individual suits if a breach <strong>of</strong> <strong>the</strong> legislation is blamed upon<br />
following an inspector’s advice. The final chapter considers this<br />
issue as part <strong>of</strong> <strong>the</strong> discussion <strong>of</strong> <strong>the</strong> powers and functions <strong>of</strong><br />
inspectors.<br />
644. We turn now to look at how <strong>the</strong> legislation deals with <strong>the</strong> practical<br />
issues <strong>of</strong> consultation or involvement <strong>of</strong> relevant parties to prevent<br />
workplace injury and illness.<br />
226
Legislation and consultation<br />
645. Part 5 <strong>of</strong> <strong>the</strong> Act prescribes, depending upon <strong>the</strong> size <strong>of</strong> <strong>the</strong><br />
workplace and if a majority <strong>of</strong> employees wish to have one, <strong>the</strong><br />
formation <strong>of</strong> a health and safety committee (section 26) or <strong>the</strong><br />
election <strong>of</strong> an employee safety representative (s32). If <strong>the</strong> majority<br />
<strong>of</strong> employees wish it, <strong>the</strong> employer must arrange it within one<br />
month. The legislation goes on to prescribe <strong>the</strong> functions <strong>of</strong> <strong>the</strong><br />
committee or safety representative.<br />
646. The Regs prescribe that if <strong>the</strong>re is a health and safety committee<br />
<strong>the</strong> employer must consult it.<br />
647. Section 9(2)(f) <strong>of</strong> <strong>the</strong> Act also prescribes that <strong>the</strong> employer must<br />
provide information, instruction and training in <strong>the</strong> event <strong>of</strong> any<br />
change in any work or work practices, activity or process:<br />
(2)… an employer must, so far as is reasonably<br />
practicable –<br />
(f) ensure that any employee <strong>of</strong> <strong>the</strong> employer who could<br />
be put at risk by a change in <strong>the</strong> workplace, in any work<br />
or work practice, in any activity or process or in any<br />
plant –<br />
is given proper information, instruction and training<br />
before <strong>the</strong> change occurs; and<br />
receives such supervision as is reasonably necessary to<br />
ensure <strong>the</strong> employee’s health and safety;… (Section<br />
9(2)(f))<br />
648. Reg 15(1)(b) requires accountable persons to consult with<br />
employees when <strong>the</strong>re is any proposed change likely to affect <strong>the</strong><br />
health or safety <strong>of</strong> employees. This might be interpreted to apply to<br />
any change, including organisational change and/or <strong>the</strong> making <strong>of</strong><br />
227
workplace agreements that have <strong>the</strong> potential to affect health and<br />
safety.<br />
What is meant by consultation?<br />
649. Maxwell considers that it is important to make it clear what is meant<br />
by consultation in <strong>the</strong> Victorian OHS Act. He refers to <strong>the</strong><br />
Queensland workplace health and safety legislation that defines<br />
consultation as “fostering co-operation and developing partnerships<br />
between government, employers and workers to ensure workplace<br />
health and safety”.<br />
650. This definition would be useful as a definition for <strong>the</strong> community<br />
engagement to be undertaken by <strong>the</strong> recommended workplace<br />
health and safety council, but in <strong>the</strong> context <strong>of</strong> <strong>the</strong> Act and <strong>the</strong><br />
duties <strong>of</strong> parties in individual workplaces, it is too broad.<br />
651. Maxwell <strong>the</strong>n goes on to discuss consultation in terms <strong>of</strong> what it is<br />
not, that is to say it is not a process that requires consensus or<br />
agreement, but that it must be a dialogue between <strong>the</strong> parties. 155<br />
652. We believe that <strong>the</strong> definition <strong>of</strong> consultation should be as simple<br />
and flexible as possible to suit different types and sizes <strong>of</strong><br />
business. Consultation should be a process involving an exchange<br />
<strong>of</strong> views between relevant persons about a health and safety issue<br />
applicable to <strong>the</strong> workplace and that in discussing <strong>the</strong> issue, <strong>the</strong><br />
views expressed should be taken into account in making a<br />
155 Maxwell, paras 920 – 923; pp 204-205.<br />
228
decision. The decision remains that <strong>of</strong> <strong>the</strong> accountable person or<br />
persons.<br />
653. The inclusion <strong>of</strong> a duty <strong>of</strong> employers and principals to consult with<br />
relevant persons engaged or employed would, we believe, have<br />
many benefits in fur<strong>the</strong>r reducing <strong>the</strong> incidence <strong>of</strong> injury, illness and<br />
death in <strong>the</strong> workplace, particularly if <strong>the</strong> agency were to continue<br />
its work in encouraging consultation and promoting its benefits.<br />
654. Such a provision could be <strong>the</strong> basis for stimulating <strong>the</strong><br />
development and understanding <strong>of</strong> workplace health and safety<br />
policies or industry standards or codes or, indeed any o<strong>the</strong>r<br />
sources <strong>of</strong> information that are appropriate to <strong>the</strong> prevention <strong>of</strong><br />
injury and illness in specific workplaces, where it matters.<br />
Who should be involved?<br />
655. As for all o<strong>the</strong>r aspects <strong>of</strong> <strong>the</strong> duties and obligations previously<br />
discussed, <strong>the</strong> current representation and consultation provisions<br />
<strong>of</strong> <strong>the</strong> legislation are focused on <strong>the</strong> employment relationship <strong>of</strong><br />
employers and employees. The presumption that all workplace<br />
relationships are organised according to this basis is now clearly<br />
outdated.<br />
There are now businesses that do not employ<br />
“employees” as defined at all, and o<strong>the</strong>r workplaces where<br />
“employees” are vastly outnumbered by o<strong>the</strong>r workpeople. We<br />
have already observed that <strong>the</strong> legislation does not meet <strong>the</strong> needs<br />
<strong>of</strong> <strong>the</strong>se workplaces. The duty or obligation to consult, if included<br />
229
in <strong>the</strong> legislation, should <strong>the</strong>refore apply to consultation “with all<br />
relevant persons”.<br />
656. If <strong>the</strong>re is any doubt as to how “relevant persons” might be defined,<br />
it must include workers employed or engaged by <strong>the</strong> employer and<br />
may also include contractors and on-hire employment service<br />
providers. Consideration might also be given as to whe<strong>the</strong>r<br />
“relevant persons” should include those “upstream” <strong>of</strong> <strong>the</strong><br />
workplace – such as manufacturers, suppliers, installers etc. The<br />
legislation should enable maximum flexibility for workplaces to<br />
determine who are <strong>the</strong> relevant persons to involve in consultation.<br />
How to consult?<br />
657. Robens’s advice about providing “guidance” on how to conduct<br />
consultation does not mean prescribing in detail how it should be<br />
conducted in <strong>the</strong> legislation.<br />
658. If formal consultation methods are preferred, and if employees<br />
express a wish for such mechanisms, <strong>the</strong> legislation currently<br />
provides detailed requirements for health and safety committees or<br />
employee representatives.<br />
659. O<strong>the</strong>rwise we find that is should be an aspect <strong>of</strong> “good<br />
management”. Supervisors or site managers may, in <strong>the</strong> course <strong>of</strong><br />
<strong>the</strong>ir supervisory or management duties, consult individuals on a<br />
daily basis. They may conduct informal “tool box meetings” where<br />
aspects <strong>of</strong> <strong>the</strong> job are discussed and <strong>the</strong> control <strong>of</strong> risks to health<br />
230
and safety are agreed and documented to provide <strong>the</strong> necessary<br />
record. Small businesses could comply with <strong>the</strong> duty to consult<br />
through direct and active involvement <strong>of</strong> <strong>the</strong> entire workforce where<br />
numbers are small, without <strong>the</strong> need for representational<br />
mechanisms. These are matters that, clearly, workplace parties<br />
<strong>the</strong>mselves can decide.<br />
660. Earlier we recommended that industry and <strong>the</strong> agency collaborate<br />
(potentially through <strong>the</strong> workplace health and safety council) in<br />
developing a Charter for workplace health and safety. It was<br />
suggested that <strong>the</strong> first principle might be that workplace health<br />
and safety is paramount. In <strong>the</strong> same vein, <strong>the</strong> second principle<br />
might be to do with involvement and consultation.<br />
661. As one respondent put it to <strong>the</strong> review team, <strong>the</strong> agency need only<br />
to demonstrate a benefit and <strong>the</strong>n allow employers and employees<br />
to take ownership <strong>of</strong> <strong>the</strong> process for <strong>the</strong>mselves. The prevention <strong>of</strong><br />
injury, illness and death, is <strong>the</strong> desired outcome.<br />
Recommendation 25:<br />
It is recommended that <strong>the</strong> Act be amended to include a<br />
definition <strong>of</strong> consultation, and;<br />
The Act should contain a general duty that employers and<br />
accountable persons must consult with all relevant persons to<br />
ensure that each person is safe from injury and risks to health.<br />
231
Preventing illness<br />
662. Our terms <strong>of</strong> reference require us to examine how <strong>the</strong> legislative<br />
framework provides for <strong>the</strong> prevention <strong>of</strong> illness and how it could be<br />
fur<strong>the</strong>r reduced. Our analysis <strong>of</strong> <strong>the</strong> Regs concluded that <strong>the</strong>y deal<br />
adequately with certain traditional hazards to safety and risks to<br />
health; however, we have yet to examine whe<strong>the</strong>r <strong>the</strong> traditional<br />
safety systems emphasis would be effective in dealing with present<br />
or future risks to health that are quite different. Our discussion<br />
turns now to take a closer look at how to prevent illness arising<br />
from present and emerging risk factors.<br />
663. In this discussion we acknowledge <strong>the</strong> National OHS Improvement<br />
Strategy that nominates “more effective prevention <strong>of</strong> occupational<br />
disease” as one <strong>of</strong> <strong>the</strong> five agreed national priorities to be tackled<br />
over <strong>the</strong> life <strong>of</strong> <strong>the</strong> Strategy. Work completed and endorsed by <strong>the</strong><br />
National Strategy at <strong>the</strong> NOHSC meeting in March 2004 identifies<br />
eight priority occupational disease categories. Priority is based<br />
upon two indices, severity and incidence.<br />
664. The eight disease categories agreed and endorsed are:<br />
• Respiratory diseases including asthma;<br />
• Cancer;<br />
• Contact dermatitis;<br />
• Infectious and parasitic diseases;<br />
• Noise induced hearing loss<br />
• Cardiovascular disease;<br />
• Musculoskeletal disorders (MSDs); and<br />
232
• Mental disorders. 156<br />
665. The ASSC work in this area acknowledges that <strong>the</strong> link between<br />
some occupational exposures and eventual disease may not<br />
always be easily demonstrated, especially in chronic diseases that<br />
have long latency. Apart from infectious and parasitic diseases, all<br />
<strong>the</strong> priority occupational diseases listed are chronic.<br />
666. Most <strong>of</strong> <strong>the</strong>se priority occupational diseases are associated<br />
predominantly with health risks arising from <strong>the</strong> physical hazards<br />
that are identified in <strong>the</strong> Regs – hazardous substances and noise,<br />
for example, are <strong>the</strong> identifiable hazards associated with <strong>the</strong> first<br />
three listed diseases and <strong>the</strong> fifth listed disease. Prevention <strong>of</strong><br />
illness associated with <strong>the</strong>se hazards is now subject to compliance<br />
with nominated standards, <strong>the</strong> provision <strong>of</strong> information (Reg 20),<br />
monitoring (Reg 21), and health surveillance for certain substances<br />
(Reg 22).<br />
667. Cumulative exposure is controlled according to quantitative<br />
assessment according to prescribed standards (Part 4, Division 2):<br />
• for hazardous substances, <strong>the</strong> National Standard for <strong>the</strong><br />
Control <strong>of</strong> Workplace Hazardous Substances, Part 2 –<br />
Scheduled Carcinogenic Substances issued by Worksafe<br />
Australia 157 ;<br />
156 See www.ascc.gov.au for “National Occupational Disease Pr<strong>of</strong>iles” – Executive<br />
Summaries <strong>of</strong> Each Disease Category.<br />
157 This is now subject to review and integration into <strong>the</strong> National Standard for <strong>the</strong> Storage<br />
and Control <strong>of</strong> Dangerous Goods issued by Worksafe Australia that now forms <strong>the</strong> basis <strong>of</strong><br />
Tasmania’s Dangerous Substances Act 2005.<br />
233
• for any process involving lead, to <strong>the</strong> National Standard<br />
for Control <strong>of</strong> Inorganic Lead at Work issued by Worksafe<br />
Australia;<br />
• for <strong>the</strong> processes <strong>of</strong> classification, labelling and<br />
preparation <strong>of</strong> material safety data sheets, <strong>the</strong> Regs<br />
prescribe that <strong>the</strong>se must be undertaken according to <strong>the</strong><br />
List <strong>of</strong> Designated Hazardous Substances; <strong>the</strong> Approved<br />
Criteria for Classifying Hazardous Substances and <strong>the</strong><br />
National Code <strong>of</strong> Practice for <strong>the</strong> Preparation <strong>of</strong> Material<br />
Safety Data Sheets – all <strong>of</strong> which are issued by Worksafe<br />
Australia; 158<br />
• for <strong>the</strong> control <strong>of</strong> risks to health caused by exposure to<br />
noise in <strong>the</strong> workplace, exposure standards are<br />
prescribed and <strong>the</strong>se must be measured and controlled<br />
according to stated Australian Standards - AS1269 and<br />
AS 1270; and<br />
• for musculoskeletal disorders, <strong>the</strong> Manual Handling<br />
National Standard is prescribed to control manual<br />
handling injuries. (This is currently under national<br />
review.)<br />
• The use <strong>of</strong> certain substances known to be extremely<br />
hazardous is prohibited.<br />
668. The specific Regs that apply to preventing illness <strong>the</strong>refore conform<br />
to <strong>the</strong> traditional safety system (hazards-based, safe place/safe<br />
person, application <strong>of</strong> rules) described earlier in this chapter. We<br />
conclude that when complied with and applied consistently, <strong>the</strong><br />
Regs would appear to work reasonably well in preventing <strong>the</strong><br />
occupational diseases that are associated with “traditional”,<br />
singular, risk factors.<br />
158 The List and Approved Criteria are integrated into <strong>the</strong> Dangerous Substances Act 2005.<br />
234
669. However <strong>the</strong>re are some doubts as to how well <strong>the</strong> safety based<br />
framework relates to <strong>the</strong> final three priority diseases in <strong>the</strong> list<br />
(cardiovascular disease, musculoskeletal disease and mental<br />
disorders)?<br />
670. The ASCC in its <strong>report</strong> (endorsed April 2006) on Indicators for<br />
Occupational Disease acknowledges that, unlike injury where <strong>the</strong>re<br />
is usually a clear-cut cause and effect relationship between a single<br />
hazard or risk factor and a clear-cut health effect (such as noise –<br />
industrial deafness), most work-related chronic diseases are “multifactorial”<br />
in nature, with “workplace exposure constituting one<br />
important part <strong>of</strong> <strong>the</strong> risk matrix” for many occupational diseases. 159<br />
671. Standards based on traditional safety systems that deal with<br />
singular risks are poorly designed to deal with multi-factorial risks.<br />
159 ASCC (2006) Report on Indicators for Occupational Disease; “Section 1, Introduction”, p.<br />
8. Commonwealth <strong>of</strong> Australia: Canberra. (http://www.ascc.gov.au/).<br />
235
Cardiovascular disease, musculoskeletal disease and<br />
mental disorders<br />
672. These three priority occupational disease categories are also<br />
identified within <strong>the</strong> top national public health priorities. In terms <strong>of</strong><br />
total health expenditure (2000-01), cardiovascular disease, nervous<br />
system disorders, musculoskeletal disorders/injuries and mental<br />
disorders are ranked in <strong>the</strong> highest levels <strong>of</strong> health expenditure. 160<br />
673. According to <strong>the</strong> National Chronic Disease Prevention Strategy<br />
(NCDPS) which sits within <strong>the</strong> National Health Strategy, <strong>the</strong> longterm<br />
strategic plan for health in Australia,<br />
Chronic diseases are called <strong>the</strong> diseases <strong>of</strong> <strong>the</strong><br />
twentieth century. Toge<strong>the</strong>r, <strong>the</strong>y account for nearly<br />
70% <strong>of</strong> health expenditure. “Cardiovascular disease is<br />
<strong>the</strong> leading cause <strong>of</strong> death for both males and females.<br />
About 1 in 5 Australians had cardiovascular problems in<br />
2001 and around 1.1 million have a disability as a result.<br />
Arthritis and o<strong>the</strong>r musculoskeletal conditions are<br />
estimated to affect more than 6 million Australians (3 in<br />
every 10) in 2001. These cause more disability than any<br />
o<strong>the</strong>r medical condition, affecting about 34% <strong>of</strong> all<br />
people with a disability. 161<br />
674. All <strong>the</strong>se chronic diseases can be prevented or <strong>the</strong>ir onset delayed.<br />
The major strategic emphasis <strong>of</strong> <strong>the</strong> NCDPS and <strong>the</strong> National<br />
Health Strategy is on “creating healthy environments –<br />
environments in which people live, work and play…” [emphasis<br />
added] in <strong>the</strong> effort to prevent <strong>the</strong> onset <strong>of</strong> <strong>the</strong>se diseases. 162<br />
A key<br />
160 Ibid, Table 1 Health expenditure 2000-01 Australia, p. 12.<br />
161 National Health Priority Action Council (NHAC) (2006), National Chronic Disease Strategy<br />
(NCDS), Australian Government <strong>Department</strong> <strong>of</strong> Health & Ageing, Canberra, pp 11-12. The<br />
NCDS can be found at<br />
http://www.health.gov.au/internet/wcms/Publishing.nsf/Content/Health+Priorities-1.<br />
162 Ibid, p. 26<br />
236
action area <strong>of</strong> <strong>the</strong> National Health Strategy is raising awareness –<br />
to be reinforced in multiple settings, including workplaces. 163<br />
675. According to a <strong>report</strong> prepared by Access Economics Ltd., for<br />
Diabetes Australia (October 2006), 3.24 million Australians are<br />
obese (15% <strong>of</strong> all males and 16.8% all females are obese).<br />
676. The Access Economics Report notes that obesity is associated<br />
with higher relative risk rates for a number <strong>of</strong> chronic health<br />
problems including Type II Diabetes, Circulatory Vascular Disease,<br />
Osteoarthritis, Cancers and o<strong>the</strong>r health conditions.<br />
677. Of special interest to this review is <strong>the</strong> finding that “more sedentary<br />
work environments” ranks high in <strong>the</strong> list <strong>of</strong> most important<br />
contributory factors to obesity (after genetic, diet, and lifestyle) and<br />
<strong>the</strong>refore to <strong>the</strong> priority chronic diseases. 164<br />
678. Fur<strong>the</strong>r, obesity is highest in <strong>the</strong> workforce where it is prevalent<br />
particularly in <strong>the</strong> age groups 45-49 and 55-59 years. 165 Thus with<br />
<strong>the</strong> combination <strong>of</strong> sedentary work and o<strong>the</strong>r lifestyle risks, our<br />
ageing workforce is at high risk <strong>of</strong> chronic disease.<br />
Work-related Musculoskeletal Disorders (WMSDs)<br />
679. Our earlier discussion considered MSDs and concluded that<br />
manual handling, a source <strong>of</strong> MSDs, is dealt with according to <strong>the</strong><br />
traditional application <strong>of</strong> <strong>the</strong> Manual Handling standard.<br />
163 NCDS, p, 26.<br />
164 Access Economics <strong>report</strong>, p. 29.<br />
165 Access Economics Ltd. (October 2006) “The economic costs <strong>of</strong> obesity”.<br />
237
680. A <strong>report</strong> was commissioned by <strong>the</strong> <strong>Department</strong> <strong>of</strong> Employment and<br />
Workplace Relations on behalf <strong>of</strong> <strong>the</strong> Australian Safety and<br />
Compensation Council and undertaken by Associate Pr<strong>of</strong>essor<br />
Wendy Macdonald and Associate Pr<strong>of</strong>essor Owen Evans from La<br />
Trobe University. Macdonald and Evans found that physical<br />
factors <strong>of</strong> work and psychosocial factors associated with work<br />
organisation, job design and demand and associated factors <strong>of</strong><br />
control, in combination, are significant contributory factors in <strong>the</strong><br />
acute onset and latent development <strong>of</strong> MSDs. In o<strong>the</strong>r words, body<br />
stress and job stress, especially if <strong>the</strong>y are present toge<strong>the</strong>r, can<br />
contribute to <strong>the</strong> onset <strong>of</strong> musculoskeletal disease. 166<br />
Work-related mental disorders<br />
681. According to <strong>the</strong> evidence-based literature, work-related stress,<br />
arising from a number <strong>of</strong> work-related risk factors, if sustained and<br />
uncontrolled, may lead to stress-induced mental illness such as<br />
depression and anxiety, as well as some chronic physiological<br />
illnesses or disease.<br />
682. Both <strong>the</strong> ILO and <strong>the</strong> WHO identify job insecurity and job strain as<br />
two significant consequences <strong>of</strong> work re-organisation that are<br />
recognised widely as important indices in increased risk <strong>of</strong> workrelated<br />
injury, occupational violence, cardiovascular disease and<br />
166 MacDonald, Wendy, & Evans, Owen (2006) Research on <strong>the</strong> Prevention <strong>of</strong> Work-Related<br />
Musculoskeletal Disorders: Stage 1 – Literature Review , ASCC, Canbera. Retrieved<br />
September 2006 from website<br />
(http://www.ascc.gov.au/NR/rdonlyres/D0C2EF6D-C027-4BEF-B9A2-<br />
D4F76F50A05A/0/WorkRelatedMusculoSkeletalDisordersStage1LitReviewNov06.pdf).<br />
238
mental disorders. How can <strong>the</strong> legislative and administrative<br />
frameworks prevent chronic disease associated with <strong>the</strong>se workrelated<br />
risks to health?<br />
Implications for <strong>the</strong> agency<br />
683. To some extent <strong>the</strong> workplace health and safety legislative<br />
framework may be adaptable to dealing with <strong>the</strong>se risks to health,<br />
but regulators <strong>of</strong> workplace health and safety cannot rely upon <strong>the</strong><br />
application <strong>of</strong> traditional safety systems and standards alone, to<br />
control <strong>the</strong>se risks.<br />
684. Traditional safety systems and standards, as we have discussed<br />
earlier in this <strong>report</strong>, are predominantly focused on single risk<br />
factors, while <strong>the</strong> risks associated with <strong>the</strong> incidence <strong>of</strong> chronic<br />
diseases are multi-factorial.<br />
685. There is urgency in <strong>the</strong> need to address <strong>the</strong> risk factors for chronic<br />
disease in our workplaces.<br />
686. The review team believes that <strong>the</strong> first task <strong>of</strong> <strong>the</strong> agency should be<br />
to increase general levels <strong>of</strong> awareness <strong>of</strong> <strong>the</strong> health risks<br />
associated with certain characteristics <strong>of</strong> work.<br />
Workplace as setting for Health promotion strategies<br />
687. A broader response is needed. Public health promotion and<br />
prevention strategies are being adopted in Europe to address <strong>the</strong><br />
impact <strong>of</strong> lifestyle and work on health. European workplace health<br />
and safety agencies now recognise <strong>the</strong> value <strong>of</strong> using <strong>the</strong><br />
239
workplace as a setting for health promotion built on <strong>the</strong> concept <strong>of</strong><br />
a “healthy enterprise”. 167<br />
688. Comprehensive and integrated programs, built on partnerships and<br />
agreements with appropriate funding, are now being put forward to<br />
control <strong>the</strong> workplace risk factors for chronic disease.<br />
For<br />
example: <strong>the</strong> European Work Health Project (commenced 2002<br />
and ongoing) and <strong>the</strong> World Health Organisation – Workplace<br />
Health Promotion programs; apply health promotion principles and<br />
programs to campaigns and programs to improve workplace health<br />
and safety. 168<br />
689. Similar efforts might be made in Tasmania by engaging with<br />
workplace parties at an industry and enterprise level to assist in<br />
controlling work-related risks to health through health promotion.<br />
690. Training is ano<strong>the</strong>r strategy that may be used to prevent injury and<br />
illness associated with risks to health in contemporary workplaces.<br />
Training<br />
691. The broader goals <strong>of</strong> preventing work-related injury and illness rely<br />
upon training and education <strong>of</strong> all parties (employers included) and<br />
all sized businesses to become more health and safety conscious,<br />
adopting health promotion strategies in wider settings.<br />
167 Matti Ylikoski & Riita-Maija Hämäläinen (2006) Workplace Health Promotion, National<br />
Health Policies and Strategies in an Enlarging Europe. Finnish Institute <strong>of</strong> Occupational<br />
Health, Linz.<br />
168 See ENWHP (Germany) http://www.enwhp.org/news/workhealth.php?news=4) and<br />
WHO, Occupational Health – Workplace Health Promotion<br />
(http://www.who.int/occupational_health/topics/workplace/en/index1.html).<br />
240
692. We can expect that <strong>the</strong>re will be greater demand to include health<br />
and safety education in schools and training institutions generally if<br />
preventive efforts are to have effect. Training also needs to be<br />
provided in workplaces for workers, managers and employers, in all<br />
sectors.<br />
693. Many respondents to <strong>the</strong> review have identified that <strong>the</strong>re is an<br />
urgent need for training in workplace health and safety, and see it<br />
as a responsibility for <strong>the</strong> agency administering <strong>the</strong> Act to provide<br />
as an adjunct to <strong>the</strong> prevention function.<br />
694. Inspectors and o<strong>the</strong>r relevant persons in Workplace Standards<br />
Tasmania would also need training in being able to provide advice,<br />
educate and raise awareness <strong>of</strong> <strong>the</strong> need to prevent chronic<br />
disease.<br />
695. If <strong>the</strong> agency were to meet <strong>the</strong>se needs, resources and <strong>the</strong><br />
potential for joint government strategies – both to train and recruit<br />
<strong>the</strong> trainers (advisors or inspectors) as well as to fund <strong>the</strong> training<br />
and awareness programs to be delivered – are potentially issues to<br />
be considered.<br />
696. To <strong>the</strong> extent that workplace health and safety has a major impact<br />
on <strong>the</strong> economy and presents a long-term concern for State and<br />
federal health expenditure, it should be a policy concern for <strong>the</strong><br />
whole <strong>of</strong> government. As a whole <strong>of</strong> government concern, it would<br />
bring <strong>the</strong> weight <strong>of</strong> policy in various fields (including education and<br />
training; economic development; industrial relations; public health<br />
241
and workplace standards) toge<strong>the</strong>r to deal with <strong>the</strong> effects <strong>of</strong><br />
change on health and safety and prevent chronic disease.<br />
697. Lifestyle risk factors for <strong>the</strong> priority chronic diseases are already<br />
targeted in public health promotion strategies that make use <strong>of</strong> both<br />
legislation (control <strong>of</strong> smoking legislation, for example) and<br />
educational programs (e.g. QUIT or exercise programs) to raise<br />
awareness <strong>of</strong> <strong>the</strong> health risks and <strong>the</strong>refore prevent illness. Such<br />
strategies have been introduced into some workplaces quite<br />
successfully.<br />
698. Dealing with multi-factorial risks to health associated with <strong>the</strong> work<br />
itself is far more problematic. Most jurisdictions have responded to<br />
<strong>the</strong> needs <strong>of</strong> duty holders by providing guidance and information,<br />
including advice that employers should develop workplace health<br />
and safety policies to manage psychosocial risk factors for illness<br />
and injury.<br />
699. Tasmania launched a kit -“Hidden Hazards – Stress, Bullying,<br />
Alcohol and O<strong>the</strong>r Drugs” - designed for employers and employees<br />
as part <strong>of</strong> Safety Week in 2002 and provided well-attended<br />
seminars in each region on “How to deal with Stress in <strong>the</strong><br />
Workplace”. Victoria responded by creating a specialist unit to deal<br />
with complaints and provide advice and information to assist<br />
workplaces on how to prevent stress-related illness.<br />
700. If we are to do more to assist workplaces to control <strong>the</strong> multifactorial<br />
risks associated with cardiovascular disease, MSDs and<br />
242
mental disorders, we need to streng<strong>the</strong>n <strong>the</strong> legislation so that it<br />
gives greater recognition to <strong>the</strong> impact <strong>of</strong> work organisation, work<br />
practices, job design and demand on psychosocial risk factors for<br />
illness. Administrative programs to educate and advise workplaces<br />
about <strong>the</strong> need to control <strong>the</strong> risks must <strong>the</strong>n support <strong>the</strong> legislation<br />
and we can learn much from <strong>the</strong> health promotion methods <strong>of</strong> <strong>the</strong><br />
national and state health programs.<br />
Recommendation 26:<br />
It is recommended that an amendment to <strong>the</strong> Act would<br />
streng<strong>the</strong>n <strong>the</strong> current references to “work practices” and<br />
working conditions. It could be phrased as a duty <strong>of</strong> employers<br />
(so far as is reasonably practicable) to control risks to health<br />
and safety that arise from any aspect <strong>of</strong> work including <strong>the</strong><br />
organisation and management <strong>of</strong> work, working conditions, job<br />
design and demand, work practices, and workplace behaviour<br />
(or “relations” if this term is preferred).<br />
701. The amendment to <strong>the</strong> <strong>Tasmanian</strong> Act thus made would reflect<br />
Article 6 <strong>of</strong> <strong>the</strong> European Union workplace health and safety<br />
Directive (EU 89/391). Article 5 <strong>of</strong> <strong>the</strong> latter opens with <strong>the</strong><br />
statement <strong>of</strong> principle that employers shall have a duty to ensure<br />
<strong>the</strong> safety and health <strong>of</strong> workers in every aspect <strong>of</strong> <strong>the</strong> work. A key<br />
clause <strong>of</strong> <strong>the</strong> Directive that relates to <strong>the</strong> association between work<br />
organisation and injury or illness is Article 6 (2) (g). It states<br />
employers shall take measures necessary to <strong>the</strong> safety and health<br />
protection <strong>of</strong> workers by “developing a coherent overall prevention<br />
policy which covers technology, organisation <strong>of</strong> work, working<br />
243
conditions, social relationships and <strong>the</strong> influence <strong>of</strong> factors related<br />
to <strong>the</strong> working environment”. 169<br />
702. Definitions <strong>of</strong> “organisation and management <strong>of</strong> work”, etc. would<br />
be required. These definitions should include <strong>the</strong> risk factors that<br />
are outlined in <strong>the</strong> text above.<br />
703. In regard to <strong>the</strong> potential impact <strong>of</strong> employment conditions and<br />
o<strong>the</strong>r aspects <strong>of</strong> work that may contribute to psychosocial risk<br />
factors, we believe accountable persons should give close attention<br />
to all aspects <strong>of</strong> <strong>the</strong> workplace that determine <strong>the</strong> general social<br />
and management environment. But <strong>the</strong>y should not do so without<br />
<strong>the</strong> advice and support and potential programs provided by <strong>the</strong><br />
State. The common goal for industry and <strong>the</strong> State in upholding<br />
<strong>the</strong> framework should be <strong>the</strong> creation <strong>of</strong> healthy workplaces.<br />
704. Some approaches to <strong>the</strong> prevalence <strong>of</strong> psychosocial factors<br />
advocate <strong>the</strong> provision <strong>of</strong> programs to assist persons already<br />
experiencing difficulties, for example “employee assistance<br />
programs” that may be valuable in providing support, advice and<br />
guidance to employees when <strong>the</strong>y are experiencing problems.<br />
These have value but <strong>the</strong>y are ‘reactive’ interventions that are<br />
useful after <strong>the</strong> event: <strong>the</strong>y have very limited effect on prevention.<br />
705. We realise that any risk factor that inherently involves work<br />
organisation may not be conducive to problem solving and<br />
169<br />
EEC Council Directive 89/391/EEC <strong>of</strong> 12 June 1989 on <strong>the</strong> introduction <strong>of</strong> measures to encourage<br />
improvements in <strong>the</strong> safety and health <strong>of</strong> workers at work. European Union, Brussels.<br />
(http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod)<br />
244
negotiation between workers and management or employers. We<br />
suspect that many persons may be reluctant to jeopardise <strong>the</strong>ir<br />
employment by raising psychosocial risk factors connected to work<br />
organisation, management, work practices and so forth. Workers<br />
who are exposed to such risks are, in reality, unlikely to feel able to<br />
deal individually with many <strong>of</strong> <strong>the</strong>se risk factors, at least not without<br />
some form <strong>of</strong> support.<br />
706. The inclusion <strong>of</strong> a duty to involve workpeople and encouragement<br />
<strong>of</strong> accountable persons to increase levels <strong>of</strong> involvement<br />
(potentially an issue that can be addressed by <strong>the</strong> recommended<br />
workplace health and safety council) may be fur<strong>the</strong>r streng<strong>the</strong>ned<br />
by ano<strong>the</strong>r strategy.<br />
Role <strong>of</strong> third party mediation to prevent risks <strong>of</strong> illness<br />
707. Where existing legislative provisions, such as consultation and<br />
representative mechanisms are inadequate to resolve work-related<br />
health and safety issues at <strong>the</strong> workplace, <strong>the</strong>re may be a need for<br />
an independent, non-threatening, impartial and respected<br />
mechanism to which parties might apply for mediation. The aim<br />
would be to facilitate <strong>the</strong> resolution <strong>of</strong> <strong>the</strong> problem when workplace<br />
parties <strong>the</strong>mselves are unable to do so.<br />
708. We discussed <strong>the</strong> issue with Pat Leary, <strong>the</strong> President, and Allan<br />
Mahoney, <strong>the</strong> Registrar, <strong>of</strong> <strong>the</strong> <strong>Tasmanian</strong> Industrial Commission.<br />
245
709. Both Pat Leary and Allan Mahoney support <strong>the</strong> idea. The TIC has<br />
both <strong>the</strong> resources and <strong>the</strong> skills to facilitate <strong>the</strong> resolution <strong>of</strong><br />
issues that affect <strong>the</strong> social and management environment <strong>of</strong><br />
workplaces.<br />
710. Currently it has no powers to carry out such activity and <strong>the</strong> parties<br />
involved would have to give those powers.<br />
Similarly, <strong>the</strong><br />
commissioners <strong>of</strong> <strong>the</strong> TIC would need to be given indemnification<br />
from liability in order to act as mediators or third party facilitators in<br />
resolving psychosocial risks to health and safety.<br />
711. The expertise and experience <strong>of</strong> commissioners would provide <strong>the</strong><br />
kind <strong>of</strong> credible, non-threatening mechanism envisaged. It would<br />
be valuable for people who feel that <strong>the</strong>y are <strong>the</strong> victim <strong>of</strong> bullying<br />
or whose workload, job demands etc are felt to be unreasonable<br />
and causing stress that <strong>the</strong>y cannot resolve <strong>the</strong>mselves within <strong>the</strong><br />
workplace.<br />
712. The review team believes that <strong>the</strong> legislative framework should<br />
<strong>the</strong>refore provide for an independent forum established within <strong>the</strong><br />
TIC to hear such matters. It would assist in preventing <strong>the</strong><br />
incidence <strong>of</strong> psychosocial risk factors in <strong>the</strong> workplace that give<br />
rise to work-related injury and illness and may assist in improving<br />
workplace relations generally.<br />
Recommendation 27:<br />
It is recommended that a provision be included in <strong>the</strong> Act to<br />
enable workplace parties to approach a tribunal <strong>of</strong> <strong>the</strong><br />
<strong>Tasmanian</strong> Industrial Commission for resolving workplace<br />
246
health and safety issues that have not been successfully<br />
resolved at <strong>the</strong> workplace.<br />
The primary purpose <strong>of</strong> <strong>the</strong> tribunal would be to mediate and<br />
facilitate <strong>the</strong> resolution <strong>of</strong> issues.<br />
The overall objective would be to prevent illness and/or injury<br />
that may arise from psychosocial risk factors in <strong>the</strong> workplace.<br />
The amendment would necessarily be drafted so that its<br />
purpose is clear and not be exploited for o<strong>the</strong>r purposes.<br />
A working group <strong>of</strong> agency, TIC and o<strong>the</strong>r relevant persons<br />
would need to consider <strong>the</strong> powers, indemnification and<br />
referring provisions that would enable <strong>the</strong> tribunal to operate<br />
within <strong>the</strong> legislation.<br />
Health promotion<br />
713. Without activities to raise awareness, increase knowledge and<br />
understanding <strong>of</strong> <strong>the</strong> effects <strong>of</strong> work organisation, work practices<br />
and behaviour on <strong>the</strong> health <strong>of</strong> workers, <strong>the</strong> recommended<br />
legislative amendments would have little “teeth”.<br />
714. The agency <strong>the</strong>refore needs to work closely with <strong>the</strong> recommended<br />
workplace health and safety council and <strong>the</strong> WorkCover Board to<br />
develop a broad range <strong>of</strong> activities to support <strong>the</strong> National Strategy<br />
to prevent priority occupational diseases and focus on <strong>the</strong> work<br />
organisational aspects <strong>of</strong> risks to health.<br />
715. Given that workplace health and safety agencies and general<br />
health agencies are both working towards <strong>the</strong> prevention <strong>of</strong> <strong>the</strong><br />
same chronic diseases, it seems sensible that <strong>the</strong>re should be<br />
collaboration between <strong>the</strong>m at state and federal levels. Workplace<br />
advisory or awareness programs developed locally by <strong>the</strong><br />
247
workplace health and safety council or <strong>the</strong> WorkCover Board, and<br />
delivered by Workplace Standards Tasmania, should be designed<br />
to employ strategies that have proven to be successful in general<br />
health promotion. Health promotion activities likewise should give<br />
more emphasis to raising awareness <strong>of</strong> <strong>the</strong> issues within<br />
workplaces, so that <strong>the</strong>re is a whole <strong>of</strong> government approach. In a<br />
complex area <strong>of</strong> preventing risks to health, this is likely to be <strong>the</strong><br />
most effective and efficient way to achieve <strong>the</strong> common objectives.<br />
Recommendation 28:<br />
It is recommended that collaboration with o<strong>the</strong>r relevant<br />
agencies be used to raise awareness <strong>of</strong> <strong>the</strong> contributory workrelated<br />
risk factors to chronic disease identified as priorities by<br />
<strong>the</strong> National OHS and National Health Strategies.<br />
It is recommended that programs, activities and services<br />
delivered to workplaces take advantage <strong>of</strong> health promotional<br />
methods that have proved to be successful.<br />
The WorkCover Board, in fulfilling its promotion function<br />
according <strong>the</strong> Act, and <strong>the</strong> recommended workplace health and<br />
safety council may benefit from exploring a whole <strong>of</strong><br />
government approach to preventing work-related illness.<br />
Recommendation 29:<br />
It is recommended that <strong>the</strong> Inspectorate should receive targeted<br />
training on how to advise businesses correctly in regard to <strong>the</strong><br />
impact <strong>of</strong> work organisation, work practices and management<br />
<strong>of</strong> work.<br />
Recommendation 30:<br />
To reduce injury and illness in <strong>Tasmanian</strong> workplaces, it is<br />
recommended that workplace health and safety training,<br />
embracing awareness <strong>of</strong> <strong>the</strong> legislation and how to prevent<br />
work-related injury and illness, should be a mandatory part <strong>of</strong><br />
all vocational and management training.<br />
248
Employers, principals, contractors, managers and supervisors<br />
should all be actively encouraged to complete workplace health<br />
and safety training. The State Government could lead <strong>the</strong> way<br />
by initiating workplace health and safety training in all public<br />
sector training provided for relevant supervisory and<br />
management positions.<br />
Recommendation 31:<br />
It is recommended that <strong>the</strong> agency provide regular training<br />
seminars for businesses on aspects <strong>of</strong> <strong>the</strong> legislation and<br />
preventing injury and illness.<br />
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CHAPTER 6<br />
ADMINISTRATION AND OTHER MATTERS<br />
If we had one wish, we need better, relevant information<br />
from a responsive, proportionate regulator. The<br />
regulator must be adequately resourced and be credible<br />
– have <strong>the</strong>y told us what <strong>the</strong> national targets are, or<br />
where we are falling down, or helped identify joint<br />
strategies? (<strong>Tasmanian</strong> Minerals Council)<br />
The current administration <strong>of</strong> Workplace Standards<br />
Tasmania is not as effective as it could be. Whilst a key<br />
function <strong>of</strong> <strong>the</strong> inspectorate needs to be enforcement,<br />
<strong>the</strong> majority <strong>of</strong> small and medium sized businesses<br />
would benefit from a more pro-active, educative and<br />
supportive role. …. There is widespread support from all<br />
members <strong>of</strong> <strong>the</strong> Association for additional funding to be<br />
made available for education and a co-operative<br />
approach to OH&S issues in <strong>the</strong> workplace. Members<br />
also made a strong suggestion that revenue raised from<br />
penalties imposed under <strong>the</strong> Act be put back into<br />
education. (Master Builders Association Tasmania –<br />
MBAT)<br />
716. Throughout this <strong>report</strong> we have commented on both legislative and<br />
administrative matters according to <strong>the</strong> terms <strong>of</strong> reference for this<br />
review. We have <strong>of</strong>ten commented that legislative amendment<br />
alone will not prevent work-related injury and illness and in making<br />
recommendations for legislative amendment we have also made<br />
recommendations for administrative action.<br />
717. Chapter 5 continued in this vein, discussing how <strong>the</strong> legislative and<br />
administrative frameworks might be improved to address <strong>the</strong> eight<br />
priority occupational diseases. We found that <strong>the</strong> traditional<br />
250
approach <strong>of</strong> <strong>the</strong> legislation would have limited effect in application<br />
to work-related contributory risk factors for chronic diseases.<br />
718. We <strong>the</strong>refore recommended streng<strong>the</strong>ning current references in<br />
<strong>the</strong> legislation to work practices by <strong>the</strong> inclusion <strong>of</strong> a specific duty<br />
<strong>of</strong> employers (subject to reasonable practicability) to control <strong>the</strong><br />
risks to health and safety associated with work organisation,<br />
management <strong>of</strong> work and work practices.<br />
719. We recommended an increase in administrative activity to raise<br />
awareness <strong>of</strong> <strong>the</strong> work-related factors contributing to <strong>the</strong> current<br />
increase <strong>of</strong> chronic disease and recommended collaboration at<br />
various levels - between relevant state departments and between<br />
<strong>the</strong> state and federal agencies – to convey <strong>the</strong> broader preventive<br />
message to control <strong>the</strong> work-related risks <strong>of</strong> chronic disease.<br />
720. The previous chapter included reference to <strong>the</strong> important role <strong>of</strong><br />
training for inspectors, managers and workers and recommended<br />
making workplace health and safety training a compulsory part <strong>of</strong><br />
all post-secondary core curricula as a means <strong>of</strong> raising awareness<br />
<strong>of</strong> health and safety risks.<br />
721. This chapter will consider <strong>the</strong> functions and roles <strong>of</strong> inspectors as<br />
<strong>the</strong> “front line” <strong>of</strong> <strong>the</strong> administration <strong>of</strong> workplace health and safety<br />
in detecting and investigating possible <strong>of</strong>fences. It will also<br />
consider <strong>the</strong> legislation according to term <strong>of</strong> reference 3: “to ensure<br />
that <strong>the</strong> nature <strong>of</strong> <strong>of</strong>fences is clear and that penalties associated<br />
251
with <strong>of</strong>fences have appropriate deterrent effect so as to increase<br />
compliance with <strong>the</strong> legislation”.<br />
722. We open <strong>the</strong> discussion with two comments from respondents<br />
about <strong>the</strong> administration <strong>of</strong> <strong>the</strong> legislation. They are typical <strong>of</strong><br />
responses received. Unanimously, stakeholders identified <strong>the</strong><br />
need for improvements in <strong>the</strong> way in which Workplace Standards<br />
Tasmania administers <strong>the</strong> legislation.<br />
723. Comments have referred to <strong>the</strong> need for more responsive,<br />
proportionate, effective, better-resourced or more credible<br />
administration. Many comments have focused on <strong>the</strong> Inspectorate<br />
– its roles, functions, activities and training. It has seemed that<br />
stakeholders see <strong>the</strong> Inspectorate as “<strong>the</strong> administration”.<br />
Certainly for many <strong>the</strong> Inspectorate is <strong>the</strong> “public face” <strong>of</strong><br />
Workplace Standards. In considering some final administrative<br />
matters, we consider <strong>the</strong> Inspectorate first.<br />
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Inspectorate<br />
724. The Act confers powers and functions upon inspectors to facilitate<br />
or enforce compliance with <strong>the</strong> legislation at Sections 36 and 38 <strong>of</strong><br />
<strong>the</strong> Act. The powers are limited to:<br />
• ascertaining whe<strong>the</strong>r an <strong>of</strong>fence has been committed<br />
(section 36); and<br />
• in respect <strong>of</strong> safety and health risks (section 38).<br />
725. There are no legislated powers or functions to provide advice,<br />
furnish an opinion, educate, raise awareness or any o<strong>the</strong>r general<br />
activity designed to highlight <strong>the</strong> requirements <strong>of</strong> <strong>the</strong> legislation.<br />
Ascertaining whe<strong>the</strong>r an <strong>of</strong>fence has been committed (section<br />
36)<br />
726. In order to ascertain whe<strong>the</strong>r <strong>the</strong> legislation is being complied with,<br />
section 36 <strong>of</strong> <strong>the</strong> Act provides inspectors with powers <strong>of</strong> entry,<br />
inspection, examination and inquiry; taking samples, photographs,<br />
films, video or audio recordings; examining and copying records.<br />
Inspectors are also empowered to require persons to answer any<br />
question or provide any information “as may be necessary to<br />
ascertain whe<strong>the</strong>r <strong>the</strong> provisions <strong>of</strong> this Act are being complied<br />
with”.<br />
727. Section 36(6) makes it clear that “[t]he person in charge <strong>of</strong> a place<br />
that is <strong>the</strong> subject <strong>of</strong> an inspection under this section and any<br />
employer at that place must provide such assistance as may be<br />
253
necessary to facilitate <strong>the</strong> exercise <strong>of</strong> <strong>the</strong> powers conferred by this<br />
section”. [Section 36(6)]<br />
728. If inspectors suspect on reasonable grounds that an <strong>of</strong>fence<br />
against <strong>the</strong> Act has been committed, <strong>the</strong>y may seize and retain<br />
anything that affords evidence <strong>of</strong> that <strong>of</strong>fence.<br />
729. Section 37 applies standard provisions that relate to how persons<br />
must respond: how <strong>the</strong>y must furnish information and comply with a<br />
requirement made by inspectors.<br />
730. Section 37 (1) (a) and (b) makes it an <strong>of</strong>fence in relation to an<br />
inspector to:<br />
(a) obstruct, wilfully delay, threaten, intimidate or attempt<br />
to intimidate an inspector, a person assisting an<br />
inspector or an interpreter in <strong>the</strong> execution <strong>of</strong> <strong>the</strong><br />
inspector’s functions under this Act; or<br />
(b) without lawful excuse, refuse or fail to comply with a<br />
requirement made, or to answer a question asked, by an<br />
inspector under this Act; …<br />
731. Section 37, sub-sections (3) and (4) have been subject to debate.<br />
By s37(3) a person is not excused from answering any question<br />
asked, or providing any information required by an inspector on <strong>the</strong><br />
ground that <strong>the</strong> answer or information may tend to incriminate that<br />
person.<br />
732. However, sub-section (4) provides that any answer given in<br />
proceedings for an <strong>of</strong>fence against <strong>the</strong> Act is not admissible in<br />
evidence against <strong>the</strong> person if [at (4)(a)] “<strong>the</strong> person claims before<br />
254
giving <strong>the</strong> answer or providing <strong>the</strong> information that <strong>the</strong> answer or<br />
information may tend to incriminate <strong>the</strong> person”.<br />
733. Inspectors are currently required to issue a “caution” before<br />
requiring persons to answer questions in proceedings. Inspectors<br />
claim that <strong>the</strong> caution <strong>the</strong>y are required to issue and <strong>the</strong><br />
incrimination and admissible evidence provisions frustrate <strong>the</strong>m,<br />
never<strong>the</strong>less <strong>the</strong> privilege against self-incrimination is a general<br />
principle applying to questioning that must be preserved.<br />
In respect <strong>of</strong> health and safety risks (section 38)<br />
734. Inspectors are provided with powers to serve notices to remedy a<br />
situation where an inspector is <strong>of</strong> <strong>the</strong> opinion that <strong>the</strong> safety or<br />
health <strong>of</strong> persons is endangered or where <strong>the</strong>re is a contravention<br />
<strong>of</strong> <strong>the</strong> Act at section 38.<br />
735. Oral directions may be issued in cases where <strong>the</strong>re is sufficient<br />
urgency to warrant immediate action but <strong>the</strong>se must be followed as<br />
soon as practicable by a notice in writing.<br />
736. Notices or directions are common instruments used to require an<br />
employer, a responsible <strong>of</strong>ficer or o<strong>the</strong>r person, to remedy any<br />
situation. If complying with <strong>the</strong> notice would have <strong>the</strong> effect <strong>of</strong><br />
causing <strong>the</strong> cessation or substantial cessation <strong>of</strong> <strong>the</strong> business, <strong>the</strong><br />
employer or responsible <strong>of</strong>ficer may request <strong>the</strong> Director <strong>of</strong> Industry<br />
Safety (<strong>the</strong> Director) to confirm, modify or revoke <strong>the</strong> notice.<br />
255
737. The latter does not appear to apply where oral direction is given in<br />
urgent situations, although it would apply to a notice issued<br />
subsequent to an oral direction, and so <strong>the</strong>re is some ambiguity or<br />
uncertainty contained within <strong>the</strong>se provisions. The provision at<br />
s38(8) should not apply to situations that require urgent action in<br />
order to prevent injury or illness or death. In any case, if an<br />
application is made to <strong>the</strong> Director to confirm, modify or revoke <strong>the</strong><br />
notice, it must be confirmed, modified or revoked within 24 hours <strong>of</strong><br />
receiving <strong>the</strong> request.<br />
738. It is very clear that inspectors do not have legislated powers to do<br />
any more than what is provided for in <strong>the</strong> Act. Since <strong>the</strong> Act<br />
provides <strong>the</strong>m with protection from liability only in respect <strong>of</strong> <strong>the</strong><br />
powers and functions conferred by <strong>the</strong> Act, it would not be<br />
surprising if <strong>the</strong>y were reluctant to perform any function that is not<br />
defined by <strong>the</strong> Act.<br />
739. Against that background we consider employers’ <strong>of</strong>t-repeated<br />
strong desire for greater advice and assistance to be provided by<br />
inspectors with increased general inspections and audits, so that<br />
<strong>the</strong> overall visibility <strong>of</strong> <strong>the</strong> inspectorate and <strong>the</strong> agency in<br />
administering <strong>the</strong> legislation are increased.<br />
740. Without amendments to <strong>the</strong> powers and functions <strong>of</strong> inspectors to<br />
enable <strong>the</strong>m to provide advice, education and o<strong>the</strong>r forms <strong>of</strong><br />
awareness raising activities, <strong>the</strong>se are clearly outside <strong>the</strong> statutory<br />
powers and functions <strong>of</strong> inspectors.<br />
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Legislated powers to give advice, education, support<br />
etc.<br />
741. The Strategy <strong>of</strong> “raising community awareness”, according to <strong>the</strong><br />
WST Strategic Plan 2001-05 involves thirteen different activities<br />
from awareness programs through to training. It was stated in <strong>the</strong><br />
Discussion Paper that <strong>the</strong> potential for increasing “pro-active” work<br />
depends upon <strong>the</strong> workload generated by <strong>the</strong> number <strong>of</strong><br />
complaints and investigations that must be completed into incidents<br />
occurring at workplaces (<strong>of</strong>ten called “reactive” work). Reactive<br />
work cannot be ignored, or not done.<br />
742. The discussion <strong>of</strong> enforcement in <strong>the</strong> WRMC CPM Report<br />
acknowledges <strong>the</strong> variety <strong>of</strong> enforcement tools and protocols used<br />
by jurisdictions. 170<br />
It misleads stakeholders by stating<br />
Inspectors appointed under legislation may visit<br />
workplaces for <strong>the</strong> purpose <strong>of</strong> providing advice,<br />
investigating accidents or dangerous occurrences and<br />
ensuring compliance with <strong>the</strong> OHS legislation.<br />
[Emphasis added.]<br />
743. The <strong>Tasmanian</strong> Act does not confer powers to enable inspectors to<br />
provide advice. For inspectors to do so would be to attract<br />
potential liability since, as it has already been pointed out, <strong>the</strong>y only<br />
have immunity in discharging <strong>the</strong>ir legislated powers and functions.<br />
170 Workplace Relations Ministers’ Council Comparative Performance Monitoring Report –<br />
Comparison <strong>of</strong> occupational health and safety and workers’ compensation schemes in<br />
Australia and New Zealand, Eighth Edition September 2006; Chapter 3 – “Enforcement”<br />
p. 15.<br />
257
744. The chapter on enforcement in <strong>the</strong> CPM Report goes on to discuss<br />
workplace interventions that are categorised as “proactive” and<br />
“reactive”:<br />
Proactive interventions are defined as all workplace<br />
visits that have not resulted from a complaint or<br />
workplace incident. They include all planned<br />
interventions, routine workplace visits, inspections/audits<br />
and industry forums/presentations (where an inspector<br />
delivers educational advice or information).<br />
Reactive interventions are defined as attendances at<br />
work sites following notifiable work injuries, dangerous<br />
occurrences or issuing <strong>of</strong> notices where comprehensive<br />
investigation summaries (briefs <strong>of</strong> evidence) are<br />
completed. Not all requests for investigations or<br />
incidents result in a formal investigation. A range <strong>of</strong><br />
enquiries may be made in order to inform a decision on<br />
whe<strong>the</strong>r an investigation is warranted. 171<br />
745. The CPM Report identifies that in 2004-05, 67% <strong>of</strong> all interventions<br />
were proactive, compared to 43% in 2000-01 (<strong>the</strong> “baseline” year<br />
established for <strong>the</strong> National OHS Improvement Strategy).<br />
746. Enforcement activity is tabulated for each jurisdiction at page 17 <strong>of</strong><br />
<strong>the</strong> Report. The figures <strong>report</strong>ed for Tasmania in that table are<br />
extracted for two years – <strong>the</strong> baseline year <strong>of</strong> 2000-01 and <strong>the</strong><br />
most recent, 2004-05 and reproduced in <strong>the</strong> table below, with<br />
percentages calculated for <strong>the</strong> two types <strong>of</strong> interventions.<br />
Year Total<br />
“Proactive” “Reactive”<br />
interventions<br />
2000-01 4410 491 (11.13%) 3919 (88.86%)<br />
2004-05 6964 2857 (41%) 4107 (58.97%)<br />
171 WRMC (2006) CPM Report, p.15.<br />
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747. The percentage <strong>of</strong> proactive interventions depends upon two things<br />
– <strong>the</strong> number <strong>of</strong> field-active inspectors employed 172 and <strong>the</strong> number<br />
<strong>of</strong> reactive interventions that must be made.<br />
748. In comparison with o<strong>the</strong>r jurisdictions, Tasmania has <strong>the</strong> lowest<br />
number <strong>of</strong> field-active inspectors; however, it is misleading to look<br />
at numbers <strong>of</strong> field-active inspectors in isolation. The calculation <strong>of</strong><br />
<strong>the</strong> number <strong>of</strong> field-active inspectors per 10,000 employees is a<br />
more appropriate measure <strong>of</strong> <strong>the</strong> level <strong>of</strong> resources allocated to<br />
field inspections/work visits.<br />
749. In this respect, <strong>Tasmanian</strong> field-active inspectors are on a par with<br />
South Australia – at 1.5 inspectors per 10,000 employees. (It is not<br />
indicated in <strong>the</strong> <strong>report</strong> how “employees” are defined and whe<strong>the</strong>r it<br />
includes workers who are not defined as “employees” according to<br />
<strong>the</strong> definition <strong>of</strong> <strong>the</strong> Act.)<br />
Enforcement Pyramid<br />
750. Contemporary enforcement by inspectors involves a wide range <strong>of</strong><br />
potential activities and actions diagrammatically represented by <strong>the</strong><br />
“enforcement pyramid” which indicates that <strong>the</strong> greatest amount <strong>of</strong><br />
administrative effort consists <strong>of</strong> providing positive incentives for<br />
improvement through activities to support compliance with <strong>the</strong><br />
legislation such as education, information and advice. These<br />
172 As defined by <strong>the</strong> CPM Report, <strong>the</strong>se are “gazetted inspectors whose role is to spend <strong>the</strong><br />
majority <strong>of</strong> <strong>the</strong>ir time enforcing provisions <strong>of</strong> <strong>the</strong> OHS legislation directly with workplaces i.e. a<br />
compliance field role. They do not include managers <strong>of</strong> <strong>the</strong> inspectorate.” (CPM Report, Sept.<br />
2006, page 16.)<br />
259
activities would be categorised as “proactive” according to <strong>the</strong> CPM<br />
Report on enforcement.<br />
751. The enforcement pyramid concept is hierarchical, moving from <strong>the</strong><br />
base (information and education designed to provide incentives<br />
and increase knowledge and understanding); to <strong>the</strong> next stage <strong>of</strong><br />
persuasion (letters, oral or written notices to remedy deficiencies).<br />
752. Higher up <strong>the</strong> enforcement pyramid are alternative administrative<br />
actions that gradually increase <strong>the</strong> level <strong>of</strong> compulsion, including<br />
infringement notices (“on <strong>the</strong> spot fines”); and finally at <strong>the</strong> apex <strong>of</strong><br />
<strong>the</strong> pyramid are <strong>the</strong> options for enforceable undertakings (as<br />
alternatives to prosecution) or prosecution for breaches <strong>of</strong> <strong>the</strong> Act.<br />
The power to enter into enforceable undertakings with employers<br />
now acknowledges <strong>the</strong> value <strong>of</strong> alternatives to prosecution in<br />
certain circumstances.<br />
753. Prosecution, a tiny part <strong>of</strong> <strong>the</strong> overall enforcement effort, would<br />
appear to many to be “<strong>the</strong> last resort”, but <strong>of</strong> course it is not <strong>the</strong><br />
case. Nei<strong>the</strong>r does its small area <strong>of</strong> <strong>the</strong> pyramid indicate that<br />
prosecution occupies only a small fraction <strong>of</strong> resources. Far from<br />
it. Investigation and prosecution is very resource-intensive.<br />
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754. (See <strong>the</strong> diagram below – with acknowledgement to Neil<br />
Gunningham, from whose PowerPoint presentation <strong>the</strong> diagram is<br />
copied. 173 )<br />
Enforcement Pyramid:<br />
(Source: Gunningham (2006) after Ayres & Braithwaite (1992).<br />
755. As <strong>the</strong> diagram indicates, by far <strong>the</strong> majority <strong>of</strong> inspectors’ activities<br />
should be in <strong>the</strong> bottom three “layers” encompassing education and<br />
persuasion. Persuasion, may be, as <strong>the</strong> pyramid indicates, “s<strong>of</strong>t”,<br />
involving advice or oral direction to remedy; or “hard”, involving <strong>the</strong><br />
173 Gunningham, Neil, Slide 8 <strong>of</strong> a presentation made at <strong>the</strong> fifth National OHS Regulatory<br />
Research Colloquium, February 15-16, 2006. National Research Centre for OHS Regulation,<br />
ANU: Canberra. We also acknowledge <strong>the</strong> original source from which Gunningham took <strong>the</strong><br />
diagram: Ian Ayres and John Braithwaite (1992) Responsive Regulation, Oxford University<br />
Press, UK).<br />
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issue <strong>of</strong> an infringement notice, improvement notices or<br />
compulsory counselling.<br />
756. The inspectorate has <strong>the</strong> power to issue notices or proceed directly<br />
to stronger methods, depending upon <strong>the</strong> circumstances and <strong>the</strong><br />
health and safety “case history” <strong>of</strong> <strong>the</strong> business. Never<strong>the</strong>less, <strong>the</strong><br />
entire enforcement effort rests upon a broad base <strong>of</strong> information,<br />
education and advice.<br />
757. As we have already observed, <strong>the</strong> Act does not empower<br />
inspectors to engage in activities that are located at <strong>the</strong> base <strong>of</strong> <strong>the</strong><br />
enforcement pyramid.<br />
758. O<strong>the</strong>r reviewers have encountered a similar situation. Laing, in his<br />
review <strong>of</strong> <strong>the</strong> Western Australian OHS Act 1984, for example,<br />
writes “an inspector does not have <strong>the</strong> power to issue information<br />
and advice although it is an important and common practice that<br />
assists in <strong>the</strong> prevention <strong>of</strong> injury and disease”. 174<br />
759. In seeking advice on how to approach a problem, or even in <strong>the</strong><br />
most basic <strong>of</strong> cases, in seeking to understand what is required <strong>of</strong><br />
<strong>the</strong>m by <strong>the</strong> legislation itself, duty holders should expect and<br />
receive guidance. Much <strong>of</strong> <strong>the</strong> guidance that is available is<br />
produced by <strong>the</strong> WorkCover Board <strong>of</strong> Tasmania in <strong>the</strong> form <strong>of</strong><br />
publications, based upon <strong>the</strong> function assigned to <strong>the</strong> Board by<br />
section 6(a) <strong>of</strong> <strong>the</strong> Act – “to promote <strong>the</strong> prevention <strong>of</strong> injuries and<br />
174 Laing (2002), para 1133; p. 278.<br />
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disease at workplaces and <strong>the</strong> development <strong>of</strong> healthy and safe<br />
workplaces”.<br />
760. Of course an inspector may, without fear <strong>of</strong> liability, refer workplace<br />
parties to any written information, such as a standard that is<br />
referenced or guidance that is published and readily available to<br />
any workplace. (Many such publications may be accessed by<br />
contacting <strong>the</strong> agency – through <strong>the</strong> website or through <strong>the</strong><br />
Helpline). Yet, sometimes nothing works better than having things<br />
explained immediately on a face-to-face basis. Employers would<br />
undoubtedly be irritated and confused if, when visited by an<br />
inspector, <strong>the</strong>y are told <strong>the</strong>y must contact <strong>the</strong> agency “for advice or<br />
guidance”.<br />
761. We conclude that inspectors, at <strong>the</strong> “front line” <strong>of</strong> <strong>the</strong> agency,<br />
should be able to exercise <strong>the</strong>ir discretion in providing advice and<br />
be involved in education or o<strong>the</strong>r awareness raising activities,<br />
without fear <strong>of</strong> liability. If this type <strong>of</strong> activity will facilitate <strong>the</strong><br />
achievement <strong>of</strong> <strong>the</strong> legislation’s objectives to prevent injury, illness<br />
or death, <strong>the</strong>n we believe that <strong>the</strong> Act should expressly give<br />
inspectors those powers and functions.<br />
Recommendation 32:<br />
It is recommended that an amendment to <strong>the</strong> powers and<br />
functions <strong>of</strong> inspectors be drafted to include educative and<br />
advisory powers and functions to:<br />
- meet stakeholders’ needs for more direct advice;<br />
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- enable <strong>the</strong> increase in awareness-raising activities that we<br />
have consistently recommended throughout this <strong>report</strong>; and<br />
- provide indemnification <strong>of</strong> inspectors when engaging in<br />
advisory or educative functions.<br />
264
Small business support<br />
762. The majority <strong>of</strong> respondents are in favour <strong>of</strong> providing greater<br />
support in workplace health and safety to small business.<br />
763. On <strong>the</strong> <strong>the</strong>me <strong>of</strong> providing advice and education, <strong>the</strong> <strong>Tasmanian</strong><br />
Automobile Chamber <strong>of</strong> Commerce writes<br />
Government needs to assist smaller employers meet<br />
<strong>the</strong>ir responsibilities by providing practical guidance,<br />
information and assistance. Larger employers should<br />
be expected to have <strong>the</strong> capacity to do so from within<br />
<strong>the</strong>ir existing resources. TACC considers that<br />
Workplace Standards should introduce a small business<br />
program comparable with that which is running in<br />
Victoria and currently being adopted by a number <strong>of</strong><br />
o<strong>the</strong>r State jurisdictions. …<br />
… TACC considers that very few <strong>of</strong> its small business<br />
members would have any concept <strong>of</strong> compliance with<br />
<strong>the</strong> Act or Regulations at all. (TACC)<br />
764. Similarly <strong>the</strong> <strong>Tasmanian</strong> Forest Contractors Association believes<br />
that Tasmania should consider <strong>the</strong> Victorian arrangement whereby<br />
small business is able to obtain three hours <strong>of</strong> paid consultation<br />
from <strong>the</strong> regulator.<br />
765. The <strong>Tasmanian</strong> Minerals Council <strong>of</strong>fered <strong>the</strong> advice that<br />
<strong>the</strong> most effective forms <strong>of</strong> communication with small<br />
business are information sheets posted out to <strong>the</strong> site<br />
manager, backed up by face-to-face workshops where<br />
<strong>the</strong> business comes to <strong>the</strong> regulator, followed up by site<br />
visits. Information sheets should be to <strong>the</strong> point and<br />
contain a photo or illustration. (TMC)<br />
766. This is a “three pronged” planned communication strategy involving<br />
co-operation between industry and <strong>the</strong> agency in delivery and<br />
response. It illustrates how a small business support program<br />
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might operate. Site visits, conducted ei<strong>the</strong>r by small business<br />
advisors or by inspectors would become <strong>the</strong> means for confirming<br />
whe<strong>the</strong>r <strong>the</strong> first two parts <strong>of</strong> <strong>the</strong> communication strategy had been<br />
effective.<br />
767. Outside <strong>the</strong> formal seminar/workshop format, inspectors can<br />
provide assistance to workplace parties simply by answering<br />
questions, raising awareness <strong>of</strong> <strong>the</strong> duties and obligations <strong>of</strong><br />
persons under <strong>the</strong> Act, and promoting <strong>the</strong> adoption <strong>of</strong> risk control<br />
strategies to prevent injury, illness or death. As one <strong>of</strong> <strong>the</strong><br />
respondents commented, it may mean nothing more than stating<br />
an outcome or objective to be achieved and leaving <strong>the</strong> duty holder<br />
to do everything <strong>the</strong>y reasonably can to achieve it.<br />
The<br />
accountability <strong>of</strong> duty holders is not changed and <strong>the</strong> role <strong>of</strong><br />
inspectors is not confused.<br />
768. We are only too aware that a small state like Tasmania does not<br />
have <strong>the</strong> same level <strong>of</strong> funding or resources as <strong>the</strong> larger states.<br />
Our ability to provide services is dependent upon funds being made<br />
available ei<strong>the</strong>r through <strong>the</strong> State Budgetary processes or through<br />
arrangements to allocate <strong>the</strong> levy collected by WorkCover<br />
Tasmania. (The financial capacity might be reduced if a number <strong>of</strong><br />
<strong>the</strong> larger employers who currently contribute to <strong>the</strong> workers’<br />
compensation pool <strong>of</strong> funds leave <strong>the</strong> state scheme and join<br />
Comcare.)<br />
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769. We see value in developing programs to assist small business<br />
where funding arrangements could be made, and see <strong>the</strong> potential<br />
for <strong>the</strong> WorkCover Board to allocate funding for such programs on<br />
<strong>the</strong> basis <strong>of</strong> integrated strategies and business plans received from<br />
<strong>the</strong> recommended workplace health and safety council.<br />
Recommendation 33:<br />
It is recommended that funding arrangements are negotiated<br />
between <strong>the</strong> WorkCover Board, <strong>the</strong> agency and <strong>the</strong> Workplace<br />
Health and Safety Council to develop and implement additional<br />
awareness raising, educative and advisory programs that<br />
support <strong>the</strong> needs <strong>of</strong> small business.<br />
Training issues<br />
770. In addressing many <strong>of</strong> <strong>the</strong> issues associated with <strong>the</strong> prevention <strong>of</strong><br />
illness arising from <strong>the</strong> contributory factors we discussed in <strong>the</strong><br />
previous chapter, inspectors will <strong>the</strong>mselves need to be fully aware<br />
<strong>of</strong> <strong>the</strong> risks to health. As with o<strong>the</strong>r prevention aspects, inspectors<br />
require “adequate and appropriate training to enable such issues to<br />
be quickly identified and effectively dealt with” (Anon.).<br />
Recommendation 34:<br />
It is recommended that inspectorate training programs include<br />
training to equip <strong>the</strong>m with <strong>the</strong> knowledge and skills to be able<br />
to identify risks and prevent illness arising from work<br />
organisation, work practices and <strong>the</strong> management <strong>of</strong> work and<br />
advise businesses appropriately.<br />
771. Many respondents agreed with <strong>the</strong> suggestion in <strong>the</strong> Discussion<br />
Paper that <strong>the</strong> duty holder (employer / responsible <strong>of</strong>ficer /<br />
accountable person) must provide elected representatives with<br />
267
training in workplace health and safety management as well as<br />
effective skills. They went fur<strong>the</strong>r and suggested that <strong>the</strong> training<br />
should comply with minimum standards or an approved curriculum<br />
or course; that Workplace Standards should have a role in<br />
developing <strong>the</strong> course or standard or even delivering <strong>the</strong> training.<br />
772. Some respondents raised <strong>the</strong> issue <strong>of</strong> providing training to<br />
accountable persons, responsible <strong>of</strong>ficers and employee safety<br />
representatives. Injury Prevention Management (IPM) commented<br />
that health and safety committees are <strong>of</strong>ten unproductive unless<br />
trained and well chaired; while S.R Porter said that without training<br />
to perform <strong>the</strong> function “you will end up with persons who like <strong>the</strong><br />
title “Safety Representative” but know little about occupational<br />
health and safety”.<br />
773. The AWU “believes that a provision in <strong>the</strong> Act mandating training<br />
for all employees in workplace health and safety will achieve <strong>the</strong><br />
level <strong>of</strong> awareness and responsiveness that <strong>the</strong> review team is<br />
attempting to achieve”.<br />
774. The ACCI National OHS Blueprint, Modern Workplace: Safer<br />
Workplace makes a clear statement about <strong>the</strong> “powerful common<br />
interests between employers and employees in achieving safer<br />
workplaces” and that “OHS is a core business activity in <strong>the</strong><br />
modern management <strong>of</strong> workplaces”. 175<br />
The ACCI Blueprint<br />
175 ACCI OHS Blueprint pamphlet at ( http://www.acci.asn.au,).<br />
268
highlights <strong>the</strong> importance <strong>of</strong> training in OHS for industry and talks<br />
about education in basic safety principles at a young age.<br />
775. We agree that workplace health and safety should be part <strong>of</strong><br />
industry training and would go so far as to suggest that workplace<br />
health and safety should be a part <strong>of</strong> <strong>the</strong> core curriculum in all postsecondary<br />
compulsory education and training courses.<br />
776. Such training should include a knowledge <strong>of</strong> workplace health and<br />
safety obligations as well as risk management processes. There is<br />
also value in training that is associated with typical occupational<br />
hazards relevant to specific occupations, which may involve<br />
knowledge <strong>of</strong> recognised standards or codes pertaining to <strong>the</strong><br />
particular industry or occupation.<br />
777. We believe <strong>the</strong> training should apply to young people who are most<br />
at risk, particularly in hazardous industries like building and<br />
construction, where training should include <strong>the</strong> Working at Heights<br />
or Prevention <strong>of</strong> Falls codes <strong>of</strong> practice.<br />
778. Persons re-entering <strong>the</strong> workforce after a long absence, or persons<br />
changing careers, would also benefit from workplace health and<br />
safety training.<br />
269
779. Such education and training would certainly help to create a<br />
“culture <strong>of</strong> mutual and shared responsibility” based on shared<br />
knowledge and understanding. 176<br />
780. The review team is not convinced, however, that specific training <strong>of</strong><br />
elected safety representatives or committees should be made a<br />
legislative duty <strong>of</strong> employers. Certainly <strong>the</strong> occupants <strong>of</strong> those<br />
positions should have a good level <strong>of</strong> awareness <strong>of</strong> <strong>the</strong> legislation<br />
and <strong>the</strong>y should also have a good level <strong>of</strong> awareness <strong>of</strong> what<br />
constitutes a risk to health and safety. Organisations that are large<br />
enough to have committees are also large enough to satisfy <strong>the</strong>ir<br />
training responsibilities. In smaller workplaces, where employee<br />
representatives are elected, providing training may be more<br />
difficult.<br />
781. The State may satisfy its role in supporting <strong>the</strong> framework by<br />
raising general levels <strong>of</strong> awareness and providing advice and<br />
support when it is required. Seminars or workshops are provided<br />
now for workplaces on certain issues and <strong>the</strong>se activities should<br />
definitely be continued subject to <strong>the</strong> availability <strong>of</strong> resources.<br />
Formal training <strong>of</strong> ESRs or HSC members is an issue that may be<br />
referred to <strong>the</strong> proposed workplace health and safety council to<br />
consider.<br />
176 ACCI Blueprint, pamphlet.<br />
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Resources<br />
782. In consideration <strong>of</strong> all <strong>the</strong> suggestions put forward by respondents<br />
for increased administrative activity in providing awareness<br />
programs, <strong>the</strong>re is inevitably <strong>the</strong> question <strong>of</strong> ordering priorities,<br />
allocating resources and <strong>of</strong> course, sources <strong>of</strong> funding for<br />
additional activities.<br />
783. The proposed workplace health and safety council, <strong>the</strong> WorkCover<br />
Board and Workplace Standards Tasmania should explore funding<br />
possibilities, including joint arrangements with o<strong>the</strong>r involved<br />
agencies.<br />
Recommendation 35:<br />
It is recommended that <strong>the</strong> agency enter into discussions with<br />
relevant education and training bodies to discuss <strong>the</strong> potential<br />
for <strong>the</strong> inclusion <strong>of</strong> core OHS education and training in postsecondary<br />
courses. The outcome <strong>of</strong> discussions could become<br />
part <strong>of</strong> a feasibility study for <strong>the</strong> Minister to determine whe<strong>the</strong>r<br />
to proceed to <strong>the</strong> next step – workplace health and safety<br />
education and training strategy (see next recommendation).<br />
Recommendation 36:<br />
It is recommended that representatives <strong>of</strong> <strong>the</strong> agency, <strong>the</strong><br />
WorkCover Board and Workplace Health and Safety Council get<br />
toge<strong>the</strong>r to determine a workplace health and safety education<br />
and training strategy to be presented to <strong>the</strong> Minister for <strong>Justice</strong><br />
and Workplace Relations and <strong>the</strong> Minister for Education.<br />
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Director’s powers and functions<br />
784. Section 39 <strong>of</strong> <strong>the</strong> Act moves away from inspectors and deals with<br />
<strong>the</strong> powers <strong>of</strong> <strong>the</strong> Director in <strong>the</strong> prevention <strong>of</strong> accidents and risks<br />
to health.<br />
785. Accordingly <strong>the</strong> Director may direct employers or responsible<br />
<strong>of</strong>ficers in writing to take action specified in <strong>the</strong> notice to prevent<br />
injury or risks to health <strong>of</strong> any person at a workplace.<br />
786. The actions may include any or all or any combination <strong>of</strong>:<br />
• Monitor health <strong>of</strong> persons<br />
• Keep information and records relating to those persons<br />
• Employ or engage a person, being suitably qualified, to<br />
provide advice etc.<br />
• Monitor conditions likely to affect <strong>the</strong> health and safety <strong>of</strong><br />
any person<br />
• Prepare and implement a safety management plan<br />
• Prepare a written health and safety policy.<br />
787. Section 39(3) requires an employer or responsible <strong>of</strong>ficer on whom<br />
<strong>the</strong> notice is served to comply with <strong>the</strong> notice. At s39(4), where<br />
employers or responsible <strong>of</strong>ficers are required to monitor <strong>the</strong> health<br />
<strong>of</strong> persons, <strong>the</strong>y are required to keep information and records.<br />
788. Looked at in <strong>the</strong> context <strong>of</strong> earlier provisions <strong>of</strong> <strong>the</strong> Act, we find<br />
some duplication. For example, section 9(2)(a) requires an<br />
employer, “if hazards exist and have been identified to <strong>the</strong><br />
employer, in writing, by <strong>the</strong> Director, to monitor <strong>the</strong> health <strong>of</strong><br />
272
employees in <strong>the</strong>ir employment with <strong>the</strong> employer to ensure <strong>the</strong><br />
prevention <strong>of</strong> work-related injuries and illnesses”. We do not see<br />
that s9(2) is different from <strong>the</strong> relevant provisions <strong>of</strong> section<br />
39(2)(a) and (b); s39(3) and s39(4).<br />
789. Earlier in this <strong>report</strong> we commented upon section 9(2)(a) and (b)<br />
being “out <strong>of</strong> place” since <strong>the</strong> provision deals with a power <strong>of</strong> <strong>the</strong><br />
Director ra<strong>the</strong>r than a duty <strong>of</strong> employers and it was recommended<br />
that <strong>the</strong> subsection be removed from section 9.<br />
790. We reiterate that <strong>the</strong> provision for duty holders to monitor health<br />
should not be dependent upon <strong>the</strong> Director’s omniscient or<br />
omnipresent power to detect conditions or exposures that need to<br />
be controlled. Section 9(2)(a) should be primarily a duty <strong>of</strong><br />
employers/responsible <strong>of</strong>ficers etc. “where risks to health exist, to<br />
monitor <strong>the</strong> health <strong>of</strong> persons employed or engaged to ensure <strong>the</strong><br />
prevention <strong>of</strong> work-related illness”.<br />
791. Ano<strong>the</strong>r example <strong>of</strong> duplication is found where section 14A Order<br />
to recall, destroy, &c., plant, substances or structures is duplicated<br />
by s39(1)(b).<br />
Recommendation 37:<br />
It is recommended that section 9(2)(a) and (b), and section 14A<br />
be fur<strong>the</strong>r examined in conjunction with section 39. If it is<br />
agreed that <strong>the</strong>y substantially duplicate <strong>the</strong> powers <strong>of</strong> <strong>the</strong><br />
Director in s39, it is recommended that s9(2)(a) and (b); and<br />
s14A be removed for <strong>the</strong> purpose <strong>of</strong> consolidating all <strong>the</strong><br />
powers and functions <strong>of</strong> <strong>the</strong> Director in one place for easy<br />
reference and greater clarity.<br />
273
792. In <strong>the</strong> event <strong>of</strong> largely itinerant workforces (on-hired employees or<br />
contractors) how is a composite record <strong>of</strong> monitoring activity to be<br />
kept particularly over <strong>the</strong> long term, and who should keep it?<br />
793. There is a need for a consolidated record, for exposures are long<br />
term and cumulative, and <strong>the</strong> prevention <strong>of</strong> illness will be<br />
dependent upon knowing about <strong>the</strong> exposures at more than one<br />
workplace under <strong>the</strong> control <strong>of</strong> o<strong>the</strong>r employers.<br />
Recommendation 38:<br />
It is recommended that <strong>the</strong> issue <strong>of</strong> monitoring health, as one<br />
means <strong>of</strong> preventing illness, and keeping records <strong>of</strong> monitoring<br />
conducted, be fur<strong>the</strong>r considered by <strong>the</strong> agency in view <strong>of</strong><br />
changed employment arrangements. Consideration should<br />
include how to maintain consolidated records, particularly for<br />
persons who are self-employed, on-hired, or working regularly<br />
between different states.<br />
“Right <strong>of</strong> entry” provisions for authorised<br />
representatives<br />
794. The Discussion Paper (DP) raised <strong>the</strong> issue <strong>of</strong> third party<br />
“authorised representatives” being given access to workplaces in<br />
order to represent employees (and o<strong>the</strong>r persons engaged) in<br />
matters involving risks to health and safety. (DP, pp 15-16.) We<br />
suggested that <strong>the</strong> Act be amended to allow access to<br />
“appropriately qualified and trained representatives <strong>of</strong> employee<br />
(“worker”) organisations or employer organisations to assist with<br />
health and safety matters”. (DP, p.17)<br />
795. Submissions on this issue were polarised along <strong>the</strong> lines <strong>of</strong><br />
employee and employer representative organisations.<br />
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796. The Construction Forestry Mining and Energy Union (CFMEU),<br />
Construction and General division, <strong>Tasmanian</strong> Branch responded<br />
by stating<br />
In our opinion <strong>the</strong> <strong>Tasmanian</strong> WH&S Act places<br />
unrealistic expectation on <strong>the</strong> employee. The Act<br />
requires employees to initiate representational<br />
consultative processes (ESRs and Safety Committees)<br />
where an employer does not do so. Clearly it is<br />
oxymoronic to expect employees working for<br />
unsympa<strong>the</strong>tic employers to contest <strong>the</strong> intent <strong>of</strong> <strong>the</strong>se<br />
employers. Certainly in <strong>the</strong> <strong>Tasmanian</strong> building and<br />
construction industry <strong>the</strong> situation regarding participative<br />
representation is as bad as, if not worse, than in<br />
Victoria. …<br />
We believe <strong>the</strong> role <strong>of</strong> Union Officials in being able to<br />
exercise <strong>the</strong> powers <strong>of</strong> entry and enquiry, is a sensible<br />
response and that will enable <strong>the</strong> authorized Union<br />
representatives and <strong>the</strong> Government’s administration to<br />
operate in partnership to deliver a healthy, safe and<br />
productive construction industry in Tasmania. (CFMEU,<br />
C&G Division, <strong>Tasmanian</strong> Branch)<br />
797. The Australian Workers Union, Tasmania Branch submitted<br />
The Robens model is built on a number <strong>of</strong> assumptions<br />
including <strong>the</strong> fundamental proposition that workers are<br />
“empowered” to protect <strong>the</strong>ir Health and Safety.<br />
Assistance from representatives <strong>of</strong> employee<br />
organisations can only be <strong>of</strong> benefit as an extra<br />
measure to improve safety. …<br />
Additional scrutiny by third parties such as employer and<br />
employee organisations will provide a level <strong>of</strong> assistance<br />
to <strong>the</strong>ir respective constituents, which is presently<br />
absent. As a fundamental objective <strong>of</strong> such<br />
organisations is to protect <strong>the</strong> interests <strong>of</strong> <strong>the</strong>ir<br />
constituents, an active role in Workplace Health and<br />
Safety is clearly consistent with <strong>the</strong>ir charter and can<br />
only provide a positive influence on improved health and<br />
safety performance. (AWU, Tasmania Branch)<br />
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798. Unions Tasmania similarly stated<br />
… federal employment legislation currently being<br />
imposed is aimed at individualizing <strong>the</strong> employment<br />
relationship and thus disempowering workers runs<br />
counter to current health and safety best practice. We<br />
are at risk <strong>of</strong> returning to <strong>the</strong> bad old days <strong>of</strong> making<br />
choices between ongoing employment and safety. A<br />
right <strong>of</strong> entry for employee representatives is essential to<br />
providing appropriate support. (Unions Tasmania)<br />
799. The TCCI is totally opposed to <strong>the</strong> suggestion <strong>of</strong> union right <strong>of</strong><br />
entry. The <strong>Tasmanian</strong> Forest Contractors Association (TFCA)<br />
“does not support <strong>the</strong> intervention <strong>of</strong> third parties, o<strong>the</strong>r than<br />
industry regulators”. Likewise, <strong>the</strong> Housing Industry Association<br />
(HIA)<br />
does not support <strong>the</strong> intervention <strong>of</strong> a third party with<br />
health and safety issues. …. Instead <strong>of</strong> having impartial<br />
individuals concerned only with safety, it would create a<br />
situation where inspections are done by people with<br />
much wider agendas. (HIA)<br />
800. Individual employers, like representative employer associations,<br />
were adamant that right <strong>of</strong> entry and associated powers for<br />
persons o<strong>the</strong>r than workplace inspectors should not be provided.<br />
801. Comalco Bell Bay (CBB), while opposing <strong>the</strong> inclusion <strong>of</strong> right <strong>of</strong><br />
entry provisions in <strong>the</strong> Act, also proposed that “any right <strong>of</strong><br />
workplace entry and associated powers should be restricted to that<br />
which is necessary to provide for <strong>the</strong> identification and resolution <strong>of</strong><br />
workplace hazards and risk.”<br />
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802. The CBB submission proposes that if right <strong>of</strong> entry is to be given by<br />
<strong>the</strong> Act, <strong>the</strong> Victorian provisions should be used as a model. The<br />
provisions should include limitations safeguarding abuse and also<br />
“exempting those industries that have in place externally audited<br />
workplace health and safety management systems, including<br />
employee representation <strong>of</strong> site health and safety committees”.<br />
(CBB) This is a suggestion worthy <strong>of</strong> serious consideration.<br />
803. The review team is aware that during <strong>the</strong> time <strong>of</strong> <strong>the</strong> review, <strong>the</strong><br />
Secretary <strong>of</strong> <strong>the</strong> agency authorised a trial <strong>of</strong> union representatives<br />
to enter workplaces on workplace health and safety issues.<br />
804. In view <strong>of</strong> <strong>the</strong> current trial in progress <strong>the</strong> review team makes no<br />
recommendation on <strong>the</strong> issue since it is anticipated that <strong>the</strong> agency<br />
would give <strong>the</strong> issue fur<strong>the</strong>r consideration. Never<strong>the</strong>less, because<br />
<strong>the</strong> Workplace Relations (Work Choices) Amendments allow<br />
unions entry into workplaces for genuine workplace health and<br />
safety reasons, subject to corresponding provisions in <strong>the</strong> State or<br />
Territory OHS Acts, <strong>the</strong> inclusion <strong>of</strong> a provision enabling union<br />
entry to provide support in genuine workplace health and safety<br />
matters would seem appropriate. At present <strong>the</strong>re is no such<br />
provision in <strong>the</strong> <strong>Tasmanian</strong> Act.<br />
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Penalties<br />
805. Penalties for workplace health and safety <strong>of</strong>fences have been <strong>the</strong><br />
subject <strong>of</strong> discussion in o<strong>the</strong>r major workplace health and safety<br />
reviews and subsequent changes have aimed to:<br />
• Bring about consistency in maximum levels <strong>of</strong> workplace<br />
health and safety monetary penalties across <strong>the</strong><br />
jurisdictions;<br />
• Provide comparability <strong>of</strong> workplace health and safety<br />
maximum monetary penalties and maximum penalties for<br />
<strong>of</strong>fences according to o<strong>the</strong>r Acts;<br />
• Introduce alternatives to monetary penalties, including<br />
custodial sentences; and<br />
• Extend liability for <strong>of</strong>fences to corporate<br />
directors/company <strong>of</strong>ficers.<br />
806. Many views about penalties have been expressed in general<br />
discussion, some <strong>of</strong> which are specific to workplace health and<br />
safety penalties, some <strong>of</strong> which are general to all <strong>of</strong>fences. While<br />
we put forward some <strong>of</strong> <strong>the</strong> familiar arguments in <strong>the</strong> Discussion<br />
Paper as suggestions to stimulate thought and response, we wish<br />
to point out that <strong>the</strong>se views, like those put forward for many o<strong>the</strong>r<br />
issues in <strong>the</strong> paper, are not necessarily <strong>the</strong> views <strong>of</strong> <strong>the</strong> review<br />
team. Some views expressed on penalties include:<br />
• That <strong>the</strong> size <strong>of</strong> a penalty should be proportionate to <strong>the</strong><br />
effect or impact <strong>of</strong> <strong>the</strong> <strong>of</strong>fence;<br />
• That penalties awarded are <strong>of</strong>ten handed out that are well<br />
below <strong>the</strong> maximum possible;<br />
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• That penalties should be awarded that will punish<br />
<strong>of</strong>fenders and strongly deter o<strong>the</strong>rs from <strong>the</strong> possibility <strong>of</strong><br />
<strong>of</strong>fending; and<br />
• That penalties for serious workplace health and safety<br />
incidents, accidents, or deaths should be on a par with<br />
penalties for o<strong>the</strong>r serious crimes.<br />
807. The level <strong>of</strong> debate and strong opinion on penalties leaves us in no<br />
doubt that this is a specific concern <strong>of</strong> many.<br />
Deterrence<br />
808. Opinions about <strong>the</strong> deterrent value <strong>of</strong> penalties varied. We<br />
observed that some advocated a retributive function while o<strong>the</strong>rs,<br />
mostly in <strong>the</strong> majority, advocated a persuasive or restorative<br />
function for penalties.<br />
809. For <strong>the</strong> latter, many respondents argue that <strong>the</strong> primary function <strong>of</strong><br />
penalties is not to deter but to educate or persuade. In <strong>the</strong> words<br />
<strong>of</strong> Injury Prevention Management (an OHS consulting firm), “once a<br />
penalty for an <strong>of</strong>fence is handed down by <strong>the</strong> courts, <strong>the</strong> grapevine<br />
works well to deter o<strong>the</strong>rs”.<br />
810. On <strong>the</strong> issue that greater penalties necessarily have greater<br />
deterrence, one respondent wrote, “some writers would say that it<br />
is more <strong>of</strong>ten than not incorrect”. (Anon.)<br />
811. One respondent finds it “incomprehensible that abalone, gaming<br />
machines and federal corporate business laws evidently command<br />
greater community respect” in assigning far greater penalties for<br />
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<strong>of</strong>fences in those instances than are provided for workplace health<br />
and safety <strong>of</strong>fences.<br />
812. If any major project were to review <strong>Tasmanian</strong> legislation to<br />
compare relative values <strong>of</strong> penalties (certainly a major undertaking)<br />
<strong>the</strong>n perhaps such concerns might be addressed. Similarly, <strong>the</strong><br />
Attorney-General might request that penalties under State<br />
legislation be examined with a view to “harmonising” penalties and<br />
sentences between various Acts.<br />
813. The question for this review is how can <strong>the</strong> legislative objectives <strong>of</strong><br />
workplace health and safety be achieved? Our response is based<br />
on <strong>the</strong> enforcement pyramid. Prevention <strong>of</strong> work-related injury,<br />
illness and death begins with activities designed to educate, advise<br />
and inform.<br />
Where that does not succeed with individual<br />
workplaces or industry sectors, <strong>the</strong>re is scope for applying<br />
incrementally tougher measures. Thus <strong>the</strong> strategy would be to<br />
use “s<strong>of</strong>t” or “hard” persuasion, compulsion and finally prosecution.<br />
814. O<strong>the</strong>r jurisdictions have recently increased maximum penalties for<br />
general duty <strong>of</strong>fences, some have introduced new <strong>of</strong>fences relating<br />
to “negligence”, while o<strong>the</strong>rs have introduced custodial sentences<br />
(or custodial sentences plus monetary penalties) for high level<br />
culpable breaches <strong>of</strong> <strong>the</strong>ir workplace health and safety Acts.<br />
815. In Tasmania, <strong>the</strong> maximum penalty for an individual <strong>of</strong>fence is<br />
$50,000. The maximum penalty for a corporate <strong>of</strong>fence is<br />
$150,000. Before o<strong>the</strong>r jurisdictions increased <strong>the</strong>ir penalties,<br />
280
Tasmania’s penalties for an individual <strong>of</strong>fence were on a par with<br />
Victoria’s, and not far below New South Wales’s maxima. The<br />
maximum was, and is, well below <strong>the</strong> maximum for corporate<br />
<strong>of</strong>fences in <strong>the</strong> larger states.<br />
816. There is no consistency among <strong>the</strong> jurisdictions on penalties. The<br />
general duties are very similar. Should a failure to comply with a<br />
general duty in Victoria or NSW or Tasmania be susceptible to<br />
different levels <strong>of</strong> penalties?<br />
817. For Tasmania to increase its maximum penalties in line with o<strong>the</strong>r<br />
jurisdictions, we may need to determine which jurisdiction we<br />
should benchmark with and on what criteria. Should our maxima<br />
be benchmarked with jurisdictions that have roughly similar<br />
industry structures, or similar populations, or should some o<strong>the</strong>r<br />
criterion be used?<br />
818. As Maxwell pointed out, we agree that <strong>the</strong> maximum penalties<br />
should be high enough “to enable <strong>the</strong> court to deal appropriately<br />
with <strong>of</strong>fences <strong>of</strong> <strong>the</strong> highest degree <strong>of</strong> culpability, which will include<br />
<strong>of</strong>fences committed by repeat <strong>of</strong>fenders”. 177<br />
819. We are aware that <strong>the</strong> Law Reform Institute, in its Issues Paper<br />
(No. 9) on Criminal Liability <strong>of</strong> Organisations in 2005, canvassed<br />
issues relating to workplace health and safety, including issues<br />
177 Chris Maxwell, para. 1823, p. 375.<br />
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associated with industrial deaths. To date we are not aware <strong>of</strong> a<br />
<strong>report</strong>.<br />
820. Some aspects <strong>of</strong> penalties and sentencing may also have been <strong>the</strong><br />
subject <strong>of</strong> a <strong>report</strong> on Sentencing to <strong>the</strong> Government by <strong>the</strong> Law<br />
Reform Institute (University <strong>of</strong> Tasmania). An Issues paper was<br />
released in 2002, but we are not aware <strong>of</strong> a <strong>report</strong> being released.<br />
821. There is, in any event, a view that monetary penalties are not<br />
effective in dealing with large corporations. A corporation that can<br />
afford to expend very large sums <strong>of</strong> money (millions <strong>of</strong> dollars) on<br />
feasibility studies or in pursuit and defence <strong>of</strong> legal action, is<br />
unlikely to be concerned about <strong>the</strong> possibility <strong>of</strong> being fined some<br />
thousands <strong>of</strong> dollars for a workplace health and safety <strong>of</strong>fence.<br />
822. There is also a strong possibility that many <strong>of</strong> <strong>the</strong> larger<br />
corporations in Tasmania, those that are “multi-State” corporations,<br />
will elect to join <strong>the</strong> Commonwealth Comcare workers’<br />
compensation scheme that is tagged to <strong>the</strong> Commonwealth OHS<br />
legislation. Thus <strong>the</strong> larger corporations who elect to join Comcare<br />
would be outside <strong>the</strong> State’s preventive as well as compensation<br />
spheres.<br />
823. This must be considered in making recommendations about <strong>the</strong><br />
administration <strong>of</strong> workplace health and safety, including<br />
recommendations about penalties for <strong>of</strong>fences. The departure <strong>of</strong><br />
larger corporations from <strong>the</strong> workers rehabilitation and<br />
compensation frameworks (and hence <strong>the</strong> workplace health and<br />
282
safety framework) would seem to make <strong>the</strong> question <strong>of</strong> increased<br />
corporate penalties an unnecessary question; however, we are not<br />
anticipating a mass exodus from <strong>the</strong> <strong>Tasmanian</strong> workers’<br />
rehabilitation and compensation scheme. We would not wish <strong>the</strong><br />
issue <strong>of</strong> penalties to become a deciding factor for multi-state<br />
corporations – whe<strong>the</strong>r to stay or go.<br />
824. The remainder – those that constitute <strong>the</strong> larger share <strong>of</strong> <strong>the</strong><br />
number <strong>of</strong> businesses in <strong>the</strong> state although potentially having a<br />
smaller number <strong>of</strong> people employed – comprises <strong>the</strong> state’s small<br />
and micro-businesses.<br />
825. O<strong>the</strong>r respondents emphasised <strong>the</strong> need for WST to explore <strong>the</strong><br />
use <strong>of</strong> non-monetary penalties such as “negative media coverage”<br />
(Hobart Water) since “damage to community reputation and custom<br />
is a far greater deterrent than <strong>the</strong> size <strong>of</strong> <strong>the</strong> penalty” (TCCI).<br />
There is clearly scope for <strong>the</strong> agency to use <strong>the</strong>se and any o<strong>the</strong>r<br />
methods <strong>of</strong> publicising prosecutions.<br />
826. It has been observed that prosecutions (and <strong>the</strong>refore imposition <strong>of</strong><br />
penalty) for breach <strong>of</strong> statutory workplace health and safety<br />
requirements are rarely successful unless an injury has occurred.<br />
One respondent commented “a major reason for this is <strong>the</strong> way in<br />
which <strong>of</strong>fence provisions are designed. Many <strong>of</strong> <strong>the</strong> hurdles which<br />
lie in <strong>the</strong> way <strong>of</strong> obtaining a conviction could be overcome by<br />
casting <strong>of</strong>fence provisions in different terms”. (Anon.)<br />
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827. We have referred in this <strong>report</strong> to isolated examples in <strong>the</strong><br />
legislation where <strong>of</strong>fences, such as failure to keep records <strong>of</strong> risk<br />
assessments, appear to be arbitrary, but we have not delved into<br />
<strong>the</strong> issue <strong>of</strong> why certain aspects should be <strong>of</strong>fences commanding<br />
penalties and o<strong>the</strong>rs not. That would be a separate exercise, not to<br />
be encompassed by this review.<br />
828. We do believe that a closer examination <strong>of</strong> <strong>of</strong>fences and penalties<br />
is warranted, based upon <strong>the</strong> need for some consistency between<br />
<strong>the</strong> level <strong>of</strong> penalties for <strong>of</strong>fences in Tasmania and o<strong>the</strong>r<br />
jurisdictions; however, given o<strong>the</strong>r factors to be considered, we<br />
recommend approaching <strong>the</strong> issue <strong>of</strong> penalties with caution.<br />
829. It may be appropriate for <strong>the</strong> Minister and/or <strong>the</strong> agency to refer <strong>the</strong><br />
issue <strong>of</strong> consistency in penalties to <strong>the</strong> Council <strong>of</strong> Australian<br />
Federation, for consideration.<br />
Recommendation 39:<br />
It is recommended that, while <strong>Tasmanian</strong> penalties should be<br />
on a par with o<strong>the</strong>r States and Territories, benchmarking should<br />
be based on objective criteria. Any increase should be<br />
approached with caution. Fur<strong>the</strong>r consideration should be<br />
given to <strong>the</strong> issue <strong>of</strong> penalties by <strong>the</strong> agency, keeping in mind<br />
<strong>the</strong> size <strong>of</strong> most <strong>of</strong> Tasmania’s businesses.<br />
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Industry codes <strong>of</strong> practice<br />
830. The Discussion paper released in June 2006 raised Codes <strong>of</strong><br />
practice as an issue for discussion. Opinion on codes <strong>of</strong> practice<br />
ranged from <strong>the</strong> view that “most employers would be unaware <strong>of</strong><br />
<strong>the</strong> existence <strong>of</strong> Codes <strong>of</strong> Practice and if <strong>the</strong>y were aware <strong>of</strong> <strong>the</strong>m<br />
would find <strong>the</strong>m <strong>of</strong> limited use” (TCCI); to <strong>the</strong> comment that “Codes<br />
<strong>of</strong> practice are <strong>the</strong> preferred manner <strong>of</strong> guidance for small<br />
business, however as stated in <strong>the</strong> paper <strong>the</strong> existing codes <strong>of</strong><br />
practice are basically a `cut and paste’ <strong>of</strong> regulations”. (HIA)<br />
831. Minimalist codes <strong>of</strong> practice that aid in <strong>the</strong> process <strong>of</strong> controlling<br />
certain specified risks to safety or health appear to be universally<br />
preferred to <strong>the</strong> production <strong>of</strong> reams <strong>of</strong> paper documents.<br />
832. One respondent asks why does not Tasmania examine all existing<br />
codes <strong>of</strong> practice from around Australia and adopt those that would<br />
be helpful here. The HIA volunteered that <strong>the</strong>y would be “delighted<br />
to be involved in a review <strong>of</strong> Codes <strong>of</strong> Practice in Tasmania in<br />
order to meet <strong>the</strong>se needs”.<br />
833. As a primary means <strong>of</strong> providing practical guidance to workplaces,<br />
we recommend that codes <strong>of</strong> practice should be simple, usable,<br />
intelligible and non-statutory. Industry is not prevented from<br />
adopting codes prepared elsewhere and, provided <strong>the</strong>y meet <strong>the</strong><br />
basic requirements, if an industry sector or representatives <strong>of</strong><br />
industry generally decide that <strong>the</strong>y wish to gain Ministerial approval<br />
<strong>of</strong> a code <strong>of</strong> practice, <strong>the</strong>re should be no impediment.<br />
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Recommendation 40:<br />
We recommend that <strong>the</strong> proposed Workplace Health and Safety<br />
Council consider <strong>the</strong> issue <strong>of</strong> codes <strong>of</strong> practice, and invite <strong>the</strong><br />
HIA and o<strong>the</strong>r interested parties to be involved.<br />
O<strong>the</strong>r matters<br />
834. This <strong>report</strong> concludes with brief consideration <strong>of</strong> some issues that<br />
were raised with us by inspectors. The first is <strong>the</strong> issue <strong>of</strong> Crown<br />
liability; <strong>the</strong> second is to do with “designated workplaces”.<br />
Crown Liability<br />
835. Our attention was drawn to a perceived deficiency <strong>of</strong> <strong>the</strong> Act in<br />
respect <strong>of</strong> how it applies to <strong>the</strong> Crown, specifically how it applies to<br />
<strong>the</strong> Crown’s engagement in “industry” according to <strong>the</strong><br />
interpretation <strong>of</strong> “industry” in section 3 <strong>of</strong> <strong>the</strong> Act.<br />
836. The Long Title <strong>of</strong> <strong>the</strong> Act as “An Act to provide for <strong>the</strong> health and<br />
safety <strong>of</strong> persons employed in, engaged in or affected by industry”.<br />
“Industry” in section 3 is defined to mean “any industry, trade,<br />
business, undertaking, pr<strong>of</strong>ession, calling, function, process or<br />
work in which persons are or were employed or engaged”.<br />
837. It has been queried as to whe<strong>the</strong>r “public administration” is covered<br />
by <strong>the</strong> definition <strong>of</strong> “industry”. Any doubt on <strong>the</strong> matter might be<br />
simply clarified by <strong>the</strong> inclusion <strong>of</strong> “public administration” in <strong>the</strong><br />
definition.<br />
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838. Section 4 <strong>of</strong> <strong>the</strong> Act binds <strong>the</strong> Crown “in right <strong>of</strong> Tasmania and, so<br />
far as <strong>the</strong> legislative power <strong>of</strong> Parliament permits, in all its o<strong>the</strong>r<br />
capacities”.<br />
839. It <strong>the</strong>refore applies to State agencies, <strong>of</strong>fices, statutory authorities,<br />
Government Business Enterprises, State Corporations and boards.<br />
Recommendation 41:<br />
It is recommended that “public administration” be included<br />
within <strong>the</strong> definition <strong>of</strong> “industry” in section 3 <strong>of</strong> <strong>the</strong> Act. This<br />
would remove any doubt as to whe<strong>the</strong>r <strong>the</strong> Act applies to those<br />
persons who are employed or engaged for work in public sector<br />
agencies, <strong>of</strong>fices, statutory authorities, etc.<br />
840. There has also been some question as to how <strong>the</strong> Act might apply<br />
to volunteers, particularly in regard to <strong>the</strong> accountability <strong>of</strong> agencies<br />
that engage volunteers to perform work.<br />
841. We are advised that some 130,000 persons are engaged as<br />
volunteers by public sector agencies in Tasmania across a very<br />
broad range <strong>of</strong> activities, including but not limited to, conservation<br />
activities, sporting activities, fire services, meals on wheels, and<br />
home and community care. Potentially <strong>the</strong>refore public sector<br />
agencies need clear guidance in regard to discharging <strong>the</strong> general<br />
duties to prevent injury, illness and death <strong>of</strong> persons who are<br />
volunteers performing work for, or on behalf <strong>of</strong>, <strong>the</strong> agency.<br />
842. Employers have a general duty to volunteers as “any persons”<br />
according to section 9 subsections (3) or (4) <strong>of</strong> <strong>the</strong> Act, to ensure,<br />
so far as is reasonably practicable, that <strong>the</strong>y are “not adversely<br />
287
affected as a result <strong>of</strong> <strong>the</strong> work carried on at a workplace” and “any<br />
employer who exercises, or is in a position to exercise,<br />
management or control over a workplace must ensure that, so far<br />
as is reasonably practicable, any person at that workplace is safe<br />
from injury and risks to health”.<br />
843. It would help in <strong>the</strong> event <strong>of</strong> consistent treatment <strong>of</strong> volunteers and<br />
in ensuring that <strong>the</strong> workplace health and safety duties are<br />
satisfied, if <strong>the</strong>re were a set <strong>of</strong> guidelines for public sector agencies<br />
that deal with volunteer bodies or organisations, to follow. This<br />
may be a matter for <strong>the</strong> State Services Commissioner’s Office in<br />
<strong>the</strong> <strong>Department</strong> <strong>of</strong> Premier and Cabinet.<br />
844. We believe that <strong>the</strong>re is a need for greater awareness <strong>of</strong> employer<br />
duties in regard to volunteers and potentially for volunteers<br />
<strong>the</strong>mselves to be given information, instruction, training, and so<br />
forth, to ensure that <strong>the</strong>y can take reasonable care <strong>of</strong> <strong>the</strong>ir own<br />
health and safety and that <strong>of</strong> o<strong>the</strong>rs.<br />
Recommendation 42:<br />
It is recommended that <strong>the</strong> agency liaise with <strong>the</strong> <strong>Department</strong> <strong>of</strong><br />
Premier and Cabinet and/or Volunteering Tasmania to ensure<br />
that <strong>the</strong>re is consistent guidance in regard to <strong>the</strong> application <strong>of</strong><br />
<strong>the</strong> legislative objectives towards volunteers.<br />
288
Designated Workplaces<br />
845. The Act makes provision at Part 4 for designated workplaces<br />
based on <strong>the</strong> Director’s satisfaction that “work to be carried on at a<br />
workplace or a class <strong>of</strong> workplace is, or is likely to be, hazardous” -<br />
s23(1).<br />
846. We are aware that <strong>the</strong> intention was originally to apply Part 4 to<br />
mines. We do not see that <strong>the</strong> Part provides any real additional<br />
safety or health measures to be observed by mines.<br />
847. It seems that this Part requires only that designated workplaces<br />
must notify <strong>the</strong> Director <strong>of</strong> <strong>the</strong> name <strong>of</strong> a person appointed as<br />
“responsible <strong>of</strong>ficer”. That person must keep a record book <strong>of</strong><br />
inspections made by inspectors. The process <strong>of</strong> appointing “mine<br />
managers” as “responsible <strong>of</strong>ficers” does not require section 24.<br />
This may continue to occur under section 10 <strong>of</strong> <strong>the</strong> Act.<br />
848. Hazardous workplaces are now subject to separate legislation as<br />
discussed in Chapter 1 <strong>of</strong> this <strong>report</strong>. Mines are subject to those<br />
provisions as well as <strong>the</strong> general provisions <strong>of</strong> <strong>the</strong> workplace health<br />
and safety legislation.<br />
849. If Part 4 were to be removed entirely from <strong>the</strong> Act, we do not see<br />
that <strong>the</strong>re would be any deleterious effect.<br />
Recommendation 43:<br />
We recommend <strong>the</strong> removal <strong>of</strong> Part 4 from <strong>the</strong> Act.<br />
289
LIST OF SUBMISSIONS<br />
Allianz<br />
Association <strong>of</strong> Independent Schools <strong>of</strong> Tasmania<br />
Australian Education Union Tas Branch<br />
Australian Finance Conference<br />
Australian Workers’ Union<br />
Ayling, Angela<br />
Blackhawke Enterprises<br />
Booth, Dallas (NFP)<br />
Cement Concrete & Aggregates Australia<br />
Coles Myer Ltd (one for distribution and one not for distribution)<br />
Comalco Bell Bay<br />
Construction, Forestry, Mining and Energy Union (Construction &General<br />
Division) <strong>Tasmanian</strong> Branch<br />
Hobart Water<br />
Housing Industry Association<br />
Hudson, Guy and Karen (Withheld from publication)<br />
Hunt, Michael<br />
Hydro Tasmania<br />
Injury Prevention Management<br />
Leeson, Ted (NFP)<br />
Master Builders Association <strong>of</strong> Tasmania (NFP)<br />
Murphy, Ross<br />
Pearce, Robert (NFP)<br />
Recruitment and Consulting Services Association<br />
Rigby, Peter (NFP)<br />
Sch<strong>of</strong>ield, Don (NFP)<br />
Sidebottom, John (NFP)<br />
Smith, Harold<br />
Smith, Mark Workplace Standards (NFP)<br />
SR Porter<br />
<strong>Tasmanian</strong> Automobile Chamber <strong>of</strong> Commerce<br />
<strong>Tasmanian</strong> Chamber <strong>of</strong> Commerce and Industry<br />
<strong>Tasmanian</strong> Forest Contractors Association<br />
<strong>Tasmanian</strong> Minerals Council Ltd<br />
Transport Workers Union <strong>of</strong> Australia<br />
Unions Tasmania<br />
Van der Poll, Charlotte (NFP)<br />
WCR Bale (NFP)<br />
Meeting 21 st August 2006:<br />
A Stanislaus-Large<br />
290
Barbara Elliot<br />
Chris Hinds<br />
Leanne Wright<br />
Tom Kleyn<br />
Meeting 14 August 2006:<br />
Chris Wilks<br />
Jennifer Jarvis<br />
John Sidebottom<br />
Niels Kristensen<br />
Svaider Heyden<br />
291
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