Australia
Answer ... Health and safety legislative frameworks are largely harmonised, with most states and territories adopting the Commonwealth model health and safety legislation (Work Health and Safety Act 2011 (Cth), regulations and codes of practice) (‘Model Legislation’).
Currently, Victoria remains the only state yet to adopt the Model Legislation. Western Australia recently adopted the Model Legislation in the Work Health and Safety Act 2020 (WA); however, the operative provisions of this legislation are yet to commence.
The Model Legislation imposes a duty of care with respect to health and safety on a person conducting a business or undertaking (PCBU), officers of PCBUs, workers and other persons at the workplace.
PCBUs must also manage risks associated with construction work and high-risk construction work (eg, safe work method statements are required for high-risk construction work).
Construction projects over a prescribed value (in most jurisdictions, A$250,000) must have a principal contractor that has additional duties such as the obligation to prepare and maintain work health and safety management plans. The default provision is that the PCBU is the principal contractor.
In Victoria, although the legislation uses different terminology, similar requirements exist.
Australia
Answer ... PCBUs have a duty to immediately notify the regulator of a ‘notifiable incident’ (ie, the death of a person, a serious injury or illness of a person or a dangerous incident). The PCBU must also ensure, so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.
Victoria has similar notification of incidents and non-disturbance requirements.
Australia
Answer ... The contractor, directors, managers and employees have potential liability under the Model Legislation. Pursuant to the Model Legislation, individuals (other than as a PCBU or as an officer), individuals (as a PCBU of an officer of a PCBU) or corporations may be liable for breach of a legislated health and safety duty. Similarly, duties are imposed on individuals and corporations under the Victorian legislation.
Whether an employer is liable for an employee’s conduct pursuant to the common law principles of vicarious liability will depend upon the individual circumstances of each case, including whether such conduct is within the scope of the employee’s authority.
Inspectors are authorised to issue enforcement notices and penalties including:
- improvement notices (ie, notices to remedy a contravention);
- prohibition notices (ie, stop work notices);
- non-disturbance notices (ie, notices to preserve an incident site); and
- infringement notices (ie, on-the-spot fines).
In some jurisdictions (these include Victoria, Queensland, the Northern Territory, the Australian Capital Territory and Western Australia, once the operative provisions of the new legislation in Western Australia commence), industrial manslaughter is an offence carrying a potential jail term for up to 25 years in some jurisdictions, as well as significant monetary fines.
The Model Legislation otherwise categorises offences in three categories which are broadly:
- category 1 (reckless conduct);
- category 2 (failure to comply with a health and safety duty which exposes an individual to a risk of death or serious injury or illness); and
- category 3 (failure to comply with a health and safety duty).
The penalties for breach range depending on the jurisdiction (including Victoria, although offences are classified by different terminology), but may include significant monetary fines as well as potential imprisonment for more serious offences.
Australia
Answer ... Contractors must manage the health and safety duties that are imposed by the Model Legislation. These risks must be managed to eliminate risks to health and safety as far as reasonably practicable, meaning what could reasonably be done at a particular time to ensure that health and safety measures were in place. In determining what is reasonably practicable, contractors must weigh up all matters (the specific matters that are required to be taken into account are stipulated by the Model Legislation). Similar requirements exist in Victoria.
Australia
Answer ... The individual government regulators in each jurisdiction are responsible for the enforcement of health and safety obligations.
Australia
Answer ... Generally, the party in control of the work site will take responsibility as the principal contractor for the health and safety obligations for the site. Subcontractors and any others that enter or work on a construction site must also be aware of their individual obligations and comply with these.