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Occupational Health Safety and Welfare Law

Who The OHS&W Act 1986 Covers

The Occupational Health, Safety and Welfare Act, 1986 covers all employees of South Australia and South Australian authorities.

This includes workers who are:      

  • part-time

  • casual

  • temporary

  • outworkers

Volunteers are regarded as employees for the purpose of the Act.

Students, clients, patients and customers are regarded as members of the public.

Workers NOT Covered Under this Act

  • a small number of workers who gain special exemption, eg. professional footballers

  • workers in Commonwealth Government departments, agencies and authorities; workers for Australian Public Service agencies (eg Centrelink , Taxation Office, Defence, ABS),

  • workers in Commonwealth Business Enterprises (eg Telstra, Australia Post, ABC,  Medibank Private, Medicare)

  • or workers under some Federal awards, who are covered by separate federal legislation

Although these workers are covered under other legislation (eg Occupational Health and Safety (Commonwealth Employment) Act 1991), the basic principles outlined in this document still apply with some variation in details.

How The OHS&W Act Works

The Occupational Health Safety and Welfare Act is based on the assumption that

  • there will be appropriate consultation and cooperation between management, workers and their representatives in the workplace

  • employers have a general duty of care to safeguard the health and safety of their employees

  • employees have a general duty of care to safeguard their own safety and the safety of others.

  • Other workplace parties have general duties of care including:

manufacturers of equipment and materials

owners of buildings and 

the general public.

These duties are very general because the OHS&W Act covers every kind of workplace. 

The Act is not ‘prescriptive’ – it does not attempt to give formulae or specific directions. 

It requires employers to identify, assess and control risks, in consultation with their employees and it requires everyone to be careful.

Regulations and Codes of Practice are developed to assist and support the Act by expanding on the general principles in the OHS&W Act, and addressing particular hazards.

Inspectors for the Department for Administrative and Information Services (DAIS) – Workplace Services Office are responsible for enforcing the Act and Regulations.

Legal Framework

The obligations of government, employers and workers are spelt out in various Acts and Regulations

The main ones for South Australian workers are:

For workers in South Australia employed under some federal awards or by Commonwealth agencies, departments or business units are:

As a general rule the more specific or detailed the document the less enforceable it is.

Common Law, Statutory laws and Regulations are quite broad but must be complied with. While Codes of Practice, Standards and Guidelines are quite detailed but are less easily enforced through law.

Common Law and Statutory Law

Occupational Health and Safety laws (Acts and Regulations) are based on the areas of Common Law based on the "Duty of Care". 

This means that an employer

  • has a duty to take reasonable care

  • to foresee the degree of possible injury and risk of accident in the work place

  • and to take preventative measures to avoid or remove such risks. 

Statutory Law is drafted by Government Departments, introduced into Parliament as a "Bill" and after being passed by both Houses of Parliament, it is enacted as Law by Act of Parliament.  (eg. Occupational Health Safety and Welfare Act 1886)

A law which relates to a particular issue, eg Occupational Health Safety and Welfare Act 1986, overrides all Common Law relating to that issue.

State laws apply unless it conflicts with a Commonwealth law or is silent where a Commonwealth law specifically mentions the issue.

Prosecution: Liability for Common Law prosecution can be directed towards individual Managers or Supervisors as well as towards the Company where it is believed and a case can be made that reasonable care has not been taken in a given situation.

If a person does not comply with the provisions of an Act they can be prosecuted.

Regulations

Regulations give effect to an Act.

Parliament includes provisions in an Act which "authorise" Government to write Regulations at a later date. 

This allows changes to be made without the Act having to be changed each time.

Prosecution: If a person does not comply with a Regulation they can be prosecuted.

Approved Codes of Practice

A Code of Practice is a practical guide on how to comply with a duty under the OHS&W Act, or an obligation under the Regulations.

In most cases a Code is written for the guidance of employers - a guide to the process for achieving a particular level of health and safety, with regard to a particular issue, e.g. manual handling, asbestos, first aid.

Where a Code of Practice exists it should be followed unless it can be shown that the duty in the OHS&W Act can be achieved in another way.

Prosecution: A person cannot be prosecuted for not complying with a Code of Practice unless

  • It is an Approved Code of Practice which is specifically mentioned in Regulations Or

  • It can be shown that an equivalent or better level of health and safety results from the alternative action taken. 

But a Code of Practice can be used as evidence in a prosecution, of a person not fulfilling their general duty or obligations under the Act or the Regulations. 

SA Occupational Health and Safety Commission Approved Codes of Practice         

  • Approved Code of Practice for the Safe Erection of Structural Steelwork

  • Approved Code of Practice for Manual Handling

  • Approved Code of Practice for Occupational Health and First Aid

  • Approved Code of Practice for the Safe Removal of Asbestos.

  • Approved Code of Practice for Asbestos Work

  • Approved Code of Practice for the Safe Use of Synthetic Mineral Fibres

  • Approved Code of Practice for Logging Stanchions and Bulkheads

  • Approved Code of Practice for Safe Handling of Timber Preservatives and Treated Timber.

SA Government Approved Codes of Practice

  • Approved Code of Practice for the Control of Workplace Hazardous Substances

  • Approved Code of Practice for the Preparation of Material Safety Data Sheets

  • Approved Code of Practice for the Labelling of Workplace Substances

OHS&W Regulations 1995 - Appendix 3

NOTE: All these Codes of Practice are approved, and can therefore be used to support prosecution in South Australia. 

Codes of Practice and Standards that relate to SA can be found on the WorkCover Corporation website by typing Codes of Practice into the search feature on their home page

Australian Standards, Guidance Notes and Guidelines

Standards are a guide unless they are mentioned specifically in Regulation. In this case they have the same status as Approved Codes of Practice.

These are advisory documents only, but can be used to supplement legislation.  They usually deal with quite specific issues – particular hazards or processes.  They include the WorkCover guidelines listed on the next page, and Codes of Practice from other states or the Commonwealth.

Guidelines do not have the same status as Codes of Practice and so are less easily enforced.

Guidelines published by the South Australian government include:

  • Noise

  • Drugs and Alcohol in the Workplace

  • Labour Hire (Contracting)

  • Electrical Hazards

  • Amenities

  • Occupational Violence

Policies, Practices and Procedures

Legislation (Acts & Regulations) require that policies, practices and procedures be developed and implemented. Therefore employers can be held legally accountable for having and using appropriate policies, practices and procedures.

   

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