Click Here to View Sample eBook

3. 1.2. The Legislative Framework

1.2. The Legislative Framework 

We have already outlined the fact that as an employee or manager, you have a number of obligations that you will be required to meet under health and safety legislation. But what legislation are we talking about? Here in Australia, the legislation that covers health and safety in the workplace is both State and Territory based. In general, this means that each State or Territory has their own health and safety legislation. For the most part – the differences between each are minor and in this manual we will focus on the general themes that are present in each State’s legislation – which are for the most part quite similar. It should be noted that there is a national piece of legislation that covers all staff that are working for the Commonwealth no matter which State they are working in.

As well as being set out in legislation – some of the obligations that you must meet are also outlined in the regulations. Regulations take specific items within legislation and flesh them out in more detail. We will examine what regulations are in more detail later. All legislation and regulations are legally binding on all Australian businesses – as an employer, manager, or employee, it is your duty to obey them.

Also present in the legislative framework are standards and Codes of Practice. Standards provide detail, while Codes of Practice give practical guidelines for putting specific regulations into effect. Generally these are just recommendations – however some standards may be legally enforceable.

Health and Safety Acts

As we previously mentioned, there is not just one piece of legislation covering health and safety in Australia – rather each State and Territory has its own piece of law covering the subject in the form of its own Work Health and Safety Act. The Acts of each State are:

For the most part, the central tenet of the legislation is very similar – they all strive for the same main objectives – however it is important that you determine where any differences may lie. You can get more information on the legislation that covers your specific workplace by referring to the legislative and Workplace Health and Safety websites, or http://www.safeworkaustralia.gov.au/sites/swa/model-whs-laws/model-whs-act. For the most part, you will find that the major differences between States and Territories lie in terminology and the processes that each Act puts in place.

As just mentioned, all health and safety legislations have the same major intention. That intention is twofold. They first establish the fact that the major obligation for keeping workers safe lies with the employer, and secondly, they encourage a cooperative approach to Work Health and Safety.

It is important to remember that the Acts work to protect all people in an organisation. You may not realise this, but as well as protecting staff, managers, and employers – the legislation works to protect volunteers, customers, clients, contractors, and visitors to a workplace. This means that any health and safety plans must encompass processes to protect each of these groups of people.

The Acts also look to build a consultative, proactive approach to managing health and safety in the workplace. Rather than imposing the will of the manager on all employees, health and safety legislation attempts to build consultation with staff into the process of developing policy and processes for health and safety. Working towards a proactive approach means that the legislation looks to preventing incidents in advance – identifying risks, and taking action rather than waiting for an incident to occur and then establishing means of preventing the incident from occurring again.

The Duty of Care

A central tenet of all health and safety legislation all over the world – is the establishment of a duty of care. This is one of the key obligations that is established in all WHS (Work Health and Safety) Acts. State and Territory WHS Acts contain obligations to exercise a duty of care in relation to health and safety in the workplace. Essentially, the duty of care means that employers must attempt to do everything that they can to remove or minimise risks in the workplace – put another way, they must exercise as much care as possible in attempting to prevent workplace incidents, injuries, and illnesses.

Likewise, all employees, and visitors to workplaces, have a responsibility for others on that site. The employee is required to protect themselves and others. It is not just the responsibility of the employer to exercise a duty of care. This goes back to the proactive approach. It is much better to have a fence on the edge of a cliff preventing people from falling off than it is to have an ambulance waiting at the bottom to care for those who have fallen.

Responsibilities and Obligations

As we mentioned earlier – employers and employees each have a specific set of responsibilities that they have in relation to health and safety in the workplace. Even though employees do have some responsibilities (which we will address later in this Element), it is the employer (and managers who act on their behalf) who have the majority of the responsibility. The key responsibilities that an employer has are:

As well as your employers having responsibilities and obligations, you as an employee also have obligations that you must adhere to. These include:

The Regulations

Referring back to our legislative framework – you will remember that the regulations pick up particular issues from the Acts and add extra detail to them. Generally you will find that the regulations cover a single specific aspect of health and safety, and they will give detail to each of these issues – providing duties and procedures specific to the issue being examined. These issues are often related to a specific type of hazard – such as noise or machinery. Some of the key regulations in Australia are: 

Codes of Practice

Let’s now examine what a Code of Practice is. Essentially a Code of Practice is used to give detailed advice on how an employer can attempt to build systems and procedures that will allow them to meet the requirements of specific legislation or regulations. They are used as practical guidelines giving advice on how an organisation can comply with the Acts and Regulations. They can also be used to suggest ways in which risks in a specific workplace can be remedied. Some examples of Codes of Practice that are used are:

These are produced by Standards Australia and deal with specific workplace problems such as noise or exposure to chemicals. The standards themselves are used to provide technical guidance in relation to a specific problem. They are often used in the design of new products. For example, if you were producing a new desk for children you would need to refer to standards for safety of children as well as all other standards related to the manufacture of furniture. The standards are not legally binding, however, most generally regard them as being good practice.