Overview « Fountain Bonig

In 1986, the Occupational Health, Safety and Welfare Act (“the Act”) was enacted in South Australia. Although the Act creates many statutory obligations the philosophy underlying occupational health and safety legislation is that it is much more economically viable – not only for the workplace, but for the community in general – to avoid injuries rather than have to deal with the economic and social costs resulting from workplace injury. As such it is clearly aimed at requiring appropriate levels of safety in the workplace.

Although it is naturally a critical part of the legislation, the Act does not just confine itself to dealing only with employees’ safety. It also sets out specific duties for safety of employers and members of the public who visit workplaces.

In addition the Act creates health and safety regulations that apply to all workplaces in South Australia.

Objects of the Act

Section 3 of the Act sets out its objects. They are:

• to secure the health, safety and welfare of persons at work;

• to eliminate at their source risks to the health, safety and welfare of persons at work;

• to protect the public against risks to health or safety arising out of or in connection with the activities of people at work or the use or operation of various types of plant (tools or machinery);

• to involve employees and employers in issues affecting occupational health, safety and welfare; and

• to encourage registered associations to take a constructive role in promoting improvements in relation to health, safety and welfare practices.

The Act creates various general provisions relating to occupational health, safety and welfare.

General Provisions relating to Occupational Health, Safety and Welfare

Part 3 of the Act (sections 19-25 inclusive) contains the General Provisions relating to occupational health, safety and welfare. In addition, these sections create a series of offences for breaches of any of these duties. The offences are strict liability offences. As such, proof of an intention to commit the offence is not necessary in order to prove the offence and obtain a conviction.

Section 19 – Duties of employers

Section 19 imposes a duty on employers to ensure, so far as is reasonably practicable, that employees are safe from injury and risks to health while at work.

The section sets out the more detailed obligations imposed on employers, including:

• monitoring the health and welfare of employees;

• keeping information and records relating to work-related injuries suffered by employees in their employment;

• providing information to employees in relation to occupational health, safety and welfare;

• ensuring that inexperienced employees undertaking hazardous work receive proper information, instruction, training and supervision;

• ensuring that employees at risk due to a change in the workplace or in any activity or process receive proper information, instruction, training and supervision;

• ensuring that managers and supervisors are provided with proper information, instruction and training so that employees under their management or supervision are safe;

• monitoring working conditions; and

• ensuring that accommodation or eating, recreational or other facilities provided for the benefit of employees, are maintained in a safe and healthy condition.

Section 20 – Employers statements for health and safety at work

This section sets out obligations for employers to prepare and maintain policies relating to occupational health, safety and welfare at work. It provides that employers must:

• prepare and update a written statement setting out arrangements, practices and procedures at the workplace protecting the health and safety of employees; and

• take reasonable steps to bring this statement to the attention of employees.

Section 21 – Duties of workers

This section imposes obligations on employees to take reasonable care to protect the health and safety of themselves and other people while at work.

Employees are required, so far as is reasonable to:

• use equipment provided for health or safety purposes;

• obey reasonable instruction given by the employer in relation to health and
safety at work;

• comply with any policy that applies at the workplace;

• not be affected by alcohol or drugs so as to endanger his or her own safety
or another worker’s safety.

Section 22 – Duties of employers and self-employed persons

This section provides that employers and self-employed persons are to take reasonable care to protect their own health and safety at work and to avoid adversely affecting the health and safety of others at work.

It also requires that an employer or self-employed person must take reasonable care to avoid adversely affecting the health or safety of any other person.

Section 23 – Duties of occupiers

This section imposes duties on occupiers of workplaces to ensure, so far as is reasonably practicable:

• that the workplace is maintained in a safe condition; and

• that the means of access to and egress from the workplace are safe.

Section 23A – Duties of designers and owners of buildings

This section imposes obligations on people who design and owners of buildings that are reasonably expected to comprise or include a workplace.

Designers of buildings are required to:

• ensure, so far as is reasonably practicable, that he building is designed so people working in the workplace are safe from injury and risks to health; and

• ensure that the building complies with prescribed requirements applicable to it.

Owners of buildings are required to:

• ensure, so far as is reasonably practicable, that the building is in a condition that allows people working in it to be safe from injury and risks to health; and

• ensure that the building complies with prescribed requirements applicable to it.

Section 24 – Duties of Manufacturers, etc

This section imposes duties on people who design, manufacture, import or supply plant and on people who erect, install or modify any plant.

The section sets out a number of specific obligations which must be complied with by these people.

Section 24A – Duties of owners of plant

This section imposes duties on owners of plant that is used at a workplace.

These duties include:

• ensuring, so far as is reasonably practicable, that the plant is maintained in a safe condition;

• ensuring that the plant complies with prescribed requirements applicable to it;

• ensuring, so far as is reasonably practicable, that adequate information is supplied to users of the plant to ensure the safe use of the plant.

An “owner” is specifically defined in the section to include plant that is installed in or used in connection with a building or structure on a permanent basis, the owner, lessee or occupier of the building or structure.

Section 25 – Duties applicable to all persons

This section is a catch all to cover situations not otherwise covered by the principal section 19 – 24A provisions. It imposes duties on people (other than an employer, employee or occupier of a workplace) not to misuse or damage anything provided in the interests of health, safety or welfare; and not to place the health or safety of any person at risk while that person is at work.

Regulations under the Act

The health and safety regulations apply to all workplaces across South Australia. There is a single set of regulations which apply to all industries. They require corrective steps to be taken by employers and employees to identify hazards and assess or control risks. The regulations adopt a hazard-based approach. This is illustrated by examples of a number of regulations, such as:

• access and egress regulations (regulation 2.1.1)

• amenities regulations (Division 2.2) including:

- facilities for dining (regulation 2.2.3)

- toilets (regulation 2.2.5)

- washing facilities (regulation 2.2.6)

- seating (regulation 2.2.9)

• buildings and their precincts (Division 2.3)

• confined spaces (Division 2.4)

• electrical (Division 2.5)

• fire prevention (Division 2.7)

• manual handling (Division 2.9)

Offences under the Act

Sections 19 – 25 of the Act create a series of offences for breach of the various statutory duties set out in those sections. As mentioned these offences are strict liability offences.

In order to secure a conviction the prosecution must prove that the person charged, usually the employer, has failed to do all that is reasonably practicable. It is not necessary that the prosecution prove mens rea (ie intention to commit the offence).

Prosecutions under the Act may be brought by the Minister, an inspector and, in limited circumstances, an employee.

Prosecutions are brought in the Industrial Relations Court of SA.

Penalties under the Act

Penalties for breaches of the Act are divided into different categories, called “divisions”. There are seven separate levels of fine, ranging from a minimum level fine up to $5,000 for some offences to a fine of up to a maximum of $200,000 for other offences. The fines that can be imposed for different categories of offence are set out in the definition section of the Act, section 4.

They are:

Division 1 fine: a fine not exceeding $200,000;

Division 2 fine: a fine not exceeding $100,000;

Division 3 fine: means a fine not exceeding $40,000;

Division 4 fine: means a fine not exceeding $30,000;

Division 5 fine: means a fine not exceeding $20,000;

Division 6 fine: means a fine not exceeding $10,000;

Division 7 fine: a fine not exceeding $5,000.

Other Offences – Offences to endanger persons in workplaces or continuing offences

Sections 59 and 60 of the Act deal with offences to endanger persons in workplace and continuing offences respectively.

An section 59 offence occurs when a person without lawful excuse, acts in a manner that creates a substantial risk of death or serious harm to another who is in a workplace, knowing that the act would create that risk or being recklessly indifferent as to whether the act would create that risk. Upon conviction, that person is liable to a monetary penalty not exceeding $400,000 or imprisonment for a term not exceeding 5 years (or both). For a body corporate who contravenes this section, the penalties are even more severe with a maximun fine of $1,200,000.

A continuing or repeated offence occurs where and act or omission continues after a person has been convicted of an offence for the act or omission that constituted the offence. This amounts to a further offence. In such a case the Court has the power to order the person to take such steps as are specified in its order within a specific time. If the person continues to fail to comply with that order within the specified time, the person is guilty of a further offence, the penalty for which is Division 2 fine (a fine not exceeding $100,000 or $3000,000 for a body corporate).

Offences by bodies corporate

Section 61 of the Act provides that every body corporate carrying on business in South Australia must appoint one or more responsible officers.

The responsible officer is required to take reasonable steps to ensure compliance by the body corporate with its obligations under the Act. Should it fail to do so it is liable to a Division 6 fine (a fine not exceeding $30,000), however where the court is satisfied that the offence has contributed to the commission of an offence, the fine to be imposed is not to exceed a Division 7 fine ($15,000) as prescribed for the offence committed by the body corporate .