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: 2020
Chapter 9.2: Work Health and Safety Law in Australia
Table of contents
| 1 | Introduction |
| 2 | Historical context |
| 3 | Understanding the core concepts |
| 3.1 | Sources of law |
| 3.2 | Fundamental definitions |
| 3.3 | Duty of care in the WHS Act |
| 3.4 | Qualifiers to the duty of care |
| 3.5 | Determination of duties |
| 3.6 | Good governance in OHS – compliance by an officer |
| 3.7 | Enforcement |
| 4 | Implications for OHS practice |
| 5 | Summary |
| 6 | Further reading |
| 7 | References |
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.
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.)
Webinars
AIHS Webinar: Introduction to OHS Law in Australia
This webinar provides an Introduction to OHS Law in Australia.it looks at the obligations and comparisons between different states and territories and examines the primary duties of an employer or OHS manager.
Date: 2017
Presenters: Sam Witton, Senior Associate Seyfarth Shaw
Source: https://www.youtube.com/watch?v=TNo_E1tOv0o&t=31s
AIHS Webinar: Due Diligence and Officer Duties
This webinar explores the obligations of a Director and Senior Health & Safety Professional within the regulatory scheme. Who is obligated to do what and where do they fit and the appropriate level of decision making when confronted with an OHS issue.
Date: 2017
Presenters: Sam Witton, Senior Associate Seyfarth Shaw
Source: https://www.youtube.com/watch?reload=9&v=S7gKEDlQsos&feature=youtube
AIHS Webinar: Industrial manslaughter: Where are we at and what have we learned so far?
Industrial manslaughter is of significant interest to organisations and their boards but has become a confusing legal maze for health and safety professionals to navigate. On no other topic has the harmonisation of health and safety legislation been so obviously threatened as in the approach taken to industrial manslaughter. No two jurisdictions have adopted the same approach: from the duty holders who may be charged with the offence, to the elements of the offence, to the penalties of the offence. This webinar breaks down the confusion to explore key lessons learned.
Date: 2021
Presenters: Alena Titterton
Source: https://youtu.be/WwxWj2Q0qwA
AIHS Webinar: A deeper look at safety compliance
Compliance in safety is often considered as either/or – compliance OR violation but the reality is much more nuanced. Superficially compliance with safety rules and procedures gives an impression of doing the right thing but may mask disengagement and complacency to risk. Alternatively, deep compliance is treating rules and procedures like resources that help with task objectives. Workers can also ‘adaptively comply’ compensating for poor rules and building on top of procedures when unexpected situations arise. Based on applied research and practical experience, this webinar explains the expanded safety compliance landscape to identify ways of reducing surface compliance and fostering deep compliance.
Date: 2021
Presenters: Tristan Casey
Source: https://www.youtube.com/watch?v=Ku-eT-mJSlU
Podcast
Safety of Work Podcast: What is Due Diligence?
In this podcast, Greg uses case studies to highlight the importance of avoiding oversimplification of the term ‘due diligence. He shares how this mistake has, unfortunately, led to safety officers and businesses being held liable for incidents at their premises. He discusses reasonably practicable vs due diligence, the role of health and safety reporting, ‘paper safe’ and the issue of misleading due diligence products, the validity of injury rates, limitations of site inspection and learning from incidents.
Date: 2021
Presenters: Greg Smith
Source: https://safetyofwork.com/episodes/ep76-what-is-due-diligence
Video
Principles of OHS
Following an introduction to the new chapters of the OHS BoK published in 2014-15 Neil Foster gives an overview of the chapter on Principles of OHS law.
Date: 2015
Presenters: Neil Foster
Source: https://www.youtube.com/watch?v=wd1ahkyGDh4&t=77s
Chapter 9.2: Work Health and Safety Law in Australia – 2014 Version