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Occupational Health and Safety (Commonwealth Employment) Bill 1990



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House: House of Representatives

Portfolio: Industrial Relations

Purpose

To impose a duty on Commonwealth employers, employees, and certain other persons to protect the health and safety at work of employees. The Bill will also provide for workplace health and safety representatives and workplace health and safety committees.

Background

Work related injuries are recognised as a major cause of death in Australia and represent a significant social and economic burden. In a recent study, it was found that between 1982 and 1984, a total of 1738 persons had died from work related injuries. The majority, 1544 deaths, involved persons who were employed in the civilian labour force. The work related death rate for mining and quarry workers was 70 deaths in every 100 000 people, while the rate for rural work (including farming, fishing, logging and hunting) was 22 per 100 000. Work related deaths amongst clerical workers was the lowest, with only 0.4 deaths for every 100 000 workers 1. The annual cost of workplace deaths and injuries, including compensation, lost production, retraining and welfare has been put at $9.6 billion 2.

Until 1983, as a consequence of constitutional and political restrictions, the Commonwealth had done little in respect of occupational health and safety (OHS). Constitutional restrictions have arisen, in large part, because of a narrow orthodox legal view that OHS matters, except in a few narrowly defined areas, did not fall within the heads of Commonwealth constitutional power. As a consequence, Commonwealth legislation affecting OHS has been largely limited to navigation and shipping (air and sea) and installations in territorial and international waters. Today however, in light of recent High Court decisions, such as the Tasmanian Dams Case, it would probably be within Commonwealth power, on the basis of the corporations and foreign affairs powers, to legislate generally for OHS throughout Australia. However, OHS has traditionally been seen as a matter for State responsibility.

In April 1983, at the National Economic Summit Conference, the Government made a commitment to use Commonwealth power to foster OHS nationally. In November 1983, the then Minister for Employment and Industrial Relations established an Interim National Occupational Health and Safety Commission to advise on the most appropriate framework for developing a national OHS strategy. The Interim Commission reported in May 1984, its recommendations included that a single tripartite body comprising representatives from industry, government and unions, to be known as the National Occupational Health and Safety Commission (NOHSC), be established and that the development of OHS legislation for Commonwealth employees be treated as an urgent priority by the NOHSC. In April 1985, legislation for the establishment of the NOHSC was introduced into Parliament, and on 20 December 1985 the National Occupational Health and Safety Commission Act 1985 was proclaimed. On 17 April 1986, the NOHSC was officially launched and it was announced that the NOHSC would adopt the name Worksafe Australia as its working title.

To date, Commonwealth employees are not protected by any OHS legislation. However, a certain level of protection is afforded by a `Code of General Principles on Occupational Safety and Health in Australian Government Employment', implemented in September 1974, and under industrial awards. Under the Code, heads of departments and statutory authorities are required to take certain actions, including providing a safe work place and safe working environment; the adoption of arrangements for joint consultation with employees on safety matters; providing personal protective equipment and adopting measures to ensure its proper use; and establishing health and first-aid services.

Main Provisions

The objects of the Bill include to provide for the OHS of employees of the Commonwealth and its authorities and to foster a co-operative consultative relationship between employers and employees in relation to OHS (clause 3).

`Commonwealth authority' is defined in clause 5 to include a Commonwealth statutory corporation and a corporation in which the Commonwealth has a controlling interest. In the latter case, the Minister may declare that such a corporation is not a Commonwealth authority.

`Contractor' is defined in clause 5 to be a person, other than a Commonwealth employee or Commonwealth authority employee, who performs or is connected with work done on a Commonwealth premises under a contract.

`Employer' is defined in clause 5 to be the Commonwealth or a Commonwealth authority.

`Workplace' is defined in clause 5 to be any place, other than one used primarily as a private dwelling, in which employees or contractors work.

Clause 6 provides that the Bill will not require a person to do anything that could reasonably be expected to prejudice national security. The Director-General (D-G) of ASIO may declare, subject to disallowance by Parliament, that specified provisions of the Bill will not apply, or will apply subject to certain modifications, to ASIO workplaces, employees or the performance of their functions. In administering ASIO, the D-G is to take into account the need to promote the objects of the Bill to the greatest extent consistent with maintaining national security. Clauses 7 and 8 provide similar exemptions in relation acts that could reasonably be expected to prejudice Australia's defence or an existing or future covert or dangerous operation of the Australian Federal Police.

`Employee' is defined in clause 9 to include a person employed by the Commonwealth or a Commonwealth authority. Where a person is in a specified class of persons working at the request, direction or benefit of the Commonwealth or a Commonwealth authority, the Minister may, subject to disallowance by Parliament, declare the person to be employed by the Commonwealth or Commonwealth authority.

The Commonwealth, Commonwealth authorities and their employees, other than Government business enterprises and their employee, will not be liable to prosecution for an offence under the Bill (clause 11).

New functions will be conferred on the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (COMCARE) by clause 12, including ensuring that the obligations imposed by this Bill are complied with and advising employers, employees or contractors of OHS matters affecting them. The Minister may give directions to COMCARE concerning the performance of its functions and exercise of its power, and COMCARE is to comply with any directions.

The Bill will apply to Australia's external Territories and have an extra-territorial operation (i.e. apply to the activities of employers and employees oversees) other than in relation to Part 3 (workplace arrangements) and Part 4 (advice, investigations and inquiries) of the Bill (clause 13).

The Bill will not apply, to a workplace while it is controlled by a contractor for construction or maintenance purposes, except in relation to clause 20 (see below); to work performed by contractors at a workplace while it is controlled by a contractor for construction or maintenance purposes, except in relation to clause 20 (see below); and to work performed by Commonwealth employees at a workplace under the control of a contractor for construction or maintenance purposes unless the

regulations provide that it should, except in relation to Parts 1 and 2 of the Bill (clauses 1-23) and clause 82 (see below) (clause 14).

The Bill, other than Parts 1 and 2 (clauses 1-23) and clause 82 (see below), will not apply to an employee who ordinarily performs work at a place which is not a Commonwealth premises, or to their place of work, unless the regulations provide that it should (clause 15).

Part 2 of the Bill (clauses 16-23) deals with the OHS duties of employers, employees and certain other persons. Clauses 16 and 17 impose a duty on employers to take all reasonably practicable steps to protect the OHS of their employees and the OHS of persons at or near a workplace under their control. An employer will have breached their duty if they fail to take all reasonably practicable steps, for example, to provide and maintain a workplace that is safe and without risk for their employees health, and to develop, in consultation with unions, an OHS policy. A maximum fine of $100 000 may be imposed on a Government business enterprise for a breach of these provisions.

Clauses 18 and 19 impose a duty on manufacturers and suppliers of any plant (e.g. machinery or equipment) or substance which they ought reasonably to expect will be used by employees at work, to take all reasonably practicable steps to ensure that the plant or substance is designed or manufactured so as to be able to be used safely and without risk to the OHS of employees. A maximum fine of $20 000 may be imposed for a breach of these provisions. Clause 20 imposes a duty on persons who build or install any plant in a workplace for the use of employees to take all reasonably practicable steps to ensure that it is safe and poses no risk to health. Clause 21 imposes a duty on employees to, at all times while at work, take all reasonably practicable steps to ensure that they do not do anything that creates a risk, or increases a risk to the OHS of themselves or other persons at or near the place at which they work; to co-operate with employers where they have an OHS obligation; and to use equipment in accordance with instructions. A maximum fine of $5000 may be imposed on an employee of a Government business enterprise for a breach of this provision. Clause 23 provides for the making of regulations on any matters affecting, or likely to affect, the OHS of employees or contractors. Specific matters on which regulations may be made include prohibiting, absolutely or in accordance with specified requirements, the performance or work at a workplace by employees or contractors and the monitoring of the workplace health of employees.

Part 3 of the Bill (clauses 24-38) deals with designated work groups, health and safety representatives, and health and safety committees. Clause 24 provides for the establishment of designated work groups. Basically, a union with coverage in the area, or if there is no such union, an employee, can request an employer to enter into consultations to establish designated work groups. If there is a disagreement about the establishment of a designated work group, or variation of an established designated work group, any party may refer the matter of disagreement to the Australian Industrial Relations Commission. A resolution of the Australian Industrial Relations Commission will be binding on the parties. Consultations are to be directed principally at providing a grouping of employees that best and most conveniently allows employees OHS interests to be represented and takes account of the need of any health and safety representative to be accessible to employees of that group.

Clauses 25-28 deal with the selection, term of office, training, and powers of health and safety representatives (representative). Clause 25 provides that one representative may be selected for each designated work group. Only an employee of a designated work group will be eligible for selection as a representative. Clause 27 provides that a representative is to undertake OHS training accredited by COMCARE and employers are to allow representatives time off work without loss of pay or other entitlements for training. The powers of representatives are contained in clause 28 and include for the purposes of promoting or ensuring the OHS of employees, to inspect the workplace; request investigation of the workplace; and investigate complaints made by employees. A representative will have access to any information under the employers control relating to risks to the OHS of any employees. A representative, or consultant assisting a representative, will not be entitled to access to information held by an employer that is subject to legal professional privilege or confidential medical information without the consent of the employee concerned unless the medical information is in a form which precludes identification of the employee. Representatives will be immune from civil law suits which may arise from the way they have exercised, or failed to exercise their powers. Clauses 30 and 36 will impose corresponding duties on employers.

Clause 29 deals with provisional improvement notices. Basically, where a representative believes, on reasonable grounds, that a person is or is likely to breach a provision of the Bill or the regulations in a way that affects or may affect employees, they are to consult with the supervisor of the employees in an attempt to reach agreement on rectifying the breach or preventing a likely breach. Where, in the representatives opinion, an agreement has not been reached within a reasonable time they may issue a provisional improvement notice (a notice) to the person responsible for the breach directing them to take specified action to prevent any further breach or likely breach. A person who has been issued with a notice, or any other person to whom a copy of the notice has been given, may request COMCARE or an investigator to investigate the matter. Where this occurs, the operation of the notice will be suspended until the matter is decided by an investigator.

Clause 30 imposes certain duties on employers in relation to representatives, including that they consult with representatives on the implementation of changes at any workplace that may affect the OHS of employees; allow representatives to accompany an investigator during any investigation of the workplace; and to allow the representative to take such time off work, without loss of wages or other entitlements, as is necessary for them to do their job as a representative.

Clause 32 provides that an employer or a union with coverage in a designated work group may apply to COMCARE for the disqualification of a representative on certain grounds, including that they exercised their power with the intention of causing harm to the employer or to an undertaking of the employer and that they intentionally used or disclosed information acquired from an employer to another person for a purpose not connected with the exercise of their powers. Where COMCARE is satisfied that grounds for disqualification have been established and have had regard to certain matters, including the harm (if any) that was caused to the employer, or an undertaking of the employer and any other matters COMCARE considers relevant, it may disqualify a representative from being a representative for a maximum period of five years.

Clauses 34-36 deal with the establishment of health and safety committees, their functions, and duties of employers to them. A Committee is to be established at a workplace where the number of employees is normally at least 50; the employees are included in one or more designated work groups; and a representative or union requests its establishment (clause 34). The functions of Committees are contained in clause 35 and include to assist an employer to develop, implement, review, and update measures to protect the OHS of employees. Clause 36 imposes certain duties on employers in relation to Committees, including to allow any employee who is a Committee member such time off work without loss of pay or entitlements as is necessary for them to carry out their functions.

Clause 37 provides that where a representative has reasonable cause to believe there is an immediate threat to the OHS of one or more employees unless they cease to do particular work, the representative is to inform a supervisor of the employee of the threat. If a supervisor cannot be contacted immediately, the representative is to direct the employee to stop the threatening work and inform the employees supervisor, as soon as practicable, of that direction. A supervisor who is informed of an immediate threat to the OHS of an employee is to take action to remove that threat. Where a representative and a supervisor disagree on the need to stop work, or that action taken by the supervisor is enough to remove an immediate threat, either of them may request COMCARE, or an investigator, to conduct an investigation into the work that is the subject of the disagreement.

Clauses 40-51 deal with investigations. Clause 40 provides for the appointment, by COMCARE, as investigators, of persons who are either staff members of COMCARE or have knowledge of, or experience in, OHS matters. Investigators may, at any time, conduct investigations into a breach or possible breach of the Bill or the regulations, or into an accident or dangerous occurrence. Investigators who are staff members of COMCARE may also conduct investigations to check whether the requirements of the Bill or regulations are being complied with (clause 41). Clause 42-44 provide standard administrative provisions, including power's of inspectors in relation to the entry and searching of a workplace; to require assistance and information; and to take possession of plant and samples of substances. An investigator may issue a direction to a person in charge of a workplace that a workplace, part of a workplace, plant, substance or thing not be disturbed for a specified period in order to remove an immediate threat to the OHS of any person or to allow inspection, examination, measurement, or testing (clause 45). An investigator, after completing an investigation, may issue an employer with a prohibition notice directing them to remove an immediate threat to the health or safety of any person (clause 46). A maximum fine of $25 000 may be imposed on a Government business enterprise which does not comply with a prohibition notice.

Clause 47 provides that an investigator, after completing an investigation, may issue an employer or a person who, in the opinion of the investigator, is breaching a provision of this Bill or the regulations, or has breached such a provision and is likely to do so again, with an improvement notice directing them to take specified action to prevent any further breach or likely breach. A maximum fine of $10 000 may be imposed on a person who does not comply with an improvement notice.

Part 5 of the Bill (clauses 68-82) deals with miscellaneous matters. Clause 73 provides that an employer is not to charge any of their employees for anything required to be done or provided by the Bill or regulations. A maximum fine of $25 000 may be imposed on a Government business enterprise for a breach of this provision. Clause 76 prohibits certain discriminatory actions of employers against employees, including dismissal and with-holding of pay because an employee has, or proposes to complain about the OHS of employees, provided assistance in an investigation, or ceased work at the direction of a representative. A maximum fine of $25 000 may be imposed on a Government business enterprise for a breach of this provision. The Governor-General may make regulations, including prescribing penalties not exceeding $1000 (clause 82).

References

1. The Medical Journal of Australia, 6 February 1989, pp. 118-125.

2. Sydney Morning Herald, 6 February 1989.

Bills Digest Service 30 October 1990

Parliamentary Research Service

For further information, if required, contact the Education and Welfare Group on 06 2772412.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1990

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1990.