Questions and Answers - 2004 Amendments to the OHS Act
Do employees have to do anything differently as a result of the amendments?
No. The amendments do not impose any new duties on employees. There is no change to your duty of care to take all reasonably practicable steps: to ensure you do not create a risk or increase an existing risk to your own or other people's health and safety; to cooperate with your employer to enable it to fulfill its duties or obligations; and to properly use equipment safely and in accordance with your employer's instructions (Section 21 of the OHS Act). What has changed is the potential consequences of failing to meet that duty of care.
Do employers have to do anything differently as a result of the amendments?
No. There is no change to an employer’s primary duty to take all reasonably practicable steps to protect the health and safety at work of employees and others at or near a workplace (as per Section 16 of the OHS Act).
I am an elected health and safety representative (HSR). Could I be subject to civil proceedings or prosecuted for something that happens while I am performing my role as an HSR?
No. When you are performing your role as an HSR, you are not acting as an 'employee' within the meaning of OHS Act. Therefore, an HSR could not be prosecuted for breaching the duty of care applying to employees. In addition, Subsection 28(7) of the OHS Act continues to provide that an HSR is not liable in civil proceedings for any failure to exercise his or her HSR powers or the manner in which he or she exercises them.
Could an employee or employer be penalised twice for the same conduct?
New Schedule 2 of the OHS Act explains the interaction between criminal and civil prosecutions. Civil proceedings cannot be taken if a criminal conviction for substantially the same conduct has been made. Also, civil proceedings must be stayed if criminal proceedings are commenced.
Criminal proceedings can be commenced after a declaration of contravention or pecuniary penalty has been made. However, this does not mean that criminal prosecutions will be instituted as a matter of course.
Why has the Parliament imposed criminal penalties on employees but not employers?
Removing the protection of the shield of the crown for employees of Commonwealth departments, agencies and authorities reflects the common law position that officers, servants and agents of the crown have no immunity from the criminal law. It is consistent with State and Territory OHS legislation and ensures that Commonwealth employees can be held accountable where they have acted wrongly.
Whilst a Commonwealth department, agency or authority cannot be criminally prosecuted for an offence against the OHS Act or regulations they are subject to civil proceedings for a declaration of contravention and liable to pay a pecuniary penalty order. They are also subject to other civil sanctions such as remedial orders, injunctions and enforceable undertakings.
How is the employer duty of care obligations under the OHS (CE) Act 1991 affected by the concept of vicarious liability?
For example, is it possible for an employer to avoid vicarious liability if it can demonstrate that either an employee was not negligent in that the employee was reasonably careful, or, that the employee was acting in her/his own right rather than in fulfilling her/his employer's duty of care?
The common law concept of vicarious liability should not be confused with the employer's general duty of care to its employees.
At common law, an employer is vicariously liable for the negligent acts or omissions of an employee where the act or omission is within the scope of the employment. Such a concept comes into play when a third party seeks to sue the employer for the actions or omissions of an employee of that employer.
The OHS general duty of care has nothing to do with vicarious liability. Under the OHS (CE) Act 1991, and also at common law, an employer owes its employees a non-delegable duty to take reasonable care for the safety of the appliances, the premises and the system of work provided to its employees. That responsibility is exclusive to the employer and cannot be contracted out - accordingly, an employer is liable for any negligence on the part of an independent contractor in failing to adopt a safe system of work. Similarly, regardless of whether an employee may be personally liable for injuries to other employees, the employer will be liable if it can be shown that it has failed in its duty of care to those other employees.
Who is an employer and an employee for the purposes of the OHS (CE) Act 1991?
Generally speaking, the OHS Act covers all Commonwealth employers (including Commonwealth authorities, Commonwealth owned companies and the Australian Defence Force) and all employees, whether they are employees under legislation or contract as well as persons holding a Commonwealth office or members of statutory boards.
A number of provisions in the OHS (CE) Act 1991 and its Regulations provide for the identification of a specified employer in the case of Commonwealth Departments and similar agencies through a concept of "employing authority" (see section 10 of the OHS (CE) Act 1991 initially).
In the case of employees, reference should be made to section 9 of the OHS (CE) Act 1991 which sets out comprehensibly who is considered to be an employee for the purposes of the Act. Employees include anyone from the CEO to a base level clerk.
When a breach of the OHS (CE) Act 1991 has occurred, how is it determined if the duty of care failure was that of the employer or the employee?
An employer cannot be excused from any breach of its primary duty of care, notwithstanding whether an employee may also be separately liable. Whether an employee is held to have breached section 21 of the OHS (CE) Act 1991 (Duties of employees in relation to occupational health and safety) will depend on the nature of the duties of the employee and the employee's level of responsibility. The test is what would a reasonable person in the employee's position have done in the circumstances faced by the employee.