The Commonwealth Occupational Health and Safety Jurisdiction
A brief guide for employers to their duties and the responsibilities of Comcare and state and territory occupational health and safety authorities.
The Occupational Health and Safety Act 1991 (the Act) imposes general duties of care on employers to take care for the health and safety of their employees, contractors and other persons at or near the employer’s workplace who might be affected by the employer’s undertaking. This guide explores some of the key responsibilities of employers, including their duty to report incidents; the responsibilities of Comcare and state and territory occupational health and safety (OHS) authorities; and the limits of the Commonwealth’s occupational health and safety jurisdiction.
Under the Act, employers in the Commonwealth OHS jurisdiction are exempt from the application of state/territory laws related to occupational health and safety, unless these laws are specifically prescribed by Commonwealth regulations (s4 of the Act).
Employers in the Commonwealth OHS jurisdiction include all Commonwealth departments, agencies and authorities as well as those private sector organisations that are licensed to self-insure under the Safety, Rehabilitation and Compensation Act 1988 (known as non-Commonwealth licensees). References in this guide to employer or Commonwealth employer include all employers in the Commonwealth OHS jurisdiction.
What are an employer’s general duties under the Act?
An employer must take all reasonably practicable steps to protect the health and safety at work of their employees (s16 of the Act). Safety at work - your responsibilities as an employer (OHS60).
This duty requires the employer to take all reasonably practicable steps:
- to provide safe plant
- to provide safe systems of work
- to provide adequate facilities for the welfare of employees at work
- to ensure that their workplaces are safe and without risks to health
- to ensure that persons can enter and leave their workplaces safely and without risks to their health
- to ensure that employees are safe when they use, handle, store or transport plant or substances
- to ensure that employees are provided with the necessary information, instruction, training and supervision, and in the appropriate languages
- to consult with employees and, if requested, employee representatives to develop health and safety management arrangements that will enable effective co-operation between the employer and employees in promoting, developing and reviewing measures to ensure its employees’ health, safety and welfare at work
- to monitor employees' health and safety at work, and the conditions of the workplaces under the employer's control
- to maintain appropriate information and records relating to its employees' health and safety
- to provide appropriate medical and first aid services for employees.
Who does the employer owe these duties to?
All these duties are owed to all of the employer’s employees whilst they are performing work for the employer, whether permanent or temporary, full-time or part-time.
All but the last four duties are owed to contractors of the employer in relation to matters over which the employer has control, regardless of any agreement between the employer and the contractors (s16(4) of the Act).
In addition, the employer owes a duty to other people at or near the workplace, such as suppliers, visitors, members of the public, and trades people, to ensure that they are not exposed to risk to their health and safety arising from the conduct of the employer's undertaking (s17 of the Act).
In general, employers should ensure that all persons at their workplace are not exposed to risks to their health and safety.
When does the employer owe these duties?
The general duty of care an employer has for the health and safety of their employees always applies while the employee is undertaking work for the employer.
Indeed, all parts of the Act apply to employees whether the employee is working in a workplace controlled by the employer, in a workplace controlled by a contractor for building and construction purposes, or, where they ordinarily work in premises not controlled by a Commonwealth employer. (Note this reflects changes that came into effect from 1 May 2007 as a result of changes to the Occupational Health and Safety (Safety Arrangements) Regulations 1991).
What should an employer do if an accident or dangerous occurrence occurs?
If a workplace accident or dangerous occurrence (notifiable incident) occurs to either an employee, contractor or third party on a workplace under the employer’s control, the employer is required under the Act to notify Comcare. Employers should do this in line with the incident notification procedures outlined in Comcare’s information on workplace accidents and dangerous occurrences. If the notifiable incident involved a contractor, it is expected that the contractor’s employer will also be notifying the incident to the OHS authority to which they are legally required to report the matter – depending on the contractor; this may be Comcare or a state or territory OHS authority.
Where a notifiable incident occurs involving the employer’s employee at a workplace not under the employer’s control, the employer should follow the same notification procedures as if the incident occurred at a workplace under their control. At the same time, it is expected that the organisation with control of the workplace will be notifying the incident to the OHS authority to which they are legally required to report the matter – depending on the organisation that is in control of the workplace this may be Comcare or a state or territory OHS authority.
Whilst as a general principle workplace accidents or dangerous occurrences that involve employers in the Commonwealth OHS jurisdiction are subject only to investigation by Comcare in respect of that employer, there are some circumstances, as mentioned above, when employers/employees from other jurisdictions will be involved. The existence of such circumstances is not new and Comcare is working to put in place arrangements with all state and territory OHS authorities to ensure the cooperative management of the investigation of incidents, including the possible parallel or joint investigation of an accident or dangerous occurrence, where Comcare and the state and territory OHS authority have an interest. In line with this, Comcare expects employers in the Commonwealth jurisdiction to work in a cooperative manner with state and territory OHS authorities who are investigating incidents that involve employers/employees in their own jurisdiction.
Limits of the Commonwealth’s OHS jurisdiction
Further, employers need to be mindful that OHS in their workplaces can be influenced by broader Commonwealth and/or state and territory public health, security and safety laws; and that some requirements of these broader laws are not overridden by the OHS Act.
In developing regulations to operate under the Act, the Commonwealth has had to be mindful of these requirements and in some instances provide specific recognition of them when their primary object goes beyond OHS; eg state and territory laws regarding explosives, security sensitive dangerous goods, road safety laws, licensing provisions such as for electricians.
Further information
For further information about this fact sheet, or others in the series, please contact Comcare on the general enquiry line 1300 366 979 or by email ohs.help@comcare.gov.au.
Contact:
Phone: