Chapter 9.2: Work Health and Safety Law in Australia

Chapter 9.2: Work Health and Safety Law in Australia

Abstract

This chapter reviews the basic principles underlying current Australian work health and safety (WHS) legislation. It is essential for the provision of OHS advice and OHS decision making in organisations to be underpinned by an understanding of these principles. It is equally important that OHS professionals are able to identify when it is appropriate to seek professional legal advice. After outlining the historical context for the current legislative framework, this chapter reviews core concepts including the sources of OHS law and provisions of the model Work Health and Safety Act. It focuses on duty of care, the qualifiers to this duty, an officer’s duty to exercise due diligence, and enforcement mechanisms available to regulators. The chapter concludes with implications for OHS practice.

Keywords statutory law, common law, duty of care, reasonably practicable, PCBU, enforcement,
inspectors, due diligence, officer

First year of publication: 2014

Current Version Under Review: 2019

Chapter 9.2: Work Health and Safety Law in Australia

Table of contents

1 Introduction ……………………………………………………………………………………………………. 1
2 Historical context …………………………………………………………………………………………….. 1
3 Understanding the core concepts ……………………………………………………………………….. 4
3.1 Sources of law …………………………………………………………………………………………… 4
3.2 Fundamental definitions …………………………………………………………………………….. 7
3.3 Duty of care in the WHS Act …………………………………………………………………….. 10
3.4 Qualifiers to the duty of care …………………………………………………………………….. 12
3.5 Determination of duties ……………………………………………………………………………. 14
3.6 Good governance in OHS – compliance by an officer ………………………………….. 16
3.7 Enforcement ……………………………………………………………………………………………. 17
4 Implications for OHS practice …………………………………………………………………………. 21
5 Summary ………………………………………………………………………………………………………. 22
6 Further reading ……………………………………………………………………………………………… 22
7 References ……………………………………………………………………………………………………. 23

Neil Foster BA, LLB, BTh, DipATh, LLM Associate Professor, Newcastle Law School, University of Newcastle Associate Member, National Research Centre for OHS Regulation, Australian National University

Neil teaches Law, including courses on Workplace Health and Safety Law, to undergraduate and postgraduate students at Newcastle University. He is a member of the editorial board of the Torts Law Journal and has contributed to law texts and articles in the area of torts and WHS law. Neil is the author of Workplace Health and Safety Law in Australia (2012).

Barry Sherriff LLB(Hons), LLM Partner, Norton Rose Fulbright Australia

A lawyer with OHS expertise, Barry was a member of the panel for the National Review into Model OHS Laws. He is the author of Sherriff’s Work Health and Safety Law Guide (2011), an Honorary Fellow of the Safety Institute of Australia, and a member of the National Employers’ OHS Consultative Forum and the WorkSafe Victoria Stakeholder Reference Group.

Eric Windholz BEc, LLB(Hons), GDipCoySecPractice, MBA, PhD Lecturer, Faculty of Law, Monash University Associate, Monash Centre for Regulatory Studies

Prior to joining Monash University where he teaches Law, Eric held a series of senior positions with WorkSafe Victoria, including General Counsel, senior executive responsible for self-insurance and General Manager, Strategic Programs and Support. His doctorate examined the harmonisation of Australian OHS laws.

Barry Sherriff LLB(Hons), LLM Partner, Norton Rose Fulbright Australia

A lawyer with OHS expertise, Barry was a member of the panel for the National Review into Model OHS Laws. He is the author of Sherriff’s Work Health and Safety Law Guide (2011), an Honorary Fellow of the Safety Institute of Australia, and a member of the National Employers’ OHS Consultative Forum and the WorkSafe Victoria Stakeholder Reference Group.

Richard Johnstone BBusSc(Hons), LLB(Hons), PhD Professor, Faculty of Law, Queensland University of Technology Director, National Research Centre for OHS Regulation, Australian National University

Currently a professor in the QUT Law School, Richard has authored, co-authored or edited many books on the topics of OHS regulation, legal education, labour law and legal theory. He was the foundation director (2001-2004) of the National Research Centre for OHS Regulation, and, since 2007, has served as a co-director of the centre.

Leo Ruschena MSc(OccHyg), MIER, BEng, BEcon, GDipOrgBeh, CFSIA Senior Lecturer, OHS, School of Applied Science, RMIT University

Leo’s postgraduate and undergraduate classes at RMIT University cover OHS management systems, risk assessment and controls, ergonomics and employee relations.Leo has held executive HR/OHS roles in WorkSafe Victoria and various Victorian and ACT electricity supply authorities.

Peer Reviewer
John McDonald BSc(For), LLB(Hons), FSIA(Hon) Barrister and solicitor

Learning Outcomes: Chapter 9.2

The OHS Body of Knowledge takes a conceptual approach which enables it to be applied in different contexts and frameworks.

To optimise its value for education and professional development learning outcomes have been developed for each technical chapter in the Body of Knowledge.

The learning outcomes as described give an indication of what should be the capabilities of an OHS professional; it is up to those developing OHS education programs, OHS professionals planning their CPD or recruiters or employers selecting or developing people for the OHS function to consider the required breadth vs. depth .

Please read the section on using the learning outcomes before delving into the leaning outcomes of the individual chapters.

The numbers against each learning outcome refer to the chapter number of the BOK download page. No learning outcomes have been developed for the chapters considered introductory or underpinning knowledge (that is chapters 1, 2, 3, 4, 5, 6, 7, 1, .13, 14, 15.)

Find Out More About Using the OHS BoK Learning Outcomes