Introduction to the OHS Regulatory Framework in the Commonwealth Jurisdiction

Introduction
Comcare overview

Comcare's role
Overview of the OHS Regulatory Framework
OHS Responsibilities

Comcare Activities supporting OHS

Services and Programs

Communications
Training 

Introduction

The information contained in this package has been developed to provide organisations with an introduction to the Occupational Health and Safety regulatory framework administered by Comcare within the Commonwealth jurisdiction.

Comcare overview

Comcare is a Commonwealth statutory authority established under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and covered by the Commonwealth Authorities and Companies Act 1997 (CAC Act). Comcare administers the Commonwealth's workers' compensation scheme under the SRC Act and also administers the Occupational Health and Safety Act 1991 (OHS Act).

Comcare supports the Safety, Rehabilitation and Compensation Commission (the Commission) in exercising its functions and powers. Broadly, these relate to regulation under the SRC Act and the OHS Act. Comcare also provides secretariat, policy and legislative support to the Seafarers' Safety, Rehabilitation and Compensation Authority in administering the Seafarers Rehabilitation and Compensation Act 1992, the Occupational Health and Safety (Maritime Industry) Act 1993, the Seafarers Rehabilitation and Compensation Levy Act 1992 and the Seafarers Rehabilitation and Compensation Levy Collection Act 1992.

Comcare provides advice to the Minister for Employment and Workplace Relations on issues relating to the administration of the Commonwealth's occupational health and safety and workers' compensation frameworks.

Hard copies of a number of Comcare publications can be ordered by clicking on the Publications link.

The Safety, Rehabilitation and Compensation Commission

The Commission is established under the SRC Act and is a statutory body with regulatory functions in relation to Comcare and other authorities which determine workers' compensation claims under the Commonwealth scheme. The Commission also has regulatory functions under the OHS Act.

While the Commission and Comcare each have regulatory roles, most of the regulatory functions in relation to workers' compensation and occupational health and safety for Commonwealth employees and employees of licensed corporations rest with the Commission.

The Commission administers the regulatory functions of the SRC Act and the OHS Act, other than those functions ascribed to Comcare. The major functions of the Commission are to:

• provide advice to the Minister in relation to the SRC Act and the OHS Act;
• determine applications by Commonwealth authorities and eligible corporations wishing to self insure or manage their own claims under licence;
• provide strategic direction for occupational health and safety in the Commonwealth jurisdiction and ensure compliance with the OHS Act;
• develop general policy direction for scheme administrators on the operation of the SRC Act;
• ensure, as far as practicable, consistency in the administrative practices and procedures used by scheme administrators; and
• act as a review body for premiums and regulatory contributions.

Further information about the Commission can be accessed online from the Safety, Rehabilitation and Compensation Commission page. 

Self Insurance

The SRC Act provides for Commonwealth authorities and certain corporations declared by the Minister to be eligible to apply to the Commission for the grant of a licence to self-insure and/or take on the responsibility for managing their workers' compensation claims.

The Commission has responsibility for the grant of licences and determining the scope and conditions of licence, monitoring compliance with the SRC Act and conditions of licence and oversighting operation of the licensing arrangements. The SRC Act and Ministerial Directions specify the criteria and procedures for the Commission to follow when granting licences.

The Commission expects licensees to continuously improve their occupational health and safety, rehabilitation and claims management performance outcomes, to comply with licence conditions and to meet performance standards of licence.

Conditions of licence require compliance with the SRC Act and relevant laws and regulations regarding health and safety. A licensee is subject to audits and evaluations as well as being required to meet financial, prudential performance reporting requirements as part of the conditions of licence. A sample SRC Act self insurance licence is available at Appendix 4 of the Commission's Annual Report 2005-6 on the Comcare website. (Note that some licence conditions may be tailored to particular licensees).

Licensees are required to provide twice-yearly performance reports against Commission indicators which include a number of key performance outcome measures against prevention, rehabilitation, claims management and scheme administration indicators. The Commission also sets performance targets against a number of key indicators, for example; incidence and frequency of injury, timeliness of claims management decisions, rehabilitation and return to work rates.

Comcare's Self Insurance section oversights the regulation of licensed corporations on behalf of the Commission and further information can be obtain from the Compensation page. The Self Insurance section can be contacted through the Director, Self Insurance section by telephone on (02) 6275 0044.

Comcare's role

Comcare works in partnership with its customers to reduce the human and financial costs of workplace injuries and disease. Comcare achieves this by:

• improving the safety and rehabilitation of employees in the Commonwealth jurisdiction and the compensation services we provide;
• engaging our stakeholders and customers in achieving that improvement; and
• supporting our people to enable them to best contribute to improving our business

A key role undertaken by Comcare is the setting of premiums and regulatory contributions for the Australian Government and ACT Government.

Comcare's regulatory activities cover the occupational health and safety and workers' compensation functions for the Commonwealth jurisdiction as a whole, while its claims management functions cover premium paying agencies, including the ACT Government, and management of 'pre-premium' claims (i.e. claims for Australian Government agencies, excluding the Australian Defence Force and licensed corporations, with a date of injury before July 1989).

Overview of the OHS Regulatory Framework

Comcare administers the regulation of the OHS Act and its activities include:

• managing compliance and enforcement activities under the OHS Act;
• promoting prevention as the primary means of reducing human and financial costs of injury and disease, identifying and targeting priorities and evaluating results; and
• development and administration of safety policy aimed at improving the regulatory framework to ensure that it provides strong accountability, reflects risks and is outcome based.

The OHS Act is supported by a framework of legislative instruments (regulations and approved codes of practice) which provide guidance to employers and others on how the requirements of the legislation can be met. The OHS Act, regulations and approved codes of practice are further supported by guidance material and facts sheets.

The main obligations are contained in the OHS Act. One of the fundamentals of the OHS Act is the obligation of a general duty of care on employers to protect the health and safety of employees at work. Employers also have duties to non-employees at their workplaces, and there are specific duties for employees, suppliers, manufacturers and installers.

The regulations set out the mandatory supplementary provisions about various procedures, responsibilities and obligations associated with the OHS Act. There are two sets of regulations. The Occupational Health and Safety (Safety Arrangements) Regulations 1991 (the Safety Arrangements Regulations) set requirements in relation to safety management arrangements, incident notification, incident investigations and others; and the Occupational Health and Safety (Safety Standards) Regulations 1994 (the Safety Standards Regulations) set out mandatory requirements with respect to risk assessments, competencies and certification standards, and control of specific risks in the workplace such as plant safety, occupational noise, manual handling, hazardous substances, dangerous goods, confined spaces, major hazard facilities, electricity, driver fatigue, construction and falls from two metres or more.

Approved codes of practice are approved by the Minster for Employment and Workplace Relations and provide practical guidance on how employers should fulfil their responsibilities or how to achieve the performance outcomes. Approved codes of practice are designed to be used in conjunction with the OHS Act and regulations. An approved code of practice has a legal status of evidence in proceedings and should be followed unless there is another means of achieving the same or better safety outcomes. In case of a breach of the OHS Act or regulations, an approved code of practice is evidence in legal proceedings that relevant guidance on the issue was available but was not observed.

Guidance materials are approved by either Comcare or the Commission and describe activities and procedures a duty holder should follow to meet the performance outcomes set in the OHS Act and regulations. Guidance material does not have legal status, but may be assessed by the courts on an objective basis in relation to what an employer knew or should have known in case of a breach of the OHS Act or regulations.

Fact sheets are approved by Comcare senior management and aim to provide duty holders with information on OHS issues. Fact sheets are informative documents only and are not generally used as evidence in the case of a contravention of the OHS Act or regulations.

The OHS Act, regulations, the OHS Code 2008, approved guidance material and fact sheets can be obtained by clicking on the Safety link. 

OHS Responsibilities

The OHS Act imposes strict duties on key stakeholders in the workplace to ensure health and safety. These duties are called the general duties of care.

The duties place responsibilities on employers, contractors, manufacturers, suppliers and persons erecting or installing plant, as well as employees themselves with respect to ensuring the health and safety of people at work. These stakeholders are often referred to as duty holders.

An important concept under the OHS Act is that the duties of care impose obligations to do all that is reasonably practicable. While the phrase is not defined, the Courts have interpreted "reasonable practicability" to involve a balancing of the nature, likelihood and gravity of the risk to safety with the cost, difficulty and trouble necessary to avert it.

In this context employers are required to take all reasonably practicable steps to protect the health and safety at work of their employees. It also extends to contractors in relation to matters over which the employer has control or would normally have had control but for an agreement with the contractor to the contrary. This duty requires employers to take proactive steps to identify hazards affecting the health and safety of their employees and eliminate or minimise the risks arising from those hazards as far as is reasonably practicable.

The Comcare publication Safety at work - your responsibilities explained (OHS60) provides a plain English guide to the laws covering health and safety in the Commonwealth jurisdiction and each duty holder's responsibilities. A useful overview is also provided in Comcare's brief guide for employers to their duties and the responsibilities of Comcare and state and territory occupational health and safety authorities.

Workplace Consultative Arrangements

The OHS Act provides for the establishment of the following types of workplace consultative arrangements:

• health and safety management arrangements (HSMAs) (note under transition provisions organisations may still operate under existing OHS policies and agreements until HSMAs are developed – by 15 September 2008 at the latest),
• designated work group(s) (DWG),
• health and safety representative(s) (HSR), and
• health and safety committee (HSC)

The OHS Act sets out the functions and powers of these various types of workplace consultative arrangements. These are briefly summarised below, however reference should be made to Part 3 - Workplace Arrangements of the OHS Act.

An overview of the legislative provisions can be found in the Comcare publication OHS Workplace Consultative Arrangements (OHS67).

Health and Safety Management Arrangements

HSMAs are a set of written documents concerning the management of OHS in an organisation. Employers must develop written HSMAs in consultation with their employees. Employees can be represented in these consultations by another employee, or by an employee representative. Comcare has prepared a guide to developing HSMAs.

Designated work groups

A designated work group (DWG) is a group of employees whose composition is determined through consultation with employees. The number of employees in each group will depend on the nature of the employer's business and geographic distribution. DWGs are established for the purpose of selecting health and safety representatives (HSRs).

Health and safety representatives

The OHS Act provides for health and safety representatives (HSRs) to represent the interests of employees. The HSR has a broad range of powers for the purpose of promoting health and safety at work of the employees in the DWG.

The Comcare HSRs page contains a number of useful guides providing detailed information on HSRs, their training and election.

Health and safety committee

Comcare Activities supporting OHS

Comcare performs a number of distinct functions to support OHS. These are:

Policy

Comcare develops a range of legislative instruments and other documents that support and give effect to Comcare's OHS policies and strategies. These include amendments to the OHS Act and new or amendments to regulations, codes of practice, guidance material and fact sheets. Policies can relate to any matter capable of affecting the health and safety of employees, contractors or other persons at or near the workplace. These matters may include: hazards, administrative matters or enforcement.

Comcare works closely with the jurisdiction through extensive consultation with key duty holders during the policy development cycle. Comcare's OHS policy development considers the emergence of OHS issues, formulates proposals for dealing with these issues and develops, endorses and introduces written documents to give effect to the government policy.

Compliance

Comcare is supported in its work by a strong enforcement regime under the Act, which provides both civil and criminal enforcement mechanisms and penalties. All employers, employees and other parties who have duties under the OHS Act are subject to these provisions.

Investigations

Comcare has responsibility for conducting investigations under the OHS Act and may do so on its own initiative or in response to a direction from the Commission. Employers, as good corporate citizens, are expected to cooperate to the fullest extent possible with the Investigator, including answering questions and giving copies of any requested documents to the Investigator.

Comcare has recently published a new guide to the investigative and enforcement provisions of the OHS Act titled Comcare Enforcement Policy (OHS50). This Policy sets out in plain English the key principles and processes that underpin compliance and enforcement action, and explains how and in what situations these will be applied.

Incident Reporting

The OHS Act requires employers in the Commonwealth jurisdiction to notify Comcare of certain accidents and dangerous occurrences that arose out of the conduct of the employer's undertaking or out of work performed by an employee in connection with that undertaking. Specifically, the following must be notified to Comcare, in the timeframes specified:

• Accidents causing the death of, or serious personal injury (SPI) to any person. Deaths must be notified by phone within 2 hours. An SPI must be notified within 24 hours by facsimile or via Comcare's online reporting system.
• Accidents causing an employee to be incapacitated for a prescribed period. Incapacities must be notified within 24 hours by facsimile or via Comcare's online reporting system.
• Dangerous occurrences must be notified within 24 hours by facsimile or via Comcare's online reporting system.

We recommend that you refer to Comcare's Incident Notification page for specific detail on Comcare's notification requirements.

Services and Programs

Comcare's OHS services include:

OHS Help

Comcare has an online help desk for assistance and advice on a range of injury prevention topics including:

• Risk management;
• Prevention of psychological and body stressing injuries;
• Early intervention and an integrated approach to primary and secondary prevention; and
• Review and audit of OHS management systems.

The help desk can be either via email at ohs.help@comcare.gov.au or by telephone on 1300 366 979.

Plant Licensing

Comcare's Plant Safety page has information relating to plant, including:

• fact sheets on the definition of plant, responsibilities of employers and suppliers (including the hire of plant), and a checklist to identify plant hazards;
• forms and instructions for new licence applications, renewals, variations or design notifications;
• an Unfired Pressure Vessel Assessor to determine hazard levels; and
• further contact details including a direct plant email address.

The plant regulations can be found in Part 4 - Plant of the Safety Standards Regulations.

Detailed information and fact sheets on plant safety can be accessed online via the Comcare website from the Plant Safety page and Safety Publications page. Advice and further assistance is available from a Plant Contact Officer either via email at ohs.plant@comcare.gov.au or telephone on 1300 366 979.

HSR Training Accreditation

The OHS Act outlines the role of HSRs and the requirement for them to undertake occupational health and safety training. Employers must permit health and safety representatives to take paid time off work to undertake an accredited HSR training course.

The OHS Act provides that the training must be provided through a course that is accredited by the Commission.

The Commission has established a tripartite accreditation advisory panel, the Occupational Health and Safety Training Panel, chaired by Comcare and including an employer and an employee representative. This panel assesses courses submitted for accreditation and advises on whether a course meets certain criteria, including the course goals and objectives as set out in the Guidelines for Accreditation of Occupational Health and Safety Training Courses for Health and Safety Representatives under the Occupational Health and Safety Act 1991. Note whilst these guidelines have yet to be updated to reflect the change in the OHS Act they remain current.

Information on HSR training accreditation, including contact details for training providers can be found from the Health and Safety Representatives page which provides a number of fact sheets** and guidance including the HSR Handbook (OHS4).

Hazardous Substances Exemption

The prohibition of all forms of asbestos, commenced simultaneously under regulations in each State, Territory and Commonwealth OHS jurisdiction from 31 December 2003.

There are a few exemptions to this prohibition but they are restricted in scope and will operate for a limited time. Exemptions only apply where there are much greater risks to safety if asbestos is not used. Protection from exposure is still required in these cases.

The Comcare publication Hazardous Substance Exemptions (OHS44) (temporarily withdrawn) provides a plain English guide and application to apply for a Hazardous Substance Exemption.

Dangerous Goods and Explosives Notification

Comcare's Dangerous Goods page has information relating to handling and storage of those substances that can be hazardous to people or property or cause accidents with disastrous consequences. This information includes:

• an outline of the responsibilities of duty holders;
• information on the Dangerous Goods Ready Reckoner;
• forms and instructions for notifying Comcare of dangerous goods, including explosives; and
• further contact details including a direct Hazmat email address.

The dangerous goods regulations can be found in Part 8 of Dangerous Goods of the Safety Standards Regulations.

Detailed information and fact sheets on dangerous goods can be accessed online from the Dangerous Goods page and Safety publications page. Further assistance is available from a Hazmat Contact Officer either via email at HelpDesk-HAZMAT@comcare.gov.au or telephone on 1300 366 979.

Major Hazard Facilities Licensing

Comcare’s Major Hazard Facilities page has information relating to the prevention of major accidents at facilities that are major hazard facilities or potential major hazard facilities, including:

• an overview of the major hazard facilities regulations;
• forms and instructions for the notification of major hazard facilities and potential major hazard facilities; and
• further contact details including a direct Hazmat email address.

The major hazard facilities regulations can be found in Part 9 – Major Hazard facilities of the Safety Standards Regulations.

Detailed information and fact sheets on major hazard facilities can be accessed online via the Comcare website from the Major Hazard Facilities page and Safety publications page. Further assistance is available from a MHF Contact Officer either via email at  HelpDesk-HAZMAT@comcare.gov.au or telephone on 1300 366 979.

Communications

Comcare's web site is a practical online resource for accessing relevant information on occupational health and safety matters and workplace safety issues relating to the Commonwealth jurisdiction. Through the site employers and employees can access legislation, codes of practice, guidance and tools to assist them in meeting their duty of care obligations under the OHSAct. Resources include information on OHS seminars and conferences, training providers, safety alerts, links to other relevant resources and Comcare's Safety publications. Enquires relating to information published on this web site can be directed to ohs.help@comcare.gov.au.

Training

Comcare delivers an integrated national learning and development program to assist its customers in achieving Australia's Safest Workplaces.

The program includes:

• calendar and in-house training courses (tailored to meet the needs of managers and staff responsible for preventing and managing workplace injury);
• seminars;
• conferences; and
• networking opportunities.

Comcare's Learning and Development Solutions Team offers tailored injury prevention and management programs for all staff; from the induction of new employees through to information sessions for employees and senior managers.

The Learning and Development Solutions page on the Comcare website provides full details of the development program. The Learning and Development Solutions Team can be contacted either via email at learning.development@comcare.gov.au or by telephone on 1300 366 979

 

Last updated July 2007 

Page last updated:June 13, 2008