Chapter heading 1

1   ...   12   13   14   15   16   17   18   19   20

1 Ratified by Australia on 26 March 2004.

2 Conclusions adopted by the International Labour Conference at its 91st Session, 2003.

3 Lord Robens, Report of the Committee on Safety and Health at Work, HMSO, London, 1972.

4 NSW WorkCover Review, Stein Inquiry, NT Review, ACT Review

5 The Workplace Health and Safety Act 2007 (NT) took effect on 1 July 2008 and the Work Safety Act 2008 (ACT) is to take effect on 1 July 2009. The new ACT Act has been referenced in regard to this Review.

6 Maxwell Review; NT Review

7 National OHS Strategy 2002-2012, Commonwealth of Australia, p 10.

8 COAG Communiqué, 10 February 2006 – see: http://www.coag.gov.au/coag_meeting_outcomes/2006-02-10/index.cfm

9 WRMC Communiqué, 1 February 2008 – see: http://www.workplace.gov.au/NR/rdonlyres/31BED76B-2655-4CDF-952F-E84FE0CD3469/0/WRMC75AgreedCommunique.pdf

10 Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety – see: http://www.coag.gov.au/coag_meeting_outcomes/2008-07-03/docs/OHS_IGA.pdf

11 COAG Business Regulation and Competition Working Group Agenda – see: http://www.coag.gov.au/coag_meeting_outcomes/2008-07-03/index.cfm#fragment-3

12 Terms of Reference, clause 10.

13 Ibid, clause 12 and 13.

14 See http://www.nationalohsreview.gov.au/. As at 24 October 2008 the website has had 4102 visits and 233,606 page views since June 2008.

15 National Review into Model OHS Laws: Issues Paper, Australian Government, Canberra, 2008.

16 Industry Commission, Work Health and Safety: Inquiry into Occupational Health and Safety, Report No 47, AGPS, Canberra, 1995.

17 Productivity Commission (PC), National Workers’ Compensation and Occupational Health and Safety Frameworks, Productivity Commission Inquiry Report No 27, AGPS, Canberra, 2004.

18 PC, Research Paper: Potential Benefits of the National Reform Agenda – A report to the Council of Australian Governments, AGPS, Canberra, 2006, p.156.

19 Australian Bureau of Statistics (ABS), Year Book 2008 (Cat. No. 1301.0), Australian Government, Canberra, 2008, p.228

20 ibid

21 Workplace Relations Ministers’ Council (WRMC), Comparative Performance Monitoring Report 10^th Edition, p. 32, Indicator 24. All these sectors, together with the health and community services industry, are priority industries receiving attention under the National OHS Strategy.

22 E Bluff, N Gunningham & R Johnstone, OHS Regulation for a Changing World of Work, The Federation Press, Sydney, 2004, p. 3.

23 Flinders Consulting Pty Ltd, A Review of the Potential Occupational Health and Safety Implications of Nanotechnology: Final Report July 2006, DEEWR, Canberra, Australia, 2006

24 ABS, Counts of Australian Businesses, including Entries and Exits, Jun 2003 to Jun 2007 (Cat. No. 8165.0), Australian Government, Canberra, 2007.

25 F Lamm & D Walters, Regulating Occupational Health and Safety in Small Businesses, in E Bluff et al (Eds), OHS Regulation for a Changing World of Work, The Federation Press, Sydney, 2004.

26 ibid

27 ABS, Characteristics of Small Business Australia, 1997 (Cat. No. 8127.0), Australian Government, Canberra, 1998.

28 ABS, Australian Industry 2005-06 (Cat. No. 8155.0), Australian Government, Canberra, 2006. (These figures exclude small business employees in the Finance and Insurance Industry and Government Administration and Defence sectors due to technical issues with data collection and processing.)

29 L Frazer, S Weaven & O Wright, Franchising Australia 2008: Survey, Griffith University, Brisbane, 2008

http://www.franchise.org.au/content/?id=364

30 M Quinlan, ‘Flexible Work and Organisational Arrangements’ in E Bluff et al (Eds), OHS Regulation for a Changing World of Work, The Federation Press, Sydney, 2004.

31 ibid

32 For statistical purposes, the ABS classifies full-time workers as those who work 35 hours or more per week. Part-time workers are those who usually work less than 35 hours a week.

33 ABS, Year Book 2008 (Cat. No. 1301.0), Australian Government, Canberra, 2008.

34 ibid

35 ibid

36 ABS data collected on the number of employees without entitlements to paid leave (not entitled to paid holiday leave or paid sick leave), who received a casual loading as part of their pay or who considered their job to be casual is commonly used to measure the incidence of casual employment in Australia. Of these measures, the number of employees without entitlements to paid leave appears to be the most consistently used data for establishing trends in casual employment.

37 ibid

38 ibid

39 PC, The Role of Non-Traditional Work in the Australian Labour Market, Australian Government, Canberra, 2006.

40 House of Representatives Standing Committee on Employment, Workplace Relations and Workforce Participation, Making it Work: Inquiry into independent contracting and labour hire arrangements, Australian Government, Canberra, 2005.

41 ABS, Australian Social Trends 2000 (Cat. No. 4102.0), Australian Government, Canberra, 2000.

42 House of Representatives Standing Committee on Employment, Workplace Relations and Workforce Participation, Making it Work: Inquiry into independent contracting and labour hire arrangements, Australian Government, Canberra, 2005.

43 Parliament of Victoria Economic Development Committee, Final Report: Labour Hire Employment in Victoria, State of Victoria, 2005.

www.parliament.vic.gov.au/edic/inquiries/Labour_Hire/EDC-FinalReport_LabourHireEmployment_2005-07.pdf

44 These are priority industries identified in the National OHS Strategy.

45 M Quinlan and P Bohle, Under Pressure, Out of Control or Home Alone? Reviewing Research and Policy Debates on the Occupational Health and Safety Effects of Oursourcing and Home-Based Work, International Journal of Health Services, Vol 38, No.3, 2008, p 489-523.

46 ABS, Persons Employed at Home (Cat. No. 6275.0), Australian Government, Canberra, 1995.

47 ABS, Locations of Work (Cat. No. 6275.0), Australian Government, Canberra, 2000.

48 ABS, Australian Social Trends 2006 (Cat. No. 4102.0), Australian Government, Canberra, 2006, p. 121.

49 ibid

50 ABS, Labour Force Sept 2008 (Cat. No. 6202.0), Australian Government, Canberra, 2008.

51 ABS, Australian Social Trends 2006 (Cat. No. 4102.0), Australian Government, Canberra, 2006, p. 121.

52 ABS, Labour Force Sept 2008 (Cat. No. 6202.0), Australian Government, Canberra, 2008.

53 ibid

54 ABS, Australian Social Trends 2006 (Cat. No. 4102.0), Australian Government, Canberra, 2006, p. 121.

55 ABS, Labour Force Sept 2008 (Cat. No. 6202.0), Australian Government, Canberra, 2008.

56 ibid

57 ABS, Australian Social Trends 2006 (Cat. No. 4102.0), Australian Government, Canberra, 2006, p. 121.

58 Australian Safety and Compensation Council (ASCC), Surveillance Alert: OHS and the Ageing Workforce, May 2005.

59 ABS, Year Book Australia 2005 (Cat. No. 1301.0), Australian Government, Canberra, 2005.

60 ABS, Health of Mature Age Workers in Australia: A Snapshot 2004-05 (Cat. No. 4837.0.55.001), Australian Government, Canberra, 2008.

61 Department of Immigration and Citizenship, Subclass 457 Business Visa (Long Stay): State/Territory Summary Report 2008-09 Financial Year to 31 August 2008, Australian Government, Canberra, 2008

62 ibid

63 See Subclass 457 Visa Integrity Review – http://www.immi.gov.au/skilled/457-integrity-review.htm

64 D Walters, Workplace Arrangements for Worker Participation in OHS, in E Bluff, N Gunningham & R Johnstone, OHS Regulation for a Changing World of Work, The Federation Press, Sydney, 2004.

65 ibid

66 ABS, Australian Social Trends 2008 (Cat. No. 4102.0), Australian Government, Canberra, 2008.

67 ABS, Employee Earnings, Benefits and Trade Union Membership, Australia Aug 2007 (Cat. No. 6310.0), Australian Government, Canberra, 2008.

68 J Visser, 'Union membership statistics in 24 countries', Monthly Labour Review, January, 2006, pp.38-49.

69 ibid

70 National Occupational Health and Safety Commission (NOHSC), The Costs of Work-related Injury and Illness for Australian Employers, Workers and the Community, NOHSC, 2004.

71 It should be noted that this estimate represented forgone economic activity, and not the proportion of GDP that is lost as a result of work-related injury and illness.

72 ASCC. Work-related traumatic injury fatalities, 2005-06. Australian Government, 2008.

73 NOHSC, 2003. Estimates ranged from 2,040 to 7,627. Access Economics. Review of methodology and estimates of workplace fatalities. 2003.

74 ABS. Work-related injuries, Australia, 2005-06. Dec 2006.

75 WRMC, Comparative Performance Monitoring Report 10^th Edition, Australian Government, Canberra, 2008, p.3 Indicator 3

76 ibid p.4 Indicator 4

77 ASCC, Compendium of workers’ compensation statistics, Australia 2005-06. Australian Government, 2008. p. 14

78 ibid, pp. 21-22

79 IC, Work, Health and Safety: Inquiry into Occupational Health and Safety, Report No 47, Canberra, Australia, 1995.

80 N Gunningham, CEO and Supervisor Drivers: Review of Current Literature and Practice, NOHSC, Canberra, Australia, 1999.

81 Greenstreet Berman Ltd., Building an evidence base for the Health and Safety Commission Strategy to 2010 and beyond: A literature review of interventions to improve health and safety compliance, Contract Research Report 196/1998, Health and Safety Executive, London, UK, 2004.

82 For example, this approach is taken in the NSW Act.

83 For example, this approach is taken in the Vic Act.

84 This would follow the current approach and duties in the most jurisdictions, with additional duties of care.

85 This is similar to, but extending on, the approach taken in the Qld Act, NT Act and in the new ACT Act.

86 Serving members of police forces are not considered at law to be employees.

87 See s.4 of the NT Act, ss.9 & 10 of the ACT Act.

88 ibid

89 See ss.28 & 29 regarding duties, and ss.10 and 11 for definitions.

90 R Johnstone, L Bluff & M Quinlan, Submission No.55, p.12

91 Codes of Practice and other guidance material will be discussed in our second report.

92 See ss.23 & 24.

93 National OHS Strategy 2002-2012, Commonwealth of Australia.

94 http://www.ilo.org/ilolex/cgi-lex/convde.pl?C155 19 Sep 08

95 This is sometimes expressed only as ‘practicable’ but defined by the legislation or interpreted by courts as incorporating the consideration of reasonableness

96 See s.20(2) of the Vic Act and s.3 of the; WA Act.

97 See s.5 of the NT Act and s.15 of the ACT Act.

98 IC, Work Health and Safety, Inquiry into Occupational Health and Safety, (Report No 47), AGPS, Canberra, 1995, p.56.

99 NSW WorkCover Review (Recommendation 6), Stein Inquiry (Recommendation 4), Maxwell Review (Paragraph 422), ACT Review (Recommendation 9).

100 Maxwell Review, paragraph 496.

101 Stein Inquiry, paragraph 9.42.

102 Vic Administrative Review, p.46.

103 ibid

104 ACCI, Submission No. 136, p.32; BCA, Submission No. 56, p.2; AiG, Submission No. 182, p.35

105 For instance Unions NSW, Submission No. 108, p.32 and ACTU, Submission No.214.

106 Unions NSW, Submission No. 108, p.32; ACTU, Submission No. 215, p.29

107 Johnston, Bluff & Quinlan, Submission No.55, p.20.

108 Mirvac, Submission No.168, p.22.

109 Law Council of Australia, Submission No.163, p.20, para. 4.7.

110 ACCI, Submission No. 136, p.33; AiG, Submission No. 182, p.36

111 For example, the qualifier of ‘reasonably practicable is used in the UK Health and Safety at Work etc Act 1974 and in the Singapore Workplace Safety and Health Act 2006, while the qualifier of ‘all practicable steps’ is used in the NZ Health and Safety in Employment Act 1992.

112 See s.28 of the NSW Act.

113 See ss.26(3)(b) and 27(2) of the Qld Act.

114 See, for example, Edwards v National Coal Board [1949] 1 KB 704; R v Associated Octel Limited [1994] 4 All ER 1051; Slivak v Lurgi (Australia) Pty Ltd [2001] ALR 585; R v Australian Char Pty Ltd [1999] 3 VR 834; Holmes v RE Spence & Co Pty Ltd [1992] 5 VIR 119; WorkCover Authority of NSW v Cleary Bros (Bombo) Pty Ltd [2001] 110 IR 182.

115 The inclusion of this qualifier in the duties of care in the UK has been the subject of consideration in the European Court of Justice in January 2007. It was alleged that the inclusion of the standard was incompatible with the “duty to ensure the health and safety of workers in every aspect related to the work” (European Directive 89/391/EEC). The European Court of Justice found that the standard was appropriate and was not incompatible with the directive.

116 For example the Stein Inquiry, NSW WorkCover Review, Maxwell Review and NT Review.

117 SA Government, Submission No.138, p.28.

118 For example the NSW WorkCover Review and Stein Inquiry.