Dismantling worker categories: the primary duty of care, and worker consultation, participation and representation, in the model Work Health and Safety Bill 2009

Late in 2009, the Australian Workplace Relations Ministers' Council endorsed the model Work Health and Safety Bill 2009, which is to be adopted by all Australian governments (federal, state and territory) from 01 January 2012. This paper describes and analyses two key sets of provisions in this model legislation. The first establishes a 'primary' duty of care imposed not on 'employers' but on persons conducting a business or undertaking, and owed to all kinds of workers engaged, directed or influenced by the person conducting the business or undertaking. The second encompasses broad duties on all persons conducting a business or undertaking to consult with workers who carry out work for the business or undertaking and who are directly affected by a work health and safety issue, and to facilitate the election of health and safety representatives representing all workers who carry out work for the business or undertaking. These provisions arguably make a significant contribution to solving a problem faced by occupational safety and health regulators around the world – modifying regulation to accommodate all forms of precarious work.

A responsive sanction to promote systematic compliance? Enforceable undertakings in occupational health and safety regulation

This article examines the use of enforceable undertakings in Australian occupational health and safety (OHS) regulation. Enforceable undertakings are promises by persons alleged to have breached their regulatory obligations to do something, which if not done, is enforceable in court. Enforceable undertakings potentially have an important responsive and restorative role to play in a regulatory enforcement strategy to ensure compliance with OHS statutes, and have been used in other areas of business regulation, including trade practices, financial, prudential, consumer, civil aviation, environmental and communications and media regulation. The article then reports on a study of the operation of enforceable undertakings in Queensland to enforce compliance with OHS obligations. We conclude that this early experience of enforceable undertakings in Queensland provides useful guidance as to how the enforceable undertaking provisions might best be implemented elsewhere, and preliminary evidence of the complexities of their likely effectiveness in OHS regulation.

OHS inspectors and psychosocial risk factors: Evidence from Australia

Legislation giving prominence to psychosocial risk factors at work has changed the role of government occupational health and safety (OHS) inspectors in many countries. Yet little is known about how inspectorates have responded to these changes. Between 2003 and 2007 an Australian study was undertaken on OHS standards, entailing detailed documentary analysis, interviews with 36 inspectorate managers and 89 inspectors, and observations made when researchers accompanied inspectors on 120 typical workplace visits. Our study found that general duty provisions in OHS legislation clearly incorporated psychosocial hazards and inspectorates had introduced guidance material, pursued campaigns and increased interventions in this area. However, the regulatory framework remained narrow (focused on bullying/harassment, occupational violence and work stress) and workplace visits revealed psychosocial hazards as a marginal area of inspectorate activity. These findings were reinforced in interviews. While aware of psychosocial hazards inspectors often saw the issue as problematic due to limited training, resourcing constraints, deficiencies in regulation and fears of victimisation amongst workers. In order to address these problems a number of changes are required that recognize the distinctiveness of psychosocial hazards including their ‘invisibility’. Notable here are revisions to regulation (both general duty provisions and specific codes), the development of comprehensive guidance and assessment tools to be used by inspectors, greater use of procedural enforcement, and enhanced inspectorate resourcing and training. There is also a need to recognize complex inter-linkages between psychosocial hazards and the industrial relations context.

Statutory occupational health and safety workplace arrangements for the modern labour market

Over the past 20 years there has been a significant refashioning of the labour market within Australia and other industrialised countries. This paper examines the implications of the growth of more flexible work arrangements for mechanisms designed to facilitate worker involvement in occupational health and safety at the workplace—a pivotal feature of post-Robens OHS legislation in Australia. It is argued that the growth of subcontracting, casual and home-based work has undermined both coverage and the effectiveness of these provisions, especially in a context where union membership and influence has also been declining. Looking at international experience, the paper examines a number of ways of remedying these deficiencies.

Take me to your employer: the organisational reach of occupational health and safety regulation

[Conclusion] We have explored two dimensions of the Australian OHS statutes which enable statutory OHS duties to reach more than one employer or self-employed person within a corporate group or network. First, most of the OHS statutes contain provisions extending the reach of employer’s duty beyond the employer’s employees. One legislative technique is to deem contractors and their employees to be employees of the principal contractor. Another imposes duties on employers and self-employed persons to persons who are not employees, so that employers and self-employed persons can be responsible for the OHS of firms, and those they engage, lower in the contractual chain. These duties are non-delegable, meaning that the principal contractor cannot seek to delegate OHS duties to firms lower in the contractual chain. Second, new Victorian ‘shadow officer’ provisions can be applied to remove difficulties and doubt as to the liability of partners in a partnership, officers of unincorporated associations, joint venturers, and holding and subsidiary companies within corporate groups. While the provisions can be argued simply to confirm that a partner who fails to take reasonable care in relation to OHS will be guilty of an offence, we demonstrate that there are very real benefits to having ‘shadow officer’ provisions which remove uncertainties about the liability of unincorporated associations, joint ventures and corporate groups. Perhaps most significantly, the Victorian corporate officer provisions have the potential to extend liability to individuals and other entities within organisational structures, where those individuals and entities make or participate in making decisions that affect the whole or a substantial part of the organisation’s business, and are responsible for an OHS offence having been committed, due to their failure to take reasonable care. We suggest that similar provisions should be included in all OHS statutes, to overcome at least some of the barriers limiting group responsibility for OHS statutory duties.

OHS liability, corporate officers and corporate groups

This article examines the new model for corporate officer liability under section 144 of the Occupational Health and Safety Act 2004 (Vic), and explores the extent to which this might effectively extend responsibility for OHS offences to members of corporate groups, such as holding companies. In doing so, the authors canvass the failure of corporate law to impose such obligations on corporate officers in general, and on holding companies as shadow officers. It is argued that provisions such as section 144 of the Victorian Act should be included in all OHS legislation.

The implications of de‐collectivist industrial relations laws and associated developments for worker health and safety in Australia, 1996–2007

The institutional and regulatory interlinkages between industrial relations (IR) and occupational health and safety (OHS) are seldom explored in the IR literature. This article begins to address this gap by examining regulatory initiatives in Australia during a period of neoliberal government. It examines the laws enacted by the federal government during this period and events and cases arising from these laws that go some way to illustrating their effects. Evidence is also drawn from detailed research on a number of state OHS inspectorates between 2004 and 2006. It is argued that de-collectivist changes to IR laws exacerbated problems posed by the growth of flexible work arrangements and a drop in union density, weakening participatory provisions in OHS laws and promoting work arrangements that undermined OHS standards. The study provides evidence of the implications of a divergence in the trajectory of IR and OHS laws and the importance of better integrating worker protection laws.

The Fitzgerald Symposium: An Introduction

This article introduces the collection of six papers that commemorate the twentieth anniversary of the tabling of the Report of the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct ('the Fitzgerald Report'). The report exposed the entrenched corruption among Queensland's political and police leaders, deeply ingrained abuses of process and power, and an inept public administration. It led to the prosecution and imprisonment of key politicians and police. The Fitzgerald Report was notable not just for these direct outcomes, but also for its prescriptions for widespread and enduring reform, which came from Fitzgerald's analysis of the underlying causes of police corruption in Queensland. This article places the Fitzgerald Inquiry in its historical context, and provides a brief outline of the key provisions of the Fitzgerald Report. It concludes with a brief introduction to each of the six articles in this collection. These articles critically examine the aftermath of the Fitzgerald Report and the reforms that Fitzgerald recommended. They ask whether Fitzgerald's blueprint for accountable and ethical government was achieved - or indeed capable of being achieved - and whether it has stood the test of time.

Development of a new regulatory model for occupational health and safety in the New South Wales coal industry: an issues paper for the New South Wales Department of Mineral Resources

This paper addresses the regulatory issues arising in developing a new regulatory model for the New South Wales Coal Industry. As such, it identifies the relevant literature on this subject, the options available for reform, and the experience of Australian and key international bodies responsible for the development of regulatory standards in this area. In particular it: Identifies the main shortcomings in the existing regulatory approach; Identifies the potential roles/main strengths and weaknesses of different types of standards (eg specification, performance, process and systems-based rules) and potential “best practice’ combinations of standards; Examines the appropriateness of the current regulatory regime whereby the general OHS legislation (including the general duty provisions) applies to mining in addition to the large body of regulation which is specific to mining; Identifies the importance of, and possible means of addressing, issues of worker participation within the coal mining industry; Draws on the literature on what motivates companies and individuals for the purpose of recommending key provisions for inclusion in new legislation to provide appropriate personal and organisational incentives; Draws on the literature on major hazards facilities to suggest the appropriate roles for OHS management systems and safety reports or comparable approaches (eg mine safety management plans); Draws on the United Kingdom (UK) and United States of America (USA) experience of coal mine safety and its regulation for comparative purposes, and for insights as to what sort of regulation most effectively reduces work related injury and disease in coal mining; Examines the relevant roles of International Labour Organisation (ILO) Conventions; Examines the extent to which different regulatory regimes would be appropriate to open cut and underground coal mining; and Examines options for reform. This paper is focussed specifically on the issues identified above.

The court and the factory the legal construction of occupational health and safety offences in Victoria

This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.

Kumarina and bidders voting in transfer schemes

Transfer schemes are an alternative means of acquiring control of a company to making a takeover bid under the provisions in Ch 6 of the Corporations Act 2001 (Cth). The recent decision Re Kumarina Resources Ltd [2013] FCA 549 overturned long-standing practice in relation to a certain type of transfer scheme. If followed, the decision would allow a “bidder” to vote at scheme meetings where the scheme consideration for the acquisition of the target shares are shares in another company, and the scheme results in a merger. But the bidder is not allowed to vote where the scheme consideration is cash. The article points out the difficulties arising from this decision and argues that it should not be followed. In providing a “no objection” statement, the Australian Securities and Investments Commission (ASIC) has created uncertainty as to the approach it will take towards the bidders being allowed to vote at scheme meetings where the scheme consideration for the acquisition of target shares are shares in another company. The article also points out that in providing the no objection statement in Kumarina, ASIC appears to have ignored breaches of s 606(1) of the Corporations Act. There is a pressing need for ASIC to clarify its position and, in particular, whether or not it will provide a no objection statement in respect of future transfer schemes where a bidder (or its parent company) votes at the scheme meeting.

Children and consent to medical treatment

This chapter provides a comprehensive and up-to-date treatment of legislative provisions and common law principles regarding children and the law of consent to medical treatment. When can children provide their own consent? Can parents consent on behalf of their children, and if so, under what circumstances and why? Is court authority ever required, and if so, when, and why? What new contexts are providing fresh challenges to legal principles, parents, medical practitioners, and most importantly, children?

Volunteering and recent governance reforms

The regulatory reforms touching volunteer governs over the last 25 years are identified and analysed. BOth direct reforms such as the Australian Charities and Not-for-profits Commission's (ACNC) governance standards and society--wide indirect reforms to workplace health and safety, civil liability and deemed liability provisions are discussed in this chapter.

Competition Law in Australia [6th ed.]

Competition Law in Australia, 6th edition provides a comprehensive discussion of the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) dealing with the regulation of competition and markets in Australia. This book covers disparate topics, such as restrictions in horizontal and vertical agreements, horizontal mergers and acquisitions, misuse of market power, and access to services necessary to compete in upstream or downstream markets. However, the unifying theme of this text is that it is not possible to use a formalistic approach in applying the CCA. The decisions of the courts, and the competition authorities responsible for implementing and enforcing the CCA, underline the need to undertake a detailed substantive economic analysis of the effect of the agreement or conduct at issue on competition, efficiency and consumer welfare.

Competition policy review : draft recommendations on competition laws

On 4 December 2013, the Prime Minister and the Minister for Small Business announced a “root and branch” review of Australia’s competition policy. The Minister for Small Business released the final Terms of Reference for the competition policy review on 27 March 2014, following consultation with the States and Territories, and announced the Review Panel headed by Professor Ian Harper. Under the terms of reference the Competition Policy Review Committee (the Harper Committee) is required to focus on three broad areas: •examining what can be done to create more competition in service areas such as health, education and intellectual property; •considering whether the structure and powers of the competition institutions (the ACCC , the NCC, the Tribunal and the AER) remain appropriate; and •examining the effectiveness of the competition provisions of the Competition and Consumer Act 2010 (Cth) (CCA) and laying down a broad framework through which the law can be streamlined and reformed over time.