Reform – Occupational Health and Safety – Occupational Health and Safety Contents Abbreviations 1 General 1 Contractors 3 1 Introduction 5 2 Improving occupational health and safety

Final Report of the Royal Commission into the Building and Construction Industry

Reform – Occupational Health and Safety

Volume SixRoyal Commissioner, The Honourable Terence Rhoderic Hudson Cole RFD QC

February 2003

ii Final Report of the Royal Commission into the Building and Construction Industry

ISBN: 0 642 21120 5

© Commonwealth of Australia 2003

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproducedby any process without prior written permission from the Commonwealth available from Information Services.Requests and inquiries concerning reproduction and rights should be addressed to the Manager, CopyrightServices, Information Services, GPO Box 1920, Canberra ACT 2601 or e-mail [email protected]

Final Report of the Royal Commission into the Building and Construction Industry – Volume Titles

Volume 1 Summary of Findings and Recommendations

Volume 2 Conduct of the Commission – Principles and Procedures

Volume 3 National Perspective Part 1

Volume 4 National Perspective Part 2

Volume 5 Reform – Establishing Employment Conditions

Volume 6 Reform – Occupational Health and Safety

Volume 7 Reform – National Issues Part 1



Volume 10 Reform – Funds

Volume 11 Reform – Achieving Cultural Change

Volume 12 State and Territory Overviews

Volume 13 Hearings – New South Wales Part 1

Volume 14 Hearings – New South Wales Part 2

Volume 15 Hearings – Victoria Part 1

Volume 16 Hearings – Victoria Part 2

Volume 17 Hearings – Queensland Part 1

Volume 18 Hearings – Queensland Part 2

Volume 19 Hearings – South Australia, Tasmania, Northern Territory and Australian Capital Territory

Volume 20 Hearings – Western Australia Part 1

Volume 21 Hearings – Western Australia Part 2

Volume 22 Administration

Volume 23 Confidential Volume


Contents

Abbreviations 1

General 1

Contractors 3

1 Introduction 5

2 Improving occupational health and safety in the building and construction industry 11

The occupational health and safety performance of the building and construction industry 11

Occupational health and safety law and regulation in the building and construction industry 15

Should the building and construction industry be regulated by a national system? 15

National standards for the building and construction industry 23

National Occupational Health and Safety Strategy 2002–2012 30

Driving cultural and behavioural change in the building and construction industry 35

Introduction 35

Some significant features of the building and construction industry 39

The search for drivers 44

Access to work as a driver 45

The role of clients 49

Safe design 54

The Commonwealth as a model client 58

Introduction 58

Summary of my proposals 60

Procurement 63

Safe design 65

Pre-tender Occupational Health and Safety Qualification 68

Contracts 81

Increased use of workplace health and safety inspectors 81

Establishment of the Office of the Commissioner for Occupational Health and Safety in the Building and Construction Industry 86

National Code of Practice for the Construction Industry 89

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iv Final Report of the Royal Commission into the Building and Construction Industry

3 Misuse of safety issues for industrial purposes 97

The problem 97

The role of unions 103

The solution 105

4 Conclusion 111

Notes to Reform – Occupational Health and Safety 112

Appendix A: Workplace Health and Safety Conference 129

Appendix B: The occupational health and safety performance of the building and construction industry. 133

Appendix C: A short history of occupational health and safety law and regulation in Australia 159

Appendix D: Construction (Design and Management) Regulations 1994 (UK) 191

Appendix E: Union involvement in occupational health and safety 209

Appendix F: Prohibition notices 237


Abbreviations

General

Australian and New Zealand Standard Industrial Classification ANZSIC

Australian Chamber of Commerce and Industry ACCI

Australian Constructors Association ACA

Australian Council of Trade Unions ACTU

Australian Industry Group AIG

Australian Procurement and Construction Council APCC

Australian Workers’ Union AWU

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union AMWU

Civil Contractors Federation CCF

Commonwealth C’wth

Commonwealth Department of Employment and Workplace Relations DEWR

Commonwealth Implementation Guidelines for the National Code of Practice for the Construction Industry the Implementation Guidelines

Commonwealth Industry Guidelines for the National Code of Practice for the Construction Industry the Industry Guidelines

Commonwealth Pre-tender Occupational Health and Safety Qualification PTOHSQ

Comparative Performance Monitoring system CPM

Construction (Design and Management) Regulations 1994 (UK) CDM Regulations

Construction Hazard Assessment Implication Review CHAIR

Construction Safety Alliance of New South Wales CSANSW

Construction Safety Managers and Officers of Queensland Inc CSMOAQ

Construction, Forestry, Mining and Energy Union CFMEU

Department of Finance and Administration DOFA

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2 Final Report of the Royal Commission into the Building and Construction Industry

Enterprise Bargaining Agreement EBA

Housing Industry Association Limited HIA

Joint Standing Committee on Public Works the Public Works Committee

Labour Ministers’ Council LMC

Master Builders Association Inc MBA Inc

Master Builders Association of New South Wales Pty Ltd MBANSW

Master Builders Association of Western Australia (Union of Employers) Perth MBAWA

Master Plumbers and Mechanical Services Association of Australia MPMSAA

Ministers of Labour Advisory Committee MOLAC

National Code of Practice for the Construction Industry National Code

National Data Set for Compensation-based Statistics NDS

National Electrical and Communications Association NECA

National Occupational Health and Safety Commission NOHSC

National Occupational Health and Safety Strategy 2002-2012 National OHS Strategy

New South Wales NSW

NOHSC Online Statistics Interactive NOSI

Office of the Commissioner for Occupational Health and Safety in the Building and Construction Industry Commissioner for Health and Safety

project safety management system PSMS

Queensland Qld

Queensland Building and Construction Industry (Workplace Health and Safety) Taskforce Queensland Taskforce

Risk and Opportunities in Design ROAD

Safety, Rehabilitation and Compensation Commission SRC Commission

Victorian Employers Chamber of Commerce and Industry VECCI

Western Australia WA

Western Australia’s Department of Consumer and Employment Protection DCEPWA

WorkCover Authority of New South Wales WorkCover NSW

Workcover Corporation of South Australia WorkCover SA

Workplace Relations Ministers’ Council WRMC


Contractors

Baulderstone Hornibrook Pty Ltd Baulderstone

Grocon Pty Ltd Grocon

Transfield Pty Ltd Transfield

Walter Construction Group Ltd Walters

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1 Introduction

1 The Commission examined no more important subject than occupational health and safety inthe industry. To make this plain, on 6 May 2002 I made a public statement in which I said:

It is universally accepted by governments, by employers, and by unions that workplacehealth and safety is an issue of fundamental importance to the industry. It is at the veryheart of successful workplace relations.

The statistical compendium for the industry, shortly to be issued [by the Commission],makes clear that the safety record in the industry is poor. The likelihood of suffering aworkplace-related injury or fatality is greater for workers in the building and constructionindustry than for workers generally. The only industries where the risk of injury is higherare the maritime, agricultural, forestry and fishing, mining and transport and storageindustries. In only the transport and storage industry is there a higher risk of a fatality.Although there is a downward trend in the risk of injury, the number of injuries remainsunacceptably high. Fatalities are not acceptable. Whilst workplace health and safety isprimarily a matter within the jurisdiction of the states, it is not easy to understand why aworker in one state should be exposed to a lesser or different safety regime to a workerin another state. The aim must be to have a regime of the highest possible standardapplicable uniformly throughout Australia. The statistics show that the risk of injury ismaterially different in different states and territories. It is not clear why that is so.

The Commonwealth and each state and territory have separate workplace health andsafety frameworks in place. The Industry Commission, in 1995, identified thatcircumstance as not being conducive to best practice. The Industry Commission reportentitled ‘An Inquiry into Occupational Health and Safety: Work, Health and Safety,’identified fifteen statutes specifically covering occupational health and safety, with afurther 129 statutes containing provisions relating to occupational health and safety, andover 200 Australian standards referred to in the principal statutes. In addition, there werenumerous and differing Codes of Practice operating in each jurisdiction. Not all of thesestatutes and codes apply to the building and construction industry.

Statements and evidence received by me indicate that many industry participants aredissatisfied with the safety performance of the industry, with the effectiveness of theexisting legislative frameworks, and with their application and enforcement by relevantinspectorates and agencies. I have heard evidence regarding many safety disputes andtheir alleged genesis during the course of the hearings. I have heard and seen evidence

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showing the dangerous nature of work in this industry. Both employers and unions haveraised concerns about how many of the safety issues have been neglected orinadequately addressed. Unions have raised concerns about inadequate commitment byemployers to safety and the impact of cost-cutting and commercial considerations uponsafety at building sites. In contrast, employers have raised concerns about the unionsraising industrial concerns under the guise of safety issues, and the adoption of the roleof safety policemen by unions to the exclusion of the statutory inspectorates. The issueof safety is a constant source of friction in the workplace, either because it is not beingappropriately addressed, monitored, enforced, or is being abused.

…I regard workplace safety in this dangerous industry as central to the work of thisCommission. Methods of improving safety need to be agreed or determined. Methods ofenforcing workplace safety, which are effective and non-confrontational, must beevolved. Much valuable work in this area has been done by unions, by employerassociations, and particularly by State Governments, but the focus of this Commissionwill be to try and draw together industry-specific proposals for reform.1

2 On 6 June 2002 the Construction, Forestry, Mining and Energy Union (CFMEU) arranged ademonstration outside the premises in which the Commission’s Sydney hearing were heldattended by, it was said, injured workers, their families and safety delegates. I took theopportunity to speak directly with some of them about the traumatic consequences ofworkplace injuries and death. I said then:

I can do nothing about the past. I can try to do something about the future. I am trying[to] determine how this industry can be made more safe. That is what the workers want,it’s what the unions want, it’s what the employers want, it’s what the governments want,and it’s what I want.2

3 My approach to the question of improving occupational health and safety in the building andconstruction industry has been guided by two concerns.

4 My first concern is for the people in the industry. There are about 700 000 of them. Theycomprise young apprentices, skilled and unskilled labourers, carpenters, plumbers,electricians, tilers, concreters, roofers, crane and plant operators, highly skilled specialisttechnicians in a variety of fields, subcontractors, foremen, supervisors, and middle and seniormanagers. These people are entitled to expect that their workplace is as safe as canreasonably be achieved having regard to the inherently dangerous operations involved in thebuilding and construction industry. They are entitled to expect, when they attend at work, thatthey will leave their workplace uninjured. Too often this expectation is not realised.

5 My second concern is with the future. Criticisms were levelled at the Commission that it did notinvestigate in the hearing room occupational health and safety incidents in the same manner asit investigated other aspects of activity in the industry. That criticism was not soundly based.

6 The public hearings of the Commission exposed to the public gaze aspects of practices in theindustry not previously publicly known. In contrast, occupational health and safety incidents arewell known to the public and well documented in public records. Every death, every accidentand most serious safety incidents involving a worker on a construction site are addressed by atleast one, and usually more, reports from competent authorities. The incidents are the subject


of investigation and report by unions, employers, relevant occupational health and safetyregulatory authorities, coroners and sometimes by the police. The incidents result in inquests,prosecutions, fines, workers compensation claims, civil actions for damages and, whereappropriate, reports to governments and competent authorities recommending reform.Moreover, the causes of these incidents are well documented. The number of injuries thatoccur is known. Their nature is known. The trends are known. The most dangerous aspects ofthe industry are known. The most frequent causes of injury are known. To revisit examples ofmatters already fully investigated would not have improved our existing knowledge and, moreimportantly, would not have improved future safety.

7 In spite of all this well-published knowledge, the building and construction industry remains anunsafe place. That is why I considered that in this area the Commission should concentrate itsefforts in looking to the future. I have endeavoured to formulate proposals that will improve thefuture prospects of a safer building and construction industry. Nothing can be done about thepast. Hopefully, the future can be improved.

8 To this end, the Commission published a discussion paper, entitled Workplace Health andSafety in the Building and Construction Industry, that analysed the performance of the industryat a statistical level, and raised for discussion some suggestions for reform.

9 Significant responses were received from the Commonwealth Government, the QueenslandGovernment, and governmental or regulatory authorities in Queensland, South Australia,Tasmania, Victoria and Western Australia. Submissions were received from the CFMEU and theAutomotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), andfrom many employers and employer groups.

10 Evidence addressing workplace health and safety and methods of improvement was takenfrom witnesses, including senior union officials and employers, in New South Wales,Queensland, Victoria, South Australia, Western Australia, Tasmania, and the Northern Territory.

11 Those assisting me gathered published and unpublished material that related to many of therecent efforts in Australia and overseas to examine and reform occupational health and safetyin the building and construction industry.

Issue

The occupational health and safety performance of the building and constructionindustry is unacceptable. The powerful competitive forces in the industry too often workagainst occupational health and safety. The industry strives to complete projects onbudget and on time. Too often safety is neglected. There must be cultural andbehavioural change. That can come about by harnessing the competitive forces in theindustry to work for occupational health and safety.

Recommendation 17

The Commonwealth foster a new paradigm in the building and construction industry.Work must be performed safely, as well as on budget and on time.

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12 As I had announced on 6 May 2002, I convened a Workplace Health and Safety Conference tosee if industry agreement could be reached on steps which are either necessary or desirable toimprove workplace health and safety in the industry. The Conference was held in Melbourne on19 and 20 September 2002. I invited to the Conference representatives of employee andemployer organisations, workplace health and safety practitioners with employee andemployer backgrounds, representatives of government and regulatory authorities, academicsand experts with practical experience. Lists of invitations to the Conference, and of those whoattended, are in Appendix A to this volume of the Final Report.

13 The unions declined to attend the Workplace Health and Safety Conference because they didnot want to give ‘credence’ to the Commission.3 It is to be regretted that the unions put politicalconsiderations ahead of the health and safety of workers in the building and constructionindustry.

14 The Workplace Health and Safety Conference provided an opportunity for the industry to raiseand discuss proposals to improve workplace health and safety. Aspects of the Conferenceincluded:

(a) Participants at the Conference were asked to give their view of the workplace health andsafety performance of the industry and to identify those features of the industry that theyconsidered gave rise to any safety deficiencies.

(b) The Conference sought an acknowledgment on the part of all parties that workers in thebuilding and construction industry should have the safest possible workplace health andsafety regime. All participants in the Conference gave such an acknowledgment.

(c) The Conference was asked to identify the essential features of such a regime for theindustry, with particular reference to:

(i) the principles of self-regulation on the one hand and prescription on the other andthe balance between them;

(ii) the roles and responsibilities for safety of head contractors, subcontractors,regulatory authorities, unions and workers;

(iii) mechanisms of, and the balance between, enforcement and encouragement;

(iv) the organisation of workplace health and safety on building and construction sites,for example, the role of training, qualifications, responsibilities and liabilities ofsafety officers, representatives and committees;

(v) the way in which questions about safety can best be resolved when they arise onbuilding and construction sites; and

(vi) whether safety performance targets should be set for the industry and how theyshould be determined and applied;

(d) The Conference gave some consideration to whether the regime thereby identifiedshould be applied to the industry throughout Australia and, if so, the means by which thatcould best be achieved.


15 The proceedings of the Workplace Health and Safety Conference were designed to ensurethat, within this framework, every participant in the conference had an opportunity to putforward for discussion by the Conference any proposals that they considered might improvesafety in the industry, and otherwise to express their views and take part in the discussion. Theobject of those who assisted me in facilitating the Conference was to provide a structure withinwhich all of the participants could engage with each other’s views in a productive and balanceddiscussion. To promote this, most of the proceedings of the Conference were in public,although there were some private sessions when that was considered useful.

16 The participants in the Workplace Health and Safety Conference told me that they found itvaluable and productive. I found it so. Opportunities for leading participants in the building andconstruction industry to gather to focus on occupational health and safety in the industry haveoccurred in the past, but they have been rare and intermittent, and have often been confined toone State or Territory. I consider that national conferences of this kind should become a regularfeature of the industry. A similar initiative in the United Kingdom has led to a strategic body forthe construction industry in that country.4 The Commonwealth submitted after the Conferencethat ‘the suggestion of the building and construction industry coming together…to developstrategies and approaches to improve safety in the industry has considerable merit’.5 TheNational Occupational Health and Safety Commission (NOHSC) is an ideal body to convenesuch conferences. The conferences could usefully be linked to the National OccupationalHealth and Safety Strategy 2002-2012 (National OHS Strategy), which is discussed inAppendix C to this Volume, and to which I will return later.

Issue

The Commission examined no more important subject than occupational health and safetyin the building and construction industry. The Commission’s approach to improvingoccupational health and safety in the industry was guided by two concerns. The first wasfor the people in the industry. They are entitled to expect, when they attend at work, thatthey will leave their workplace uninjured. Too often this expectation is unrealised. TheCommission’s second concern was with the future. Accidents are carefully investigated.Their causes are well known. However, in spite of this knowledge, the industry is unsafe.The Commission therefore concentrated on formulating proposals that would improve thefuture prospects of a safer industry. To this end, a great deal of evidence was collected.Submissions were sought and received from governments, employer and employeeorganisations and head contractors. A Workplace Health and Safety Conference wasconvened, to which were invited representatives of employee and employer organisations,workplace health and safety practitioners with employee and employer backgrounds,representatives of government and regulatory authorities, academics and experts withpractical experience. The unions declined to attend; it is to be regretted that they putpolitical considerations ahead of the health and safety of workers in the industry. TheWorkplace Health and Safety Conference provided an opportunity for the industry to raiseand discuss proposals to improve occupational health and safety. It was valuable andproductive. Conferences of this kind should become a regular feature of the industry.

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17 All of the material put before the Commission in the form of submissions, evidence, and theproceedings of the Workplace Health and Safety Conference has been drawn together for thisvolume of the Final Report. The volume and range of that material, and the limits imposed onthe range of my recommendations by the constraints of federalism, meant that I have had tocarefully select the material that I will mention. I have received insights and suggestions that willbe of great value to NOHSC and the regulatory authorities of the States and Territories. I havenot mentioned all of that material, because I have concentrated on those reforms that can beeffected by the Commonwealth. Nevertheless, I am anxious that all of the material gathered bythe Commission relating to this important matter should be preserved and passed on to thosewho can make best use of it.

Issue

The volume and range of the material gathered by the Commission, and the fact that theCommission has concentrated on recommendations that can be effected by theCommonwealth, has meant that not all of the material can be mentioned in the FinalReport. Much of the material that the Commission has gathered will be of great value tothe National Occupational Health and Safety Commission and the regulatory authoritiesof the States and Territories. It should be preserved and passed on to those who canmake best use of it.

Recommendation 19

The Commonwealth refer submisssions, evidence and other material tendered beforethe Commission that relates to occupational health and safety to the NationalOccupational Health and Safety Commission, and that the National Occupational Healthand Safety Commission retain and use that material for its purposes, and refer to anyother Commonwealth, State and Territory occupational health and safety authoritiessuch of that material as it considers might be used for their purposes.

Recommendation 18

The National Occupational Health and Safety Commission at regular intervals convene aconference of representatives of employer and employee organisations, occupationalhealth and safety practitioners with employer and employee backgrounds,representatives of government and regulatory authorities, and academics and expertswith practical experience for the purpose of considering occupational health and safetyin the building and construction industry. The conference be linked to the NationalOccupational Health and Safety Strategy 2002-2012.


2 Improving occupationalhealth and safety in thebuilding and constructionindustry

The occupational health and safety performance of the building andconstruction industry

18 The occupational health and safety performance of the building and construction industry isunacceptable.

19 Some of the relevant statistics are collected and analysed in Appendix B to this volume of theFinal Report. They show that between 1994 and 2000 about 50 building and constructionworkers have been killed at, or as a consequence of, their work each year; that building andconstruction workers are more than twice as likely to be killed at work than the all industriesAustralian average; and that the incidence rate of serious injury in the building and constructionindustry is about 50 per cent higher than the all industries Australian average. Building andconstruction is one of the most dangerous industries in Australia. If one looks at compensatedinjuries in 1999-2000, for example, construction is the second most dangerous industry, aftermanufacturing. By some measures it is more dangerous than mining. It is improving at aboutthe same modest rate as industry generally, but its unsatisfactory performance relative toindustry generally seems to be intractable. The Commonwealth Department of Employmentand Workplace Relations (DEWR) said in August 2002 that ‘improvement in the constructionindustry appears to have stalled with outcomes at the same level over the last two years’.6

20 Behind these statistics lies the human tragedy of pain, loss, trauma and grief.

21 It is widely accepted that the occupational health and safety performance of the industry isunacceptable.

(a) The Assistant National Secretary of the CFMEU, and the National Secretary of itsConstruction and General Division, told the Commission:

The occupational health and safety statistics for the construction industry inAustralia are horrific...Clearly, there is an unacceptable level of death and injury in

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the construction industry. The five year average equates to 53 deaths per year. Theimpact, grief and loss on families is immeasurable.7

(b) The Commonwealth stated that:

The construction industry is one of the highest risk industries in Australia and hasan unacceptably high level of workplace fatalities, injuries and disease.8

And:

…this is an industry with an unacceptably poor occupational health and safetyrecord.9

And:

The building and construction industry is one of the most dangerous industries inAustralia. Despite efforts at both the national and State/Territory levels in recentyears which have specifically focussed on this industry with a view to improvingperformance, the number of deaths and injuries remains unacceptably high.10

(c) Safely Building New South Wales, a report prepared by the WorkCover Authority of NewSouth Wales (WorkCover NSW) in 2001, noted that:

Construction is a high-risk industry that traditionally has had an unacceptably highincidence of workplace fatality, injury and disease.11

And:

The rate of fatality, injury and disease in the industry, with its resultant humansuffering and economic and social costs, still remains unacceptably high.12

(d) In August 2000, the Queensland Building and Construction Industry (Workplace Healthand Safety) Taskforce (Queensland Taskforce) reported its conclusion that theperformance of the industry was ‘completely unacceptable’.13

(e) Reducing Serious Injury Risk in the Construction Industry, a report containing researchwork by the Monash University Accident Research Centre that was commissioned by theVictorian WorkCover Authority and published in August 2001, noted that:

The construction industry was selected as a target for this research work due to itsclear recognition both in Australia and internationally as one of the major industryoccupation groups with significant industry risk. The construction industry fatalityrate at 10.4 per 100,000 persons…is similar to that of the road toll fatality rate.14

(f) While Grocon Pty Ltd (Grocon) believed that ‘much has been done in recent years toreduce the rate of injury accidents in the industry’, it acknowledged in its submissionsthat ‘there is significant scope for greater improvement’.15

22 The Workplace Health and Safety Conference confirmed me in the view that there is nowwidespread acknowledgment throughout the industry and those concerned with it that theoccupational health and safety performance of the industry is unacceptable. For example:

(a) The chief executive officer of NOHSC:


The construction industry has consistently been within the top half dozen worstperforming industries in this country. That is not a situation that is unique toAustralia. Around the world, we see similar problems with the constructionindustry…16

(b) The acting director of workplace services in South Australia’s Department ofAdministrative and Information Services:

The position I think South Australia would put is that…the experience we have ofinjury and fatality in the construction industry in South Australia is obviouslyunacceptably high.17

(c) The director of work health and electrical safety in the Northern Territory’s Department ofEmployment, Education and Training:

Clearly, it would be foolish of me to suggest that building and construction industrysafety was satisfactory. It is not.18

(d) The occupational health and safety manager of the Master Builders Association of NewSouth Wales Pty Ltd (MBANSW):

The industry performance of the construction industry in New South Wales isunacceptable. We must improve.19

(e) The director of workplace policy of the Australian Chamber of Commerce and Industry(ACCI):

…we certainly would approach these issues from the perspective that safety in thisindustry is not satisfactory…20

(f) The occupational health and safety adviser to the Victorian Employers Chamber ofCommerce and Industry (VECCI):

…VECCI would not claim that the performance in the industry is satisfactory inregards to health and safety…21

(g) The executive director of the New South Wales Branch of the Civil ContractorsFederation (CCF) said that occupational health and safety in the civil constructionsector…‘remains at unacceptable levels currently’.22

(h) A representative of Baulderstone Hornibrook Pty Ltd (Baulderstone) put statisticalanalyses of performance in perspective:

Baulderstone’s performance in the last five years, at one level, could be seen to bereasonably good. Extended measures, such as lost time injury frequency rate, havereduced from levels of around 15 in 97 to around 8 over those fiveyears…However, when you start to think about those statistics, and particularly thelost time injury frequency rate at a level of 8, which is number of injuries per millionmanhours worked, it represents two people every week being seriously injured onour sites. If you think about that, it is unacceptable…We have also had threefatalities in the last two years. Again, this is clearly unacceptable.23

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23 The State Secretary of the Victorian Branch of the Australian Workers’ Union (AWU) made animportant point when he expressed his belief that statistics on health and safety in the industryhad not demonstrated any real improvement over the last 15 years.24

24 His belief in this respect was supported by a submission that DEWR made to the House ofRepresentative’s Standing Committee on Employment and Workplace Relations in August2002, which showed that the safety performance of the mining, transport and storage, andagriculture, forestry and fishing, industries had recently improved, but ‘improvement in theconstruction industry appears to have stalled with outcomes at the same level over the last twoyears’.25

25 Workers rightly share the view that their industry is unsafe. For example:

(a) A survey by the CFMEU in April 1999 of 850 members showed that 63 per cent thoughtsafety had improved in their workplace over the last five years, 71 per cent rated theiremployers’ attitudes to safety as good or better, 85 per cent thought unrealistic deadlinesjeopardised worker safety, 86 per cent thought safety could be improved at theirworkplace and 85 per cent thought government should be involved in safetyimprovement.26

(b) A survey of 180 construction industry members conducted last year by the AWU inVictoria found that 60 per cent of them believed their work was dangerous, 57 per centhad sustained some kind of injury in the last year, and 41 per cent had worked on site onwhich someone had been seriously injured in the last year.27

26 It has rightly been said that the ‘accident statistics represent…substantial economic cost’.28 Itis important that governments and industry bear this in mind when it comes to paying for someof the recommendations that I will make in this area. The chief executive officer of NOHSC toldthe Workplace Health and Safety Conference:

Finally, in terms of performance, whilst the most important criterion always must be thehuman cost of injury and disease, it is worth noting that there is an economic cost. In1995, the Commission undertook an examination of a number of factors going to theconstruction industry, and this was data from 1995, but it was suggested, from thatreview, that if the states and territories which had the highest cost of injury and diseaseon a per capita basis improved performance to equal the lowest cost state or territory ineach of the standard industrial classification groups, the savings would be $134 million ayear, and that was in direct costs. If the indirect costs were included, you could, it wasestimated, at least double that saving per annum, and over a 10-year period, thatbecomes a very significant amount.29

27 Transfield Pty Ltd (Transfield) gave this estimate of the cost of poor occupational health andsafety:

The cost of safety in the OH&S area is undoubtedly significant albeit difficult to quantifyprecisely. An indicative and conservative measure of 5% of the industry’s revenue woulddeliver a non-conformance cost of $2.6 billion across the entire construction sector inrespect of OH&S.30


28 Those costs can include:

• damage to plant and equipment;

• damage to work already completed;

• loss of productive work time while debris is cleared and damaged work rebuilt;

• reduced work rate until normal site working and morale are restored;

• disruption while investigations are carried out by the company safety department,the insurers, inspectors and union representatives;

• legal costs and, in some cases, fines;

• increased insurance premiums; and

• loss of confidence and reputation.31

29 Research in the United Kingdom suggests that the direct costs of accidents compares withindirect (and often hidden) costs in the ratio of 1:11.32

Occupational health and safety law and regulation in the building and construction industry

Should the building and construction industry be regulated by a national system?

30 From the perspective of the building and construction industry, there could be no more salutaryreform to occupational health and safety law and regulation than a single national schemecomprehensively regulating occupational health and safety throughout Australia.

31 In August 2002, the Workplace Relations Ministers’ Council (WRMC) published the secondedition of a Comparison of Occupational Health and Safety Arrangements in Australia and New Zealand.33 It is a useful compendium of comparative information on the many differentapproaches to occupational health and safety throughout Australia in the Commonwealth,State and Territory jurisdictions. It reveals that there are no fewer than ten principaloccupational health and safety statutes in force in Australia, nine of which apply to the buildingand construction industry; another 30 statutes that relate to some aspects of the industry’soperations; and at least 20 principal regulations, and 34 other regulations, most of which havesome application to the industry. On top of this, the industry must consult hundreds of codesof practice, advisory standards and guidelines. This daunting body of legislation and regulationis administered by at least nine organisations. Each jurisdiction has its own apparatus of policymaking, regulation and enforcement.

32 The result is a fragmented, disjointed and uncoordinated system of occupational health andsafety law and regulation which, when applied to a national industry such as the building andconstruction industry, is inequitable, wasteful and inefficient.

33 It has rightly been said that

…the ad hoc development of OHS legislation in Australia has resulted in a complex webof Commonwealth, State and Territory statutes, with different obligations placed onemployers, occupiers, employees and suppliers and other parties responsible for

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providing plant, equipment and substances to workplaces; inconsistent exposure limitsand standards for hazardous substances, plant, and processes; different procedures fordeveloping new standards; inconsistent provisions for worker involvement in OHS; anddifferent enforcement agencies and enforcement powers, policies and practices.34

34 In 1995 the Industry Commission, in Work, Health and Safety, the report of its inquiry intooccupational health and safety, observed:

Jurisdictions place different obligations on employers, employees and suppliers…Suchdifferences mean there are different levels of protection for workers doing the same job invarious jurisdictions – this is inequitable.

Employers with operations in more than one State have to work with multiple OHSregimes. This means additional costs whenever systems of work are changed or staff aremoved; they also raise the cost of their internal monitoring of compliance.35

35 Most importantly, I can see no reason why workers in the building and construction industry arenot entitled to a regime of the highest possible standard regardless of where they are workingin Australia. It is axiomatic that this cannot happen under the present system.

36 It is therefore not surprising that there is strong – indeed, overwhelming – support in thebuilding and construction industry for a national system to regulate workplace health and safetyin the industry. For example:

(a) The Construction Safety Managers and Officers of Queensland Inc (CSMOAQ) is anassociation whose members have a practical involvement and interest in occupationalhealth and safety in the industry in Queensland. It convened a meeting of its executivemembers in June 2002 for the purpose of discussing with those assisting theCommission their views about the way in which workplace health and safety was, andshould be, regulated in the industry. I was impressed by the depth of their experience andthe thought that they had obviously given to the subject. I have found their views helpfuland persuasive. On the question of national regulation, the report of the meeting recordsthat:

The participants had a strong view that there must be a single federal schemeregulating OH&S in the building and construction industry throughout Australia tothe exclusion of the existing State-based schemes. They considered that thepresent system, where different standards or requirements apply in each State, isillogical and unwieldy; indeed, they thought it indefensible that “best practice” wasnot required everywhere. Provided it was predicated on fair representation fromeach State.36

(b) The Australian Industry Group (AIG) and the Australian Constructors Association (ACA)jointly submitted:

We support the development of a uniform national OHS framework preferably withthe states surrendering their OHS regulatory powers to the Federal Government.Previous attempts to harmonise OHS standards through Federal/State/TerritoryGovernment cooperation have proved unsuccessful or delivered sub-optimaloutcomes…


The Productivity Commission has rightly noted that after nearly 20 years ofattempting to adopt a Robens type model in Australia, OHS remains chronicallyover-regulated, with nine principal statutes, in excess of 50 Codes of Practice andhundreds of Australian Standards that have been referenced in Australian codesand regulations.37

(c) The CCF submitted that it

…would support one set of national occupational and health and safety laws forAustralia. The existence of 11 separate statutory regimes applying throughout thecountry, each with its own Acts, Regulations and Codes of Practices creates agreat deal of confusion and misunderstanding particularly for contractors workinginterstate. This is a particular problem for the construction industry which istransient by nature and not of fixed locations as other industries such asmanufacturing. National uniformity in respect to OH&S would ease confusion, allowfor equitable outcomes and efficiencies to be achieved.38

And:

Whilst there has been a great deal of effort made to improve health and safetyperformance in the building and construction industry, it has remained a state bystate approach and it is generally as disjointed today as it was 10 to 20 years ago.The industry does need unity and conformity between the states with a nationalapproach to occupational health and safety…39

And:

The Federation believes that the principles identified in ‘The Robens Report’ are infact supportive of the establishment of one Commonwealth organisation orregulatory authority to co-ordinate and regulate the management of occupationalhealth and safety in Australia.40

And:

…there is an argument to justify the introduction of nationally applicable OH&Slaws limited in their application to the building and construction industry.41

(d) Master Builders Australia Inc (MBA Inc) submitted that:

Without doubt, in MBA Inc’s view, better OHS outcomes will only be achieved inthe industry when it is governed by a single set of national OHS laws which aresimple to understand and prescriptive in nature because what the industry canrespond to is clarity and simplicity.42

(e) The Master Builders Association of Western Australia (Union of Employers) Perth(MBAWA) has expressed the view that:

Whilst the proposal to have one national set of OS&H standards for the buildingand construction industry has merit the devil is in the detail given the difficulties thatcan and will arise in the application and implementation of any such proposedmodel…

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MBAWA supports in principle the need to establish a consistent framework ofOS&H standards for the building and construction industry.43

(f) The National Electrical and Communications Association (NECA) gave qualified supportto the idea of a national system:

In [principle], the introduction of a single set of national OHS laws for the industryhas merit. However, it would depend on the detail of what was introduced and itsoperation in practice.44

(g) Grocon stated that:

We believe that the industry is overburdened with confusing and sometimescontradictory OHS regulation coming out of the Federal and State governments.Our strong preference would be for the centralisation of construction industrysafety regulations and control under one national body which would be fullyresponsible for management and implementation of safety standards.45

Grocon’s industrial officer gave the following explanation of the problems it faced as anational builder:

If we look at New South Wales and Victoria, each state has its own [A]ct, its ownregulations, its own Codes of Practice, but in New South Wales, if you take, forexample, a form worker, they must have a certificate of competency. That is not arequirement in Victoria. In New South Wales, site induction is mandatory. InVictoria, it’s recommended. Certification of plant operators in New South Wales ismuch more stringent – not much more, but is more stringent than in Victoria. Eachstate across the country, each state and each territory, has its own [A]cts, its ownregulations, its own Codes of Practice, and although the intent is probably similar,there are enough differences to make it somewhat confusing, particularly if youwork in more than one state. You have to be able to adjust to the new conditions inthe other state or states…

…

[T]he country is crying out for uniform laws and regulations in respect tooccupational health and safety…46

(h) Transfield expressed a similar view:

Whilst the overall structure of OH&S regulation in Australia is modelled on thereport of the Robens Committee each State has markedly different approaches tothe regulation, investigation, prosecution and sanctions in respect of OH&Smatters. It is without doubt that a single uniform system of OH&S regulation wouldprovide significant benefits and efficiencies in the management of OH&S.47

And:

Given the fragmented nature of the industry, the multiplicity of participants and thesub-contracting nature of much of the industry a national integrated industry-wideapproach would appear to be the best solution. The obvious way to achieve this isto transfer the responsibility to the Commonwealth, and re-design the regulatory


system anew. Such an approach even if only partly successful offers the industryand its stakeholders enormous savings in both human and financial terms.48

37 There was strong support for national uniformity among the participants in the WorkplaceHealth and Safety Conference,49 although there were various views about the best way toachieve it. For example:

(a) ACCI:

We approach the regulatory framework with a general proposition that that thereought to be nationally consistent performance-based legislation - not necessarilynational legislation and certainly, for reasons that have been mentioned, there is agreat role that states and state jurisdictions play in terms of the regulatory regime.Nationally consistent performance-based legislation, which is underpinned byCodes of Practice and appropriate industry specific guidance material is a modelthat has been applied in Australia now for a number of years and, in general terms,seems to be the model which industry prefers and finds most conducive to bestpractice safety outcomes.50

(b) CCF:

The federation believes we do need a national standard management code or aCode of Practice…51

(c) Housing Industry Association Ltd (HIA):

We would support consistency of standards right across the country.52

(d) The chief executive of the Master Plumbers and Mechanical Services Association ofAustralia (MPMSAA) pointed to the fact that a great deal of work has been done over thelast ten years in successfully developing national standards for the education and trainingof tradespeople, and said that it would be ‘very useful’ if that effort could be matched‘with a national set of standards or codes, also objectives, in terms of prevention or riskreduction’.53

(e) After the Conference, one of the participants, the acting director of Western Australia’sDepartment of Consumer and Employment Protection (DCEPWA), submitted that:

…the Western Australian position is supportive of a move to Nationalconsistency.54

38 The Queensland Government 55 and the CFMEU 56 both submitted that they supportednationally consistent standards that would apply in the context of State systems; the CFMEU,for example, submitted that the

… idea of ‘one set of OHS laws for Australia’ has merit, but it is far more likely to beachieved by seeking to standardise the existing regulations and codes, rather than byseeking to displace State legislation.

39 Since at least 1984 attempts have been made to achieve national uniformity, and then nationalconsistency, in the laws or regulations governing occupational health and safety generally. 57

An account of these attempts is set out in Appendix C to this volume of the Final Report.

19


40 It must be accepted that those attempts have so far been a failure.

41 DEWR gave what I consider to be an accurate explanation of at least some the reasons for thisfailure:

The ability of the Commonwealth to achieve a nationally consistent occupational healthand safety regulatory framework is constrained by the Constitution. Except for theCommonwealth’s own employees and seafarers, occupational health and safetylegislation is a matter for the States and Territories. Although States have co-operatedthrough the NOHSC in relation to the development of national standards and codes ofpractice, the National Occupational Health and Safety Improvement Framework andmore recently the National OHS Strategy, the opportunity for stakeholder involvement atjurisdiction level can lead to commitment to national consistency being diluted at theimplementation stage due to regional issues in a particular jurisdiction. All jurisdictionshave similar occupational health and safety legislation and most adopt a tripartiteprocess, involving government, employer and employee representatives, for consideringnew regulations. This can be a barrier to the adoption of the nationally agreed documentas State-based issues may be used as justification to introduce inconsistent provisions orreduce regulation.58

42 I have no doubt that there are other aspects to the problem. The CFMEU, for example,complained that the Commonwealth Government had impeded progress by reducingNOHSC’s funds.59 One State pointed to problems associated with earlier attempts to developmodel regulations, the broad nature of the reforms being undertaken, the requirement forpublic consultation, the need for some States to conduct regulatory impact assessments, anddifficulties occasioned by fitting national standards into differing jurisdictional requirements.60

Another State submitted that:

The lack of progress is arguably more a result of a federal government policy positionthan a lack of capacity or willingness on the part of the jurisdictions.61

43 Occupational health and safety has traditionally been regarded by both the Commonwealthand the States as a responsibility of the States. The Constitution makes no reference tooccupational health and safety. The conventional view is that the Commonwealth’s capacity tolegislate for occupational health and safety is limited. I accept that is so, at least for all presentpractical purposes. It would take what academic commentators have described as an‘imaginative use of the trade and commerce, corporations, external affairs and incidentalpowers’62 for the Commonwealth to be able to take occupational health and safety out of thehands of the States and Territories so as to create a single national system, and even then Idoubt whether it could cover every worker and business engaged in the building andconstruction industry.

44 In any event, it is to my mind fair to say that no Commonwealth Government has shown anyreal interest in making the attempt.63

45 This remains the Commonwealth’s position today. The Group Manager of DEWR’s WorkplaceRelations Policy and Legal Group told the Workplace Health and Safety Conference:

Because of the Constitution, prime responsibility for OH and S and workerscompensation rests with the states and territories. The Commonwealth is not necessarily


advocating that there should be a national legislative approach. In fact, short of the statesand territories referring powers to the Commonwealth, or using the constitutionalpowers, and there are some limitations to that, there is some difficulties in terms of havinga national legislative approach…The Commonwealth view is that these matters shouldstill remain the responsibility of the states and territories…64

46 I should add that he went on to say that the Commonwealth’s position was that there neededto be ‘more national consistency’, ‘a national approach’ and ‘some national framework’65 I willreturn to those suggestions later. The point I make here is that it is clear that theCommonwealth has not had, and still does not have, any intention of assuming any greaterresponsibility for occupational health and safety than it presently has in isolated areas, such asCommonwealth employment and the maritime industry.

47 The States, for their part, have guarded their responsibilities for occupational health and safety,and they continue to do so. There is no prospect that all of the States would voluntarily co-operate in creating a single national scheme. I agree with the view of the HIA that

…States are not currently prepared to vacate this field…In addition, the administration ofState Workers Compensation legislation is intimately bound up in occupational healthand safety. States are not about to voluntarily give up this jurisdiction to theCommonwealth.66

The Queensland Government, for example, categorically told me that it ‘is not prepared tocede the legislative responsibility for health and safety and workers’ compensation to theCommonwealth’.67 This attitude puts paid to any hope of a voluntary national scheme. OtherStates were not so frank as Queensland, but I do not doubt that some of them have similarattitudes.

48 For these reasons I have with regret come to the view that I must proceed on the footing thatthere is no foreseeable prospect of a single national scheme comprehensively regulatingoccupational health and safety throughout Australia.

49 I have considered whether there should be national regulation of occupational health and safetyin the building and construction industry separate from that of other industries. I have no doubtthat the industry has many of the characteristics that might justify such an approach. It is largeenough, and in important respects it is a national industry, conducted on similar linesthroughout Australia. The chief executive officer of the Workcover Corporation of SouthAustralia (WorkCover SA) agreed. He was asked whether he considered that the industry hadfeatures that made it suitable for a national system of its own. He replied, drawing on hisexperience in Australia and his study of the approach taken to national industries in Germany:

I think its size does that…I believe that there are sufficiently similar issues and problemsaround the country in terms of construction that would warrant similar treatment andthere is some mobility of labour, I think, that would make that also desirable.68

50 However, I have come to the conclusion that it would be wrong to attempt to create a newnational scheme regulating occupational health and safety in the building and constructionindustry separately from other industries.

21


51 The Queensland Government opposed not only a comprehensive national scheme, but also‘any national legislative framework, whether through the use of the corporations or otherpowers, concerning health and safety issues within the building and construction industry’.69

52 One of the deficiencies that it asserted in such a proposal was an alleged lack ofresponsiveness of a national scheme to local industry requirements.70 I am not convinced bythis assertion. I do not consider that the industry has materially different safety requirementswherever it is conducted in Australia.

53 However, the Queensland Government did advance another and more persuasive argumentagainst separate national regulation of occupational health and safety in the building andconstruction industry. It is clear that the Commonwealth would be forced to rely on its ownpowers if it was to legislate in this area. The Queensland Government pointed out that parts ofthe industry would be beyond the reach of the Commonwealth’s legislative power. As I havesaid, I accept that is so. In the result, the Queensland Government submitted that ‘twoseparate systems of regulation would apply to almost every site’.71 Such a result would beantithetical to one of the central tenets of the Robens model – that there should be a ‘unifiedand integrated system’72 under ‘single management’.73 The confusion that inevitably wouldarise from having two systems on one site would compromise and undermine safety on thatsite. The AMWU responded to the idea of national regulation of occupational health and safetyin the building and construction industry by raising the question of the interaction between thebody that would administer the national scheme and existing State occupational health andsafety authorities. It made the point that:

This is of considerable importance to the industry sectors where AMWU members areemployed. Many workshops, with permanent factory based employees also haveemployees who visit construction sites for structural steel and installation work. Theworkshops are part of a supply chain of labour and materials. At what point would theFederal agency intervene? Where would their powers extend? Would a worker in themorning attending a building site be covered by the Federal Agency and, in the afternoonwhilst doing welding, be covered by a State law? Such arrangements would createhundreds of interactions between different OHS jurisdictions at the workshop door. Thepracticalities of such a proposal make the current circumstances of 9 national OHS laws(relevant to construction) look very appealing.74

The HIA made a similar point when it submitted that ‘it would achieve nothing but confusion ifboth Federal and State OH&S laws placed obligations on companies and individuals’.75

54 I acknowledge the force of these views, and will not make any recommendations that raise anyprospect that this might happen. I have therefore rejected the idea of national regulation ofoccupational health and safety in the building and construction industry separate from that ofother industries.

55 In the result, my recommendations must accommodate the present and continued existence ofseparate State and Territory schemes for the regulation of occupational health and safety. Theonly practical way forward is to work within the context of those schemes.

56 This has some important consequences. I have determined not to make recommendationsthat are directed at the State and Territory schemes. Instead, I have resolved to concentrate on


reforms that can meet two tests: Can they be effected by the Commonwealth and itsagencies? And, will they be consonant with existing State and Territory schemes? Many ideasthat were put to me do not meet these tests: for example, suggestions that the States andTerritories should increase penalties for the contravention of their occupational health andsafety laws; that they should introduce new penalties; or that there should be a national bodyto determine disputes about safety. As a result of Recommendation 19 in this volume of theFinal Report all these suggestions will come before the responsible authority.

National standards for the building and construction industry

57 My conclusions in this regard do not mean that nothing can be done to achieve at least someimprovement in the regulation of occupational health and safety throughout Australia. I believemuch can be done.

58 The material that is before me has convinced me that properly drawn standards have animportant part to play in regulating occupational health and safety in the building andconstruction industry.

59 By ‘standards’ in this context, I mean the subordinate instruments that are an essential featureof the Robens model as it was first envisaged and as it has been applied in Australia. As thematerial in Appendix C points out, the Robens model includes a unifying enabling statute thatcontains a clear statement of the central principles of general application such as the duties ofemployers and employees, supported by subordinate instruments dealing with more detailedmatters. At a fundamental level the existing occupational health and safety laws and regulationsin every State and Territory conform with the Robens model in these essential respects.

60 The Robens model conceived these subordinate instruments to be both statutory regulationsand voluntary codes of practice. When I refer to ‘standards’ in the discussion that follows, Ihave in mind instruments that have the force of law, rather than being voluntary. Their naturecan be left to the law and practice of each jurisdiction, provided that they are compulsory, andthat a failure to meet them will have legal consequences.

61 The Queensland Taskforce argued – to my mind persuasively – that in the building andconstruction industry self-regulation on the Robens model should be supplemented bystandards either prohibiting exposure to recognised and significant risks, or prescribing ways toprevent or minimise such exposure.76 The inquiries made by the Queensland Taskforcedemonstrated to it that

…the lack of minimal standards has allowed the competitive nature of the industry to takegreater prominence over health and safety. The essence of the debate is that the industrymust know in quite specific terms what it is required to do before any expectation ofcompliance can be realised.77

The Queensland Taskforce noted in its report that:

Clarification or re-stating of existing obligations in the form of regulation that could beeasily enforced received considerable support from the Taskforce.78

62 I have found considerable support for this view, and the allied view that an unadulteratedRobens model is not well suited to the building and construction industry. For example:

23


(a) The Queensland Government submitted:

In general, the BCI has experienced difficulty in adapting to the self-regulatoryframework, arguing that the model simply does not fit the way in which industry isstructured or performs work.79

(b) MBA Inc expressed the view that ‘…whether it likes it or not, the industry is only reallygeared for dealing with the enforcement of plainly worded, easily understood, prescriptiverules’.80

(c) MBA Inc also stated:

While MBA Inc agrees with the Robens model concept of collective responsibility, itdoes not agree with the recent trend to draft Robens-style legislation in terms ofoutcomes-based solutions.

Unsophisticated personnel need the certainty of knowing what to do or not do, notwhat outcome is required as a result. Given that the industry’s lowest commondenominator is its primary OHS target, the only viable solution is extensiveprescription.81

(d) AIG and ACA noted that:

There is an argument that in such an industry the Robens model is notappropriate.82

(e) Members of the CSMOAQ told those assisting the Commission that they considered that:

…the unadulterated Robens model had not worked in the building andconstruction industry, and that a new national scheme should not adopt such amodel…

Their view was that without some bottom-line requirements on contentious issuesthe industry was inherently incapable of regulating itself as the Robens modelrequired, and therefore required some prescriptive safety regulation.

They agreed that this was a consequence of the way in which the industry wasnow organised so that most of the work of building was done by specialisedsubcontractors, and builders were essentially confined to co-ordinating thesubcontractors’ work.83

The members of the CSMOAQ mentioned what they regarded as some of theunintended consequences of the Robens system: in particular, inspectors doing advisorywork rather than enforcing compliance; competition on safety in the absence of the levelplaying field created by clear universal rules; and industrial disputation created orencouraged by ambiguity.84

(f) The CFMEU submitted that purely ‘performance based’ laws and regulations did notwork in the industry.85

(g) Reducing Serious Injury Risk in the Construction Industry found that the Victorianinspectors interviewed for the study ‘were unanimous in their disapproval of the changefrom prescriptive to self-regulative OHS practice’,86 and suggested that:


A return to prescriptive legislation, with codes of practice for all trades enforced ina closed loop method by use of on the spot fines and administered at thediscretion of the field officers, would provide for a more self sufficient system.87

(h) A study undertaken in 1999 found that many inspectors in Queensland held similarviews.88

63 In my view, the better approach combines self-regulation on the Robens model with aprescriptive regulation of particular hazards. The CCF described such an approach when itsubmitted that it

…would support the introduction of prescriptive national laws and standards for sectorsof the construction industry with a mix of risk management and risk assessment tomanage individual work activities at the site level.89

64 Queensland exemplifies this approach. The Workplace Health and Safety Act 1995 (Qld), whichis of general application, follows the Robens model. I have already referred to the QueenslandGovernment’s view that the building and construction industry has experienced difficulty inadapting to the self-regulatory framework. It responded by adapting the regulatory frameworkto incorporate regulatory interventions that are specific to the industry.

65 The Queensland Government was influenced to adopt these reforms by the work of theQueensland Taskforce. The Queensland Taskforce considered that it had overwhelmingevidence for a ‘focused intervention strategy’90 that deliberately targeted the major causes ofinjury and death. It considered these to be the ‘critical areas’ where this form of interventionmay have the most significant impact.91 Accordingly, the Queensland Taskforce proposed ascheme of hazard-based regulations in dealing with the major causes of injury and deathsupported by hazard-based infringement notices as part of a pyramidal enforcement strategy.

66 This regulatory framework encompasses a range of instruments, such as legislation, advisorystandards, codes of practice, and enforcement activities. An important element is anappreciation that some hazards in the industry require, and can best be dealt with, by clear,and often prescriptive, standards. Accordingly, regulations and advisory standards applying tothe industry now deal with specific hazards such as hazardous substances, noise, asbestos,lead, confined spaces, electrical equipment and installations, excavation, falling objects, fallsfrom heights, formwork, steel construction, scaffolding, manual handling, concrete pumping,and personal protective equipment. The Workplace Health and Safety Conference heard thatQueensland’s

…hazard-based construction regulations…set defined standards. So the questionabout, ‘Tell me what I have to do and I’ll do it’ has been answered. In those areas of high-risk construction, the answers are black and white and the competition is not based onwhich shortcuts can I take to avoid or reduce my legal obligations.92

67 I should note at this point that debate about whether the law should not only prescribestandards, but also the way in which they should be met, has characterised the developmentof Australian occupational health and safety law for more than ten years. Academiccommentators have noted that the move towards performance-based, and away fromprescriptive, standards has gathered momentum, but have questioned whether Australianindustry or regulators have sufficient ‘maturity’ to properly implement the new approach.93 This

25


debate was alive in the submissions that I received from many participants in the industry, andin the Workplace Health and Safety Conference.

68 In my view, the approach that has been adopted in Queensland is a well-judged mix ofprescriptive and performance-based standards. The important point is that they give clearinstruction to participants in the industry about what they must do in areas that are obviouslycritical to workers’ health and safety. Their utility in this respect is considerably enhanced by thefact that they are now made available to the industry on a folding card that is small enough tobe carried in a worker’s pocket.94 I was shown a copy of this card during the Workplace Healthand Safety Conference. It impressed me as a commendable innovation that is worthy ofconsideration in other jurisdictions.

69 The CSMOAQ strongly approved of the ‘two pronged approach’ adopted in Queensland. Themembers of the CSMOAQ who spoke to those assisting the Commission felt that in theimportant areas identified by the Queensland Taskforce universal prescriptive regulation wasrequired to provide an objective ‘bottom line’ with which everyone had to comply. Theyconsidered that universal prescriptive regulation was necessary in the building andconstruction industry in relation to ‘areas that can kill or maim’.95 I agree.

70 This approach could readily be followed in every State and Territory. As I have pointed out inAppendix C, their existing schemes already accommodate standards of a similar kind inrelation to a range of industries, occupations and hazards.

71 In my view, therefore, there should be in every jurisdiction standards that stipulate clear andobjective requirements in relation to the hazards that are critical to the building andconstruction industry.

72 What those hazards are, and what requirements should be stipulated, is beyond the scope ofan inquiry such as mine. It is properly the task of experts. I will content myself with theobservation that the work of the Queensland Taskforce provides a useful model.

73 Any standard of this kind should apply uniformly to the building and construction industry inevery jurisdiction in Australia. This is a practical way to achieve at least a measure of theuniformity that I consider to be so desirable. As I have said above, this view accords with theposition of many of the participants in the Workplace Health and Safety conference, of theCommonwealth and at least several States, and of the CFMEU. I am also reinforced in my viewby the observations of the chief executive officer of NOHSC during the Workplace Health andSafety Conference:

… there are clearly gaps in what exists at the moment.

For example, not all jurisdictions have codes or regulation relating to falls from heights.The clear advantage which the parliaments expected from the establishment of theNational Commission, of having a body which can develop national standards, is that youdo get that uniformity, you do provide guidance to those jurisdictions which haven’t yetbeen able to develop an approach.96

74 I have deliberately used the word ‘uniform’. As the material in Appendix C shows, at times inthe past ‘consistency’ rather than uniformity has been the goal. The National OHS Strategy (towhich I will return later in this volume) talks of ‘consistent regulatory frameworks’. I consider


that more is needed. The building and construction industry standards that I have in mindshould be uniform across Australia.

75 Recent events give reason to hope that progress can be made. The chief executive officer ofNOHSC told the Workplace Health and Safety Conference:

In the 90s, [NOHSC] started to develop a construction industry standard plus Codes ofPractice relating to demolition and falls from heights. In 1996-1997, [NOHSC] decidedthat it wouldn’t proceed with that, and it was [in] part influenced by the views of thestates, that they at that stage preferred to address this in their own way.

A decision was taken at a recent meeting of [NOHSC], however, that it would reconsiderthe establishment of a national construction standard and related codes, and there willbe some further consideration of that at the forthcoming [NOHSC] meeting on 16 October. So it would be premature for me to second-guess what [NOHSC’s] decisionwill be, but I can report to this conference that [NOHSC] will be taking a decision onwhether it wishes to proceed on that path at its forthcoming meeting.97

76 I was later informed by NOHSC that:

The Workplace Relations Ministers’ Council (WRMC) met on 8 November 2002...

The Council discussed various developments in workplace relations, includingoccupational health and safety (OHS) issues. The communiqué states: Ministers agreedthat NOHSC could undertake scoping work on the need for national building industrystandards.

NOHSC has now commenced the scoping study agreed by Ministers, with a view toreporting to Ministers in 2003. This work will take into account, among other things, theexisting regulatory framework, the views of industry parties, and the regulatory andeconomic impact of any new approaches. The primary focus will be to identify how bestto reduce the levels of injury and disease in this industry.

To assist in the scoping work, a Construction Reference Group (CRG) has beenestablished to provide guidance and technical input. The CRG consists ofrepresentatives from the jurisdictions, the Housing Industry Association, the MasterBuilders Association and the Construction, Forestry, Mining and Energy Union and willundertake its activities under the direction of NOHSC and its Prevention Committee. TheCRG is expected to report to NOHSC in April 2003. NOHSC will, when it has determinedon the appropriate course of action, present its recommendations to the WRMC.

The CRG will:

(a) examine the NOHSC 1996/97 draft national standard for construction and thecodes of practice for the prevention of falls and for demolition work, and otherrelevant material (for example, the WA draft code of practice, Tilt-Up and Pre-Cast Concrete Construction for Buildings, released for public comment inNovember 2002), to identify:

(i) whether they represent the best approach, and,

(ii) if a national standard or codes are required, what they should contain;

27


(b) report to NOHSC on the desirability of national material and any deficienciesidentified in the draft documents;

(c) assist in the development of any resulting national material for uptake by thejurisdictions; and

(d) provide advice on the content of such documents, taking into account recentdevelopments in the jurisdictions and relevant international approaches to OHS inthe building and construction industry.

In undertaking its work, the CRG is to have regard to the National OHS Strategy 2002-2012, decisions of NOHSC, and priorities set out in the NOHSC Strategic Plan2002-05 and the NOHSC Business Plan 2002-03.98

77 It therefore appears that work on uniform national standards for the building and constructionindustry is at last underway again. My concern is that that work should not be compromised,abandoned or diverted. The material in Appendix C demonstrates that this has been the fate ofmost earlier attempts in Australia to secure uniform or consistent standards. The WRMC hasnot been as effective in this area as it should have been; as the Commonwealth submitted:

Despite agreement in 1991 by the Heads of Australian Governments to implementnationally uniform safety standards (National Standards), in practice the adoption ofstandards by the jurisdictions remains inconsistent in manner, content and progress.Some jurisdictions implement standards as regulations which give them mandatorystatus. Other jurisdictions adopt standards as codes of practice and therefore asguidance material. At present only one of the priority standards as been fullyimplemented across all States. The Workplace Relations Ministers’ Council (WRMC) nowdirects the national standards setting process, through the National Occupational Healthand Safety Commission. WRMC however has not taken a lead role in reducing theregulatory burden, nor has it sought to secure the consistent implementation of nationalstandards, with the exception of dangerous goods and major hazard facilities.99

78 I am concerned to ensure that this time real progress is made in the work of drawing up andgiving effect throughout Australia to uniform national standards for the building and constructionindustry. The work should be given appropriate priority, be adequately funded and theappropriate bodies should be accountable for progress. It should be made an identifiable aspectof the National OHS Strategy and the National Priority Action Plans. These are described inAppendix C. A timetable for drawing and giving effect to uniform national standards for theindustry should be set and published. I would expect that timetable to be relatively short,particularly having regard to the work that was undertaken before 1996 or 1997. Impediments toprogress, and those responsible for them, should be exposed to public scrutiny.

Reform – Occupational Health and Safety 29

Issue

There is at present a fragmented, disjointed and uncoordinated system of occupationalhealth and safety law and regulation in Australia which, when applied to a nationalindustry such as the building and construction industry, is inequitable, wasteful andinefficient. Workers in the industry are entitled to a regime of the highest possiblestandard regardless of where they are working in Australia. In view of theseconsiderations, there could be no more salutary reform to occupational health andsafety law and regulation than a single national scheme comprehensively regulatingoccupational health and safety generally throughout Australia. There is strong supportfor this in the industry. However, the long failure of attempts to achieve nationaluniformity, and then national consistency, in occupational health and safety regulationindicate that there is no realistic prospect that the Commonwealth, States and Territorieswill co-operate to bring about a single national system regulating occupational healthand safety generally. It would be wrong to establish a national system regulating only thebuilding and construction industry. However, this does not mean that nothing can bedone to achieve at least some improvement in the regulation of occupational health andsafety in the industry. After a long hiatus, work has resumed on drawing up nationalbuilding and construction industry standards. These can operate in the context ofexisting State and Territory laws, but should apply to the industry uniformly in everyjurisdiction. They should stipulate clear and objective requirements in relation to thehazards that are critical to the industry. A timetable should be set for the work of drawingup and giving effect to these standards. That work should be part of, and given priorityin, the National Occupational Health and Safety Strategy 2002-2012 under the oversightof the Workplace Relations Ministers’ Council.

Recommendation 20

The Commonwealth take such steps as are available to it to ensure that:

(a) the work of drawing up and giving effect to uniform national standards to beapplied in the building and construction industry in every State and Territory inAustralia is taken up in the National Occupational Health and Safety Strategy2002-2012 as a matter of priority under the National Priority Action Plans;

(b) the Workplace Relations Ministers’ Council, its members and the NationalOccupational Health and Safety Commission adopt a timetable for the progressand completion of this work;

(c) the Workplace Relations Ministers’ Council, its members and the NationalOccupational Health and Safety Commission are accountable for the progress andcompletion of this work in accordance with the timetable; and

(d) adequate resources are provided to enable the timetable to be met.


79 I will return to some of these considerations in the context of the National OHS Strategy.

National Occupational Health and Safety Strategy 2002–2012

80 In Appendix C I have described the essential features of the National OHS Strategy and thesteps that have so far been taken to give effect to it, including the National Priority Action Plans.The National OHS Strategy represents the agreement of the Commonwealth, State andTerritory Governments, the ACCI and the Australian Council of Trade Unions (ACTU) that theywill work together to achieve the object of Australian workplaces free from death, injury anddisease.100 The CFMEU has said that the National OHS Strategy has its ‘full support’.101

81 The National OHS Strategy has adopted national targets to

(a) sustain a significant, continual reduction in the incidence of work-related fatalities with a reduction of at least 10 per cent by 30 June 2007 and at least 20 per cent by 30 June 2012; and

(b) reduce the incidence of workplace injury by at least 20 per cent by 30 June 2007 and atleast 40 per cent by 30 June 2012.102

82 I strongly endorse the National OHS Strategy. It seems to me to offer the best opportunity for away forward in many years. The chairman of NOHSC told the Workplace Health and SafetyConference that the National OHS Strategy was the product of the agreement of the WRMC

…to move to a higher level of common approach and, at that point, move to the settingof agreed targets across the country and also to the focusing of effort in terms of high-risk activities in which to find better ways of moving forward.103

I agree with the observations of the chief executive officer of NOHSC when he told theWorkplace Health and Safety Conference that

…the importance of this strategy is that this is the first time that Australia has had thisdegree of commitment by all governments and by employers and unions to not only acommon approach on occupational health and safety, but also the accountability andmeasurability that comes from the adoption of national targets…’104

83 The Workplace Health and Safety Conference endorsed the utility of setting targets. After theConference, the acting director of DCEPWA submitted:

…it should be that industry as a whole working with Government sets a target to reducefatalities and injuries. The National Strategy, which has the support of all Governments,has put the framework in place. Industry should now be b[r]ought on board toimplement.105

84 Five national priorities have been identified in the National OHS Strategy:

(a) To reduce risks of a high incidence or severity.

This will mean that ‘[n]ational priority hazards, injuries, industries or occupations will beidentified for prevention efforts on a national basis’.106 The building and constructionindustry has already been identified as a national priority industry.107 Furthermore, as theCommonwealth submitted:


Because the construction industry is a high risk industry, it is expected that the newstrategy will impact on it through the national efforts to reduce OHS risks, throughenhanced business capacity to manage OHS more effectively and through theelimination of hazards, for example, in building design.108

(b) To develop the capacity of business operators and workers to manage occupationalhealth and safety effectively.109

(c) To prevent occupational disease more effectively.110

(d) To eliminate hazards at the design stage.111

(e) To strengthen the capacity of governments to influence occupational health and safetyoutcomes.112

85 In my view, it is important that any new approach to occupational health and safety in thebuilding and construction industry should accord with these priorities. These priorities have thesupport of all relevant governments, and peak employer and employee bodies. Therecommendations that I will make have been drawn with this in mind.

86 I should also note that nine areas have been identified for national action. They include:

(a) comprehensive national occupational health and safety data collections to identifybenchmarks for assessing performance;113

(b) a co-ordinated research effort;114 and

(c) a nationally consistent regulatory framework.115

87 The material before me has convinced me that all of the priorities for national action are sound.I have singled out the ones that I have mentioned above because they address some of themore important suggestions that were made to me.

(a) All that I have said in this volume of the Final Report demonstrates the need for anationally consistent regulatory framework. The National OHS Strategy is a significantstep forward, in that it represents an unequivocal commitment on the part of allgovernments to this goal.

(b) The need for a properly constituted and consistent national database is clear. The chiefexecutive officer of WorkCover SA described the present position:

There are developing national data sets. The National Occupational Health andSafety Commission has one that is developing in terms of injury prevention, thereare regular reports that are put together on a comparison of the schemes inAustralia, that’s now supported by the Commonwealth Government, calledcomparative performance monitoring, and…that’s an attempt to try to comparethe effectiveness of the various jurisdictions on a normalised basis. The problemwith sharing the data is the difference in the systems, be it in terms of the levies thatare paid, what they are based on, or the benefits to injured workers, differences interms of the industrial mix, and this CPM, as it is called, report attempts tonormalise those, so there can be some comparison made.116

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He considered that a consistent national database was a necessary early step inimproving the performance of the industry.117 I agree. The CFMEU has a similar position;it has called for ‘a national OH&S database for the industry’.118 The database should besuch that meaningful comparisons can be made between the occupational health andsafety performance of particular jurisdictions. The Comparative Performance Monitoringproject119, using the National Data Set for Compensation-based Statistics120 (both ofwhich are described in more detail in Appendix C), appear to be the best prospect ofdeveloping such a database. The Comparative Performance Monitoring project has thesupport of the Commonwealth and State and Territory Governments. I have been toldthat the project has progressed to the point that work is underway on a study ofcomparative performance in the building and construction industry. Unfortunately, theresults of that study will not be available until after I have made this report. I consider thatit is important to continue the Comparative Performance Monitoring project, and to use itto measure, understand and improve the implementation of the National OHS Strategy.Later in this volume I will make recommendations that will apply particularly to projects forwhich the Commonwealth and its departments or agencies are the direct client, andthose in relation to which the Commonwealth provides funds or other assistance. Theoccupational health and safety performance of those projects should be measured andcompared with other projects. The Comparative Performance Monitoring project shouldbe developed to allow as far as possible such measurements and comparisons to bemade at the project level.

(c) A co-ordinated research effort is critical. The Commonwealth submitted:

In recent years the building and construction industry has been a particular focus ofoccupational health and safety initiatives, both nationally and at State/Territorylevels, which have examined OHS issues in the industry with a view to improvingperformance, but with little apparent effect.121

And:

…there has been a considerable amount of work done across Australia in recentyears both nationally and in the States and Territories with a view to improving OHSperformance in the building and construction industry. While there has been somedecline in the number of injuries in recent years, the level of workplace fatalities,injuries and disease remains unacceptably high and there is little evidence of anyreal or lasting impact of the various OHS policy initiatives which have beendeveloped.122

All jurisdictions have, in recent years, reviewed the way in which the building andconstruction industry is regulated. Significant change and innovation has emerged fromthe work undertaken. Examples to which I have been referred include the revisedlegislative framework introduced by Queensland; the development of a memorandum ofunderstanding with major contractors123, the use of the ‘Subby Pack’124, and the safedesign initiatives in New South Wales to which I will return below; and the development ofindustry specific guidance materials in Victoria. In each jurisdiction, a significant amountof the jurisdiction’s health and safety resources are allocated to the overseeing of the


building and construction industry. Several jurisdictions have specific building andconstruction teams. All have building and construction specialists. Formal building andconstruction industry consultative mechanisms are in place in all jurisdictions except theCommonwealth. In all cases, the consultative forums include both employer and workerrepresentation. In most cases, representation is drawn from the key employerassociations and unions. These forums are used as a basis for information exchange, todiscuss and debate current issues, to establish and monitor priorities for action, and toreview health and safety progress in the industry. These initiatives reflect a considerableamount of time and commitment from government agencies, employers (and theirorganisations), and unions working together. It is important to recognise and capitalise onthat work. There is a real need to draw the results together. While there has been somesharing of knowledge between jurisdictions, the main impact of most of these initiatives isin the initiating jurisdiction. Ways must be found to better share emerging issues and toensure that when effective solutions are found in one jurisdiction, they are more rapidlyadopted throughout Australia. Put simply, Australia cannot waste the resources and effortthat it can devote to occupational health and safety in the building and constructionindustry, as it now does by failing to ensure that the good work that is done in one Stateis quickly passed on to others. No workers anywhere in Australia should be deprived ofthe benefit of initiatives that have been found and successfully applied in another State.

88 The National OHS Strategy represents a long overdue consensus between governments andthe representatives of employers and employees. I do not propose to make anyrecommendations that might disturb that consensus.

89 However, I am concerned that all of those who have subscribed to the National OHS Strategyshould be accountable for its implementation.

90 As I have said earlier, I am also concerned to bring the work of drawing up and giving effect touniform national building and construction industry standards into the National OHS Strategy.

91 Several States made submissions that supported the utility of such an approach. DCEPWA, forexample, submitted that

While the development of national standards has been somewhat slower than desired, itis considered that the National Occupational Health and Safety Commission is wellplaced to play a key role in this regard, with the recently endorsed National Strategyproviding a useful vehicle by which to progress this approach.125

92 WRMC has asked NOHSC to report annually on progress made in implementing the NationalOHS Strategy, and to ensure that it is reviewed and refined.126 I consider that the best way inwhich to hold the Commonwealth, State and Territory Governments, and the ACCI and theACTU and their members, accountable for the targets and priorities set out in the National OHSStrategy is ensure that the reports made by NOHSC:

(a) contain the information that would enable the public to know whether the National OHSStrategy was being implemented effectively, and if not where and why it is not, and howit might be improved; and

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(b) are not confined to the WRMC, but instead are in the public domain so that they can besubjected to scrutiny and debate.

The report should make specific reference to the uniform national building and constructionindustry standards.

Issue

The National Occupational Health and Safety Strategy 2002-2012 represents a longoverdue consensus between governments and the representatives of employers andemployees about the way forward in improving occupational health and safety. It offersthe best opportunity in many years to effect such improvements. However, havingregard to the failure of attempts to improve occupational health and safety in the past, itis important that those who have subscribed to the National Occupational Health andSafety Strategy 2002-2012 should be accountable for its implementation, and thatreports of progress are exposed to public scrutiny and debate.

Recommendation 21

The Commonwealth take appropriate steps to ensure that any annual or other reportmade by the National Occupational Health and Safety Commission to the WorkplaceRelations Ministers’ Council on progress made in implementing the NationalOccupational Health and Safety Strategy 2002-2012 contains:

(a) in so far as it is possible having regard to the information that is available, astatement of the incidence of work-related fatalities and workplace injury in thebuilding and construction industry in each State and Territory, and an expresscomparison between the incidence of such fatalities and injuries and the targetsstipulated in the National Occupational Health and Safety Strategy 2002-2012;

(b) a statement setting out the opinions of the National Occupational Health andSafety Commission, including those of the Chairperson and Chief ExecutiveOfficer thereof, as to progress in implementing the National Occupational Healthand Safety Strategy, and in particular in meeting the targets stipulated therein, andas to whether any aspect of the National Occupational Health and Safety Strategy 2002-2012 or its implementation could be refined or improved;

(c) a statement setting out the action that has been, is being or is proposed to betaken by each of the Commonwealth, the States and Territories, and the AustralianChamber of Commerce and Industry and the Australian Council of Trade Unions toimplement the National Occupational Health and Safety Strategy 2002-2012, andstipulating the time that has or will be taken to undertake and complete each suchaction; and

(d) a statement setting out the action that has been, is being or is proposed to betaken by each of the Commonwealth, each State or Territory, and the AustralianChamber of Commerce and Industry and the Australian Council of Trade Unions


Driving cultural and behavioural change in the building and construction industry

Introduction

93 In my view, what is needed above all else is cultural and behavioural change in the industry.Baulderstone made this telling submission:

When we ask people on our sites ‘What are you here for?’ we receive an immediateresponse – ‘Get the job done’. Clearly this industry has been able to achieve a strongmessage to all of its participants: We have to get the job done, on time, on budget. Whenyou ask the same people, ‘What happens if getting the job done conflicts with safety?’,you do not get an immediate answer. No one tends to spontaneously say, ‘Don’t proceeduntil it is safe’, instead you get silence of deliberation, in other words, people are unsureof what to do. Whenever people are uncertain of what is required there is the chance theywill take risk and expose themselves to the prospect of injury.

Too many people in the industry continue to take risk by not observing what are, usually,well recognised safe operating procedures for which they have been trained.

…the traditional messages in the industry have not been clear enough to support thedesire to work safely at all times.127

94 The need to drive cultural and behavioural change was widely recognised by the participants inthe Workplace Health and Safety Conference.

(a) The ACA’s representative, who was also the general manager of environmental safety forthe Walter Construction Group Ltd (Walters), and the chairman of the Construction SafetyAlliance of New South Wales (CSANSW), said:

to draw up or give effect to uniform national building and construction industrystandards, and stipulating the time that has or will be taken to undertake and completeeach such action.

Recommendation 22

The Minister for Employment and Workplace Relations cause to be tabled in eachHouse of the Parliament a copy of each annual or other report made by the NationalOccupational Health and Safety Commission to the Workplace Relations Ministers’Council on progress made in implementing the National Occupational Health and SafetyStrategy 2002-2012.

Recommendation 23

I also recommend that the Comparative Performance Monitoring project be continued,and be developed so it can be used to measure, understand and improve theimplementation of the National Occupational Health and Safety Strategy 2002-2012,and to allow as far as possible measurements and comparisons at the project level.

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…for the last 10, 20 years, we’ve struggled with prosecutions, penalties, reports,investigations, changes in workers comp. At the end of the day, nothing’s reallychanged the way we operate in the business. Those things haven’t worked. Unlessover the next couple of days [of the Conference] we can focus on some structuralchange to the way we operate within the industry, nothing will change either…128

(b) MBA Inc said:

It is very much a case you can take a horse to water, but you can’t make it drink.The point here is that while we encourage the adoption of better practices, if theculture isn’t there, if the commitment isn’t there, then it’s very difficult, despite thelegislative framework, to make things happen if the will on the site isn’t there.129

95 Professor Tore Larsson, of the Monash Accident Research Centre, identified what I consider tobe the real problem when he told the Workplace Health and Safety Conference that ‘theredon’t seem to be any agents for prevention and change in the system’.130

96 He went on to express the view that legislation and regulation was ‘a very, very poor tool forprevention’.131 In many respects I agree; importantly, I do not believe that more legislation orregulation will drive the cultural and behavioural change that is needed in the building andconstruction industry. As the CFMEU submitted, ‘it is the culture, rather than the jurisdiction,that needs to be changed’.132

97 It is instructive to return to the fundamental principles of the Robens model to ascertain thefoundational principles of the legislation and regulation that is now in force in Australia.

98 The Robens Committee in 1972 identified two defects in the system of occupational health andsafety law which then prevailed in the United Kingdom, and that was replicated in Australia:

(a) One defect was that more than a hundred years of practical empiricism had produced‘too much law’133 in an ‘haphazard mass of ill-assorted and intricate detail’.134

Importantly, the Robens Committee found that:

The existence of such a mass of law has an unfortunate and all-pervadingpsychological effect. People are heavily conditioned to think of safety and health atwork as in the first and most important instance a matter of detailed rules imposedby external agencies…135

I consider that these observations hold good today.

(b) The second defect identified by the Robens Committee was that the prevailing legislationwas ‘intrinsically unsatisfactory’.136 In the view of the Robens Committee one reason whythis was so was that the legislation did not address what it found to be ‘the real,underlying problems’.137 It did not address ‘the attitudes, capacities and performance ofpeople and the efficiency of the organisational systems within which they work’.138

99 Applying these principles to the material before me, I have come to the following conclusions:

(a) There is a limit to what can be achieved by legislation and regulation.

(b) Subject to the views and recommendations that I have discussed in this volume of theFinal Report, simply adding to the legislation and regulation of the kind we already have


would certainly be antithetical to the fundamental principles of the existing legislation, andprobably counter-productive.

(c) The statistical analysis of the occupational health and safety performance of the buildingand construction industry in Appendix B demonstrates an improvement over areasonably significant period in the performance of the industry, as with industry as awhole. I do not doubt that some – perhaps even a significant amount – of thisimprovement can be attributed to the legislation and regulation that has been in forceduring that period.

(d) However, the statistical analysis also demonstrates that the building and constructionindustry, which has a long history of being among the most dangerous industries, has notmanaged to catch up with other industries. Its poor relative performance continues.Many of the problems in occupational health and safety in the building and constructionindustry have proved intractable to legislative and regulatory intervention. Some otherform of intervention – something else that could drive change – is needed.

(e) The necessary intervention must be something that drives participants in the industry todo what the existing legislation and regulation throughout Australia already requires themto do. As I have pointed out, in every jurisdiction in Australia legislation already clearlyestablishes that employers and others who have control of the conditions andcircumstances in which work is performed have a duty to provide a safe working system,and that employees have a duty to act with a proper regard for their safety and that ofothers. It is no longer necessary to establish these duties. No one now can doubt thatthey exist, that they are binding, and that they are important. However, it appears that itis necessary to influence head contractors, subcontractors and employees to carry themout. The chairman of the Queensland Taskforce told the Workplace Health and SafetyConference that the real problem was:

[H]ow do we encourage obligation holders to actually do what the law requiresthem to do without relying on either an inspectorate or a union or a worker or agovernment agency, how do we actually get employers and obligation holders tocomply[?]139

(f) Furthermore, I doubt that legislation or regulation has the capacity to respond to thecomplexity of the problem. The chief executive officer of MBA Inc told the WorkplaceHealth and Safety Conference that:

The problems that we see are obviously very complex. There are many interfacesor forces that are at play and therefore to simply recommend a one-size-fits-allsolution isn’t going to work.140

The chairman of the Queensland Taskforce endorsed this observation:

We have got subsectors within sectors, we have got major contractors that havegot the expertise and the resources to implement safety systems, we have got rightdown to the lowest element of single self-employeds, who have neither thecapacity, understanding or will, and it is a very complex issue.141

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In my view, it is impossible for legislators and regulators to identify, anticipate and dealwith every aspect of such a problem, at least without re-creating the haphazard mass of ill-assorted and intricate detail that was rightly deprecated by the Robens Committee.142

100 I am confirmed in these conclusions by the proceedings of the Workplace Health and SafetyConference. Many of the participants urged that something other than more legislation andregulation was needed. For example:

(a) The occupational health and safety manager of MBANSW said:

Doing what we have done in the past will not achieve the outcomes we werelooking for... What we have done in the past will not achieve that. We have to lookout of the square itself...[We] have to look at other things, some of the things thatwe have put aside that are too hard, some of the things - looking at a way ofisolating OH and S issues from the competitive process. It is a very hard thing totackle, but I think we should start to try and deal with it. I think it will give us someimprovement.143

(b) The Victorian WorkCover Authority’s representative told the Conference that the impactof regulation is ‘marginal’, because regulation is left ‘mopping up’ after the commercialdrivers in the industry. In the result, in his view,

from a regulatory point of view, improvement can be obtained, but it is less thanthat which would be attained by targeting at the major drivers of this industry, whichis that it is arguably one of the most competitive environments of any industry thatexists in our economy.144

101 I therefore propose to look beyond legislation and regulation for the drivers that might effectcultural and behavioural change in the industry.

102 The minerals industry has recently managed successfully to address a very poor occupationalhealth and safety performance. The minerals industry is in many respects similar to the buildingand construction industry. Obviously there are points of difference. Those differences maymean that the way in which the minerals industry has gone about transforming its occupationalhealth and safety cannot readily be transposed to the building and construction industry. Itwould require careful study to know whether this was so. However, it seems to me that thereare at least two critical features of the mineral industry’s approach. One is that the industry’speak body, the Minerals Council of Australia, agreed that safety would become its first priorityfor action with the object of bringing about ‘an Australian minerals industry free of fatalities,injuries and disease’. The second is a recognition that effective leadership at a senior level is acondition of enduring change. This was carried through at the highest level, such that chiefexecutive officers became personally involved.145 I have no doubt that if the building andconstruction industry were to adopt these two features of the mineral industry’s approach, ittoo could transform its occupational health and safety.


Some significant features of the building and construction industry

Introduction

103 The industry presents particular problems. The working environment on a building orconstruction site constantly changes. Even if a hazard is identified and dealt with, the sitechanges, bringing new conditions, tasks, workers and hazards. There are usually manycontractors working on the same site together, and control of the workers on the site is diffuse.Structurally the industry is characterised by the number of small firms, many of which have anunsophisticated approach to occupational health and safety, and limited time and resources.

104 The Victorian WorkCover Authority put it in this way:

Building sites are dynamic workplaces with large numbers of people often undertakingdifferent tasks or different employers side by side. Often these sites are characterised bya degree of control by the head contractor in relation to health and safety, however,difficulties arise in establishing the responsibility of the various parties in charge ofnumerous simultaneous activities when there may be numerous contractual agreementsin place.146

105 The CFMEU informed me that it believes that:

(a) ‘[The] industry comprises 95,000 enterprises, most of which are undercapitalised, withless than 10 employees.’

(b) ‘84 per cent of small firms which began in the industry since 1973 have gone broke.’

(c) ‘Structural changes in the industry in recent year[s] have resulted in an increase incontracting and subcontracting, greater in the industry than in most other industries, anincrease in the use of labour hire, and an increase in fly in, fly out workforces.’

(d) ‘Of its nature, the industry is itinerant. More than 175,000 workers – that is about 25 per cent of the industry – have held their current job for less than one year. About 45per cent of the industry’s workforce have been in their current job for less than threeyears.’

(e) ‘Literacy and numeracy skills are poor, relative to other industries.’147

106 It is impossible for any inspectorate to supervise every building and construction site. Unlessthere is an accident that draws attention to a problem, the risk of prosecution is low. Againstthis, there is often a perception that money can be saved by compromising on safety. In theresult, the practice of builders and subcontractors cutting corners on safety is widespread, andit is often condoned by management and ignored by clients.

107 There is no doubt that the industry is inherently risky. Reducing Serious Injury Risk in theConstruction Industry accurately described the elements of the problem:

[The] relatively high rate of injuries in construction is not altogether surprising, when oneconsiders that construction, by its very nature, ranks high on fundamental risk factors.These inherent physical risk attributes in construction include:

• exposure to high energy levels

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• falls from height

• mechanical equipment (power tools, through to mobile plant)

• electricity

• heavy masses (building materials, earth, etc[)]

• larger variety of material movement and handling

Construction is a complex industry marked by diffuse control and temporary work sitesthat are occupied by a multitude of trades, and comprises a large range and mix ofdifferent occupations, activities and risk factors. The construction industry is also broadranging, covering diverse areas ranging from low rise domestic and multi-storeycommercial construction to large scale civil engineering works. It operates with a widevariety of materials including fabrication in steel, concrete or timber.148

108 The physical risks inherent in the industry are obvious. One of the striking – and in my viewdisappointing – features of the industry is that the hazards have been apparent and recognisedfor some time, but the response to these hazards has largely been tactical. Inevitably, therehave been gaps. The Health and Safety Executive recently observed of the building andconstruction industry in the United Kingdom:

Despite countless health and safety initiatives and campaigns, the industry remainsdangerous. What is even worse is that almost all of the deaths and injuries that occur areforeseeable and preventable. We have known for years how to prevent them, but theystill happen – often in the same old ways.149

The same can be said of the industry in Australia.

109 In my view, what has been lacking has been effective strategic interventions that strike at thecauses of the problem.150 I will discuss some of those causes in the next sections of thisvolume of the Final Report.

The effects of competition

110 During my meetings with some of the leading participants in the industry, I was told thatthroughout all levels of the industry, contractors and subcontractors operate on very small profitmargins. This originates at the top level, where head contractors tender on the basis of smallprofit margins or, often, at cost. Representatives of governments and other industry clients saidthat major contractors may sometimes ‘buy’ work. Governments and clients will accept atender price which is seen to be very low when regard is had to the nature of a project andother tender bids, if that tenderer is known to understand the scope of the project and to beotherwise considered ‘reliable’ by the client. As a result, for a head contractor to ensure profitat the end of a project, considerable pressure is often applied by the head contractor with theaim of reducing the costings provided by tendering subcontractors. This same process is thenreplicated down the chain of sub-subcontractors.151

111 I was also told that the highly competitive nature of the industry and the low profit margins onwhich contractors and subcontractors operate has a direct effect upon quality of workmanshipand safety. Commercial pressure upon subcontractors, which is exacerbated if progress


payments are not made or amounts less than the full agreed contract sum are not paid, lead tosubcontractors taking shortcuts in their work.152

112 Subcontractors informed me that bid shopping is commonplace, and creates enormousproblems and, given that tenders are usually prepared on the basis of slim profit margins,requires subcontractors to, in turn, put pressure on the tender prices they seek fromsub-subcontractors. It leads them to take short-cuts in order that they are able to retain a profitat the end of the work. It is thus a practice which is commenced at the top level and, bynecessity, pushed down through each of the levels in the chain of contracting. It was said thispractice ‘goes all the way down the chain’, because ‘to survive, a subbie has to do it to thenext person below them in the chain’.153

113 This economic environment drives a culture where the objective of many subcontractorsworking in the industry is to finish the contracted work and leave for the next job as quickly aspossible. I have been informed, and accept, that in this culture safe work practices are oftenregarded as something that is likely to slow the work down and cost money. Seen in this way,unsafe compromises are likely to follow.

114 The State Secretary of the Victorian Branch of the AWU expressed the view that:

Good OHS is often the casualty of market place pressures.154

115 The evidence of the Divisional Branch Secretary of the CFMEU’s Victorian Building UnionsDivisional Branch was that:

…the commercial realities of construction projects, particularly large projects, generateenormous pressures and forces to reduce safety. The industry is enormously competitiveand many players are fighting for work at each level of the contract chain. The pressureon contractors to bid low for jobs, even bidding at a level where the bidding contractor isbound to lose money, which are known as suicide bids, is often overwhelming.Contractors often take on jobs on terms that would lose them money unless they canclaw back a higher price through variations to the contract during the life of the project.On every project, pressure is constant for everyone to find costs which can be trimmedback.155

116 The CCF expressed the same view:

The highly competitive nature of the industry has in fact limited cultural change. TheIndustry is too often a price driven industry and not one of quality outcomes throughcontractual and tender requirements. In respect to OH&S it is therefore fair to say, thatthe price driven nature of the industry may have in effect provided negative outcomes inrespect to occupational health and safety.156

117 The Queensland Taskforce

… identified the competitive nature of the industry and the failure to have a level playingfield as critical issues in the search for greater compliance. Many submissions insistedthat if there was a choice of allowing for reasonable safety and losing the tender, then thecommercial pressure to survive would be too great and that adequate provisions forsafety may well be compromised.157

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118 AIG and ACA submitted:

All parties in the industry need to recognise that intense competition based on price willultimately impact on OHS performance eg acceptance by contractors of unreasonableproject schedules. Competition based on price alone will ultimately marginalise safetyconcerns. Profit margins eroded by unreasonable price competition are often subsidisedby reduced resources applied to management of OHS. Where price and schedule arethe only contract selection criteria, sub-optimal OHS performance will follow.158

119 A number of reasons why this is so are discussed in Safely Building New South Wales, a reportprepared in 2001 by WorkCover NSW:

…a number of principal contractors are reportedly prepared to compromise safetystandards to win tenders. Even though such organisations are small in number, they putmajor pressure on all elements of the industry. Such firms appear to mostly operateamong the ‘second tier’ builders and on projects with overall budgets at or below$3 million. On these lower budget sites, principal contractor margins are tighter andsafety standards and expectations are relaxed.159

There are tensions on site between profit, production and safety. Contractors will insiston safety procedures at the same time as applying financial pressure to meet what aresometimes unrealistic deadlines…

Contractors complain that subcontractors bring low safety standards with them fromother jobs. The lack of a consistent standard (particularly between the major principalcontractors and the second-tier principal contractors) continues to affect the safety levelson sites. Subcontractors echo this concern, explaining that it is difficult to maintain highsafety standards at a site where other subcontractor safety levels are of a lowstandard.160

There is strong evidence to suggest that principals from both tiers are willing to awardtenders to subcontractors with untested, or poor, safety practices. Two interviewees atthe site level reported that it was current practice for project management to award to thecheapest tender bid (those subcontractors who are least equipped to perform safely)and with the savings, ‘manage the safety problems’ as they arose. This perversion of riskmanagement was broadly recognised as a practice in the industry.161

The majors themselves are placing pressures on subcontractors. Contractors insist onsafety compliance at the same time as applying financial pressure to meet what aresometimes unrealistic deadlines. It is very widely believed that subcontractors improvetheir margins by compromising safety. In an environment where work is getting harder tocome by and margins are getting tighter, this has the potential to be a growingproblem.162

There are tensions on site between profit, production and safety. Contractors will insiston safety procedures at the same time as applying financial pressure to meet what aresometimes unrealistic deadlines.163

It is commonly believed that subcontractors improve their margins by compromisingsafety.164


…[S]ubcontractors are getting smaller in the interests of reducing fixed overheads. Oraltestimony corroborated comprehensive statistics on this trend. Smaller subcontractorshave greater difficulty managing their own safety systems.165

Subcontracting

120 The Queensland Taskforce pointed to research which suggests that subcontracting, and therelated phenomenon of self-employment, are related to higher incidences of serious injuriesand fatalities. The research suggests four reasons why this might be so:

• Subcontracting is a ‘payment by results’ system which is based on the amount ofwork not the time required, thereby encouraging contractors to minimise time tomaximise profit.

• Subcontractors are, or work for, small businesses, which are less likely to haveoccupational health and safety resources, knowledge or information.

• Subcontractors often engage in horizontal and vertical contract relationships inwhich responsibilities, tasks, levels of supervision and communication processesare more inclined to become disorganised or confused and ‘allow’ occupationalhealth and safety responsibilities to be avoided.

• Subcontractors are not well-covered by employment regulations or unionnegotiated collective agreements and retain minimal bargaining power.166

121 The Commonwealth appears to endorse the conclusion that some of the characteristics ofsubcontracting referred to above give rise to ‘negative OHS outcomes’.167

122 The point is made in Safely Building New South Wales that ‘management of subcontractors isa key feature in the success, or otherwise, of any OHS management system in this industry’.168

It explains why this is so, in terms with which I agree:

Time is money to subcontractors and competition is therefore high, driving down theprice for work performed. Increased competition is fuelled by the method of tender in theconstruction industry and financial returns are directly proportional to the amount of workcompleted in the shortest possible time-frame. So subcontractors tend to use thefastest, rather than the safest, ways of completing their work. In addition, they often worklong hours, take few breaks and ignore chronic injury problems resulting inunder-reporting of incidents.

Added to the above problems is a general ignorance of OHS risks and responsibilitiesand a lack of information and training, due primarily to the disorganised nature of asubcontracted workforce. This disorganisation is further compounded by the manysubcontractors and/or self-employed (sole trader) workers who may often not beeffectively covered by employment regulations or union-negotiated collectiveagreements, nor represented by trade-based associations.

On many construction projects complex relationships exist. Multiple groups ofsubcontractors are employed to carry out different trades concurrently and these tradesmay even interface with one another. At the same time, large subcontractors may

43


contract the work to smaller subcontractors (pyramid contracting) further convolutingrelationships, roles and responsibilities.

These complexities flow on to OHS. They create ambiguity, undermine OHSmanagement systems, or the ability to properly implement such systems, and in somecases may even lead to a deliberate avoidance of the legal responsibilities for OHS.169

A culture of cost-cutting

123 With these considerations in mind, there is substance in the view expressed to me byrepresentatives of the union movement that there is a culture of cost-cutting in the industry atthe expense of safety. For example:

(a) The view of the State Secretary of the Victorian Branch of the AWU was that ‘attention tooccupational health and safety in the construction industry is often regarded byemployers as an impost rather than an investment in a safe and productiveworkplace’;170 and

(b) the CFMEU asserted that ‘[t]he fundamental issue that must be addressed is the cultureof cost cutting that permeates the industry at all levels, and which has a particularlynegative impact on OH&S’.171

124 On the other hand, an executive general manager of Thiess Pty Ltd has argued persuasivelythat attention to safety has given his company a competitive edge.172 Many studies haveconfirmed that an improved occupational health and safety performance can enhanceproductivity and profitability.173 It has rightly been said that:

Information about the economic advantages of good OHS practice is urgently needed.174

The search for drivers

125 The range of the search for something that might drive cultural and behavioural change in theindustry is suggested by this submission by a consultant practising in occupational health andsafety in the industry:

…there is an easy and a hard way. A rigorous enforcement regime provided it is evenlyenforced in the current circumstances is justified. However, this has its limits and I do notsupport measures like the proposed “Criminal Manslaughter” Bills. That is the equivalentof “bringing back the cat [o’ nine tails]”. Those sorts of measures will be counterproductive and worsen an already bad situation…

These people have to demonstrate their awareness of the objectives of health and safetythat basically is about self preservation not only of the individual but their work mates aswell. The responsibility to ensure that these people measure up needs to be extendednot only to the builder but also the property owner and his agents that is the Architect,Project Manager, Contract Superintendent etc.175

126 Safety Building New South Wales provides a list of the major drivers of change in occupationalhealth and safety management. These include ‘increasing legislative obligations and changesto workers’ compensation payment and levy systems; client pressures especially governmentprocurement requirements; and parent company pressures’.176


127 Of these, the Workplace Health and Safety Conference identified commercial drivers,particularly in the form of client pressure, as having particular capacity to effect change. Forexample, commenting on the consideration by the Conference of the commercial drivers thatoperated in the industry, the chairman of NOHSC observed ‘that fundamentally is thechallenge…how do you reconstruct and set the system to deliver a different sort of outcomeand to use those drivers effectively to work towards health and safety, not against health andsafety’.178 He told the Conference that, if a ‘very powerful financial driver to perform better inrespect of health and safety’ could be found, then the building and construction industry couldemulate the improvement in the minerals industry.178

128 The ACA’s representative (who was also the general manager of environmental safety forWalters and the chairman of CSANSW) said:

The major driver within this industry is money. It’s a commercial operation. People set upbusinesses to make money. Now, whatever we try to do to improve the standards ofsafety will always be influenced by those commercial decisions, that are just part ofbusiness. It’s the area that is not addressed by legislation…

Within Walters, we’ve come from a fairly average performer to winning the national safetyawards last year. It took three and a half years to get there. The major driver,unfortunately, wasn’t…a moral argument, it was a financial driver there. The other driverwas the ability to win work. And it wasn’t until the recognition was there that you can’twin work in a particular area [of] focus - and for us that was the top end engineering work- you wouldn’t be in the business, and it was that client driver in the main that that turnedaround the whole focus of the company.

Where that driver doesn’t exist, there’s a completely different standard.179

Access to work as a driver

129 The evidence indicated that a commercial driver linked to the ability to secure contracts couldwork at all levels of the industry. For example, the chief executive officer of Baulderstone said:

…the thing that motivates subcontractors is the availability of future work. So if safety is akey criteria in our assessment of their ability to win the next job, then it gets moreattention, as it does with our clients on the engineering sector side, and it is for us.180

130 The proposition that head contractors and subcontractors would be motivated to improve theiroccupational health and safety performance if they knew that their capacity to obtain workwould thereby be affected found broad support among the participants in the WorkplaceHealth and Safety Conference. For example:

(a) In looking for a commercial driver, many of the participants in the Conference expressedthe view that ‘the actual and prospective loss of business was…the most important driverof change’.181 The essential element of their ideas in this regard was a recognition that

…there should be requirement to use competent persons to perform the work,and…a second essential element was some objective measure of competence,accreditation, licensing, or something of that kind.182

45


(b) The CCF’s representative told the conference that ‘…the real incentive to business orcontractors or organisations in the industry is the ability to be able to win work or putthemselves in a better opportunity to win work in the industry’.183 He said that CCF was

…firmly of the view that we need to ensure that people who either tender in thisindustry or certainly have an intent to work in this industry can demonstrateoccupational health and safety standards prior to getting to the work site and priorto being able to tender for work in this industry, and that needs to be through, as Isay, identifiable project outcomes and delivery of those outcomes previously, andestablishing a pre-qualification system clearly linked to registration or a tender list towork in this industry, call it what you like. But we cannot have good qualitycontractors in this industry who are prepared to invest in their workforces, intraining, in their own management systems, through all of those systems, all themanagement, have detailed management systems, have to compete against lesserquality contractors who perhaps can’t meet the same standards. It’sunsatisfactory. It reinforces the issues that you’ve been mentioning about cost andcompetition issues and so on and making it unfair.184

(c) MPMSAA’s chief executive expressed the view that:

…tender lists and tender assessments should include a qualification factor thatsomehow identifies those subcontractors who are capable of making acommitment to accident prevention. But in doing that, it would need to beidentified as a cost.185

(d) The acting director general of DCEPWA raised the idea of a ‘health and safetypassport’.186 In a later submission he explained that the ‘passport’ would linkoccupational health and safety competence with opportunities to obtain work. His viewwas that, if contractors and subcontractors ‘knew this was the only way to get work onthese projects this would lead to the promotion of self interest and could in part be acommercial driver’.187

131 Many of the submissions received by the Commission made the same point:

(a) The CCF submitted:

Exclusion from the tender list or client selection list would be the most powerfulincentive to any contractor or subcontractor for non-compliance with occupationalhealth and safety standards. This can be followed by a rigorous enforcementregime with national consistency to achieve better health and safety outcomes…if‘industry regulates industry at the time of tender’, the cost of a rigorousenforcement regime would be significantly reduced.188

And:

Whilst we continue to have an industry competing significantly on a cost drivenbasis and not by quality outcomes to National Occupational Health and SafetyStandards, we will continue to have poor quality contractors working in theindustry.


…

There is no doubt in the opinion of the Federation that we could achieve verysignificant improvements in Occupational Health and Safety in a short period oftime if we ensured that contractors who wish to tender for works in this industry areprequalified to minimum OH&S standards prior to being able to contract or tenderfor work in the Industry.189

And further:

If a greater market share was driven by a need to achieve prequalification orminimum standards in occupational health and safety prior to being able to tenderor work in the industry, we believe you would see a new level of leadershipundertaken by chief executive officers in their uptake and achievement of minimumworkplace health and safety standards. The opposite of this is that we continue tohave a price driven Industry which encourages a minimalist approach to OH&SManagement as it is considered a cost to business.190

And further:

From a contractor and subcontractor perspective, safety must become acontractual or tender requirement as stated above. For workers in the Industrysafety training and awareness must also be ‘Conditions of Employment’. Thiswould place great emphasis on all parties to play a significant role in themanagement of occupational heath and safety in the workplace. Again, this can[be] measured or audited through minimum training requirements for allpersonnel.191

And further:

Steps must then be taken to ensure that the performance based outcomes are themeasurement enabling registration or prequalification to work in this industry.Principal Contractors or clients who do not ensure that at the time of engagementthey are using contractors in the industry who meet minimum acceptablestandards and are registered to work in the industry should face prosecution orother serious penalties.192

And finally:

We must know the capability of parties working in this industry prior to them beingable to tender for work in this industry. Until this is achieved we will continually seegood quality contractors who are prepared to meet high standards of occupationalhealth and safety management and training of their workforce undercut in tenderprice by lesser quality contractors leading to workplace injuries and fatalities.193

The CCF has instituted a scheme of this kind with some success. The scheme issupported by the CCF Civil Construction Management Code, accreditation to which canbe used by contractors when tendering to demonstrate the quality of their system formanaging occupational health and safety.194 The CCF’s representative told theWorkplace Health and Safety Conference that the CCF was

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…promoting that standard to clients and we believe, of course, the take-up wouldbe far greater than it already is if we had some legal or formal recognition through alegal process or legislative process or greater client recognition that they’d only dobusiness with parties who can meet those types of standards.195

His view was that if government and private clients were prepared to promulgate anoccupational health and safety standard and then ‘say that this standard is required to dowork for those organisations’, then:

…we’d see an absolute dramatic uptake of occupational health and safetystandards and organisations taking a far greater interest in occupational health andsafety.196

(b) The Queensland Department of Main Roads submitted:

The traditional method of tender selection based on the lowest bid has not assistedin solving the problem. The practice of contractors buying jobs or bidding withextremely small profit margins places a strain on sub-contractors. A sub-contractormay face the dilemma of either making a loss, reducing the standard ofworkmanship or neglecting safety issues. Problems in many areas of a project canbe traced to a low tender bid.

A solution to this problem is to ensure that successful tender prices are fair andreasonable and contain sufficient margins for business to make an appropriateprofit. A method of achieving this; that is, gaining increasing support, is the use ofnon-price criteria in the selection process to determine the successful bid.

…

The use of prequalified contractors and registration of sub-contractors is a wayMain Roads is also enhancing performance in the road construction industry. Acontractor’s performance on a job may affect future eligibility to perform work forthe department. The contractor’s workplace health and safety record and itsmanagement are taken into account.197

(c) A similar scheme has recently been introduced in New South Wales. The CCF’srepresentative told the Workplace Health and Safety Conference:

I think the RTA in New South Wales is to be commended for their recent efforts. On31 July this year, they implemented a contractor registration scheme and for thefirst time, I think anywhere in the country, certainly in New South Wales of any of thegovernment agencies, we’ve seen a government department say that they requirecontractors, not just contractors but subcontractors as well, to be registered tominimum or to occupational health and safety standards before they can work ontheir projects. They’ve brought that in in a limited scope of works initially, in roadconstruction and related earth works, drainage works and bridge and formwork; forthe first two categories, above $100,000 and for bridge and formwork, above$50,000. The intention is to broaden that scope of work and lower the thresholddollar value over a period of time, until we have all contractors in the industryencompassing and embracing those standards.198


(d) AIG saw merit in:

…making the cost of OHS performance a transparent element of the tenderingprocess. This may require the insistence by the party higher in the contract chainthat a contractor have:

a relevant and contemporary OHS policy;

a commitment to consultation;

an established training strategy targeting the elimination/control of risks;

an established hazard identification and workplace assessment process;

a documented history of implementing risk control strategies;

competent and experienced supervisors and managers.199

132 A report prepared in 1999 for NOHSC discussed research into the effect that competitivepressure had on the occupational health and safety performance of many smaller businesses,and suggested that ‘supply-chain pressure’ was an ideal means of exerting ‘informal marketcontrol over the health and safety practices of trade contractors’ by reducing the ‘possibilitythat trade contractors tendering for contracts can be undercut by more unscrupulousoperators who are willing to jettison health and safety if it means winning a contract’.200

133 During the Workplace Health and Safety Conference, the CCF’s representative expressed asimilar view:

While we continue to see some segments, and I say some minor segments, of theindustry wrongly have the impression that management [of] occupational health andsafety is a cost to business and takes risks accordingly to win work, we are unfortunatelynot going to see a significant improvement in occupational health and safetystandards.201

134 The State Secretary of the Victorian Branch of the AWU expressed strong support for ‘a strategic approach to the management of the process of contracting in the constructionindustry’ by developing and using pre-qualification criteria for, among other matters,occupational health and safety. He considered that this would ‘provide the foundation forquality management of a project’.202

The role of clients

135 During my meetings with some of the leading participants in the industry, I was informed that atypical private sector client is a development company seeking to undertake a building project.To do this, the developer will approach a financier with a proposal for the completion of thatbuilding project, which will be subjected to a feasibility study by the financier. Approximately oneout of every twenty projects is approved by the financier. Financing arrangements vary, from 100 per cent finance being provided, to syndication and trust arrangements being created,down to only ‘seed’ money being provided, dependent upon the size and nature of the projectand the parties involved. Financiers will often take an active role in the selection of the builder, asthey must feel comfortable with the head contractor chosen to undertake the project.203

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136 I was told also that a common approach by a client, both private sector and government, whenundertaking a major building project is to put the project out to tender on the basis of it being a‘design and construct’ contractual arrangement, with the contract requiring the project to becompleted within a fixed time period and for a fixed sum. Various other forms of contract arealso used within the industry, but the form determined will usually be determined by a riskassessment process performed by the client and its financier which is designed to ensure thatthe project risks are transferred to the head contractor. Their concern is to achieve the deliveryof the project on time and within budget. The risk assessment will often take into account theprevious ‘track record’ of the tendering contractors in being able to deliver similar projects ontime, within budget and with minimal disruption. Consideration will also be given to the financialcapacity of the contractor to meet liquidated damages, in the event that the project is notdelivered on time. It appears that, in the private building sector, the capacity of the headcontractor to build the project safely is rarely, if ever, taken into account.204

137 This is in marked contrast to what I was told about many private sector civil constructionclients, who require detailed plans to be prepared by the head contractor and will often take anactive role in the management of that plan and in the industrial relations arrangements on theirsites.205

138 I was told that, compared with civil construction projects, building projects are not managedwell by head contractors. It was said that head contractors on building works do not managesafety as well as it is managed on civil construction projects. This is largely because civilconstruction clients require their contractors to have safety plans in place and to rigorouslyimplement them. Views were expressed that this lack of management in the initial stages inbuilding projects often leads to difficulties later in the projects.206

139 An important theme in many of the submissions and evidence received by the Commission isthe role of the client in influencing safety in the building and construction industry. For example:

(a) AIG and ACA submitted:

Client activism on OHS issues needs to be encouraged. In this regard theperformance of the engineering and mining sectors contrasts with the buildingsector, with experienced, long-term clients demanding higher OHS performancestandards and monitoring performance during the life of the project.207

(b) Baulderstone submitted:

We know through our own experience, working in the heavy industry sector, thatclients here value safety and are actively involved in ensuring a safe project.Typically these are private sector, public companies.

Government clients on major civil projects are supportive of safety, but it is notdemonstrated with the same conviction that private sector clients in heavy industrydemand.

Building industry clients vary, but are generally not deeply interested in the safetyaspects of their projects.208

(c) In Perth the chief executive officer of Baulderstone gave evidence that


...if you’re working for one of the large industrial clients in Australia, then safety is akey determinant of whether organisations will be successful in winning the work.They will pass over lowest price, if they don’t believe the organisation has the rightapproach and the right track record in safety. So it is, in that sector, a very highpriority for the clients. In the building sector, the clients don’t give a damn…[T]hat isa very significant difference in a client driver, if you like, between the two sectors.209

(d) A safety consultant practicing in the industry submitted:

Price in the main is the major consideration with low regard to safety performance.

Building Consumers (Owners) could improve this by demanding more evidence ofsafety competency standards and require full details of selected sub-contractors inthe submitted tender documentation.210

140 The same theme was taken up by the Workplace Health and Safety Conference. For example:

(a) The occupational health and safety manager of the MBANSW said:

Dealing with the responsibilities of clients and how that impacts on safety in relationto unrealistic construction programs and deadlines, to say it doesn’t, I think we arefooling ourselves. It does…211

(b) The ACA’s representative (who was also the general manager of environmental safety forWalters and the chairman of CSANSW) spoke frankly about Walters’ experience:

The stakeholder that is missing is the client…In the engineering market, where theclient demands higher standards, the level of performance on our jobs is up here.When you work in the private building sector, where the client has no interest but toget that building up as cheaply as he possibly can and as quick as he possibly can,the standard automatically drops. There’s no question about it.212

(c) Later he said:

If the client cuts the principal to the bone, the only options left to the principal tomake money is to go to the lowest base price for a subcontractor, so the problemsare passed on right down the chain, right down to the lowest level, which is thesubcontractor and, unfortunately, it is the employee at the end, he’s the one thatsuffers for it in the main.213

(d) AIG’s representative told the Conference that ‘the owner of [the project] is actually theperson who’s got the best opportunity to influence results, because they have got thepurse strings’. AIG has pursued the question of what its representative at the Conferencecalled ‘client activism’. AIG’s view was that the ‘issue of client activism…is fundamental ifwe are going to find the driver of change…They are in the best position, by demandingthe high standards of their service providers, to ensure that we have performance’.214

141 Research in Australia has pointed to similar conclusions. In 1995 a study of small buildingcontractors found that:

Clients can have a very important effect on the attitudes of builders towards OHS.Usually, but not always, the influence is negative. The negative effect on OHS standards

51


can be seen when a client is unwilling to accept even a very small increase in price, ortime taken to complete a construction job, because of OHS.215

The same study pointed to the influence that some large coal mining companies (in theircapacity as clients commissioning large scale residential building projects) had had onoccupational health and safety standards:

Builders accepted the right of mining companies to impose conditions on their work that,if imposed by the [Queensland] Division of Workplace Health and Safety in the form ofregulations, would have met with resistance. If other clients, particularly large governmentpurchasers of housing, were willing to uniformly impose and enforce such conditions aspart of building contracts, then a benefit in terms of increased OHS awareness,compliance, and general standards of OHS may be gained…[The] potential remains forthe use of the government, through purchasing requirements, to set the benchmark.216

A 1997 study of small businesses in the industry in Queensland concluded that, while‘economic pressures were intense and frequently compromised OHS protective strategies’,‘economic incentives for improved OHS performance can also be strong motivators’. A government as a client demanding higher standards was cited as an instance of such anincentive.217

142 The important role that clients can play is recognised overseas. In the United Kingdom theHealth and Safety Executive has recently stated:

One of the leadership issues more specific to the construction industry is the role thatclients can play. Experience demonstrates that where they demand high health andsafety standards on their projects, these standards are achieved. Such clients see bestvalue (rather than lowest cost) and health and safety as integral parts of their projects.This helps ensure they run to time, budget and quality, and protect and even enhancetheir business reputation. It can also result in a more committed and focused projectteam with tangible benefits for all.218

143 A report prepared in 1999 for NOHSC examined the industry in the United Kingdom, andconcluded from research conducted there that

Pressure from a well informed client can be a major motivator for…contractors toimprove the different aspects of their management performance, including occupationalhealth and safety.219

144 One of the most developed schemes for giving a practical expression to the role of clients in thebuilding and construction industry is embodied in the Construction (Design and Management)Regulations 1994 (UK) (CDM Regulations).

145 WorkCover NSW describes the CDM Regulations as ‘the best international example of aholistic approach to improved safety’.220

146 The full text of the CDM Regulations is set out in Appendix D to this volume of the Final Report.In summary, under the CDM Regulations significant duties are imposed on clients. The clientmust appoint a planning supervisor and a principal contractor, both of which are responsible fordifferent aspects of health and safety management and co-ordination.


147 A health and safety plan has to be drawn up before a contractor begins to carry out or manageany construction work. A health and safety file has to be prepared containing informationneeded to alert contractors tendering for future maintenance, repairs, renovation anddemolition to hazards that would not be obvious to a competent contractor. This file has to begiven to the client at the end of the construction phase of the project and kept for futurereference by anyone proposing further work on the particular structure.

148 A key duty of the planning supervisor is to ensure that a precontract health and safety plan isprepared before construction.

149 Following the tender stage, the principal contractor is responsible for the development of thehealth and safety plan. This should include:

(a) arrangements for ensuring the health and safety of workers and anyone else affected bythe work being carried out; and

(b) arrangements for monitoring and ensuring compliance with health and safety law.221

150 In my view, it is time to begin to bring clients into the requirement to promote occupationalhealth and safety on their projects. One way to do that would be by prescription. The CDMRegulations are apparently the leading instance of this approach. There was broad supportamong participants in the Workplace Health and Safety Conference for the principles behindthe CDM Regulations.222 However, I consider that it would be premature to adopt thisapproach. A prescriptive approach to clients’ occupational health and safety obligations, andthe effect that that would have on the industry in Australia (including questions of theintersection of such an approach with existing standards and practice, and of cost) all requireconsideration and debate. The introduction of the CDM Regulations in the United Kingdom hasbeen attended by controversy,223 although there is evidence that there is now ‘generalacknowledgment that the regulations have ensured that occupational health and safety onconstruction sites is no longer the sole responsibility of contractors, but of everyone involved,starting with the client…’224 The Commonwealth can assist at two levels. One is to promoteand lead the necessary consideration and debate.225 NOHSC is the ideal vehicle.

Issue

To improve the occupational health and safety performance of the industry, cultural andbehavioural change is necessary above all else. To promote that change, a driverbeyond more legislation and regulation must be found. It is to be found in part in aproper appreciation of the effect that the fiercely competitive nature of the industry can,and does, have on occupational health and safety, and the role that clients can have inintroducing competition into the contractual chain. Clients can be a force for good in theindustry. Too often they are not. It is time to bring clients into the requirement to promoteoccupational health and safety on their projects. One way to do that would be to adoptthe prescriptive approach best exemplified in the Construction (Design andManagement) Regulations 1994 (UK). However, it is premature to recommend such anapproach. It requires consideration and debate. The Commonwealth should promoteand lead that consideration and debate. The National Occupational Health and SafetyCommission is the ideal vehicle.

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151 A second level at which the Commonwealth can assist in bringing clients into the requirementto promote occupational health and safety on their projects is to assume that obligation itself inits role as a client. By this means, it can lead by example, and provide opportunities forpractical study of the role of the client in promoting occupational health and safety. I will returnto this in a later section of this volume.

Safe design

152 It is now well recognised that:

Safety in construction begins with design, where some of the fundamental decisions aretaken which can have serious consequences for those who build structures, maintainthem and work in them. In some cases, designers may be the only people who caneliminate a hazard at source – the best possible control strategy as it eliminates aforeseeable risk. Designers are also well placed to reduce unnecessary levels of risk inthe industry. All too often, a design decision establishes a hazard, and the contractor,maintenance staff and even premises workers are then left to manage the risk as bestthey can.226

153 In my view, occupational health and safety in the building and construction industry ought tobegin at the design phase and not the commencement of construction. The executive generalmanager of Thiess Pty Ltd made this point when he wrote in 2001 in the foreward to SafelyBuilding New South Wales:

One of the unique characteristics of the construction process is the separation of designand construction that often creates a need to treat responsibilities for OHS separately. As the [Safely Building] Report concludes, often OHS risks on site are created bydesigners and other consultants. Often the Principal Contractor is not employed at thisstage and is therefore unable to control these OHS risks. The building process cannotjust be seen as the construction phase. As with many projects, the design and planningphases can be far more significant in terms of risks created.227

Recommendation 24

The Commonwealth take the appropriate steps to:

(a) cause the National Occupational Health and Safety Commission to investigate andreport on whether any measures in the Construction (Design and Management)Regulations 1994 (UK) should be adopted in Australia, whether in whole, in part orwith variations, such investigation and report to give special attention to the effectthat adopting those measures might have on occupational health and safety in,and any other aspect of, the building and construction industry; and

(b) ensure that the National Occupational Health and Safety Commission hasadequate resources for this purpose.


154 I wholeheartedly adopt this observation.

155 There is now considerable support in Australia for the view that safety should be addressed atthe design stage of a project. For example:

(a) A 1999 study of construction safety in Queensland found concern among participantsand regulators in the industry that building and construction projects were designed in away that put workers’ health and safety at risk during the building process.228

(b) Safely Building New South Wales notes European research that suggests thatapproximately 64 per cent of all construction industry injuries and incidents can be tracedto deficiencies in the design and planning stage.229

(c) The chairman of NOHSC has observed that:

Research also suggests that many fatalities, injuries and incidents could beprevented if far greater attention was given to OHS at the design and planningphases of a construction project.230

(d) The Queensland Taskforce recognised that designers had ‘the capacity to either designrisks out or minimise exposure’.231

(e) Reducing Serious Injury Risk in the Construction Industry concluded that:

An interactive OHS program involving architects, engineers, designers andtradesmen that actively considers how tasks are to be planned and executed isrequired.232

(f) The resolutions of the Safe Design Working Group at a recent New South WalesWorkplace Safety Summit are consistent with this proposition.233

(g) The National OHS Strategy also emphasises the need to eliminate hazards at the designstage.234

156 Submissions made to the Commission indicate a strong level of support for the advancementof safe design principles. For example:

(a) AIG and ACA:

We support the need to engage the design professions in a programme thatfocuses safety as a whole of life issue, through the construction andoperation/maintenance of the asset.235

(b) AMWU:

The AMWU supports initiatives to incorporate safe design principles in legislation.These should be considered by NOHSC, for consistency throughout state laws.236

(c) Chamber Commerce and Industry Western Australia:

Greater encouragement can be given to NOHSC to fast track the implementationof the safe design program with particular attention to the building and constructionindustry.237

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(d) CCF:

The Federation supports the initiatives being undertaken by various state regulatoryauthorities, clients and contractors in moving toward safe design. The Federationwould agree that design is an issue in fatalities, major injuries and workplaceincidents occurring in the construction industry.238

(e) CFMEU:

Architects, engineers and their clients obviously have a responsibility to considerthe prevention of injuries through intervention at the design and constructionplanning stages.239

(f) DCEPWA:

Worksafe similarly supports the need to advance the take up of safe designprinciples.240

(g) HIA:

HIA supports moves to identify and control hazards at the design stage through theuse of better design principles. This is clearly an area where governments and theSAA must take the lead.241

(h) MBA Inc:

The prospect of prescriptive legislation and an independent adjudication body,particularly if the relevant legislation provides for culpability of both clients anddesign professionals, would quickly focus these industry participants on an issuewhich has been in their interests to ignore.242

(i) Master Builders Association of Victoria:

Designers and developers need to be included in the equation to ensure that theyare aware that they can play a significant role in OHS in the design stage of allprojects, by ensuring the buildability of the project.243

(j) NECA:

The electrical and communications contracting industry has for many years workedclosely with wholesalers and manufactures with respect to the design of electricalproducts and systems. Feedback flows both ways on the design issues.244

157 An acknowledgement in Europe of the benefits of safe design led to the inclusion of safe designprinciples in the 1992 European Union Directive Temporary or Mobile Construction Sites.245

Several European Union member states have since implemented this directive, includingFrance,246 Italy,247 and most prominently the United Kingdom by the CDM Regulations. TheCDM Regulations require clients, designers and others to turn their minds to the topic ofconstruction safety. These obligations are set out in Appendix D. In short, designers must‘ensure that designs prepared for construction work pay adequate regard, amongst othermatters, to the need to avoid foreseeable risks to the health or safety of constructors and tocombat such risks at their source.’248


158 There is no parallel to the 1992 European Union directive on safe design applying to Australianconstruction. However, there have been some initiatives that recognize the benefits. TheConstruction Hazard Assessment Implication Review (CHAIR) developed by WorkCover NSWtogether with major construction companies249 and the Risk and Opportunities in Design(ROAD) process of Bovis Lend Lease250 are two examples. These initiatives recognise the injuryprevention benefits of the safe design approach. The NSW Workplace Safety Summit in July2002 reinforced this view (with regard to industry generally) and resolved that:

Effective prevention requires:

Locating responsibility for the elimination or control of risk at the source, whether that bethe designer, manufacturer, importer, supplier, or in the workplace.

Clients, controllers of the workplace, and employers ensuring that safe design is anintegral part of their purchasing and contractors policy.

End user consultation and testing being an integral component of the design andprocurement process and capacity to achieve safe workplaces.251

159 The CDM Regulations in the United Kingdom, and the initiatives in the construction industry inNSW as a result of the memorandum of understanding between a group of principalcontractors and the NSW Government, both result in dialogue amongst partners in theconstruction supply chain. They are not a panacea. Some focus group research in the UnitedKingdom has shown difficulties in implementation.252 In NSW the ‘CHAIR’ tool has beenevaluated through implementation by a small number of large builders with encouraging resultsin respect to improved consultation, highlighting unperceived hazards, and improvedcreativity.253

160 Some Australian jurisdictions have gone some way to requiring designers to ensure thatworkers constructing a building are not exposed to hazards created by the design of thebuilding.254

161 In my view, it is now time to give the principles of safe design real focus and practicalapplication in the building and construction industry in Australia. Again, one way to do thiswould be to adopt the CDM Regulations in so far as they relate to safe design. However, forthe reasons I have already given I consider that it would be premature to do so. Again, theCommonwealth can assist at two levels. One is to promote and lead the necessaryconsideration and debate. My recommendation that the Commonwealth cause NOHSC toinvestigate and report on the adoption of the CDM Regulations in Australia goes some waytowards this. The CFMEU supports this course.255 However, I consider that something moreis appropriate.

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162 The second level at which the Commonwealth can assist in giving focus and practicalapplication to the principles of safe design is to itself adopt those principles in its role as aclient. I turn to this in the next section.

The Commonwealth as a model client

Introduction

163 During my meetings with some of the leading participants in the industry, a number of people,from both a head contractor and subcontractor perspective, expressed the view thatgovernments are unsympathetic to taking appropriate action to change current workplace andindustrial relations practices in order to effect wider behavioural and cultural change within theindustry. It was said that if government is seeking positive change within the industry, it shouldbe prepared to identify projects which might be used as test cases and to fund any additionalcosts that might arise from doing so.256 The same approach can apply to safety. Governmentsmust be prepared themselves to act as leaders if they want to bring about positive change inthe industry. The Commonwealth should take the lead.

Issue

Occupational health and safety should begin at the design stage of a project and notawait the commencement of construction. It is time to give the principles of safe designin construction real focus and practical application in the industry in Australia. One wayto do that would be to adopt the model of the Construction (Design and Management)Regulations 1994 (UK), which impose obligations on designers to consider theoccupational health and safety of building and construction workers. This should be thesubject of consideration and debate led by the Commonwealth. The NationalOccupational Health and Safety Commission is the ideal vehicle.

Recommendation 25

In order to build momentum for safe design in the building and construction theCommonwealth take appropriate steps, either itself or with the assistance of theNational Occupational Health and Safety Commission or such other Commonwealth,State or Territory body as it considers appropriate, to:

(a) develop and publish guidance for public and private sector organisations to use,to measure and report on safe design performance;

(b) develop and publish criteria for investment funds to use to assess theperformance of building and construction industry participants in relation to safedesign; and

(c) encourage investment funds, including superannuation funds, to use the criteriaso developed.


164 A number of people expressed the view that governments should be playing a more proactiverole in seeking positive cultural change. It was said that governments should be prepared tospend additional money on their projects, in order to test different contractual and behaviouralmodels which might lead to positive change within the industry. I was also told that theCommonwealth Government should seek to have a greater ‘say’ in how its funds are spent byState and Territory Governments on building and infrastructure works, with the objective ofseeking positive change within the industry.257 I agree with, and propose to act on, bothstatements.

165 It appears that governments often fall short in this important area. I was told that governmentagencies expending funds on civil construction and infrastructure works appear to conform tothe practice prevalent in the building industry of not wishing to become involved in employmentand industrial relations arrangements on their sites.258

166 This often extends to considerations of occupational health and safety. Grocon, for example,stated that it had:

…no regrets about the resources and the efforts it puts into safety but in the tenderingsystem there is no real reward for the company. For example, governments continue toaccept lowest tenders with apparently little regard for the safety record of the winningtenderer. Governments and private clients want safe conditions on their projects but donot want to meet the costs of the kind that Grocon provides.259

167 An independent occupational health and safety practitioner told the Workplace Health andSafety Conference:

One of the biggest clients in this country is the government. The government is the onethat has the greatest opportunity and position in this country to start to effect somechange in standards of construction. They are one of the biggest clients…But what doesthe government do? Most government projects are set up in the same competitive modelas private industry. They endorse the competitive model. They encourage employers andmajor contractors to engage in this competitive model…that works against occupationalhealth and safety.

…So the government, in my view, the government – and I am saying as in all StateGovernments, local authorities, Commonwealth Government – has the ability tocollectively make a huge change through moving the industry away from the competitivemodel that exists, that we all know and we have all admitted works against occupationalhealth and safety gains.260

168 The Commission searched available statistical information in an effort to determine the size ofthe Commonwealth’s participation in the building and construction industry. This searchrevealed the surprising result that, although statistics are available which quantify thecontribution of the public sector generally, these statistics do not isolate the whole of theCommonwealth’s contribution in a meaningful way. There are figures which quantify the value ofwork done by Commonwealth employees, but these exclude work done by Commonwealthcontractors. The Commonwealth does not co-ordinate its efforts in this regard through any oneagency or department. Nevertheless for present purposes it is possible to conclude from suchmaterial as is available generally that the Commonwealth’s contribution is sizeable and

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influential. The Commonwealth (by which I mean also its departments or agencies) is in relationto some projects the direct client, and in relation to others provides a range of funding to Statesand Territories and other grant recipients which may result in construction activity. Constructionactivity indirectly funded by the Commonwealth is delivered through a variety of program andgrant funding mechanisms, including Specific Purpose Payments, Financial Assistance Grantsand Commonwealth–State agreements. These funding arrangements may include a capitalexpenditure element which can be used for construction projects. In the rest of this volume, I will refer to all of these projects – that is, projects for which the Commonwealth or itsdepartments and agencies are the direct client, and those for which the Commonwealthprovides or contributes funds or other assistance – as ‘Commonwealth projects’. In doing so, Ido not wish to obscure the differences between these projects. In particular, I acknowledgethat what the Commonwealth can do directly as a client, it must require others to do when itsinvolvement is limited to providing or contributing funds or other assistance. In the latter case,the Commonwealth must make its requirements in relation to occupational health and safety acondition of providing or contributing funds or other assistance whenever it can do so.

169 The size of the Commonwealth’s contribution to the building and construction industry,whether as sole client, joint venturer or provider of funds or other capital, presents as anopportunity not to be missed for the Commonwealth to demonstrate leadership as a modelclient in the field of occupational health and safety.

170 Two considerations at least point to the value of the Commonwealth assuming the obligationsof a model client in terms of occupational health and safety. The first relates to its substantialcontribution to the industry as a client, directly or indirectly. Any occupational health and safetyinitiatives on Commonwealth projects inevitably will have direct and flow-on effects for theindustry. The second – and perhaps the most significant – consideration is that by attending toits own projects, and to those that it is in a position to influence, the Commonwealth can leadby example. It can demonstrate that real gains can be made, not simply by prescribing theconduct of others, but by practical demonstration of method and result. There is nothing novelin these considerations. The National Code of Practice for the Construction Industry (NationalConstruction Code) is expressly predicated on the capacity of the CommonwealthGovernment, as with other governments, to use its purchasing power and influence to promotereform.

Summary of my proposals

171 In my view, real gains can be achieved by the Commonwealth as a model client providingdrivers for improved occupational health and safety at a number of levels, including:

(a) Procurement

The Commonwealth’s procurement arrangements should be reformed to ensurethat proper attention is given to occupational health and safety.

(b) Safe design

Safe design principles should be incorporated in all Commonwealth projects.

(c) The work of the Joint Parliamentary Committee on Public Works


The Joint Parliamentary Committee on Public Works should be given the authorityto consider occupational health and safety when inquiring into and reporting onpublic work in the building and construction industry.

(d) The introduction of a new Commonwealth Pre-Tender Occupational Health andSafety Qualification (PTOHSQ) Scheme

A scheme should be introduced whereby head contractors wishing to beconsidered as a potential tenderer on Commonwealth projects are required tosubmit to safety audits on a range of projects (including those for private clients)and to thereby gain necessary qualification before being eligible to tender on thoseprojects. Over time this process should be expanded to cover subcontractors. TheCommonwealth PTOHSQ would operate as a ‘badge of honour’ to recipients, andbe available to them to rely upon in negotiating tenders not involving theCommonwealth. The Commonwealth should model this scheme and promote itsadoption by the States and Territories and by private clients.

(e) Contracts

Head contracts relating to Commonwealth projects must require the headcontractor to have responsibility to co-ordinate the safety practices of allsubcontractors in conformity with an appropriate safety policy. In some cases, suchas projects that pose some special safety problem, it may be appropriate for thehead contract to lay down some more particular requirements, but in most cases itcan be left to the contractor to determine how it will discharge its responsibility.

(f) Increased use of workplace health and safety inspectors

On Commonwealth projects of a certain size the Commonwealth should assist theState or Territory where the building or construction is to take place to providedirect and regular access to the site by workplace health and safety inspectors toassist in ensuring compliance with the occupational health and safety requirementsof the applicable statutory regime. This can be achieved in a number of ways,including the provision by the Commonwealth of a grant to the State or Territory, ona project by project basis, to be used by that State or Territory in supplementing thebudget of the relevant occupational health and safety regulator with a view to theprovision by that regulator of enhanced supervision of the project.

(g) Promoting the presence of a dedicated health and safety officer on appropriatesites

On Commonwealth projects of a certain size the Commonwealth should require ofthe head contractor the presence on site of a dedicated occupational health andsafety officer whose duties ought to include at least:

(i) stewardship of safety committees;

(ii) overseeing (and participation in, to the extent necessary) of all job safetyanalyses that ought to precede the commencement of new work;

(iii) conducting audits of subcontractor safety procedures;

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(iv) ensuring rigorous adherence to applicable safety dispute resolutionprocedures;

(h) The creation of a new Office of the Commissioner for Occupational Health andSafety in the Building and Construction Industry

The Commonwealth should create a new office, provisionally called theCommissioner for Occupational Health and Safety in the Building and ConstructionIndustry (Commissioner for Health and Safety). The Commissioner for Health andSafety should have as the primary object the duty to promote and enhanceoccupational health and safety in the building and construction industry. TheCommissioner for Health and Safety should have responsibility for, amongst otherthings:

• overseeing and driving the introduction of the package of occupational healthand safety reforms recommended in this Final Report;

• establishing, reviewing, updating and maintaining a list of hazards andcontrols against which head contractors seeking pre-tender occupationalhealth and safety qualifications for Commonwealth projects are to beaudited;

• overseeing the conduct of such audits;

• issuing the appropriate pre-tender occupational health and safetyqualification to head contractors which have met the relevant requirements,and maintaining a register of occupational health and safety qualified headcontractors;

• administering the provision of funding for additional occupational health andsafety inspectors on the sites of Commonwealth projects;

• reviewing the terms of each proposed tender or contract that relates to aCommonwealth project so as to ensure that on sites where such a provisionis warranted a dedicated health and safety project officer is appointed by thehead contractor with the responsibilities outlined above; and

• ensuring that the occupational health and safety requirements of theImplementation Guidelines for the National Code of Practice for theConstruction Industry are implemented by the Commonwealth and itsdepartments and agencies, including by auditing and reporting on theirimplementation on particular Commonwealth projects.

(i) Development of the National Code of Practice for the Construction Industry(National Code) and the Implementation Guidelines

The National Construction Code, and particularly the Implementation Guidelines,should be amended to reflect the reforms outlined above.


Procurement

The Financial Management and Accountability Act 1997 (C’wth)

172 The Financial Management and Accountability Act 1997 (C’wth) sets out the financialmanagement, accountability and audit obligations on agencies (including Commonwealthdepartments) forming part of the general Government sector, for managing public resourcesefficiently, effectively and ethically. The ‘general Government sector’ in this context does notinclude all Commonwealth instrumentalities and enterprises.

173 The Financial Management and Accountability Act 1997 (C’wth) contains rules for dealing withpublic money and property. Many of the detailed rules are in Finance Minister’s Orders andregulations made under that Act. The regulations provide for, amongst other things, the issuingof Commonwealth Procurement Guidelines.

174 The chief executive of an agency is accountable for the agency’s procurement performance.Under the Financial Management and Accountability Regulations 1997, a chief executive of anagency is authorised to issue ‘Chief Executive’s Instructions’, which may include directions toofficials involved in procuring goods and services. Officials with procurement duties must act inaccordance with their Chief Executive’s Instructions and the Commonwealth ProcurementGuidelines.

The Commonwealth Procurement Guidelines

175 The Commonwealth Procurement Guidelines are issued by the Minister for Finance andAdministration. They apply to the procurement of all property and services by agencies.

176 As the Department of Finance and Administration (DOFA) notes, the CommonwealthProcurement Guidelines, ‘by outlining the fundamental policies and principles that underpinprocurement...articulate the expectations that exist on officials, or agents conductingprocurement on behalf of the Commonwealth, in the design, conduct and management of allaspects of Government procurement’.261

177 For the purposes of this section of the report, relevant provisions of the CommonwealthProcurement Guidelines include:

Value for Money is the core principle governing Commonwealth procurement. It issupported by the underpinning principles of: efficiency and effectiveness; accountabilityand transparency; ethics and industry development. Officials buying goods and servicesneed to be satisfied that the best possible outcome has been achieved taking intoaccount all relevant costs and benefits over the whole of the procurement cycle.Accepting the lowest price is not necessarily an indicator of best Value for Money;

…

To achieve best Value for Money, procurement must be efficient and effective.

Officials approving expenditure proposals must satisfy themselves that the proposedexpenditure will make efficient and effective use of public money...262

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178 I consider that the concept of ‘Value for Money’ as it is presently defined in the CommonwealthProcurement Guidelines does not give sufficient prominence to occupational health and safety.

Best Practice Policy Guidance and Value for Money

179 DOFA provides some amplification of the concept of ‘value for money’ in procurement in itsBest Practice Policy Guidance. It states, in part:

Every aspect of the procurement function should support the achievement of value formoney. Value for money is achieved when the most appropriate solution is achieved for aspecific procurement activity. In making this decision, officials are to determine whatfactors are important for each purchase and whether these factors have the same level ofimportance.

Examples of the types of factors that may be considered are suitability, quality, skills,price, whole of life costs and other government policies. The mix of these and otherfactors and the relevant importance of each will vary on a case by case basis.

Officials should assess the value of alternative procurement outcomes and select theoption that best represents value for the Commonwealth, taking into account all relevantbenefits and costs over the whole procurement cycle.

This may mean selecting:

• property and services that represent best value;

• a supplier most likely to deliver or that represents best value; and

• the procurement method that will achieve best value.

Value for money is the outcome sought when purchasing property or services.

Officials will not necessarily obtain value for money by accepting the lowest-priced offer.Price alone is not a reliable indicator of value. Price is only one aspect, and on its own itis not necessarily a reliable indicator of value.263

180 The Policy Guidance also lists a range of ‘Value for Money Considerations’, said to be neitherexhaustive nor necessarily relevant in all situations. One set of considerations relating to‘characteristics and capabilities of suppliers’ includes a reference to ‘management policies andregard to social responsibilities, care for the environment, safety, quality’ as a possibleconsideration.

181 There does not appear to be any other reference in DOFA policy material to safety generally, orspecifically to occupational health and safety, as a factor to be taken into account in assessing‘value for money’ in procurement.

182 In my view, this is unsatisfactory. It represents too diminished a view of the importance ofoccupational health and safety. Safety should be promoted.


Safe design

183 In an earlier section of this volume, I discussed the critical importance of giving practicalapplication to the principles of safe design in the building and construction industry, and maderecommendations that the Commonwealth should promote and lead the necessaryconsideration and debate.

184 In this section, I will address the steps that the Commonwealth should take as a model client tolead by example in applying those principles. As I have said, the CDM Regulations in thisrespect appear to be the most developed scheme that is available, but it is premature toconsider their adoption in Australia as a matter of prescription. However, the Commonwealthcan readily apply to itself the principles of safe design embodied in the CDM Regulations, andcan impose them on those with which it deals as a matter of contract.

Issue

Another way in which the Commonwealth can conduct itself as a model client is to insiston the application of safe design principles on all projects for which it (including itsdepartments or agencies) is the direct client, or in relation to which it provides orcontributes funds or other assistance (Commonwealth projects).

Recommendation 27

The Commonwealth require in relation to Commonwealth projects that the designer ofthe project or any aspect thereof:

Issue

The Commonwealth has a substantial influence on the industry in its role as a client andprovider of capital. It has the capacity to lead the industry. It should do so. It shouldassume the obligations of a model client. In this regard, the CommonwealthProcurement Guidelines do not give sufficient prominence to occupational health andsafety.

Recommendation 26

The Commonwealth amend the Commonwealth Procurement Guidelines and the BestPractice Policy Guidance issued by the Department of Finance and Administration toprovide that the health and safety of building and construction workers, andoccupational health and safety more generally, are factors that must be considered as acore principle in assessing Value for Money in the procurement of any public work in thebuilding and construction industry.

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The Joint Parliamentary Standing Committee on Public Works

185 The Joint Standing Committee on Public Works (the Public Works Committee) is constituted bythe Public Works Committee Act 1969 (C’wth).

186 In describing its role and operations, the Public Works Committee notes that the Public WorksCommittee Act 1969 (C’wth) empowers it to inquire into and report to the Parliament on eachpublic work referred to it. The Public Works Committee Act 1969 (C’wth) requires that all publicworks for the Commonwealth that are estimated to cost more than $6 million must be referredto the Public Works Committee. There are some exceptions to this rule, but essentially all publicworks sponsored by Commonwealth departments and major statutory authorities with largebuilding programs come within the ambit of the Public Works Committee’s investigatory powers.

187 The functions of the Committee are set out in s17 of the Public Works Committee Act 1969(C’wth), which provides that:

(1) The Committee shall, as expeditiously as is practicable:

(a) consider each public work that is referred to it in accordance with this Act;and

(b) make a report to both Houses of the Parliament concerning the expedienceof carrying out the work and concerning any other matters related to the workin respect of which the Committee thinks it desirable that the views of theCommittee should be reported to those Houses;

(a) ensure that any design the designer prepares and which the designer is aware willbe used for the purposes of construction work includes among the designconsiderations adequate regard for the need:

(i) to avoid foreseeable risks to the health and safety of any person carrying outconstruction work in or on the structure at any time, or of any person whomay be affected by the work of such a person;

(ii) to combat at source risks to the health and safety of any person carrying outconstruction work in or on the structure at any time, or of any person whomay be affected by the work of such a person; and

(iii) to give priority to measures which will protect all persons who may carry outconstruction work at any time and all persons who may be affected by thework of such persons over measures which only protect each personcarrying out such work; and

(b) ensure that the design includes adequate information about any aspect of theproject or structure or materials (including articles or substances) which mightaffect the health or safety of any person carrying out construction work in or on thestructure at any time or of any person who may be affected by the work of such aperson.


and, for those purposes, shall do such things and make such inquiries as it thinksnecessary.

(2) The Committee may, in its report on a public work, recommend any alterations tothe proposals for the work that, in its opinion, are necessary or desirable to ensurethat the most effective use is made of the moneys to be expended on the work.

(3) In considering and reporting on a public work, the Committee shall have regard to:

(a) the stated purpose of the work and its suitability for that purpose;

(b) the necessity for, or the advisability of, carrying out the work;

(c) the most effective use that can be made, in the carrying out of the work, ofthe moneys to be expended on the work;

(d) where the work purports to be of a revenue-producing character, the amountof revenue that it may reasonably be expected to produce; and

(e) the present and prospective public value of the work.

188 The Public Works Committee is bipartisan and consists of six Members of the House ofRepresentatives and three Senators.

189 The Commonwealth Procurement Guidelines remind agencies of their obligation to refer publicworks costing in excess of $6 million to the Public Works Committee, and to notify it ofproposals for public works with an estimated value of between $2 million and $6 million.264

190 The Best Practice Policy Guidance published by DOFA about the role and responsibilities of theCommittee also notes that, ‘[m]atters which need to be further addressed during detaileddesign may be highlighted as recommendations in the Committee’s report to Parliament’.265

191 In addition to its report on each public work, s16 of the Public Works Committee Act 1969(C’wth) obliges the Public Works Committee to report the Parliament annually on itsproceedings. DOFA, in its guidance to agencies about the role and operation of the PublicWorks Committee, draws attention to the Public Works Committee’s annual reports and notesthat they address ‘issues relevant to the Act, and of concern to the Committee’.

192 A review of the evidence given before the Public Works Committee at public hearings relatingto several significant Commonwealth projects since 1998 indicates that the Public WorksCommittee rarely has the benefit of evidence about occupational health and safety issues.

193 In general, to the extent that workplace health and safety matters are raised, they tend to relateonly to the prospect that a proposed new facility will alleviate the workplace health and safetyrisks faced by users arising from an aging and unsatisfactory existing facility.

194 The Public Works Committee has also been provided with evidence that Commonwealthclients are satisfied if statutory minima in workplace health and safety compliance are met. Forexample, in relation to the proposed CSIRO National Centre for Petroleum and MineralResources Research in Bentley, Western Australia (a $30 million project), the Public WorksCommittee noted, in its report on the proposed work, the advice that:

Strict compliance with the requirements of the Workplace Health and Safety Act will beadhered to in all construction work.266

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195 The Public Works Committee’s recent annual reports also suggest that workplace health andsafety in the design of Commonwealth buildings, and its implications for the safe and costeffective design, construction and operation of such buildings, has not been a matter thatattracted the Committee’s attention.

196 I consider that the Public Works Committee can be an effective watchdog on the extent towhich occupational health and safety is actually considered in the context of Commonwealthpublic works. It should be given the authority to do so.

Pre-tender Occupational Health and Safety Qualification

Introduction

197 My conclusions in earlier sections of this volume about

(a) the effect that the fiercely competitive nature of the industry can, and often does, have onoccupational health and safety,

(b) the part that clients, including governments, can, and again often do, have in introducingthese forces to the contractual chain, particularly at the tendering stage of a project,

(c) the powerful driver for change that could be generated by the risk of losing theopportunity to obtain work

point to the need to harness these aspects of the industry to work for, and not against,occupational health and safety in the building and construction industry.

198 In discussing the search for drivers, I pointed to material that illustrated the strong support thatI found for using pre-tender occupational and safety qualifications in this way.

199 There has long been support for the view that governments as clients should prefer contractorswith a good occupational health and safety performance.267

200 The CFMEU has submitted that

The Commission should recommend that government contracts not be let to contractorswith a proven track record of non-compliance with OH&S standards.268

Issue

The Public Works Committee can be an effective watchdog on the extent to whichoccupational health and safety is actually considered in the context of Commonwealthpublic works, but the Public Works Committee Act 1969 (C’wth) does not givesufficiently clear guidance in this regard.

Recommendation 28

The Commonwealth amend the Public Works Committee Act 1969 (C’wth) to ensurethat the Public Works Committee shall have regard to the measures taken to ensurethe occupational health and safety of building and construction workers undertakingpublic work within the meaning of that Act.


The CFMEU has said that

…if incentives can be correctly administered and targeted in a fashion so as to improvesafety, the CFMEU Construction and General Division will support them.269

201 The AMWU has submitted that

Government needs to be a leader as a client…Governments should do health and safetyaudits of principal contractors and governments could start to NOT give contracts tothose with poor performance records. Proactive contracting processes would veryquickly send messages about the importance of performance.270

202 I agree with many aspects of these submissions, but I consider that a more positive approachis needed. Governments should only contract with contractors that can, and do, meet arigorous standard of occupational health and safety.

203 There is already some support for this approach.

204 The Australian Procurement and Construction Council (APCC), of which DOFA is a memberauthority, along with significant departments and agencies of State and Territory Governments,published a National Prequalification Criteria Framework in 1998.271 APCC noted that theCommonwealth, State and Territory Governments

…have agreed to use prequalification as one strategy to drive the development of anational construction industry committed to best practice, international competitivenessand the highest ethical behaviour.272

205 One of the criteria that these governments had agreed to adopt for prequalification wasoccupational health and safety and rehabilitation.273

206 APCC has acknowledged that

Access to government business is potentially the most influential tool that governmentshave to recognise and encourage excellence and best practice behaviour by serviceproviders and suppliers. This has been acknowledged by APCC members and is evident inthe widespread use of pre-qualification systems, multi-factor tender evaluation, tenderingassessment benefits and informed selection based on contractor performance reports.274

207 The Commonwealth submitted after the Workplace Health and Safety Conference that ‘it isclear that Governments are major clients in the industry. They have the capacity to significantlyinfluence safety performance in the industry, including in the private sector.’ To this end, it hassuggested that it and other governments could ‘do more to improve safety’. In this regard, ithas suggested that pre-qualification schemes ‘based on OHS performance in both public andprivate building and construction’ should be introduced by all governments. It hasacknowledged that ‘the commercial impact of Australian Governments adopting best practiceapproaches to safety through their purchasing power is likely to have significant commercialinfluence while maintaining an efficient and competitive industry’.275

208 Many governments have introduced pre-qualification schemes which have occupational healthand safety as an element. I will refer to the approach taken in Queensland in more detail in thenext section of this volume.

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209 However, what I propose for the Commonwealth has a sharper focus on occupational healthand safety, while being consistent with the principles promulgated by APCC with theagreement of the Commonwealth, State and Territory Governments.276 My intention is that bymy proposals the occupational health and safety performance of contractors will be the first,and necessary, qualification for an opportunity to tender for Commonwealth projects. Acontractor that is not so qualified will not be eligible to tender, no matter how competitive theirprice, or how good they may be in other areas.

Current occupational health and safety regimes and their responses to competitive pressure

210 An extremely valuable contribution in this area is to be found in the report of the QueenslandTaskforce. I consider that the reforms suggested by the Queensland Taskforce should be madethe basis of reforms that can readily be adapted, developed and adopted by theCommonwealth.

211 I should refer to the report of the Queensland Taskforce in some detail:

A possible remedy that has the potential for focusing attention on a ‘systems’ safetymanagement approach and provide a more level playing field (at least at the tenderstage) is the design and implementation of workplace health and safety pre-qualificationand monitoring criteria for government projects. The notion of specifying particular healthand safety criteria prior to being awarded the contract, and upon which an assessmentof safety performance will be judged, has the potential to take out much of the guesswork relating to safety provisions within the project. If the client clearly specifies what isrequired in relation to the management of health and safety on site then there can be littleargument in relation to compliance with those provisions after the project has beenawarded.

The Department of Public Works are currently reviewing the current pre-qualificationcriteria that has been in operation approximately 18 months. While there is a smallcomponent dealing with health and safety matters at present, the timing of this reviewpresents an ideal opportunity for the Taskforce and industry to develop more appropriatecriteria that will improve compliance on site. The Taskforce supports a two stage processwhere tendering firms be required to submit their ‘Corporate Safety ManagementSystems’ as the first stage in being allowed to tender for government work; and a secondstage where the winning tenderer submits a health and safety plan and managementsystem in line with their corporate system, but specific to the project.

The Division of Workplace Health and Safety in conjunction with industry parties canstipulate the criteria and assess the suitability of each safety management system prior toregistration as a government tenderer. The second stage requires an external auditprocess that assesses and reports to the client on the performance of the principalcontractor against previously agreed audit criteria at times specified and determined inthe contract.

A number of general principles were supported by the Taskforce and include:

• tender threshold limit for projects in excess of $250 000;


• the Division of Workplace Health and Safety, in conjunction with key industryparties, settling the health and safety criteria for corporate safety managementsystems, project safety management systems and audit criteria upon which theexternal audit assessments will be based;

• pre-qualification at the tendering stage where contractors need to supplyinformation regarding their own corporate health and safety management systemin order to pre-qualify. Such a system will specify criteria and include a projectsafety management system (PSMS);

• tender documents that specify the number and scope of external audits and thecriteria that will be applied to the project (for example, in the first instance it wasagreed that audits should be allocated on the basis of 16-week periods asspecified in the contract period clause);

• costs of the external audits be allocated within the overall project cost budget andabsorbed by the Department of Public Works or the appropriate agency;

• the selected tenderer providing a PSMS plan within a specified time period uponcommencement of the work;

• the DWH&S will accredit external auditors to conduct PSMS audits againstspecified criteria previously determined; and

• a contract review panel will review the health and safety performance of theprincipal contractor against the CSMS and PSMS and recommend theimplementation of a pyramid of sanctions that may include but not limited to:

(i) show cause notice to the Chief Executive Officer for an explanation regardingworkplace health and safety performance;

(ii) special conditions for future tendering considerations;

(iii) probation periods to demonstrate improved workplace health and safetyperformance;

(iv) limitations on projects for tender;

(v) suspension of tender lists for specified time period; and

(vi) cancellation of pre-qualification status ensuring that the contractor reapplyfor pre-qualification through the submission of a new CSMS.277

Safety policies and organisation

212 A prominent practitioner of, and commentator on, occupational health and safety in thebuilding and construction industry in the United Kingdom has said:

Successful safety management demands comprehensive health and safety policieswhich are effectively implemented and which are considered in all business practice anddecision-making.278

I agree.

213 Section 2(3) of the Health & Safety at Work Act, etc 1974 (UK) states:

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Except in such cases as may be prescribed, it shall be the duty of every employer toprepare and as often as may be appropriate revise a written statement of his generalpolicy with respect to the health and safety at work of his employees and the organisationand arrangements for the time being in force for carrying out that policy, and to bring thestatement and any revision of it to the notice of all his employees.

214 There is no directly comparable provision in any Australian occupational law that applies to thebuilding and construction industry.

215 However, the Commonwealth can readily impose such a requirement on any contractor as acondition of prequalification. I consider that no contractor should attain pre-tender qualificationunless it can show that it has such a policy and that the policy has been adopted at the highestlevel of direction and management.

216 The Construction Safety Handbook, a leading United Kingdom text that seeks to providepractical guidance in safety and health management for the construction industry, observesthat a policy statement provides an opportunity to emphasize to all employees the need to actat work in a way that protects the health and safety of themselves, other employees, the publicand people who work for other organisations.279 It recommends that a policy statement shouldcontain the following basic elements:

• That the company has a legal duty, as far as is reasonably practicable, to providesafe and health working conditions for its employees.

• That the company will conduct its work in such a manner that the health and safetyof others, beside that of its employees, is not adversely affected.

• That employees are required to co-operate with the company in preserving theirown health and that of other employees and anyone who might be affected by theiractivities at work.

• That an organisation and chain of authority in matters of safety has been set up.

• That safety information, instruction, training and supervision will be provided for allemployees as and when necessary.

• That the company will encourage the work of a safety committee and co-operatewith safety representatives if that is the employees’ wish.280

217 The experience of Du Pont provides another useful point of reference. This company has aninternational reputation for the success of its occupational health and safety programmes,which are based on ten principles of safety management:

1. All injuries and occupational illnesses are preventable.

2. Management is directly responsible for prevention, with each level accountable tothe one above and responsible for the level below.

3. Safety is a condition of employment, and is as important to the company asproduction, quality or cost control.


4. Training is required in order to sustain safety knowledge, and includes establishingprocedures and safety performance standards for each job.

5. Safety audits and inspections must be carried out.

6. Deficiencies must be corrected promptly, by modifications, changing procedures,improved training and consistent and constructive disciplining.

7. All unsafe practices, incidents and injury accidents will be investigated.

8. Safety away from work is as important as safety at work.

9. Accident prevention is cost-effective; the highest cost is human suffering.

10. People are the most critical element in the health and safety programme.Employees must be actively involved, and complement management responsibilityby making suggestions for improvements.281

218 There is no point in a contractor having a safety policy unless it so organises itself to ensure thatit is carried out. The acting director of DCEPWA submitted after the Workplace Health andSafety Conference:

In practice, improved health and safety will evolve if there is management commitmentfor this to occur. This is evident when you examine all the award schemes around thecountry. The principal drivers in these is management commitment. That is it needs to bedriven from the top.282

219 Research supports the common sense view that there is a direct connection between activeinvolvement in safety management at a senior level in a construction company and reductionsin numbers of accidents and injuries.283 No contractor should attain pre-tender qualificationunless it can show that it is organised with this in mind. Special significance attaches to threeaspects of this requirement:

(a) It must be clear that the chief executive officer has ultimate responsibility to the board forthe safety policy.

(b) There should be a requirement that all head contractors and, where applicable,subcontractors, of a sufficient size, designate a senior employee, responsible directly tothe chief executive officer, with special responsibility for safety.284 I shall call this employeethe ‘safety officer’. Any title will do, provided that it reflects the requirement that thisposition is part of the senior management of the principal contractor or subcontractor.The position may be combined with other duties. The job is to set up and maintain anorganisation to promulgate the safety policy and report to the chief executive on all safetymatters. Important aspects of the safety officers’ responsibilities should include themanagement of occupational health and safety expenditure, training and education. Thesafety officer should also be responsible for ensuring that project and site managers arecommitted to the safety policy. That will require that the safety officer regularly check thatthese critical staff understand and carry out their occupational health and safetyduties.285 The Construction Safety Handbook suggests the following responsibilities for asafety officer:

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To ensure so far as is reasonably practicable that the company meets its legalobligations with respect to health, safety and welfare of its employees and of otherswho may be affected by its acts or omissions...

In particular the safety [officer] must:

(a) administer a safety organisation, appoint appropriate staff and provide themwith terms of reference;

(b) ensure appropriate information, instruction and training for all staff andoperatives;

(c) provide facilities for first aid and welfare;

(d) prepare annual budget estimates for safety, health and welfare facilities andmanage the allocation of funds accordingly;

(e) be responsible for reporting injuries, diseases and dangerous occurrencesand keep the Board regularly informed of such events;

(f) ensure adequate provision of time and costs of safety measures in all design,construction and related activities;

(g) ensure that any safety committees... are properly constituted, attended bymanagement at the appropriate level, accurate records of meetings aremade and kept, and that the resolutions put forward by safetyrepresentatives are acted on to the committees’ satisfaction.286

(c) The person who will be responsible for the management of the project or site must haveclear responsibilities to comply with the principal contractor’s safety policy, to organisethe site in such a manner that it is safe for everyone who works on the site, and to providesufficient funds, resources, personnel and time to bring about such a result, and to givethese responsibilities priority over any other. The success of a contractor’s safety policywill in large part depend on the project or site managers.287 In New South Wales it hasrecently been recognised that ‘a key deficiency in the systematic management of OHSon construction sites was the lack of understanding by line managers of their owncompany’s OHS management system’.288 It is critical both that their responsibilities inthis regard should be brought home to them, and that they can be confident that they willhave the support of their employer when, as they must, they put their occupational healthand safety responsibilities above every other requirement.

Dedicated health and safety officers on appropriate sites

220 The evidence has shown that a number of head contractors in Australia have employeddedicated occupational health and safety officers on their sites with great success. Thispractice should be promoted by the Commonwealth in its role as a model client. OnCommonwealth projects of an appropriate size the Commonwealth should require as acondition of pre-tender occupational health and safety qualification the presence on site of adedicated occupational health and safety officer.


Systems for managing safety

221 There is a good deal of evidence that the real effect of risk management initiatives in thebuilding and construction industry has often been to produce documents describing safetymanagement systems and safety plans rather than actually achieving any real change. SafetyBuilding New South Wales included such a finding:

Formal documented systems for managing safety have universally improved in theircompliance with legislative and management system requirements. Documented safework practices, however, often do not translate to actual safe work practices.289

222 The chairman of NOHSC has offered the same opinion:290

223 I suspect that documenting safety systems is often seen in the industry as nothing more than away of demonstrating compliance, rather than as a real part of an effective occupational healthand safety strategy.291

224 There is evidence that this is a weakness in many existing government pre-qualificationschemes. An independent occupational health and safety practitioner who practised in thebuilding and construction industry throughout Australia told the Workplace Health and SafetyConference that:

The pre-qualification generally relates to companies having a system that they can showas having a corporate safety management system. The important thing is the linkage ofthat system to the way that things actually are done at the time on a project, and it’sthose linkages that generally don’t exist.292

225 I therefore propose to include testing against performance, as well as against paper systems,in my recommendations. I agree with the observation, made by the CCF’s representative at theWorkplace Health and Safety Conference, that what is needed is ‘not the desktop audits thatwe do see in respect to many audits right at the government level with pre-qualificationrequirements at this stage’, but rather something that is ‘outcome based at a project level’.293

I also agree with the observation of NECA’s representative that ‘there must be more emphasison performance, rather than OH and S process’.294

226 One way to test against performance is to examine records showing the incidence and natureof injuries. This approach has two important defects. First, it will not capture the full extent ofthe problem of disease, which by its nature is often insidious and difficult to detect and record.Second, it will not capture every dangerous incident. As Baulderstone’s representative told theWorkplace Health and Safety Conference, many of these incidents can go unreported, despitetheir significance:

When we started to look at our statistics and what it really meant, what we observed wasthat although we had been able to reduce significantly our lost time injury frequency rate,and that is not a bad thing, in fact when we looked at the number of medical treatmentand all injuries that we were having, there was not a significant improvement over thattime. This suggests that in fact while we are managing lost time injuries pretty well, weare not in fact reducing the number of unsafe acts that are taking place in the workplace;people are still presenting themselves in a risk situation where they are injured…[As] westarted to explore our performance and talk to people about it, what we discovered was

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that quite a lot of incidents were not being reported. I am not talking now about injuries, Iam talking about incidents, serious incidents – and it is quite extraordinary…We changed[the company’s] reporting system…to allow for the reporting of serious incidents andnear-misses. In other words, incidents that did not lead to an injury but could have doneso. For the first six months, we had very little input to this reporting system and ourmanagement were reluctant to report these things, either because maybe, one, theyhadn’t thought about some things as being important to report or, secondly, perhapswere a bit worried that if they did report it, they might get into trouble for reporting thesethings…When we look at the last three months, we have had 60 of these incidentsreported in our system. These are incidents that would otherwise not have been reported12 months ago, and each one of them could have ended up in an injury to a person on ajob. So there is no doubt in my mind that we have an unsafe workplace…295

VECCI’s occupational health and safety adviser, addressing this problem, told the Conference:

…we may find that the problem is much larger than we currently see, but the level ofhazards would be the same, and I think it is the hazards that we’ve got to concentrateon.296

I agree. The testing that I propose will involve testing against hazards, and controls, on projectsas they are conducted.297

The solution

227 With these considerations in mind, I consider that the Commonwealth should introduce a pre-tender occupational health and safety qualification scheme which has as its fundamentalfeature the requirement that occupational health and safety be considered as a pre-requisite ofthe opportunity to tender for Commonwealth projects, and independent of any consideration ofany other aspect of the tender. A contractor’s opportunity to tender for any Commonwealthproject should depend on the contractor attaining and maintaining its qualification. The testsand standards that are applied should be practical and rigorous. The qualification held by eachcontractor should be a matter of public record. The CFMEU has suggested that the safetyperformance of contractors should be exposed to public scrutiny.298 My intention is that aCommonwealth pre-tender occupational health and safety qualification will be such that it willidentify those contractors whose capacity and performance in this area has been rigorouslytested against an exacting standard. The Commonwealth should refuse to accept a tenderfrom any relevant contractor in relation to any project to which the scheme applies unless thecontractor has the requisite pre-tender occupational health and safety qualification. Oncequalified, and a tender for a Commonwealth project is accepted, a contractor should continueto be audited throughout the project, both as to the adequacy of the contractor’s safetymanagement system for the project, and the contractor’s actual performance during theproject. The information that these audits will produce should be collected.


Issue

I have concluded that

(a) the effect that the fiercely competitive nature of the industry can, and often does,have on occupational health and safety,

(b) the part that clients, including governments, can, and again often do, have inintroducing these forces to the contractual chain, particularly at the tendering stageof a project,

(c) the powerful driver for change that could be generated by the risk of losing theopportunity to obtain work

point to the need to harness these aspects of the industry to work for, and not against,occupational health and safety in the building and construction industry. Governmentsare well placed to do this by means of pre-tender qualification on occupational health andsafety grounds. The Commonwealth should introduce such a scheme, and take the leadin developing and promoting the concept. A contractor’s opportunity to tender for anyproject for which the Commonwealth (or its departments or agencies) is the direct clientor in relation to which it provides or contributes funds or other assistance(Commonwealth projects) should depend on the contractor attaining and maintaining itsqualification. The tests and standards that are applied should be practical and rigorous.The qualification held by each contractor should be a matter of public record. ACommonwealth pre-tender occupational health and safety qualification will identify thosecontractors whose capacity and performance in this area has been rigorously testedagainst an exacting standard. The Commonwealth should refuse to accept a tender fromany relevant contractor in relation to any project to which the scheme applies unless thecontractor has the requisite pre-tender occupational health and safety qualification. Oncequalified, and a tender for a Commonwealth project is accepted, a contractor shouldcontinue to be audited throughout the project, both as to the adequacy of thecontractor’s safety management system for the project, and the contractor’s actualperformance during the project. The information that these audits will produce should becollected and reviewed.

Recommendation 29

The Commonwealth introduce a pre-tender occupational health and safety qualificationscheme which has at least the following attributes:

(a) The guiding principle of the pre-tender occupational health and safety qualificationscheme is that the Commonwealth will only deal, whether directly on those projectsfor which it or its departments or agencies is the client, or indirectly in relation tothose projects for which it provides or contributes funds or other assistance, withrelevant contractors if they attain and maintain a current pre-tender occupationalhealth and safety qualification.

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(b) Each applicant for pre-tender occupational health and safety qualification must beaudited by or on behalf of a new Commonwealth Office of the Commissioner for Occupational Health & Safety in the Building and Construction Industry(Commissioner for Health and Safety) against identified criteria. Each aspect of theaudit criteria should be determined from time to time by the Commissioner forHealth and Safety. They should include at least:

(i) the applicant has adopted at the highest level of direction and managementa safety policy which complies with such principles or standards as theCommissioner for Health and Safety shall promulgate from time to time;

(ii) the applicant’s chief executive officer has ultimate responsibility to theapplicant’s board of directors for the applicant’s compliance with its safetypolicy in every aspect of its operations;

(iii) the applicant has employed a person or persons with express responsibility forthe applicant’s compliance with its safety policy in such intermediate positionsof responsibility and authority as the Commissioner for Health and Safetyconsiders appropriate having regard to the circumstances of the applicant,including matters such as the size, standing and organisation of the applicant;

(iv) the applicant has taken such steps as the Commissioner for Health andSafety considers appropriate to communicate its safety policy to every personwhom it employs or engages to manage its work on building and constructionprojects and sites, and to ensure that they comply with the policy; and

(v) the applicant satisfies the Commissioner for Health and Safety that onprojects that are the subject of an audit it has in place effective controlsagainst identified hazards. The Commissioner for Health and Safety shoulddetermine from time to time the list of hazards and controls against whichapplicants will be audited, and the standard required at audit in order toattain a pre-tender occupational health and safety qualification. TheCommissioner for Health and Safety should determine these matters inconsultation with at least the National Occupational Health and SafetyCommission; regulatory authorities; workers compensation and otherrelevant insurers; and employer and employee representatives, includingsuch unions as have the right to enrol employees engaged in the relevantwork. The Commissioner for Health and Safety should periodically reviewdeterminations in relation to these matters to ensure their currency andeffectiveness.

(c) The audit process should not cease when a contractor attains pre-tender occupationalhealth and safety qualifications. It should be carried out at at least three stages:

(i) pre-tender qualification;

(ii) post tender award of a project safety management system for the project athand; and


(iii) at intervals during the course of a project.

(d) The audits are to be external to both the Commissioner for Health and Safety andthe contractor. The Commissioner for Health and Safety will accredit externalauditors to conduct the pre-tender occupational health and safety qualificationaudits, the post award of tender audits of contractors’ project safety managementsystems and the audits during the currency of the project.

(e) The audits must be more than an audit of paper systems. There must be asignificant element of effective on-site random physical inspections of theexistence, application and effectiveness of controls in place to guard against theselected range of identifiable hazards.

(f) A contractor with, or applying for, pre-tender occupational health and safetyqualification must agree to make available for audit all of its sites, and not just thosewhere the Commonwealth is the client or has provided funding or made a capitalcontribution. The sites to be audited should be selected by, and at the absolutediscretion of, the Commissioner for Health and Safety. Contractors must agree toco-operate in the conduct of the audit, including by making available to theCommissioner for Health and Safety such reasonable opportunities and facilities forthe audit as the Commissioner for Health and Safety may require, includingopportunities and facilities to inspect sites, work, plant, equipment and documents,and to interview any person.

(g) The costs associated with an application for pre-tender occupational health andsafety qualification should be borne by the applicant. Pre-tender health and safetyqualifications for Commonwealth projects should be a matter of public record.Such qualifications are intended to be of such a standard that they will indicate tothe world at large the attainment and maintenance of a level of excellence inoccupational health and safety.

(h) With time one would expect a number of important benefits of the pre-tenderoccupational health and safety qualification scheme to be transferred to the widerindustry beyond the immediate reach of the Commonwealth. In order to facilitateand promote this transfer:

(i) State and Territory Governments should be encouraged to recognise andadopt the pre-tender occupational health and safety qualification scheme,and in order to promote this the details of the scheme should be designedwith a view to complementing so far as possible existing State and Territoryschemes of pre-qualification; and

(ii) the insurance industry should be encouraged to take the pre-tenderoccupational health and safety qualification scheme into account in fixingworkers compensation and other insurance premiums. This encouragementmight begin with the involvement of that industry in the process of identifyingthe list of hazards, controls and standards against which audits are to beconducted and in the process of accrediting auditors.

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(i) The cost of the post award of tender audit of the contractor’s project safetymanagement system and of the periodic audits during the life of a project shouldbe absorbed by the Commonwealth on Commonwealth projects.

(j) The Commissioner for Health and Safety should at the end of a Commonwealthproject, and otherwise at reasonable intervals, review the health and safetyperformance of a pre-tender health and safety qualified contractor and, in caseswhere the review is not favourable, have the authority to implement a range ofsanctions, reflective of those recommended by the Final Report of the QueenslandBuilding and Construction Industry (Workplace Health and Safety) Taskforceincluding but not limited to:

(i) a notice to show cause to the Commissioner for Health and Safety requiringan explanation regarding any aspect of a contractor’s occupational healthand safety performance;

(ii) the imposition of special conditions for future tenders;

(iii) the imposition of a period of probation to enable the contractor to implementspecific occupational health and safety measures identified by theCommissioner for Health and Safety;

(iv) the imposition of limitations on projects for which the contractor will beconsidered for tender;

(v) suspension from tender lists for all or some classes of Commonwealthprojects for a specified period of time; and

(vi) the cancellation of the contractor’s pre-tender occupational health and safetyqualification.

(k) The Commissioner for Health and Safety should in relation to each Commonwealthproject determine the contractors or class thereof to which the pre-tenderoccupational health and safety qualification scheme should apply, provided that inrelation to each project the scheme must apply to the head contractor and anysubcontractors that will perform work that in the opinion of the Commissioner forHealth and Safety may involve a particular or unusual risk to health and safety.

(l) Once the Commissioner for Health and Safety has made such a determination,then no such contractor should be allowed the opportunity to tender in relation toany Commonwealth project, unless the contractor has a pre-tender occupationalhealth and safety qualification.

(m) The success of the pre-tender occupational health and safety qualification schemebe measured periodically against the national and industry targets set by and underthe National Occupational Health and Safety Strategy 2002-2012 using suchmeasures and benchmarks as are developed for the purposes of the NationalOccupational Health and Safety Strategy and the Comparative PerformanceMonitoring project.


Contracts

228 I have referred to the real questions about how safety can be managed cohesively on a buildingsite made up of many separately managed groups working closely together, and about whocan and should provide that management.

229 The chairman of the Queensland Taskforce told the Workplace Health and Safety Conferencethat safety becomes ‘problematic when the work organisation does not sheet home clearlywho is responsible for what…’299

230 The report of the Queensland Taskforce concluded that:

The role of the principal contractor in overseeing the health and safety of the site is anobligation that cannot be delegated. The need to clarify the obligations of the principalcontractor became apparent with the number of interpretations given to theTaskforce…A principal contractor usually has dual obligations as the principal contractorand employer. This dual obligation extends to “ensure the health and safety of others isnot affected by the way the employer conducts the employer’s undertaking”. The relianceon dual obligations may assist the inspectorate, but only confuses the obligations androle of Principal Contractor which needs further clarification.300

231 Ambiguity of this kind should be avoided. Responsibility for this should start with clients. TheCommonwealth as a model client should assume that responsibility.

Increased use of workplace health and safety inspectors

232 There is persuasive support for the view that the extent of compliance with occupational healthand safety obligations is strongly influenced by a reasonable expectation of the likelihood ofbeing inspected, prosecuted, convicted and having a meaningful penalty imposed.301

Issue

There are real questions about how safety can be managed cohesively on a building sitemade up of many separately managed groups working closely together. The headcontractor should take responsibility for coordinating the safety practices of allsubcontractors.

Recommendation 30

The Commonwealth require that the head contract relating to any project for which theCommonwealth (or its departments or agencies) is the direct client, or in relation towhich it provides or contributes funds or other assistance, must require the principalcontractor to have responsibility to co-ordinate the safety practices of all subcontractorsin conformity with the principal contractor’s safety policy. In some cases, such asprojects that pose some special safety problem, it may be appropriate for the headcontract to lay down some more particular requirements, but in most cases it can be leftto the principal contractor to determine how it will discharge its responsibility.

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233 For example, the members of the CSMOAQ who met with those assisting the Commissionwere united in their view that nothing would better be calculated to promote safety on buildingand construction sites than the general experience of regular inspections, especially if that wascoupled with meaningful penalties for genuine non-compliance that could be quicklyadministered. They considered that under such a regime head contractors and subcontractorswould quickly learn that it is ‘not worth their while’ to disregard compliance with safetyrequirements.302

234 The general manager of Queensland’s Division of Workplace Safety agreed:

…there is no doubt that there has been a recognition across industries, especially in thebuilding and construction industry, that the presence of inspectors, and increasedpresence and enforcement activity, is what is required properly to balance the needs ofthe industry from an enforcement or persuasion and punishment type of balance…303

235 I received many submissions to the effect that a key to improved occupational health andsafety in the building and construction industry lay in securing an increased presence ofoccupational health and safety inspectors on sites.

236 In an appendix to the statement of Mr John Sutton, Assistant National Secretary of the CFMEU,there is the following:

…both State and Commonwealth Governments have moved away from prescriptivelegislation to a system of performance based regulations underpinned by the generalduty of care of employers to provide safe and healthy workplaces.

This represents a move towards the European style of OH & S policing. However whenthis type of legislation was introduced overseas it was accompanied by substantialincreases in the size of inspectorates and penalties. However no such increases havebeen made in Australia.

...

Unsafe practices…combined with the move away from proactive policing of OH&S bythe States, are responsible for an extremely dangerous working environment in theconstruction industry.304

237 Against this background, common complaints, made in some form in every jurisdiction, werethat there were not enough inspectors or inspections, and that occupational health and safetylaws were not sufficiently enforced. For example:

(a) The CCF submitted:

…safety authorities throughout Australia are limited in performing their functionsacross this very transient industry by lack of sufficient resources.305

(b) DEWR’s representative told the Workplace Health and Safety Conference that there was‘insufficient regulatory enforcement in this industry’.306 The Commonwealth submittedthat occupational health and safety laws needed to be enforced ‘more vigorously,particularly in high risk industries such as the construction industry’.307


(c) Almost every union official who addressed the subject of occupational health and safetyin his evidence expressed a similar view. The president of the South Australian Branch ofthe CFMEU, for example, gave evidence that ‘…at the minute, the vast majority of thetimes, it is the union that does the policing of the safety on construction sites because the[inspectorate is] undermanned’.308

238 In my view the visible presence of occupational health and safety inspectors on sites is a mosteffective method of ensuring compliance with applicable occupational health and safety laws andregulations. In the same way that marked police patrol cars on a highway operate as a salutaryreminder of the need to obey the traffic laws, the presence of occupational health and safetyofficers on site will serve to raise the profile of the importance of workplace health and safety.

239 A method needs to be found to encourage an increased visible presence of occupationalhealth and safety officers on site. The States and Territories each have a workplace health andsafety inspectorate. Their officers are no doubt fully occupied with their duties. If there is to bean increase in site visits and inspections by these officers, unless it can be funded there is a riskthat other sections of industry which require the services of these authorities or inspectorateswill suffer. Nevertheless, on the evidence before me, the clear perception of both employeerepresentatives and employers is that there needs to be an increase in the attendance ofoccupational health and safety inspectors on building and construction sites.

240 In the first instance this must be a matter for the States and Territories. I urge the States andTerritories to review their policies in this regard and provide the funding and infrastructurenecessary to achieve this end.

241 Unless the States and Territories are prepared to fund an increase in the size of their regulatoryauthorities or inspectorates, the possible solutions seem to lie in two areas: funding for increasein the numbers of occupational health and safety inspectors to be provided by theCommonwealth through a system of tied grants so as to ensure that that funding is applieddirectly, or a system of levies on clients commissioning building and construction works tosupport the cost of increased supervision.

Issue

There is persuasive support for the view that the extent of compliance with occupationalhealth and safety obligations is strongly influenced by a reasonable expectation of thelikelihood of being inspected, prosecuted, convicted and having a meaningful penaltyimposed. The presence of occupational health and safety inspectors is important. Whilethis is primarily a matter for the States and Territories, the Commonwealth can providefunds for more inspectors by means of a system of tied grants.

Recommendation 31

The Commonwealth consider the introduction of a system of tied grants wherebyadditional funding is made available to the States and Territories on condition that thefunding is applied so as to provide additional occupational health and safety inspectorsin the building and construction industry.

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242 As I have already indicated, there was much support during the Workplace Health and SafetyConference for the development of mechanisms to reflect client responsibility for occupationalhealth and safety. Participants acknowledged that the stakeholder missing from theoccupational health and safety equation was the client.309 The cost of implementing andmonitoring proper occupational health and safety is a real cost. The design of a project is amatter selected by the client. The client sets the criteria which will be used to determine whowill be chosen as the successful head contractor. As I have indicated above, the clientcontrols some of the risks to occupational health and safety through project design andprocurement, most often before a head contractor is selected. The client will benefit directlyby improved occupational health and safety on site because improved health and safety willmean less time lost due to safety disputes and this ought to translate to earlier delivery of theproject by the head contractor. All of these features make a strong argument for thedevelopment of a system of user pays when it comes to visible presence of occupationalhealth and safety inspectors on site.

243 It is important if clients are to make direct contributions to cover at least part of the costs of onsite occupational health and safety regulation and inspection, that the payment translates intoincreased presence of occupational health and safety inspectors on site.

244 This is probably not within the legislative power of the Commonwealth. However, as a modelclient the Commonwealth can and should lead the way.

Issue

The Commonwealth can also provide funds for an increased level of inspection onCommonwealth projects.

Recommendation 32

A scheme be implemented to apply on all projects where the contract value of the worksexceeds $3 million, where the Commonwealth is the client or in relation to which theCommonwealth has provided or contributed funds or other assistance, which has thefollowing elements:

(a) The Commonwealth seek to enter an agreement with the relevant State or Territoryoccupational health and safety regulatory authority whereby, in return for anenhanced system of regular worksite health and safety inspections (including anagreed regime for inspections at predetermined intervals and prompt response tonotification of health or safety disputes relating to the project), the Commonwealthwould agree to provide funding to support the increased level of inspection.

(b) The precise detail of the regime and the level of contribution are matters to benegotiated on a project by project basis. The negotiations are to be the responsibilityof the Commissioner for Health and Safety in the Building and Construction Industryfollowing consultation with employee representatives, the site safety committee,representatives of the head contractor and such of the subcontractors as theCommissioner deems appropriate having regard to the size of the project, the natureand timing of the works and the size and skill base of the workforce and othermatters within the Commissioner’s discretion.


245 The scheme proposed above would have a number of beneficial effects for occupational healthand safety in the building and construction industry including the following:

• It would require an increase in visible presence of occupational health and safetyinspectors on sites. This would provide a general deterrence from poor health and safetypractices and be a physical reminder of the importance of health and safety on sites andin the industry. It would provide an effective method of refilling the void in occupationalhealth and safety regulation (which has fallen increasing, by default, to the unions) yet notdiminish the important legitimate area of union interest in occupational health and safety.

• It would create a need for increased staffing levels for occupational health and safetyofficers. This would lead to an increase in the size of the pool of expertise in occupationalhealth and safety in the industry.

• It would provide a model available to be applied to the private sector and to State andTerritory Governments.

• It would draw the clients into the occupational health and safety equation and wouldidentify as an up front cost an aspect of improved occupational health and safety in theindustry. In this way it would serve as a bulwark against the tendencies of clients toaccept best price tenders without necessarily paying regard to that portion of a tenderprice given over to improved occupational health and safety.

• Builders and subcontractors would be likely to take with them to other sites the improvedoccupational health and safety systems that they would of necessity develop as a resultof the increased scrutiny on Commonwealth sites.

• Pressures would develop in the building and construction industry for the modeldescribed above to be taken on in the private sector once the benefits of that system interms of decreased industrial activity and increased productivity were realised.

(c) The arrangements with the relevant State or Territory occupational health andsafety authority must be struck in a way that ensures the preservation of theindependence of that authority and of the health and safety inspectors who haveresponsibility for the project in question and does not compromise the ability of theinspectors to attend the site at times of their choosing and otherwise to conducttheir duties as they see fit, in addition to the duties that may be imposed uponthem as a result of any regime of periodic inspection or otherwise as may beagreed.

(d) Depending upon the size and nature of the project and any other relevantconsideration, the regime of periodic inspection to be agreed might well extend torequire the fulltime on-site presence of one or more health and safety inspectorsfor part of or all of the life of a project. Detail of this nature must be left to bedetermined in relation to projects on an individual basis.

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246 Before leaving this subject, I should point out that the widespread view that the competentpublic authorities are not doing enough in this area is related to the idea that the unionmovement must, and should, fill the gap. The Assistant National Secretary of the CFMEU, forexample, said in evidence that:

As Governments have retreated from an active regulatory role, the unions have beenforced to become the OH&S police of the construction industry...The proactive rolewhich has been forced upon unions has led to criticism by employers, particularly thosecaught cheating on OH&S and putting the lives of workers at risk. However, a union hasa duty to its members, and the only thing currently preventing even higher rates ofworkplace deaths and injuries amongst construction workers is union action on OH&Smatters. (my emphasis)310

247 The view was expressed in many of my meetings with leading participants in the industry thatvarious unions have become the de facto safety policemen in the industry.311

248 Doubts were raised about the independence of some experts called in to provide safetyreports, because it was felt that they knew they would not receive work in the future if theyprovided a report that was contrary to a union’s position. The view was expressed that untilsafety issues on sites are controlled by a truly independent authority with appropriate expertise,they will continue to be the focus of safety issues created to achieve industrial relationsobjectives.312

249 I acknowledge that every union has a legitimate interest in the workplace health and safety ofits members. I do not suggest that any union should be shut out of this area. However, I havefound that unions in this industry have on many occasions abused their role. I will return to thislater in this volume. Here, I wish only to observe that one way in which the interests of everyonein the industry could best be served would be to relieve the unions of the burden of policingworkplace health and safety by ensuring that there were sufficient inspectorial resources to dothe job.

Establishment of the Office of the Commissioner for Occupational Health and Safetyin the Building and Construction Industry

250 Central to the reforms that I have recommended above is the Commissioner for OccupationalHealth and Safety. This office is necessary to implement and drive the reforms to occupationalhealth and safety which the Commonwealth can promote as a model client.

Issue

An Office of the Commissioner for Health and Safety in the Building and ConstructionIndustry is necessary to implement and drive the reforms recommended above.

Recommendation 33

The Commonwealth establish the Office of the Commissioner for Occupational Healthand Safety in the Building and Construction Industry (Commissioner for Health andSafety), the essential features of which are as follows:


Primary object

The primary object of the Commissioner for Health and Safety is to promote and enhanceoccupational health and safety in the building and construction industry. Every otherconsideration, including the cost of building and construction work, is subordinate to thispurpose.

Independence

The Commissioner for Health and Safety must be independent and have control of anadequate budget. This is essential in order to protect the integrity of the reforms for whichthe Commissioner will have responsibility.

Place in the Australian Public Service

The Commissioner for Health and Safety should be located within the Safety,Rehabilitation and Compensation Commission (SRC Commission) which is establishedunder the Safety, Rehabilitation and Compensation Act 1988 (C’wth). Given its role inrelation to occupational health and safety matters within the Commonwealth the SRCCommission seems ideally suited to house the Commissioner for Health and Safety.

Functions of the Commissioner for Health and Safety

The principal functions of the Commissioner for Health and Safety ought to include:

(a) Administering the scheme requiring contractors to have a pre-tender health andsafety qualification prior to being eligible to tender for work on projects where theCommonwealth is the client or has provided funding or other capital(Commonwealth projects).

(b) Supervising all contracts for building or construction work of or above theprescribed contract value on Commonwealth projects with a view to ensuring thatthat the pre-tender health and safety qualification scheme applies.

(c) His or her duties under the pre-tender occupational health and safety qualificationscheme shall include:

(i) consulting widely with participants in the industry including the major builders,employer representatives, employee representatives, occupational health and safety experts and consultants with a view to establishing a list of health andsafety hazards against which the health and safety performance of applicantsfor a pre-tender occupational health and safety qualification will be audited;

(ii) accrediting and maintaining a register of occupational health and safetyauditors to be used for the purpose of conducting the audits at the threelevels required as part of the scheme;

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(iii) determining the categories of available qualification under the pre-tenderoccupational health and safety qualification scheme. Initially the pre-tenderoccupational health and safety qualification might be offered to majorbuilders. Once the scheme is bedded down it might be extended to smallerbuilders and major subcontractors and so on. The evolution of the schemewill in turn take account of the particular hazards which the consultationprocess referred to above will identify. Thus the scheme might be extended atan early time to subcontractors whose work exposes them to thoseparticular hazards;

(iv) entering into memoranda of understanding on behalf of the Commonwealthwith such entities as from time to time seek pre-tender occupational healthand safety qualification which embody the obligations and responsibilities ofthose seeking the qualification and the Commonwealth under the scheme;

(v) promoting the pre-tender occupational health and safety qualificationscheme so as to encourage all State and Territory Governments and privateclients to adopt it;

(vi) promoting the pre-tender occupational health and safety qualificationscheme with insurers with a view to gaining recognition of the scheme and itsbenefits for occupational health and safety, and thereby securing incentivesreflected in lower insurance premiums for workers’ compensation andemployers, and public liability;

(vii) promoting the pre-tender occupational health and safety qualificationscheme so as to support the concept of the qualification as a badge ofhonour in the industry, which would necessarily involve favourable publicityfor those that achieve pre-tender occupational health and safety qualificationstatus; and

(viii) adjudicating upon the performance of those contractors that have pre-tenderoccupational health and safety qualification status during the life of, and afterthe completion of, projects with a view to monitoring the their occupationalhealth and safety performance, imposing such sanctions as may beappropriate in the circumstances and monitoring the performance of the pre-tender occupational health and safety qualification scheme generally.

(d) Supervising the scheme for increased inspections on Commonwealth projects. Thiswill involve requiring the Commissioner to consult with employee representatives,the site safety committee, representatives of the head contractor and such of thesubcontractors as the Commissioner deems appropriate having regard to the size ofthe project, as to the proposed detail of a scheme of regular inspections byworkplace health and safety inspectors, to be negotiated by the Commissioner withthe relevant State or Territory occupational health and safety regulatory authority.


National Code of Practice for the Construction Industry

Introduction

251 The National Code was developed by the Commonwealth, State and Territory Governmentsand published in 1997. It has not since been revised.

252 The National Code is described as expressing ‘the principles which Commonwealth, State andTerritory Governments agree should underpin the future development of the constructionindustry in Australia’. The introduction to the Code states that it ‘emphasises the maintenanceof the highest ethical standards in all construction-related activities’. 313

253 The National Code’s core principles include the maintenance of high standards in occupationalhealth and safety.314

The Commonwealth’s framework for the application of the National Code

254 The Commonwealth has sought to implement the National Code through:

• the Commonwealth Implementation Guidelines for the National Code of Practice for theConstruction Industry (the Implementation Guidelines);

• the Commonwealth Industry Guidelines for the National Code of Practice for theConstruction Industry (the Industry Guidelines); and

• agency-specific guidance such as that developed by individual agencies.

255 The Implementation Guidelines were published by the then Department of Workplace Relationsand Small Business and DOFA in February 1998. They were endorsed by both portfolioministers. Significantly, the ministers referred to the Commonwealth’s commitment to use itspurchasing power:

(e) Reporting to the Minister for Employment and Workplace Relations on theoperation of the pre-tender occupational health and safety qualification schemeand the scheme for increasing inspections on Commonwealth projects. This oughtto be a periodical report. In recognition of the likelihood that many of the projectscovered by the scheme are likely to be large and therefore likely to have livesmeasured in years rather than months I suggest that the reporting intervals be inthe order of three years. The Minister should cause a copy of each such report tobe tabled in each House of the Parliament.

(f) Educating the building and construction industry about the pre-tenderoccupational health and safety qualification scheme, and promoting occupationalhealth and safety in the industry.

(g) Promoting, monitoring and reporting on compliance with the occupational healthand safety aspects of the National Code of Practice for the Construction Industryand the Implementation Guidelines.

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Adoption of the national code by the Commonwealth Government expresses acommitment to deal only with organisations and personnel in the construction industrywhose standards and behaviour conform with the principles expressed in the code. TheGovernment has agreed to use its purchasing power to promote best practice workplacerelations and standards of honesty and integrity in the construction industry. As asignificant client of the construction industry, the Commonwealth Government iscommitted to promoting reform of the industry and the development of the highestethical standards.315

256 However, the Commonwealth’s commitment to advance the application of the National Codeby use of its purchasing power is not reflected in the Commonwealth Procurement Guidelines,which is the key instrument of Commonwealth procurement policies and principles.

257 The Implementation Guidelines are described as:

• being intended to assist Commonwealth agencies to interpret and implement aspects ofthe Code in relation to construction projects undertaken on their behalf; and

• detailing the extra-agency processes which the Government has set up to monitor andreport on the Code, and determine whether a sanction should be imposed for a breachof the Code.

258 Section 6 of the Implementation Guidelines sets out the Commonwealth’s policies on industrialrelations and occupational health and safety in the industry.

259 The Industry Guidelines were published by the then Department of Workplace Relations andSmall Business in March 1998. They are the means by which the Commonwealth’soccupational health and safety requirements are incorporated into service provider contracts.As such, for practical purposes, they replicate the terms of, and are confined to the scope of s6of the Implementation Guidelines.

260 Paragraph 4.2 of the Implementation Guidelines states that the National Code and IndustryGuidelines ‘should be’ made conditions of tender:

Compliance with the code and the Industry guidelines…should be made a condition oftender. The code and the industry guidelines should be included as an attachment totender documents…Tenderers should also be advised that compliance with the codeand the industry guidelines is to extend to all subcontractors, consultants and supplierswho may be engaged by the tenderer on the project.316

Occupational health and safety aspects of the National Code, the Implementation Guidelines and the Industry Guidelines

261 The National Code provisions dealing expressly with workplace health and safety are forthrightand plain. They specifically ascribe less costly outcomes to better occupational health andsafety performance:

OHS&R obligations must be actively addressed by all industry participants. Unequivocalcommitment to OHS&R management must be demonstrated in systems that addressresponsibilities, policies, procedures and performance standards to be met by all partiesinvolved in a project and are directly linked to quality OHS&R outcomes.


The highest priority has been given by all jurisdictions to improvement in themanagement of OHS&R in the construction industry.

Service providers must meet their OHS&R obligations according to relevant laws whetherworking on private or government clients’ projects and sites.

Additionally, they are expected to prove that they have an appropriate OHS&Rmanagement system operating within their individual enterprise.

They may also be expected to establish a site specific OHS&R management plan beforework commences on a government project or site.

Clients will prefer to deal with service providers who recognise that the activemanagement of OHS&R issues leads to superior safety and less costly outcomes thanreliance on the lowest common denominator approach typified by simple regulatorycompliance.317

262 In my view, the National Code provides a sound basis for the Commonwealth to developcomprehensive implementation guidance, incorporating performance benchmarks withexpectations of consistently improving performance, effective means of performancemeasurement, and with the scope to attach commercial risk to underperformance. However,the recommendations that I have made in this volume of the Final Report go beyond the Code.It will therefore be necessary to make some amendments to the Code so that it reflects myrecommendations.

The Implementation Guidelines

263 Although the Implementation Guidelines are described as being intended to assistCommonwealth agencies to interpret and implement aspects of the code, they take a verynarrow approach to giving effect to the principles set out in the National Code.

264 In relation to occupational health and safety in the context of the National Code, theImplementation Guidelines:

• largely repeat, without amplifying, the provisions of the Code dealing with occupationalhealth and safety;

• omit the Code requirement that service providers prove that they have an ‘appropriateOHS&R management system’ operating within their individual enterprise;

• omit the requirement in the Code that service providers meet their occupational healthand safety obligations on private, as well as government client, projects;

• require the ‘principal contractor’ to establish ‘a site specific OHS&R management planbefore work commences’; under the Code, this is an ‘expectation’, rather than arequirement; and

• omit any reference to the key expression of expectation in the Code on this matter,namely that clients ‘…will prefer to deal with service providers who recognise that theactive management of OHS&R issues leads to superior safety and less costly outcomesthan reliance on the lowest common denominator approach typified by simple regulatorycompliance’; and

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• spell out the framework for a ‘comprehensive OHS&R management plan’ but provide noadditional detail.318

265 More generally, the Implementation Guidelines provide no guidance about those elements ofthe Code that are intended to express client expectations, such as ‘stringent criteria to identify,encourage and reward better performers’; ‘commitment to best practice’; and ‘activemanagement of OHS&R issues’.

Limitations of the Implementation Guidelines

266 The Implementation Guidelines provide no real guidance about the Commonwealth’sexpectations in relation to the occupational health and safety aspects of the National Code.

267 In relation to occupational health and safety, the Best Practice Policy Guidance is limited largelyto the achievement of minimum statutory compliance.

268 Neither the Implementation Guidelines nor the Industry Guidelines advance occupational healthand safety considerations beyond the National Code. For example, they do not take up thescope offered by the Code to provide guidance about:

• the means by which departments and agencies are to play a central role in drivingindustry improvement and the criteria to be applied to identify, encourage and rewardbetter performing service providers;

• best practice in occupational health and safety – including in relation to design as well asconstruction;

• assessing service supplier performance in their management of occupational health andsafety;

• prequalification of service providers in relation to occupational health and safety, includingproving that they have an appropriate safety management system operating within theirbusiness that is consistently applied on all projects; or

• monitoring, reviewing, auditing and reporting service provider occupational health andsafety performance on Commonwealth projects.

269 In relation to the role of clients, for example, the National Code provides scope forimplementation guidance to be given about matters such as incorporating client-specificoccupational health and safety requirements into contracts (for example, requiring contracts tobe written to require best practice standards and not just minimum statutory requirements).

270 The Implementation Guidelines provide no such guidance. In its absence, individual agenciesare left to develop their own approaches and the Commonwealth accommodates theconsequential inconsistency in the application of the National Code. More significantly, theCommonwealth thereby reduces the effectiveness of the use of its purchasing power.

271 As the Implementation Guidelines now stand, departments and agencies pass theresponsibility for compliance with the National Code to service providers. In the absence of anyexpression of client expectations about performance standards, indicators and measuresbeyond statutory compliance, service providers are simply obliged to meet minimum statutoryrequirements.


272 The only obligation on service providers that has any real content is that the principal contractormust establish ‘a site specific OHS&R management plan before work commences’, and thatthe plan must cover specified issues; there is no obligation to implement the plan.

273 In these circumstances, the Commonwealth, as client, cannot expect to be ‘driving industryimprovement’, as the National Code anticipates that it should.

274 The deficiency can be addressed by ensuring that the Implementation Guidelines are amendedto reflect my recommendations in this volume of the Final Report. The ImplementationGuidelines will then become a further means to achieve the object of my recommendations inthis regard.

The lack of reporting arrangements

275 The Implementation Guidelines state that they ‘…detail the extra-agency processes which theGovernment has set up to monitor and report on the code’.319 The essential features of thereporting framework are:

• the client deals with any ‘code-related problem’ brought to its attention;

• a client ‘should’ (but is not required to) inform the Code Monitoring Group of all breachesof the Code (as distinct from code-related problems); and

• the Code Monitoring Group decides on ‘a course of action appropriate’ to the breach.

276 In short, the system relies on exception reporting limited, primarily, to National Code breaches.

277 The reporting arrangements do not enable the Commonwealth to:

• access regular reports on the implementation of the National Code on its projects;

• assess and revise performance benchmarks so as to bring about continuousimprovement;

• establish a cross-portfolio view of performance in the implementation of the NationalCode, and to thereby establish and promulgate best practice on its projects; or

• assess occupational health and safety performance on Commonwealth projects.

278 The Industry Guidelines limit reporting obligations to breaches of the Code. It is expectedthat contractors, subcontractors, consultants and employees should report suspectedbreaches of the Code to the client, the Code Monitoring Group or the Office of the EmploymentAdvocate.

279 The Implementation Guidelines set out the allocation of ‘code-related responsibilities’ betweenDOFA and DEWR. Neither agency is responsible for monitoring and promoting compliance withthe occupational health and safety aspects of the National Code.

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280 Under the Implementation Guidelines, DOFA is responsible for:

• advising agencies and other interested parties about the broader construction-relatedaspects of the Code; and

• monitoring compliance with the non-industrial relations aspects of the Code.

281 DEWR is responsible for:

• advising agencies and other interested parties about the industrial relations andoccupational health and safety sections of the Code; and

• monitoring and promoting compliance with the industrial relations aspects of the Codeon behalf of the Commonwealth.

282 Under this allocation of responsibilities, there is no proponent for occupational health andsafety. More generally, neither agency has any responsibility for encouraging the ‘positivecommitment to best practice’ in occupational health and safety to which the National Coderefers.

283 Further, it appears that the Code Monitoring Group does not have a member with expertise inoccupational health and safety.

284 These deficiencies can be overcome by my earlier recommendations that the Commissionerfor Health and Safety should have the responsibility to monitor, promote and report oncompliance with the occupational health and safety aspects of the National Code and theImplementation Guidelines.

Conclusion

285 There are real weaknesses in the way the National Code and the Implementation Guidelineshave been implemented which have prevented them being effective means by which theCommonwealth as a client can drive cultural and behavioural change in occupational healthand safety in the building and construction industry.

286 Elsewhere in this final report I have made detailed recommendations to enhance the operationof the National Code and the Implementation Guidelines.

287 Within that context, the National Code and the Implementation Guidelines should be made toreflect and complement the reforms that I have recommended. To achieve this, they must beamended.


Issue

The National Code of Practice for the Construction Industry usefully sets out effectiveprinciples in relation to occupational health and safety. The Implementation Guidelines,however, do not provide sufficient guidance for the implementation of those principles.Both the Code and the Commonwealth Implementation Guidelines need to be amendedto reflect the reforms recommended in relation to occupational health and safety.

Recommendation 34

The National Code of Practice for the Construction Industry, and the CommonwealthImplementation Guidelines, be amended to reflect and complement the reformsproposed in Recommendations 27, 29, 30, 31, 32, 33 and 35.

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3 Misuse of safety issues for industrial purposes

The problem

288 During my meetings with some of the leading participants in the industry, I was told thatoccupational health and safety is frequently used by unions as an industrial relations tool. Manyparticipants said that abuse of occupational health and safety concerns is a major issue in theindustry. Many participants commented that safety matters are frequently raised by unionofficials whenever an industrial issue arises on a site. When the industrial relations processeshave been exhausted in trying to resolve a dispute, safety issues are raised by the union. Onereason for this, it was suggested, is that safety stoppages provide paid strike time, whereasindustrial strikes do not.320

289 Grocon submitted:

We also acknowledge the construction unions [sic] genuine efforts to cut back onworkplace accidents, but at the same time we question some of their strategies, andmany employers believe that on some occasions the assertion of ‘safety’ is used as asmoke screen for what is really an industrial issue.321

290 The Commonwealth submitted:

The recent focus on the poor OHS performance of the building and construction industryhas also highlighted other issues surrounding OHS in the industry including the potentialuse (or abuse) of OHS concerns by unions as a guise for progressing other industrialagendas. Such action may lead to OHS concerns being downgraded or subsumed inother industrial issues and therefore not properly addressed before accidents occur. Thecosts of delays due to industrial disputation may also be a strong inducement toemployers to bow to union demands in the interests of completing the job as quickly aspossible. Disputation over OHS issues in the industry has the potential to be a matter ofserious concern, not only to employers and employees but also to the community whichultimately bears the costs of workplace injuries and delays in the completion ofconstruction projects resulting from OHS disputes.322

291 The Commonwealth has expressed concern about what it describes as the ‘manipulation ofoccupational health and safety issues by unions to advance their industrial agendas’. Its view isthat:

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As a consequence regard for occupational health and safety is weakened. This isunacceptable in an industry with high occupational health and safety risks and a poorhealth and safety record.323

Evidence of misuse of occupational health and safety issues for unrelated industrial ends

292 In the minutes of the meeting between members of CSMOAQ and Counsel Assisting, afteroutlining a number of deficiencies in occupational health and safety regulation and enforcementin Queensland, the following is recorded:

38. The participants [this was a reference to those members of CSMOAQ whoattended the meeting with Counsel Assisting] considered that the deficiencies thatthey had identified had created a void that the building and construction industryunions had filled.

39. They did not consider that this was necessarily illegitimate; they thought that unionshad a proper interest in their members’ safety and they acknowledged that unsafeemployers had given the building industry unions plenty of ammunition.

40. However, the participants considered that the building industry unions inQueensland often exploited a concern about safety for other industrial purposes. Intheir experience, the unions often either manufactured or exaggerated a questionabout safety, or linked the resolution of a genuine question about safety to industrialquestions. The participants considered that this trivialised safety, and deflectedattention away from the real resolution of genuine safety problems. The participantssaw this as a significant impediment to improving safety in the building andconstruction industry.

41. The participants also considered that the general view that the building industryunions often manipulated safety concerns inhibited the unions’ capacity to effectconstructive change in the interests of their members. This was because all of theunions’ efforts in this regard could too readily be discounted. In this respect, theparticipants thought that the unions did themselves and their members no service;unions would more effectively work for the safety of their members if they did notdamage their credibility in this way.

42. The participants agreed that for these reasons it was necessary to uncouple safetyand industrial disputes, and to take safety out of the industrial arena.

43. All of them believed that to do this it was first necessary to address the deficienciesin the regulation and enforcement of safety, so as to remove the opportunity andjustification for the unions to become involved as de facto arbiters, as they did now.

44. The participants also agreed that it would be desirable to provide for a body ofundoubted independence and expertise to make a mandatory, early, authoritativeand conclusive determination of all significant questions about safety on buildingand construction sites. They considered that the fact that it was impossible toobtain a determination of this character was a decisive problem in the presentsystem. The view of the participants was that such a body should have theauthority to determine whether there was any substance in a complaint about


safety. Subject to any rights of appeal, it should not be possible to go behind sucha determination – an industrial tribunal, for example, should be required to acceptthe determination. If it was determined that there was substance in a complaint, thesame body should have the authority to determine what needed to be done toaddress it, when, and by whom – and the limits of the work that might be affectedby any real risk. Its determination should be backed up by appropriate sanctions,for example, it should be an offence, attracting serious penalties, to requiresomeone to perform work that had been determined to be unsafe, and, on theother hand, it should be unlawful to pay someone who refused to perform workthat had been determined to be safe. It was important to stop work that wasunsafe, and get such sites working safely again. Equally, it was important to putunjustified safety concerns to rest.324

293 In a statutory review of the Occupational Safety and Health Act 1984 (WA) commenced bySenior Commissioner Fielding of the Western Australian Industrial Relations Commission andcompleted upon Fielding’s retirement by former Australian Industrial Relations CommissionerRobert Laing (the Laing review), the following is recorded:

435. In some respects there are differences between stoppages over safety issues ascompared to other disputes. For example, safety stoppages have a higher prioritythan other disputes and attract more immediate responses simply because safetyissues are involved. Safety stoppages which are not genuine, therefore, have thepotential to degrade the system because after a series of false alarms claims willnot taken as seriously. As a consequence, when a genuine safety issue arises, theresponse may not be as effective as it should.

436. Similarly, there is a legitimate basis for the continued payment of wages toemployees who cease work because of a genuine and serious safety concern.Payment does not usually arise as a consequence of other stoppages and partiescarry the cost of their actions. However, there are situations where safety has beenclaimed merely to justify the payment of wages for the duration of stoppages overother issues. Again this has the potential to degrade the integrity of the processand for resistance to develop to any payment or for payments to be made in everycase because it is less expensive than a continued stoppage. Plainly this will havea deleterious effect on the way that safety can be dealt with and destroysconfidence as to the sincerity of the participants. Because s284 precludespayment in certain circumstances, it was intended that it would address suchissues…

440. It was submitted that in the construction industry in particular, occupational safetyand health is regularly used as leverage for industrial campaigns. Examples weregiven of workplace stoppages for allegedly unsafe work. However, when otherissues were resolved, it is argued that the safety issues often evaporated and workrecommenced. The regularity and strength of these allegations suggest that thereis at least some incidence of an inappropriate use of safety as a bargaining tool andthat some appear incapable of realising the damage that such action causes. Thatis especially concerning given the relatively poor safety record of the industry.325

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294 This section of the Laing review ended with a recommendation that the WorkSafe WesternAustralia Commission ‘investigate and develop recommendations to Government to removethe use of occupational safety and health as a bargaining instrument in relation to otherindustrial claims’.326

295 My own investigations during this Commission have confirmed that there is widespreadexploitation of occupational health and safety issues by unions in efforts to secure unrelatedindustrial ends. Some examples dealt with in more detail in the case studies will suffice.

296 In New South Wales the Wollongong and Illawarra case study, dealing with A J Bignell Pty Ltd– Shoalhaven Water Operations Depot Project and Bitz Excavations Pty Ltd – UnanderraProject, and the Ingleside Bricklaying case study provide examples of union activity wheresafety issues were raised in an attempt to secure unrelated industrial gains.

297 In the Australian Capital Territory, there are illustrations of misuse of safety in the OccupationalHealth and Safety case study.

298 In Victoria the case studies relating to The Age Print Centre and Woolworths QP1 and QP2present as striking examples of the misuse of safety issues in attempts to make unrelatedindustrial gains.

299 In Western Australia the case studies of Doric Group Holdings Pty Ltd, The Vines Resort–BroadConstruction Services Pty Ltd, The Western Australia Task force for the Building andConstruction Industry and the Building and Special Projects Inspectorate (ElegantLandscapes), Universal Constructions Pty Ltd and Worsley Expansion Project are all examplesof safety issues being used to advance unrelated industrial claims. Most often this hasoccurred because of a builder’s refusal to sign an EBA with the CFMEU or other unions.

300 The Nambour Hospital Dispute case study in Queensland is a striking instance of unions andunion officials knowingly and deliberately making allegations that a site was unsafe for thepurpose of providing a justification for industrial action that was in truth undertaken for otherreasons. The industrial action stopped work on the whole site for about six weeks. During theindustrial action, the site was formally inspected on at least 14 occasions, including seveninspections by officers of the Queensland Division of Workplace Health and Safety, and four bythree different independent experts. Not one of these inspections suggested that work on thewhole of the site was unsafe.

301 Two witnesses called during the Nambour Hospital Dispute case study expressed views aboutthe way in which safety was misused as a justification for the industrial action.

(a) The Queensland Master Builders Association’s industrial officer, Mr Mark Corcoran, said:

In circumstances where there is no unfettered right to strike…and where thelegislative strictures of complying with bargaining period notices and a requirementto bargain in ‘good faith’ are inconvenient for industrial purposes, then in myexperience the path to industrial disruption in the building industry (as in manyother industries) is frequently one based on ‘safety’ concerns. In my view, concernsabout safety were manipulated by the union organisers involved in the NambourHospital dispute. All allegedly pressing or ‘imminent’ concerns about safety thatwere raised as such during the dispute, were assessed and remedied by [the head


contractor] using professional specialist advisers under supervision and review bythe Queensland Industrial Relations Commission.327

Where persons are minded to spread discord at a workplace to achieve anindustrial end, safety concerns are a relatively accessible, highly responsive andrelatively easy lever to pull. It also has the coincidental industrial advantage of beingable to generate virtually instantaneous work stoppages which can still lead to ‘losttime payment’ since the episode may not (at least overtly) be characterised asillegal. In that context, it can be seen that:

(a) real and substantive concerns over workplace health and safety are devaluedby ‘cry wolf’ episodes (of which the Nambour Hospital dispute is, in my view,something of an example);

(b) it is often misconceived and counter productive for industrial tribunals to beasked to adjudicate as the extent to which any particular safety dispute wasreal or trumped up, or some mixture of the two; and

(c) any industrial weakness that can be exploited as easily as that which I havedescribed inevitably will be exploited (especially if effective forms of incidentreview are not routinely available …).328

302 Mr Trevor Love was a director of Site-Safe, Health, Safety and Risk Management ConsultantsPty Ltd. For many years he has performed work in the construction industry throughoutAustralia. He participated in the Workplace Health and Safety Conference. He inspected theNambour Hospital site, and concluded that none of the safety issues that were identified to himby the unions constituted a serious imminent risk to the health, safety or welfare of any workeron the site such that work should cease, and that they did not justify any cessation to, orinterruption of, work on the site. However, he did notice some matters in relation to theformwork and scaffolding – none of which had been identified by the unions – which requiredattention. He reported these conclusions to a Commissioner of the Queensland IndustrialRelations Commission who was attempting to conciliate the dispute, and was met with anattack on his independence on the part of the unions, who criticised him for raising concernsabout the formwork. His evidence was:

My part in the Nambour Hospital dispute is typical of my involvement in industrialdisputes in the building industry in several respects:

(a) The questions of safety that were raised by the unions were insignificant and minorand as such I believe the need to bring about a cessation of work on the issuesalone were unfounded. As I have said, none of the issues raised in the Commissiongenerally involved a serious risk to the safety or welfare of any worker, and none ofthem warranted a complete stoppage;

(b) All of the unions that were represented in the [conciliation conference chaired bythe Commissioner] were reluctant to accept my findings in this respect. Instead,they attacked my credibility and integrity, partly on the false ground that I was notindependent;

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(c) The unions appeared to have missed altogether, or at least not addressed, any ofmy concerns about the formwork or scaffolding. I can only attribute this to a lack ofexpertise or interest on the part of the unions; and

(d) It is questionable whether any real concern for safety was held by the unions ortheir representatives in regard to this particular dispute by their actions exhibited tome during the conference. An instance of this was their apparent unwillingness tocountenance the issues raised by me about the safety of [the] formwork.

In my experience, unions in the building industry readily, and all too often, pick up thesafety football during an industrial dispute and kick it around for purposes that havenothing to do with safety. In fact, I have formed the view over many years of working onsafety in the building industry that building industry unions throughout Australia habituallytreat safety as an expedient device to assist in the pursuit of industrial objectives.

Safety can be a highly effective device in this respect – even the most obviouslysuperficial claim requires investigation, and that takes time; workers can be paid forstoppages on safety grounds; safety is a compelling rallying cry; and claims that a Site isunsafe readily engages the support of governments and the public. Hence, in myexperience, it is common for building industry unions to raise safety questions inindustrial disputes. When they do, they are unfortunately more often than not – as in thecase of the Nambour Hospital dispute – trivial and unwarranted.

I have observed the ease with which trivial or unwarranted safety issues can be (and, asI have said, often are) exploited as a device in the pursuit of industrial objectives. Thismeans that the building industry unions have often been distracted or deflected fromdetecting or effectively addressing real risks to the health and safety of their members.

The dispute at the Nambour Hospital provides an illustration of this – as I have said, so faras I can see, the unions had done nothing about what I consider to have been the realsafety issues on the site (and, in the case of [the] formwork, seemed to actively resist anyattempt to raise those concerns in the Commission), but instead devoted themselves totrivial issues that manifestly raised no real serious safety risks.329

303 Misuse of safety for industrial purposes compromises safety in important respects:

(a) it trivialises safety, and deflects attention away from the real resolution of safety problemson sites;

(b) the view that unions manipulate safety concerns inhibits the unions’ capacity to effectconstructive change;

(c) the widespread anticipation that safety issues may be misused may distort the approachthat is taken to safety;

(d) time taken by health and safety regulators to attend and deal with less important issuesdetracts from their capacity to deal with more substantial issues elsewhere; and

(e) at an industry level, there is a tendency for issues to be dealt with at the lowest commondenominator.

304 Each of these is, in itself, of importance. The cumulative effect on the safety culture of thebuilding and construction industry is significant.


305 It was a common point of frustration among both head contractors and subcontractors whomet with me that safety disputes arising on major building projects usually result in the wholesite being closed down notwithstanding that only the immediate area within which the safetyissue is identified can be isolated. I was told, and I accept, that a ‘one out, all out’ mentality isprevalent throughout the industry. Site closures, especially on large projects, are very costly forhead contractors and subcontractors.330 The following evidence was given in Victoria, but itdescribes a problem that I found on many occasions throughout Australia:

..it is not uncommon for a builder or subcontractor who is in dispute with a union over anunrelated industrial issue to receive visits from union officials investigating and findingalleged safety breaches. The union official asserts that an immediate risk exists, workceases while employees sit in the sheds or worse, leave site.331

The role of unions

306 Commentators have recognised that occupational health and safety can, and should, be afocus of union activity.332

307 The construction director of Multiplex Constructions (Qld) Pty Ltd agreed. While he had ‘littledoubt that unions often use trivial safety disputes as justification for industrial stoppages’333, hereadily accepted that unions have a legitimate interest in the safety of their members at work.334

He therefore considered that it was impossible to ‘disengage safety issues from unions’.335

308 However, I heard other views.

309 Transfield submitted that

…the unions’ role in OH&S ought to be downgraded significantly. There is anirreconcilable conflict of interest between the unions’ primary goals and effective OH&Soutcomes. The unions’ raison d’etre is to achieve exclusive representation of employeesin the industry and to enhance those members’ terms and conditions of employment.These objectives are incompatible and perhaps incommensurable with effective OH&Soutcomes, particularly in the heat of bargaining periods and general industrialdisputation. Any future OH&S regime should therefore avoid provisions such as Division3 of the NSW Occupational Health and Safety Act 2000 which confers powers of entryand other rights on union officers.336

310 The Commonwealth submitted:

A mandated role for unions in OHS issues, such as that provided for in the OHSlegislation in NSW, is inappropriate and increases the likelihood of industrial mattersbecoming unnecessarily interwoven in OHS matters. These matters should be keptseparate. The potential for abuse of OHS provisions for industrial purposes significantlyincreases where OHS provisions provide a mandated role for unions.337

311 The Commonwealth further submitted:

A move towards a workplace OHS framework similar to the current workplace relationsapproach would recognise the employers and employees, working with regulatorybodies, are in the best position to determine how best to manage and control workplace

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health and safety. Putting workplace health and safety in the hands of employers andemployees directly without mandatory union involvement can assist in removing thepotential for misuse of occupational health and safety for industrial purposes.338

312 In its submission to the Commission relating to workplace health and safety in the building andconstruction industry the CFMEU observed:

Historically in Australia and internationally, OH & S has been regarded as a mainstreamindustrial relations issue. The Secretary General of the United Nations said recently ‘theILO has been at the forefront of advocacy and activism in promoting safety and health atwork. Safe Work [sic] is not only sound economic policy, it is a basic human right…’

The National Code of Practice states that ‘OHS & R obligations must be activelyaddressed by all industry participants’. The unions are obviously considered to be‘industry participants’ as they are treated as being bound by the Code.

Clearly, there is an inextricable link between OHS&R and industrial issues. A satisfactorystate of industrial relations cannot exist in the absence of a satisfactory level of workplacehealth and safety.339

313 In the same submission one finds the responsible concession:

Clearly, it would be irresponsible for a union official or health and safety representative toraise a bogus safety issue. Any proven case would not be condoned by the CFMEU, andpersons perpetrating such a device would be disciplined by the organisation.340

314 Trade unions have a legitimate interest in the maintenance of optimal occupational health andsafety standards in their industry generally and on sites where their members are employed.This is not a matter which this Commission should seek to alter. The secretary of the WesternAustralian Branch of the AMWU told me, and I accept, that it ‘is the duty of all union officials,delegates, health and safety representatives and members to challenge unsafe work practicesand work environments’.341 Properly, unions will continue to take an interest in the occupationalhealth and safety of their members and of workers generally. In some degree, unions are anintegral part of occupational health and safety law and regulation in almost every State andTerritory. Relevant provisions are set out in Appendix E to this volume. In practice, unions havean important part to play. A former member of the Western Australian Task Force for theBuilding and Construction Industry gave evidence that:

Although at times the unions use safety issues as a lever to affect industrial outcomes,I have been to some building sites where if it wasn’t for some sort of union intervention,someone would have been hurt.342

315 However the fact remains that safety issues are often inappropriately used as levers in anattempt to further unrelated industrial ends. The scope for this must be reduced and if possibleeliminated.


Options for reform

316 The options suggested by the Commonwealth included:

An option is to establish a national approach to the occupational health and safetyregulation of the industry. This could be achieved by State co-operation or the creation ofa national occupational health and safety service. An option is to mandate co-operationbetween occupational health and safety agencies and a national taskforce. The co-operation to be pursued at the planning, strategy and on site levels. An option is to givea national taskforce occupational health and safety responsibility. The use of corporationsand trade and commerce powers by the Commonwealth could be explored, but this mayhave some limitations.343

317 Other options suggested by the Commonwealth were:

An option is for the state occupational health and safety agencies to upgrade theircapacity to deal properly with issues. The responsibility for the agencies’ personnel andnot union officials to determine occupational health and safety responses should beobserved and enforced with rigour.344

An option is for occupational health and safety agency personnel to establish a moreeffective rapport with site management.345

An option is to ensure contractors do not allow unions to usurp their duty of careresponsibilities. Contractors in some cases have acquiesced when unions choose toabuse occupational health and safety practices for industrial purposes. The contractormanagement on site has clear occupational health and safety responsibilities.Occupational health and safety agencies must ensure these responsibilities are met andbe prepared to forcefully regulate this part of their charter.346

The solution

318 In my view, it is axiomatic that:

Employers, employees and regulatory bodies should be able to work together to removerisks to safety before accidents occur. This would enable the parties most directlyinvolved to resolve issues in a manner that most suits the particular workplace and wouldalso assist in removing the potential for unwarranted intervention by external thirdparties.347

319 The Victorian Occupational Health and Safety (Issue Resolution) Regulations 1999 go someway towards achieving this practical result. 348 By this regulation, management must nominaterepresentatives who are responsible for dealing with health and safety issues. Employees canbe represented by their nominees or by health and safety repesentatives. At any stage anyparty may call in any relevant organisation of employees or of employers to assist the parties toresolve the issues. When issues are raised, they must be reported to those responsible fordealing with safety issues. As soon as possible after an issue has been reported, the employeror management representative and the health and safety representative or employee nomineemust meet and try to resolve the issue. The resolution must take into account any of thefollowing that are relevant:

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(a) whether the hazard or risk can be isolated;

(b) the number and location of the employees affected by it;

(c) whether any appropriate temporary measures are possible or desirable;

(d) whether environmental monitoring is desirable;

(e) the time that may elapse before the hazard or risk is permanently corrected; and

(f) who is reponsible for performing or overseeing the removal of the hazard or risk.

The agreement on these matters must be brought to the attention of the employees and thehealth and safety committee. If any party requests, the details of the issue, and all mattersrelating to its resolution, must be set out in writing.

320 It is common for EBAs to contain dispute resolution procedures which apply on their face, orcan be adapted to apply, to disputes over safety. Most such safety dispute resolutionprocedures operate on the basis that once a dispute arises it ought to be dealt with as close tothe workface and the site of the dispute as possible. There are obvious benefits in so doing.349

If the matter cannot be resolved at the first level there is a gradation of reporting leading to thenotification of senior employee and employer representatives in the expectation that thedispute will be resolved through negotiation and the application of expertise and commonsense in an atmosphere of co-operation. There is rarely, if ever, a requirement, in cases wherethere is a failure to resolve the matter by negotiation, for mandatory reporting of the matter tothe appropriate occupational health and safety regulatory authority or inspectorate. In my viewthis ought to be a necessary feature of such a procedure. Indeed, early reference of a safetyissue which has not resolved through negotiation to an appropriate occupational health andsafety regulatory authority or inspectorate is essential. Safety disputes ought not to be allowedto fester to a stage where withdrawal of labour becomes an issue.

321 Issues relating to genuine concerns about safety need to be resolved as a matter of priority andwith certainty. It is in the nature of the building and construction industry that safety issues arelikely to arise from time to time on any given project. A safety issue addressed promptly oughtto be the rule. In this way if the safety issue concerns a real risk to safety that risk can be quicklyaddressed. Assuming that it is based upon a reasonable apprehension relating to safety,prompt and appropriate attention to a safety issue can only be beneficial to workers on the site.The very process of promptly and appropriately dealing with a safety issue enriches theworkplace environment and reinforces what ought to be the primacy of safety in the industry.This is so whether or not the safety issue in question proves upon examination to be well-founded, provided the safety concerns giving rise to the issue were reasonably held.

322 When a safety issue escalates into a dispute it is essential that the parties closest to the issueare available at the worksite to attend to it, in the event that the issue requires rectification of orimprovements to the works.

323 Workers and management need a health and safety dispute resolution procedure which has atleast the following elements:


(a) That part of the site immediately affected by the alleged health or safety issue must becordoned off from the works and work in the affected area or likely to be affected by thesubject matter of the dispute must cease.

(b) There must be a facility for bringing the issue to the attention of management.

(c) There must be a facility to ensure that the issue and its method of resolution is properlyrecorded.

(d) The health or safety dispute ought to be resolved as close to its point of origin as ispossible and involve project management and the site safety committee, or site safetyrepresentatives.

(e) If the dispute cannot be resolved it is in everyone’s interest, including the interests of thecommunity, and essential that the subject matter of the dispute – the alleged unsafeplant, practice or structure – be promptly brought to the attention of the appropriateoccupational health and safety inspector.

324 Absent a reasonably held concern of risk to health or safety, industrial action in the guise of orunder the cover of a health or safety dispute ought not to be tolerated and is unlawful. As wasnoted in the Laing review this has ‘the potential to degrade the system because after a seriesof false alarms claims will not [be] taken as seriously. As a consequence, when a genuine safetyissue arises, the response may not be as effective as it should’.350 It was put to me, and Iagree, that ‘…mutual trust and cooperation is compromised by a perception by the employerthat union officials sometimes have a vested interest in finding safety breaches. This practice ispotentially harmful to employees as it merely serves to devalue OH and S’.351

325 Safety is simply too important a matter to be degraded by this process. Time and time again Ireceived compelling evidence of alleged safety issues being raised in circumstances wherethere was no genuine safety issue to be resolved or where the alleged safety issue was able tobe resolved by the entering of an EBA, the payment of increased rates or site allowances ormembership of a union.

326 The current structure of the Workplace Relations Act 1996 (C’wth) is such that the only form ofindustrial activity involving the withdrawal of labour for which there can lawfully be a claim forremuneration is one where the activity was based upon a reasonable concern by theemployees about an imminent risk to their health or safety, and the employees did notunreasonably refuse alternative available work. Each State has comparable provisions. Thisprovides a temptation to unscrupulous persons to link industrial action (as it is defined in theWorkplace Relations Act 1996 (C’wth)) or in State industrial legislation to health or safetydisputes in an effort to secure remuneration for affected workers on account of withdrawal oflabour. As the present system operates, there is no certainty and little opportunity for certainty,at the time that a decision is made to withdraw labour, that the alleged safety issue warrantsthe withdrawal of labour. There is no incentive to isolate safety issues from broader industrialissues; indeed the pressure is the other way.

327 Workers are entitled not to be exposed to health and safety risks. They are entitled to thebenefit of a dispute resolution procedure which affords the best opportunity of identifying andneutralising risks to health and safety. If a dispute escalates to a stage where workers are

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considering that the only available response to a perceived imminent risk to health and safety isthe withdrawal of labour, workers are entitled to the benefit of the opinion of the relevantoccupational health and safety authority or inspectorate before deciding to withdraw labour.This is especially so in circumstances where that withdrawal of labour has the potential tofurther compromise health or safety by removing a workforce that may well be best equippedto rectify the matter giving rise to the health and safety dispute.

328 Systems need to be in place which:

(a) identify and isolate genuine safety disputes and which provide a mechanism for dealingwith those disputes;

(b) do not discourage workers from raising genuine health or safety issues;

(c) encourage workers to seek the opinion of a responsible occupational health and safetyauthority or inspectorate before they take a decision to withdraw labour; and

(d) protect workers’ rights to remuneration while the proper procedure is followed.

329 The most appropriate way to ensure that this position is reached is, in my view, to introduce ascheme which addresses these considerations.

Issue

Occupational health and safety is often misused by unions as an industrial tool. Thistrivialises safety, and deflects attention away from real problems. Unions have alegitimate interest in the safety of their members. This should not be altered. However,the scope for misuse of safety must be reduced and if possible eliminated. There mustbe a proper mechanism for identifying, isolating and safely resolving real questions ofsafety, preferably co-operatively with the workers and managers directly involved, but ifnecessary with the aid of a responsible occupational health and safety authority.

Recommendation 35

The Commonwealth introduce by legislation a new scheme to apply in the building andconstruction industry which has the following features:

(a) Model safety dispute resolution procedures

The promulgation of a model safety dispute resolution procedure. This can be set out in regulations made under the Building and Construction IndustryImprovement Act. The Victorian Occupational Health and Safety (Issue Resolution)Regulations 1999 are a useful guide. However it would be necessary tosupplement that model with mandatory requirements that project management beinvolved in discussions to resolve safety issues, and that, in circumstances wherethe parties fail to resolve the safety dispute, and prior to the withdrawal of labour,the facts and circumstances giving rise to the safety issue in dispute be referred tothe appropriate occupational health and safety regulatory authority or inspectorate.


(b) Prerequisites for payment in relation to work stoppages for safety matters

The introduction of a legislative provision, to apply in the building and constructionindustry subject to the provisions set out in (d), so as to make it unlawful for any personto demand, claim, receive, or pay any amount on account of the remuneration of anyperson for a period in which the person to whom the demand, claim, receipt orpayment relates, has refused or failed to work in accordance with the lawful directionsof his or her employer on account of what is claimed to be or involve a matter ofoccupational health or safety unless that person can first demonstrate that:

(i) the employee complied with a relevant dispute resolution procedure, prior tosuch demand, claim, payment or receipt, or the employer failed or refused tocomply with a relevant safety dispute resolution procedure; and

(ii) at the time the demand, claim or payment, as the case may be, was made, thework that the employee refused or failed to perform was the subject of aprohibition notice issued by a lawful occupational health and safety regulatoryauthority or inspectorate, which notice has not been revoked or stayed.

(c) Notification to the Australian Building and Construction Commission

The introduction of a legislative provision, to apply in the building and constructionindustry, requiring in respect of any payment as referred to above, that the AustralianBuilding and Construction Commission be notified of any such payment. Thenotification should be in the form of statutory declarations from both the person inrespect of whom the payment is made and the person who is proposing to make thepayment or their representatives, evidencing satisfaction of the two pre-conditions setout above.

(d) Payment while safety dispute resolution procedure is being followed up to time of notification of referral to the occupational health and safety authority or inspectorate

The enactment of a legislative provision, to apply in the building and constructionindustry, to provide for the liability of employers for payment of the remuneration of anyperson, for a period in which the person to whom a demand, claim, receipt or paymentrelates has refused or failed to work in accordance with the lawful directions of his orher employer on account of what is claimed to be or involve a matter of occupationalhealth or safety, up until the time of referral to a relevant occupational health and safetyauthority or inspectorate in the following circumstances:

(i) there is compliance with the relevant dispute resolution procedure by the personon whose behalf the demand or claim is made and on behalf of any other workerto whom the dispute resolution procedure applies in the circumstances of thedispute, or there is non-compliance with the relevant dispute resolutionprocedure by the employer concerned; and

(ii) the person on whose behalf the demand or claim is made and any other workerto whom the dispute resolution procedure applies in the circumstances of thedispute has not unreasonably failed to comply with a direction of his or heremployer to perform other available work, whether at the same or some otherworkplace, that was safe and appropriate for the employee to perform.

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330 The scheme outlined above ought to provide a number of benefits to the building andconstruction industry, principal among which are the following:

(a) Parties are left to design their own health and safety dispute resolution procedure. A model will be provided as a guide, or otherwise to be accepted and incorporated intonegotiated arrangements, as the case may be. Of significance is the requirement ofnotification of the relevant health and safety authority or inspectorate in circumstanceswhere the dispute cannot be resolved. Reporting of the matter to the relevant health andsafety authority or inspectorate at an early stage of the process is of course preserved.However, a mandated requirement to report when the process leading to a negotiatedsettlement breaks down, and before industrial action resulting in a withdrawal of labouroccurs, introduces an opportunity for an independent third party to adjudicate.

(b) Workers are discouraged from taking strike action prior to activating and persisting withthe health and safety dispute resolution procedure.

(c) Workers’ remuneration is protected for so long as the workers abide by the disputeresolution procedure, provided they do not unreasonably refuse alternative work andprovided that the relevant health and safety authority or inspectorate issues a workprohibition order or its equivalent. All States and Territories provide for such notices.352

Should a work prohibition order be issued, this protection continues. This ought tooperate as a positive influence to secure the attendance of a health and safety authorityor inspectorate. Importantly this requirement will encourage workers to consider theirobligations to comply with dispute resolution procedures and to refer the matter to ahealth and safety authority or inspectorate prior to initiating strike action. As theQueensland Government has pointed out, inspectors are ‘independent of both employerand worker’, and the inspectors’ powers to issue prohibition notices having regard to theneed to ensure the workplace is safe constitute existing ‘mechanisms…for rapiddetermination of safety issues’.353

(d) Failure to resolve a health and safety dispute will lead to an increase in the attendance ofhealth and safety inspectors on sites. Of itself the presence of these officers willencourage attention to matters of health and safety.

(e) Notification of any demand, claim or payment and the provision of the requiredsupporting evidence will discourage payments of strike pay in inappropriatecircumstances.


4 Conclusion

331 The recommendations that I have made are calculated to be an integrated approach to whathas so far proved to be the intractable problem of improving occupational health and safety inthe building and construction industry. They will not of themselves be a complete solution. Theyare intended to initiate a process of cultural and behavioural change. That change, when ittakes hold, should produce further solutions. What is critical is that everyone involved in theindustry take responsibility for pursuing change. Early in this volume, I pointed to theacknowledgment of governments, employers and employer and employee organisations thatthe occupational health and safety performance of the industry is unacceptable. They mustnow give content to those statements.

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Notes to Reform – Occupational Health and Safety1 Commissioner Cole, T6334/21–6335/42.2 Commissioner Cole, T7760/27–30.3 Letter from the National Secretary of the Construction, Forestry, Mining and Energy Union, Construction and

General Division to the Royal Commissioner, 12 September 2002, exhibit 2055, document064.0274.0509.0002 at 0003.

4 Health and Safety Executive 2002, Revitalising Health and Safety in Construction, exhibit 1538, footnote 2,document 006.0189.0830.0001 at 0011 (fn 2).

5 Department of Employment and Workplace Relations 2002, Letter to the Secretary to the RoyalCommission into the Building and Construction Industry, 5 November, exhibit 1846, document054.0930.0376.0001 at 0001.

6 Federal Department of Employment and Workplace Relations 2002, House of Representatives StandingCommittee on Employment and Workplace Relations – Inquiry into Aspects of Workers’ Compensation,August, exhibit 1476, document 030.0594.0368.0001 at 0036; See also Hoy, T14380/10 –11.

7 Sutton Statement, exhibit 701, appendix L, document 098.0019.0116.0120 at 0120 and 0123.8 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and Construction

Industry – Phase Two, 6 August, exhibit 494, document 100.0721.0253.0002 at 0029.9 Commonwealth Department of Employment and Workplace Relations 2002, Submission to the Royal

Commission into the Building and Construction Industry, 22 August, exhibit 1253, document063.0860.0223.0001 at 0002.

10 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and ConstructionIndustry – Phase Two, 6 August, exhibit 494, document 100.0721.0253.0002 at 0043.

11 WorkCover NSW 2001, Safely Building New South Wales - Priority Issues for Construction Reform, OHS Construction Industry Evaluation Report, exhibit 1476, document 030.0594.0368.0106 at 0120.

12 WorkCover NSW 2001, Safely Building New South Wales - Priority Issues for Construction Reform, OHS Construction Industry Evaluation Report, exhibit 1476, document 030.0594.0368.0106 at 0122.

13 Queensland Government - Workplace Health and Safety 2000, Health and Safety in the Building andConstruction Industry – Building and Construction Industry (Workplace Health and Safety) Taskforce – Final Report, exhibit 1476, document 030.0594.0368.0256 at 0259.

14 Monash University Accident Research Centre 2001, Strategic Occupational Injury Prevention – ReducingSerious Injury Risk in the Construction Industry – Policy Research Report No. 9, 28 August, exhibit 1476,document 044.0533.0912.0118 at 0125.

15 Grocon Pty Ltd 2002, Statement on behalf of Grocon Pty Ltd, 22 July, exhibit 830, paragraph 11.2,document 048.0949.0311.0094 at 0117.

16 Stewart-Crompton, T14363/16–19.17 Wilson, T14393/37–40.18 Crossin, T14386/29–30.19 Garner, T14376/45–14377/01.20 Anderson, T14397/25–27.21 Smith, T14415/29–31.22 Long, T14407/09–10.23 Reynolds, T14372/15–25.24 Shorten Statement, exhibit 122A, paragraph 14, document 063.0805.0016.0002 at 0007.25 Federal Department of Employment and Workplace Relations 2002, House of Representatives Standing

Committee on Employment and Workplace Relations – Inquiry into Aspects of Workers’ Compensation,exhibit 1476, document 030.0594.0368.0001 at 0036.


26 WorkCover NSW 2001, Safely Building New South Wales – Priority Issues for Construction Reform, OHS Construction Industry Evaluation Report, exhibit 1476, document 030.0594.0368.0106 at 0192.

27 Shorten Statement, exhibit 122A, paragraph 15, document 063.0805.0016.0002 at 0007 and 0008.28 Davies, V.J., Tomasin, K. 1996, Construction Safety Handbook, 2nd edition, Thomas Telford Publishing,

London, p. 5.29 Stewart-Crompton, T14365/10–20.30 Transfield Pty Ltd 2002, Submission to the Royal Commission into the Building and Construction Industry,

July, exhibit 820, document 057.0166.0542.0001 at 0010.31 Davies, V.J., Tomasin, K. 1996, Construction Safety Handbook, 2nd edition, Thomas Telford Publishing,

London, p.5.32 St John Holt, A. 2001, Principles of Construction Safety, Blackwell Science Ltd, London, p.7.33 Workplace Relations Ministers’ Council 2002, Comparative Performance Monitoring, Comparison of

Occupational Health and Safety Arrangements in Australia and New Zealand, August, 2nd Edition, exhibit2081, document 064.0924.0530.0155.

34 Johnstone, R. 1997, Occupational Health and Safety Law and Policy, Law Book Company, Sydney, p.88.35 Industry Commission 1995, Work, Health and Safety – An Inquiry into Occupational Health and Safety,

Vol. 1, Report No. 47, exhibit 2010, document 085.0707.0815.0001 at 0025. 36 Report of Meeting between Members of the Construction Safety Managers and Officers Association of

Queensland Inc and Lawyers Assisting the Commission, exhibit 1476, document 066.0590.0801.0002 at 0007.

37 Australian Industry Group and Australian Constructors Association 2002, Submission to the RoyalCommission into the Building and Construction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Building and Construction Industry, 30 August, exhibit 1328, document 007.0572.0254.0056 at 0061.

38 Civil Contractors Federation 2002, Submission to the Royal Commission into the Building and ConstructionIndustry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Building andConstruction Industry, August, exhibit 1476, document 044.0570.0686.0001 at 0004.




42 Master Builders Australia Inc 2002, Submission to the Royal Commission into the Building and ConstructionIndustry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Building andConstruction Industry, 23 August, exhibit 1324, document 007.0572.0254.0026 at 0031.

43 Master Builders Association of WA 2002, Submission to the Royal Commission into the Building andConstruction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Buildingand Construction Industry, 21 August, exhibit 1476, document 002.0756.0421.0002 at 0006.

44 National Electrical and Communications Association 2002, Submission to the Royal Commission into theBuilding and Construction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety inthe Building and Construction Industry, 6 September, exhibit 1476, document 073.0745.0028.0002 at0012.

45 Grocon Pty Ltd 2002, Statement on behalf of Grocon Pty Ltd, 22 July, exhibit 830, document048.0949.0311.0094 at 0118.

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46 Howard, T12179/11–30.47 Transfield Pty Ltd 2002, Submission to the Royal Commission into the Building and Construction Industry,

July, exhibit 820, document 057.0166.0542.0001 at 0007.48 Transfield Pty Ltd 2002, Submission to the Royal Commission into the Building and Construction Industry,

July, exhibit 820, document 057.0166.0542.0001at 0009.49 See Agius, T14508/24–27.50 Anderson, T14398/09–18.51 Long, T14407/28–29.52 Pyers, T14418/21.53 Herbert, T14511/38–40.54 Western Australian Department of Consumer and Employment Protection 2002, Submission to the Royal

Commission into the Building and Construction Industry, 25 September, exhibit 1637, document024.0817.0589.0001 at 0002.

55 Queensland Government 2002, Submission to the Royal Commission into the Building and ConstructionIndustry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Building andConstruction Industry, 23 August, exhibit 1224, document 100.0857.0099.0002 at 0006.

56 Construction, Forestry, Mining and Energy Union 2002, Submission to the Royal Commission into theBuilding and Construction Industry in reference to Discussion Paper 6 – Workplace Health and Safety in theBuilding and Construction Industry, 21 August, exhibit 1191, document 033.0289.0028.0002 at 0003.

57 Creighton, B., and Rozen, R., 1997, Occupational Health and Safety Law in Victoria, 2nd ed., FederationPress, Sydney, p. 22.

58 Department of Employment and Workplace Relations 2002, Submission in response to the request of theRoyal Commission into the Building and Construction Industry, 9 August, exhibit 1475, document064.0924.0530.0004 at 0009.

59 See, for example, Sutton Statement, exhibit 701, appendix L, document 098.0019.0116.0120 at 0121. 60 Queensland Government 2002, Submission to the Royal Commission into the Building and Construction

Industry, exhibit 1004, document 001.0001.0529.0002 at 0030.61 Western Australian Department of Consumer and Employment Protection 2002, Submission to the Royal

Commission into the Building and Construction Industry, 23 August, exhibit 1226, document051.0245.0661.0001 at 0002.

62 Creighton, B., and Rozen, R., 1997, Occupational Health and Safety Law in Victoria, 2nd ed., FederationPress, Sydney, p. 12. The use of the external affairs power might rest on the International LabourOrganisation’s Occupational Health and Safety Convention (No. 155), and accompanying Recommendation,of 1981, which are discussed in Creighton, B., and Rozen, R., 1997, Occupational Health and Safety Law inVictoria, 2nd ed., Federation Press, Sydney, pp. 21–23.

63 Apart from the isolated instances of Commonwealth and maritime employment.64 Hoy, T14380/16–25.65 Hoy, T14380/22–26.66 Housing Industry Association 2002, Submission to the Royal Commission into the Building and

Construction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Buildingand Construction Industry, 3 September, exhibit 1476, document 078.0279.0247.0002 at 0009.


68 K.E. Brown, T13788/33–37.





72 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee1970-1972, London, HSMO, exhibit 1476, paragraph 41, document 092.0836.0193.0001 at 0015.

73 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee1970-1972, London, HSMO, exhibit 1476, paragraph 110, document 092.0836.0193.0001 at 0024.

74 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 2002, Submission to theRoyal Commission into the Building and Construction Industry in reference to Discussion Paper No. 6 –Workplace Health and Safety in the Building and Construction Industry, 23 August, exhibit 1254, document089.0110.0531.0002 at 0004.

75 Housing Industry Association Limited 2002, Submission to the Royal Commission into the Building andConstruction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Buildingand Construction Industry, 3 September, exhibit 1476, document 078.0279.0247.0002 at 0009.




79 Queensland Government 2002, Submission to the Royal Commission into the Building and ConstructionIndustry, 4 July, exhibit 1338, document 001.0001.0529.0028 at 0028.




83 Report of Meeting Between Members of the Construction Safety Managers and Officers Association ofQueensland Inc and Lawyers Assisting the Commission, exhibit 1476, document 066.0590.0801.0002 at 0007.

84 Report of Meeting Between Members of the Construction Safety Managers and Officers Association ofQueensland Inc and Lawyers Assisting the Commission, exhibit 1476, document 066.0590.0801.0002 at 0011–0013.

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85 Construction, Forestry, Mining and Energy Union 2002, Submission to the Royal Commission into theBuilding and Construction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety inthe Building and Construction Industry, 21 August, exhibit 1191, document 033.0289.0028.0002 at 0004.

86 Monash University Accident Research Centre 2001, Strategic Occupational Injury Prevention – ReducingSerious Injury Risk in the Construction Industry – Policy Research Report No. 9, exhibit 1476, document044.0533.0912.0303 at 0323.


88 Johnstone, R.1999, Evaluation of Queensland Construction Safety 2000 Initiative, February, NationalOccupational Health and Safety Commission, Canberra, exhibit 1538, document 019.0664.0887.0202 at0256-0259.




92 Seljak, T14436/24-28.93 Creighton, B., and Rozen, R., 1997, Occupational Health and Safety Law in Victoria, 2nd ed., Federation

Press, Sydney, p. 47.94 Queensland Government 2002, Workplace Health and Safety Guide for the Building and Construction

Industry 2002, exhibit 1699, document 028.0218.0410.0001.95 Report of Meeting Between Members of the Construction Safety Managers and Officers Association of

Queensland Inc and Lawyers Assisting the Commission, exhibit 1476, document 066.0590.0801.0002 at 0013–0014.

96 Stewart-Crompton, T14511/6–13.97 Stewart-Crompton, T14510/31–44.98 Letter from National Occupational Health & Safety Commission to Royal Commission into the Building and

Construction Industry, exhibit 2038, document 075.0911.0371.0001.99 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and Construction

Industry - Phase Two, 6 August, exhibit 494, document 100.0721.0253.0002 at 0032.100 National Occupational Health & Safety Commission, National OHS Strategy 2002–2012, exhibit 2028,

document 093.0307.0998.0008 at 0014 and 0016.101 Construction, Forestry, Mining and Energy Union 2002, Submission to the Royal Commission into the

Building and Construction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety inthe Building and Construction Industry, 21 August, exhibit 1191, document 033.0289.0028.0002 at 0014.

102 National Occupational Health & Safety Commission, National OHS Strategy 2002–2012, exhibit 2028,document 093.0307.0998.0008 at 0016.

103 Else, T14510/12–15.104 Stewart-Crompton, T14365/23–28.105 Western Australian Department of Consumer and Employment Protection 2002, Submission to the Royal




107 Commonwealth Department of Employment and Workplace Relations 2002, Submission to the RoyalCommission into the Building and Construction Industry, 22 August, exhibit 1253, document063.0860.0223.0001 at 0001.


109 National Occupational Health and Safety Commission, National OHS Strategy 2002–2012, exhibit 2028,document 093.0307.0998.0008 at 0018, 0020.

110 National Occupational Health & Safety Commission, National OHS Strategy 2002–2012, exhibit 2028,document 093.0307.0998.0008 at 0018, 0021.






116 Brown, T13789/25–36.117 Brown, T13789/38–44.118 See, for example, Construction, Forestry, Mining and Energy Union 2002, Further Submission to the Royal

Commission into the Building and Construction Industry, November, exhibit 1807, document029.0348.0978.0001 at 0010.

119 See Commonwealth of Australia 2002, Workplace Relations Ministers’ Council 2002 - ComparativePerformance Monitoring – Fourth Report – Australian and New Zealand Occupational Health and Safety and Workers Compensation Schemes, August, Canberra, exhibit 2082, document 060.0854.0042.0127.

120 Commonwealth of Australia 2002, Workplace Relations Ministers’ Council – Comparative PerformanceMonitoring – Fourth Report – Australian and New Zealand Occupational Health and Safety and WorkersCompensations Schemes, August, Canberra, exhibit 2082, document 060.0854.0042.0127 at 0138.


122 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and ConstructionIndustry – Phase Two, 6 August, exhibit 494, document 100.0721.0253.0002 at 0042–0043.

123 Memorandum of Understanding between the New South Wales Government and Signatory ConstructionContractors with the support of Construction Industry Trade Unions and Employer Associations, exhibit1538, document 019.0664.0887.0079.

124 WorkCover New South Wales 2001, Subby Pack – OHS Contractor Management Tool, exhibit 1538,document 019.0664.0887.0097.

125 Western Australian Department of Consumer and Employment Protection 2002, Submission to the RoyalCommission into the Building and Construction Industry, 23 August, exhibit 1226, document051.0245.0661.0001 at 0002.

126 National Occupational Health and Safety Commission 2002, National OHS Strategy 2002-2012, exhibit2028, document 093.0307.0998.0008 at 0011.

117


127 Baulderstone Hornibrook Pty Ltd 2002, Submission to the Royal Commission into the Building andConstruction Industry in relation to Workplace Health and Safety in the Building and Construction Industry,22 August, exhibit 1476, document 007.0572.0254.0020 at 0021.

129 Walsh, T14419/06–11.129 Harnisch, T14367/2–6.130 Larsson, T14377/45–14378/1.131 Larsson, T14378/13–15.132 Construction, Forestry, Mining and Energy Union 2002, Submission to the Royal Commission into the

Building and Construction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety inthe Building and Construction Industry, 21 August, exhibit 1191, document 033.0289.0028.0002 at 0003.

133 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee1970-1972, London, HSMO, paragraph 28, exhibit 1476, document 092.0836.0193.0001 at 0012.






139 Crittall, T14371/26–29.140 Harnisch, T14366/25–27.141 Crittall, T14368/10–14.142 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee

1970-1972, London, HSMO, paragraph 30, exhibit 1476, document 092.0836.0193.0001 at 0013.143 Garner, T14377/03–10.144 Merritt, T14447/26–31 and T14448/3–6.145 For a discussion of the approach of the minerals industry, and its lessons for the building and construction

industry, see Else, T14424/14–14426/16.146 Victorian WorkCover Authority, Reference Document – Royal Commission into the Building and Construction

Industry, exhibit 1476, document 030.0571.0728.0007 at 0055.147 Green, T9058/28–39.148 Monash University Accident Research Centre 2001, Strategic Occupational Injury Prevention – Reducing

Serious Injury Risk in the Construction Industry – Policy Research Report No. 9, exhibit 1476, document044.0533.0912.0118 at 0125–0126.

149 Health and Safety Executive 2002, Revitalising Health and Safety in Construction, exhibit 1538, document006.0189.0830.0001 at 0012.

150 Monash University Accident Research Centre 2001, Strategic Occupational Injury Prevention – ReducingSerious Injury Risk in the Construction Industry – Policy Research Report No. 9, exhibit 1476, document044.0533.0912.0303 at 0305–0306 and 0325; Shorten Statement, 28 August, exhibit 122A, paragraph 14,document 063.0805.0016.0002 at 0007.

151 Royal Commission into the Building and Construction Industry, Overview of Private Meetings held betweenthe Honourable TRH Cole R.F.D Q.C and Participants in the Building and Construction Industry, exhibit 442,document 088.0525.0010.0001 at 0005.




154 Shorten Statement, exhibit 122A, paragraph 14, document 063.0805.0016.0002 at 0007.155 Kingham, T469/08–17.156 Civil Contractors Federation 2002, Submission to the Royal Commission into the Building and Construction

Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Building andConstruction Industry, August, exhibit 1476, document 044.0570.0686.0001 at 0004.







163 WorkCover NSW 2001, Safely Building New South Wales – Priority Issues for Construction Reform,OHS Construction Industry Evaluation Report, exhibit 1476, document 030.0594.0368.0106 at 0208.



166 Queensland Government - Workplace Health and Safety 2000, Health and Safety in the Building andConstruction Industry – Building and Construction Industry (Workplace Health and Safety) Taskforce – FinalReport, exhibit 1476, document 030.0594.0368.0256 at 0282 citing Mayhew, C., Quinlan, M. and Bennett,L., 1996, The Effects of Subcontracting Outsourcing on Occupational Health and Safety, Industrial RelationsResearch Monograph, University of New South Wales, Sydney.


168 WorkCover NSW 2001, Safely Building New South Wales – Priority Issues for Construction Reform, OHSConstruction Industry Evaluation Report, exhibit 1476, document 030.0594.0368.0106 at 0143.

169 WorkCover NSW 2001, Safely Building New South Wales – Priority Issues for Construction Reform, OHSConstruction Industry Evaluation Report, exhibit 1476, document 030.0594.0368.0106 at 0143–0144. See also Mayhew, C.J. 1995, An Evaluation of the Impact of Robens Style Legislation on the OHS Decision-Making of Australian and United Kingdom Builders with Less than Five Employees, exhibit 1699, document048.0029.0376.0001 at 0020 and 0153.

170 Shorten Statement, exhibit 122A, paragraph 14, document 063.0805.0016.0002 at 0007.

119



172 WorkCover NSW 2001, Safely Building New South Wales -Priority Issues for Construction Reform, OHSConstruction Industry Evaluation Report, exhibit 1476, foreword by David Saxelby-Executive GeneralManager of Thiess Pty Ltd, document 030.0594.0368.0106 at 0118.

173 See, for example, Mayhew, C.J. 1995, An Evaluation of the Impact of Robens Style Legislation on the OHSDecision-Making of Australian and United Kingdom Builders with Less than Five Employees, exhibit 1699,document 048.0029.0376.0001 at 0023–0024; and Johnstone, R. 1999, Evaluation of QueenslandConstruction Safety 2000 Initiative, National Occupational Health and Safety Commission, Canberra, exhibit 1538, document 019.0664.0887.0202 at 0407.

174 Mayhew, C.J. 1995, An Evaluation of the Impact of Robens Style Legislation on the OHS Decision-Makingof Australian and United Kingdom Builders with Less than Five Employees, exhibit 1699, document048.0029.0376.0001 at 0154.

175 Myles J. Whelan & Associates 2002, Submission to the Royal Commission into the Building andConstruction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Buildingand Construction Industry, 23 August, exhibit 1230, document 003.0192.0701.0002 at 0008.


177 Else, T14423/36–39.178 Else, T14425/21–22.179 Walsh, T14419/14–31.180 Dempsey, T11021/38–41.181 Neil, T14487/10–11.182 Neil, T14488/07–11.183 Long, T14411/13–15.184 Long, T14410/30–44.185 Herbert, T14391/19–22.186 Bradley, T14472/02–07.187 Western Australian Department of Consumer and Employment Protection 2002, Submission to the Royal








193 Civil Contractors Federation 2002, Submission to the Royal Commission into the Building and ConstructionIndustry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Building andConstruction Industry, August, exhibit 1476, document 044.0570.0686.0001 at 0013–0014.

194 Civil Contractors Federation 2002, CCF Civil Construction Management Code for the Civil ConstructionIndustry, exhibit 1538, document 076.0756.0487.0001; and CCF 2001, Guidelines Document for the CivilConstruction Management Code 2001, exhibit 1538, document 076.0756.0487.0018.

195 Long, T14409/07–11.196 Long, T14409/15–21.197 Queensland Main Roads 2002, Submission to the Royal Commission into the Building and Construction

Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Building andConstruction Industry, 23 August, exhibit 1476, document 023.0915.0739.0001 at 0002.

198 Long, T14409/25–42.199 Australian Industry Group and Australian Constructors Association 2002, Submission to the Royal

Commission into the Building and Construction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Building and Construction Industry, 30 August, exhibit 1328, document 007.0572.0254.0056 at 0059.

200 Johnstone, R. 1999, Evaluation of Queensland Construction Safety 2000 Initiative, National OccupationalHealth and Safety Commission, Canberra, exhibit 1538, document 019.0664.0887.0202 at 0407-0408.Observations to a similar effect are made in Mayhew, C. 1997, Barriers to Implementation of KnownOccupational Health and Safety Solutions in Small Business, May, National Occupational Health and SafetyCommission and Queensland Division of Workplace Health and Safety, Canberra, exhibit 1699, document038.0313.0228.0001 at 0139.

201 Long, T14408/38–42.202 Shorten Statement, exhibit 122A, paragraphs 139–143, document 063.0805.0016.0002 at 0051–0053.203 Royal Commission into the Building and Construction Industry, Overview of Private Meetings held between

the Honourable TRH Cole R.F.D Q.C and Participants in the Building and Construction Industry, exhibit 442,document 088.0525.0010.0001 at 0010.

204 Royal Commission into the Building and Construction Industry, Overview of Private Meetings held betweenthe Honourable TRH Cole R.F.D Q.C and Participants in the Building and Construction Industry, exhibit 442,document 088.0525.0010.0001 at 0010–0011.




208 Baulderstone Hornibrook Pty Ltd 2002, Submission to the Royal Commission into the Building andConstruction Industry in relation to Workplace Health and Safety in the Building and Construction Industry,22 August, exhibit 1476, document 007.0572.0254.0020 at 0024.

209 Dempsey, T11021/03–15.210 Myles J. Whelan & Associates 2002, Submission to the Royal Commission into the Building and

Construction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Buildingand Construction Industry, 23 August, exhibit 1230, document 003.0192.0701.0002 at 0006.

211 Garner, T14377/12–14.

121


212 Walsh, T14419/19–20 and 36–40.213 Walsh, T14437/16–21.214 Barrett, T14422/05–14423/01.215 Mayhew, C.J. 1995, An Evaluation of the Impact of Robens Style Legislation on the OHS Decision-Making

of Australian and United Kingdom Builders with Less than Five Employees, exhibit 1699, document048.0029.0376.0001 at 0155.

216 Mayhew, C.J. 1995, An Evaluation of the Impact of Robens Style Legislation on the OHS Decision-Makingof Australian and United Kingdom Builders with Less than Five Employees, exhibit 1699, document048.0029.0376.0001 at 0156; see also 0159.

217 Mayhew, C.J., Young, C., Ferris, R. and Harnett, C. 1997, An Evaluation of the Impact of TargetedInterventions on the OHS Behaviours of Small Business Building Industry Owners/Managers/Contractors,November, Queensland Department of Training and Industrial Relations and National Occupational Healthand Safety Commission, Canberra, exhibit 1699, document 053.0085.0618.0121 at 0308.

218 Health and Safety Executive 2002, Revitalising Health and Safety in Construction¸ exhibit 1538, document006.0189.0830.0001 at 0020.

219 Johnstone, R. 1999, Evaluation of Queensland Construction Safety 2000 Initiative, National OccupationalHealth and Safety Commission, Canberra, exhibit 1538, document 019.0664.0887.0202 at 0349.

220 WorkCover NSW 2001, Safely Building New South Wales – Priority Issues for Construction Reform, OHSConstruction Industry Evaluation Report, exhibit 1476, document 030.0594.0368.0106 at 0217; see also0145.

221 The discussion of the CDM Regulations in paragraphs 146 to 149 is taken from Davies, V.J., Tomasin, K.1996, Construction Safety Handbook, 2nd edition, Thomas Telford Publishing, London, p 21.

222 See, for example, Neil, T14488/8–9; Agius, T14489/13–17.223 Stewart-Crompton, T14479/19–24.224 Johnstone, R. 1999, Evaluation of Queensland Construction Safety 2000 Initiative, National Occupational

Health and Safety Commission, Canberra, exhibit 1538, document 019.0664.0887.0202 at 0369.225 The importance of such a debate is discussed at T14479/25–28.226 St John Holt, A. 2001, Principles of Construction Safety, Blackwell Science Ltd, London, p. 71.227 WorkCover NSW 2001, Safely Building New South Wales – Priority Issues for Construction Reform, OHS

Construction Industry Evaluation Report, exhibit 1476, foreword by David Saxelby - Executive GeneralManager of Thiess Pty Ltd, document 030.0594.0368.0106 at 0119.

228 Johnstone, R. 1999, Evaluation of Queensland Construction Safety 2000 Initiative, National OccupationalHealth and Safety Commission, Canberra, exhibit 1538, document 019.0664.0887.0202 at 0408.





233 NSW Workplace Safety Summit 2002, Communiqué, 5 July 2000, exhibit 1476, document030.0594.0368.0075 at 0077.

234 National Occupational Health and Safety Commission, National OHS Strategy 2002–2012, exhibit 1476,document 030.0594.0368.0095 at 0102.


235 Australian Industry Group and Australian Constructors Association 2002, Submission to the RoyalCommission into the Building and Construction Industry in reference to Discussion Paper 6 –WorkplaceHealth and Safety in the Building and Construction Industry, 30 August, exhibit 1476, document007.0572.0254.0056 at 0063.

236 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 2002, Submission to the Royal Commission into the Building and Construction Industry in reference to Discussion Paper 6 –Workplace Health and Safety in the Building and Construction Industry, 23 August, exhibit 1476, document089.0110.0531.0002 at 0008.

237 Chamber of Commerce and Industry Western Australia 2002, Submission to the Royal Commission into theBuilding and Construction Industry in reference to Discussion Paper 6 – Workplace Health and Safety in theBuilding and Construction Industry, August, exhibit 1476, document 047.0553.0293.0001 at 0008.

238 Civil Contractors Federation 2002, Submission to the Royal Commission into the Building and ConstructionIndustry in reference to Discussion Paper No.6, August, exhibit 1476, document 044.0570.0686.0001 at0018.

239 Construction, Forestry, Mining and Energy Union 2002, Submission to the Royal Commission into theBuilding and Construction Industry in reference to Discussion Paper 6 – Workplace Health and Safety in theBuilding and Construction Industry, 21 August, exhibit 1476, document 033.0289.0028.0002 at 0016.

240 Department of Consumer and Employment Protection: Government of Western Australia 2002, Submissionto the Royal Commission into the Building and Construction Industry in reference to Discussion Paper No. 6– Workplace Health and Safety in the Building and Construction Industry, 23 August, exhibit 1476,document 051.0245.0661.0001 at 0003.

241 Housing Industry Association Ltd 2002, Submission to the Royal Commission into the Building andConstruction Industry in reference to Discussion Paper No.6 – Workplace Health and Safety in the Buildingand Construction Industry, 3 September, exhibit 1476, document 078.0279.0247.0002 at 0012.


243 Master Builders Association of Victoria, Submission to the Royal Commission into the Building andConstruction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Buildingand Construction Industry, 23 August, exhibit 1476, document 010.0438.0178.0002 at 0004.

244 National Electrical and Communications Association 2002, Submission to the Royal Commission into theBuilding and Construction Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety inthe Building and Construction Industry, 6 September, exhibit 1476, document 073.0745.0028.0002 at0014.

245 Council Directive 92/57/EEC of 24 June 1992, eighth individual Directive within the meaning of Article 16 (1)of Directive 89/391/EEC, Health and Safety at Work.

246 Serrano, M.B. 1996, ‘Health and Safety on Construction sites in France’, in Alves Dias, L.M., Coble, R.J. (ed.), Implementation of Safety and Health on Construction Sites, Proceedings of the First InternationalConference of CIB Working Commission W99/Lisbon/Portugal/4-7 September 1996, Balkema, Rotterdam,pp 85–92.

247 Gottfried, A., Marino, B.M. 2000, ‘Integrated Design for Safety: From Information and Design Simulation toControl During Execution’ in Gibb, A. (ed.), Design for Safety and Health Conference Proceedings, EuropeanConstruction Institute, Loughborogh, United Kingdom, pp 181-190.

248 This discussion of the CDM Regulations is taken from Davies, V.J., Tomasin, K. 1996, Construction SafetyHandbook, 2nd edition, Thomas Telford Publishing, London, p 21. See also Johnstone, R. 1999, Evaluationof Queensland Construction Safety 2000 Initiative, National Occupational Health and Safety Commission,Canberra, exhibit 1538, document 019.0664.0887.0202 at 0350-0351.

249 WorkCover NSW (online), CHAIR: Safety in Design Tool 2001 [accessed 16 January 2003],http://www.workcover.nsw.gov.au/Publications/pdf/Chair.pdf.

123


250 Campion, C. 2000, ‘The Impact of Design on Contractor Health and Safety’, Journal of Occupational Healthand Safety Australia and New Zealand, vol. 16, no. 6, pp. 501-506 and also Holt, AStJ 2001, Principles ofConstruction Safety, Oxford.

251 NSW Workplace Safety 2002, NSW Workplace Safety Summit Communiqué, exhibit 1476, document030.0594.0368.0075 at 0077.

252 Hide, S., Hastings, S., Haslam, R., Gyi, D., Gibb, A., Duff, R. & Suraji, A. 2000, ‘By Accident or Design?Causal Factors in Construction Industry Accidents’, in Gibb, A.G.F. Designing for Safety and HealthProceedings, 26–27 June 2000, London, European Construction Institute, Loughborough, UK, pp. 45–51.

253 WorkCover NSW 2001, Safely Building NSW – Priority Issues for Construction Reform, OHS ConstructionIndustry Evaluation Report, exhibit 1476, document 030.0594.0368.0106.

254 See s23(3a) of the Occupational Safety and Health Act 1984 (WA) and s23A of the Occupational Health,Safety and Welfare Act 1986 (SA).




258 Royal Commission into the Building and Construction Industry, Overview of Private Meetings held betweenthe Honourable TRH Cole R.F.D Q.C and Participants in the Building and Construction Industry, exhibit 442,paragraph 40, document 088.0525.0010.0001 at 0011.


260 Love, T14401/37–14402/02; and T14402/35–39.261 Department of Finance and Administration, Web Publication, Commonwealth Procurement Guidelines and

Best Practice Guidance, as at 6 January 2003, exhibit 2058, document 029.0728.0301.0001 at 0003.262 Department of Finance and Administration, Web Publication, Commonwealth Procurement Guidelines and

Best Practice Guidance, as at 6 January 2003, exhibit 2058, document 029.0728.0301.0001 at 0004 and0005.

263 Department of Finance and Administration, Web Publication, Best Practice Policy Guidance – Value forMoney, pp. 1-4, as at 6 January 2003, exhibit 2059, document 075.0454.0842.0001 at 0001- 0002.

264 Department of Finance and Administration, Web Publication, Commonwealth Procurement Guidelines andBest Practice Guidance, as at 6 January 2003, exhibit 2058, document 029.0728.0301.0001 at 0007.

265 Department of Finance and Administration, Web Publication, Joint Standing Committee on Public Works,Role and Operations, exhibit 2064, document 054.0845.0379.0001 at 0002.

266 Parliamentary Standing Committee on Public Works 1999, Report relating to the proposed CSIRO NationalCentre for Petroleum and Mineral Resources Research Bentley, WA (Second Report of 1999), exhibit 2065,document 022.0104.0789.0001 at 0002

267 See, for example, Mayhew, C. 1997, Barriers to Implementation of Known Occupational Health and SafetySolutions in Small Business, National Occupational Health and Safety Commission and Queensland Divisionof Workplace Health and Safety, Canberra, exhibit 1699, document 038.0313.0228.0001 at 0142-0143.


268 Construction, Forestry, Mining and Energy Union 2002, Further Submission to the Royal Commission intothe Building and Construction Industry, November, exhibit 1807, document 029.0348.0978.0001 at 0011.See also Construction, Forestry, Mining and Energy Union 2002, Occupational Health and Safety, 30October, exhibit 1844, document 079.0528.0936.0002 at 0003.

269 Construction, Forestry, Mining and Energy Union 2002, Occupational Health and Safety, 30 October, exhibit1844, document 079.0528.0936.0002 at 0004.

270 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 2002, Health and SafetyConference of the Royal Commission into the Building and Construction Industry, 31 October, exhibit 1841,document 069.0563.0979.0001 at 0002.

271 Australian Procurement and Construction Council 1998, National Prequalification Criteria Framework,Canberra, exhibit 2094, document 008.0017.0405.0001.

272 Australian Procurement and Construction Council 1998, National Prequalification Criteria Framework,Canberra, exhibit 2094, document 008.0017.0405.0001 at 0006.

273 Australian Procurement and Construction Council 1998, National Prequalification Criteria Framework,Canberra, exhibit 2094, document 008.0017.0405.0001 at 0007 and 0009.

274 Australian Procurement and Construction Ministerial Council 2000, Principles for Encouraging Best PracticePerformance, Canberra, exhibit 2095, document 008.0017.0405.0013 at 0018.

275 Department of Employment and Workplace Relations 2002, Letter to the Secretary to the RoyalCommission into the Building and Construction Industry, 5 November, exhibit 1846, document054.0930.0376.0001 at 0002.

276 See, for example, Australian Procurement and Construction Council 1998, National Prequalification CriteriaFramework, Canberra, exhibit 2094, document 008.0017.0405.0001; and Australian Procurement andConstruction Ministerial Council 2000, Principles for Encouraging Best Practice Performance, Canberra,exhibit 2095, document 008.0017.0405.0013.

277 Queensland Government – Workplace Health and Safety 2000, Health and Safety in the Building andConstruction Industry – Building and Construction Industry (Workplace Health and Safety) Taskforce – Final Report, exhibit 1476, document 030.0594.0368.0256 at 0355-0356.

278 St John Holt, A. 2001, Principles of Construction Safety, Blackwell Science Ltd, London, p. 36.279 Davies, V.J., Tomasin, K. 1996, Construction Safety Handbook, 2nd edition, Thomas Telford Publishing,

London, p.171.280 Davies, V.J., Tomasin, K. 1996, Construction Safety Handbook, 2nd edition, Thomas Telford Publishing,

London, p.172.281 St John Holt, A. 2001, Principles of Construction Safety, Blackwell Science Ltd, London, pp.35–36.282 Western Australian Department of Consumer and Employment Protection 2002, Submission to the Royal


283 St John Holt, A. 2001, Principles of Construction Safety, Blackwell Science Ltd, London, p. 9.284 There is some consideration in the United Kingdom about whether the responsibilities of such a position

should be set out in legislation: Health and Safety Executive, CEO and Director Motivators, exhibit 1699,document 055.0314.0966.0001 at 0003 – 0004.

285 These recommendations follow Davies, V.J., Tomasin, K. 1996, Construction Safety Handbook, 2nd edition,Thomas Telford Publishing, London, pp.178-179.

286 Davies, V.J., Tomasin, K. 1996, Construction Safety Handbook, 2nd edition, Thomas Telford Publishing,London, p. 181.

287 Davies, V.J., Tomasin, K. 1996, Construction Safety Handbook, 2nd edition, Thomas Telford Publishing,London, p. 178–179.

125



289 WorkCover NSW 2001, Safety Building New South Wales – Priority Issues for Construction Reform, OHS Construction Industry Evaluation Report, exhibit 1476, document 030.0594.0368.0106 at 0122.


291 See, for example, Love, T14482/21–34; Walsh, T14483/36–14484/3.292 Love, T14403/02–06.293 Long, T14407/32–41.294 Glynn, T14383/5–6.295 Reynolds, T14372/31–14373/15.296 Smith, T14415/32–34.297 See Neil, T14488/13–16 and 27–30.298 See, for example, Construction, Forestry, Mining and Energy Union 2002, Further Submission to the Royal

Commission into the Building and Construction Industry, November, exhibit 1807, document029.0348.0978.0001 at 0010.

299 Crittall, T14435/1–4.300 Queensland Government – Workplace Health and Safety 2000, Health and Safety in the Building and

Construction Industry – Building and Construction Industry (Workplace Health and Safety) Taskforce – Final Report, exhibit 1476, document 030.0594.0368.0256 at 0298.

301 Queensland Government – Workplace Health and Safety 2000, Health and Safety in the Building andConstruction Industry – Building and Construction Industry (Workplace Health and Safety) Taskforce – FinalReport, exhibit 1476, document 030.0594.0368.0256 at 0307. See also Queensland Government 2001,Review of the Workplace Health and Safety Act 1995, December, Queensland Department of IndustrialRelations, Brisbane, exhibit 1699, document 053.0085.0618.0001 at 0006.

302 Report of Meeting Between Members of the Construction Safety Managers and Officers Association ofQueensland Inc and Lawyers Assisting the Commission, exhibit 1476, document 066.0590.0801.0002 at 0017–0018.

303 Seljak, T14370/12–17.304 Sutton Statement, exhibit 701, appendix L, document 098.0019.0116.0120 at 0121–0122.305 Civil Contractors Federation 2002, Submission to the Royal Commission into the Building and Construction

Industry in reference to Discussion Paper No. 6 – Workplace Health and Safety in the Builidng and Construction Industry, August, exhibit 1476, document 044.0570.0686.0001 at 0011.

306 Hoy, T14380/36-37.307 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and Construction

Industry – Phase Two, 6 August, exhibit 494, document 100.0721.0253.0002 at 0029.308 Carslake, T13928/27-29.309 Walsh, T14419/19–20.310 Sutton Statement, exhibit 701, appendix L, document 098.0019.0116.0120 at 0123–0124.311 Royal Commission into the Building and Construction Industry, Overview of Private Meetings held between

the Honourable TRH Cole R.F.D Q.C and Participants in the Building and Construction Industry, exhibit 442,document 088.0525.0010.0001 at 0021.



313 Australian Procurement and Construction Council & Department of Labour Advisory Committee 1997,National Code of Practice for the Construction Industry, exhibit 2A, document 007.0137.0535.0059 at0062.

314 Australian Procurement and Construction Council & Department of Labour Advisory Committee 1997,National Code of Practice for the Construction Industry, exhibit 2A, document 007.0137.0535.0059 at0062.

315 Department of Workplace Relations and Small Business & Department of Finance and Administration 1998,Commonwealth Implementation Guidelines for the National Code of Practice for the Construction Industry,Canberra, exhibit 2060, document 100.0933.0435.0001 at 0003.

316 Department of Workplace Relations and Small Business and Department of Finance and Administration1998, Commonwealth Implementation Guidelines for the National Code of Practice for the ConstructionIndustry, Canberra, exhibit 2060, document 100.0933.0435.0001 at 0008.

317 Australian Procurement and Construction Council & Departments of Labour Advisory Committee 1997,National Code of Practice for the Construction Industry, exhibit 2A, document 007.0137.0535.0059 at0067–0068

318 Department of Workplace Relations and Small Business & Department of Finance and Administration 1998,Commonwealth Implementation Guidelines for the National Code of Practice for the Construction Industry,Canberra, 1998, exhibit 2060, document 100.0933.0435.0001 at 0021-0022.

319 Department of Workplace Relations and Small Business and Department of Finance and Administration,Commonwealth Implementation Guidelines for the National Code of Practice for the Construction Industry,Canberra, exhibit 2060, document 100.0933.0435.0001 at 0005.

320 Royal Commission into the Building and Construction Industry, Overview of Private Meetings held betweenthe Honourable TRH Cole R.F.D Q.C and Participants in the Building and Construction Industry, exhibit 442,paragraph 88, document 088.0525.0010.0001 at 0021.


322 See Commonwealth of Australia 2002, Submission to the Royal Commission into the Building andConstruction Industry – Phase Two, 6 August, exhibit 494, document 100.0721.0253.0002 at 0029.

323 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and ConstructionIndustry – Phase Three, 6 August, exhibit 494, document 100.0721.0253.0089 at 0101.

324 Report of Meeting Between Members of the Construction Safety Managers and Officers Association ofQueensland Inc and Lawyers Assisting the Commission, exhibit 1476, document 066.0590.0801.0002 at0018-0019.

325 Laing, R. 2002, Final Report: Review of the Occupational Safety and Health Act 1984, exhibit 1923,document 070.0802.0076.0004 at 0127–0128.

326 Laing, R. 2002, Final Report: Review of the Occupational Safety and Health Act 1984, exhibit 1923,document 070.0802.0076.0004 at 0129.

327 Corcoran Statement, exhibit 44, paragraph 52, document 085.0105.0392.0252.328 Corcoran Statement, exhibit 44, paragraph 53, document 085.0105.0392.0252.329 Love Statement, exhibit 59, paragraphs 38 to 42, document 085.0105.0392.0270.330 Royal Commission into the Building and Construction Industry, Overview of Private Meetings held between

the Honourable TRH Cole R.F.D Q.C and Participants in the Building and Construction Industry, exhibit 442,paragraph 91, document 088.0525.0010.0001 at 0021.

331 Cross, T223/33–37.332 See, for example, Creighton, B., and Rozen, R., 1997, Occupational Health and Safety Law in Victoria,

2nd ed., Federation Press, Sydney, p. 16.333 Bickerdike Statement, exhibit 399, paragraph 17, document 068.0269.0210.0016 at 0028.


334 Bickerdike Statement, exhibit 399, paragraph 17.1, document 068.0269.0210.0016 at 0028.335 Bickerdike Statement, exhibit 399, paragraph 17.2, document 068.0269.0210.0016 at 0028.336 Transfield Pty Ltd 2002, Submission to the Royal Commission into the Building and Construction Industry,

July, exhibit 820, document 057.0166.0542.0001 at 0008. 337 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and Construction

Industry – Phase Two, 6 August, exhibit 494, document 100.0721.0253.0002 at 0035.338 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and Construction

Industry – Phase Two, 6 August, exhibit 494, document 100.0721.0253.0002 at 0037.339 Construction, Forestry, Mining and Energy Union 2002, Submission to the Royal Commission into the

Building and Construction Industry in reference to Discussion Paper 6 - Workplace Health and Safety in theBuilding and Construction Industry, 21 August, exhibit 1476, document 033.0289.0028.0002 at 0005.

340 Construction, Forestry, Mining and Energy Union 2002, Submission to the Royal Commission into theBuilding and Construction Industry in reference to Discussion Paper No. 6 - Workplace Health and Safety inthe Building and Construction Industry, 21 August, exhibit 1476, document 033.0289.0028.0002 at 0008.

341 Ferguson Statement, exhibit 922, paragraph 28(c), document 057.0863.0167.0001 at 0013.342 Zaknich Statutory Declaration, exhibit 307, paragraph 43, document 045.0167.0302.0001 at 0005.343 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and Construction

Industry – Phase Three, 6 August, exhibit 494, paragraph 95, document 100.0721.0253.0089 at 0102.Original emphasis omitted.

344 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and ConstructionIndustry – Phase Three, 6 August, exhibit 494, paragraph 93, document 100.0721.0253.0089 at 0101.Original emphasis omitted.




348 Victorian WorkCover Authority, Reference Document – Royal Commission into the Building and ConstructionIndustry, exhibit 1476, document 030.0571.0728.0007 at 0020–0025.

349 There is a useful discussion of some of these benefits in WorkCover New South Wales 2001, OHSConsultation, exhibit 1538, paragraph 2.2, document 019.0664.0887.0001 at 0011.

350 Laing, R. 2002, Final Report: Review of the Occupational Safety and Health Act 1984, 14 November, exhibit1923, document 070.0802.0076.0004 at 0127.

351 Cross, T223/44–47.352 The relevant provisions are set out in Appendix F to this volume of the Final Report. Although they are in

different terms, the essence of these provisions is the same: prohibition notices are issued by a competentauthority upon that authority forming the view that there is an imminent risk to health or safety.

353 Queensland Government 2002, Submission to the Royal Commission into the Building and ConstructionIndustry in reference to Discussion Paper 6, 23 August, exhibit 1224, document 100.0857.0099.0002 at 0005.

Appendix A:

Workplace Health and Safety Conference



Part A – Invitations to Workplace Health and Safety Conference

Employee organisations

Australian Council of Trade Unions

Australian Manufacturing Workers’ Union

Australian Workers’ Union

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and

Allied Services Union - Australia

Construction, Forestry, Mining and Energy Union – Construction Division

Construction, Forestry, Mining and Energy Union – Queensland Construction

Workers’ Branch

Employer organisations

Australian Chamber of Commerce and Industry

Australian Constructors Association

Australian Industry Group

Master Builders Australia Inc

Master Builders Association of New South Wales

Master Plumbers and Mechanical Services Association of Australia

National Electrical and Communications Association

Victorian Employers’ Chamber of Commerce and Industry

Other organisations

Construction Safety Managers and Officers Association of Queensland

Government and regulatory authorities

ACT Workcover

Department of Employment, Education and Training

Department of Employment and Workplace Relations

Department of Infrastructure, Energy and Resources

Department of Industrial Relations

National Occupational Health and Safety Commission

Victorian Workcover Authority

Workcover Corporation

Workcover NSW

Worksafe WA



Others

Prof Dennis Else, School of Science and Engineering, University of Ballarat

Prof Tore Larsson, Monash University Accident Research Centre

Mr John Christian, CSTC Pty Ltd

Mr Trevor Love, Site-Safe Health Safety & Risk Management Consultants Pty Ltd

Part B – Attendance at Workplace Health and Safety Conference

Peter Anderson, Australian Chamber of Commerce and Industry

Jim Barrett, Australian Industry Group

Kevin Bell, QC, Worksafe Victoria

Brian Bradley, Department of Consumer and Employment Protection, Western Australia

John Crittall, Department of Industrial Relations, Queensland

Mark Crossin, Department of Employment, Education and Training, Northern Territory

Professor Dennis Else, University of Ballarat

Alan Garner, Master Builders Association of New South Wales

Peter Glover, Master Builders Association of New South Wales

Peter Glynn, National Electrical and Communications Association

David Gregory, Victorian Employers’ Chamber of Commerce and Industry

Wilhelm Harnisch, Master Builders Australia Inc

Ray Herbert, Master Plumbers and Mechanical Services Association of Australia

Rex Hoy, Department of Employment and Workplace Relations

Gordon Hutchings, Construction Safety Managers & Officers Association (Queensland)

Sia Lagos, Worksafe Victoria

Professor Tore Larsson, Monash University Accident Research Centre

Craig Long, Civil Contractors Federation

Trevor Love, Site Safe, Health Safety & Risk Management Consultants Pty Ltd

John Merritt, Worksafe Victoria

Michael Pyers, Housing Industry Association

Christopher Reynolds, Baulderstone Hornibrook Pty Ltd

John Rowling, Department of Employment and Workplace Relations

Robert Seljak, Department of Industrial Relations, Queensland

David Shaw, Australian Chamber of Commerce and Industry

Robin Stewart-Crompton, National Occupational Health and Safety Commission

Geoff Thomas, Worksafe Victoria

Marino Comes, Grocon Pty Ltd

Michael Walsh, Australian Constructors’ Association

Nicholas Wilson, South Australian Department of Administrative and Information Services

Appendix B:

The occupational health and safety performance

of the building and construction industry.




The following pages contain data relating to compensation claims for injury and fatality. The primarysources of data were:

1) the "Workplace Relations Ministers' Council, Comparative Performance Monitoring" reportpublished by DEWR in August 2002. This is referenced WRMC in this appendix, and the reportis freely available from the www.workplace.gov.au website.

2) the National Workers' Compensation Statistics database compiled by the NationalOccupational Health and Safety Commission (NOHSC) from information supplied byCommonwealth, State and Territory workers' compensation authorities. This is a freelyavailable on-line database at http://nohsc.info.au.com/ This is referenced NOSI in theappendix. In the latter point, the agencies processed workers' compensation claims receivedfrom insurance companies, self-insurers and some government departments. Most of the datasupplied accorded with the recommendations of the National Data Set for Compensation-based Statistics (NDS). The data are generally the latest available from each jurisdiction.

The reader is therefore referred to the above two sources if there arise issues in interpretation of thedata herein.

135

Injuries per thousand employees

Injuries per thousand employees

1997

/98

ab

cd

ef

gh

iA

us A

vj

kl

mn

op

qr

1998

/99

1999

/00

2000

/01

Con

stru

ctio

n

Aus

Av

0102030405060

a b

d e

fg

hi

Aus

Av

j k

lm

no

p q

r19

97/9

857

.4

37.9

32

.4

30.6

30

.8

18.0

17

.416

.4

18.0

15

.1

16.5

12

.120

.4

16.9

10

.1

9.6

7.8

3.8

1998

/99

43.9

30

.8

30.2

29

.6

29.7

17

.6

17.8

15

.0

16.9

15

.0

14.9

11

.115

.0

14.2

10.2

10

.2

7.3

3.4

38.9

29

.7

29.5

29

.2

27.2

16.9

15

.9

15.3

16

.2

14.4

13.2

11

.710

.9

7.7

3.1

2000

/01

30.7

28

.7

28.1

25

.8

24.5

15

.8

15.7

15

.6

15.2

13

.6

13.5

11

.5

10.6

10

.1

8.8

8.4

8.0

2.9

a =

Mar

itim

eb

= M

inin

gc

= C

ons

truc

tion

d =

Tra

nspo

rt &

Sto

rage

e =

Agr

icul

ture

, For

estr

y &

Fis

hing

f = M

anuf

actu

ring

g =

Hea

lth &

Com

mun

ity S

ervi

ces

h =

Per

sona

l & O

ther

I = W

hole

sale

Tra

dej =

Acc

omm

odat

ion,

Caf

es &

Res

taur

ants

k =

Cul

tura

l & R

ecre

atio

n S

ervi

ces

l = R

etai

l Tra

dem

= C

omm

unic

atio

n S

ervi

ces

n =

Ele

ctric

ity, G

as &

Wat

er S

uppl

yo

= P

rope

rty

& B

usin

ess

Ser

vice

sp

= G

over

nmen

t Adm

inis

trat

ion

q =

Edu

catio

nr

= F

inan

ce a

nd In

sura

nce

05101520253035

1997

/98

1998

/99

1999

/00

2000

/01

18.0

30.3

16.9

28.4

16.2

28.4

15.2


Tre

nd

s –

Inc

ide

nc

e r

ate

of

co

mp

en

sate

d in

juri

es

resu

ltin

g in

1+

we

ek

s o

ff w

ork

(u

nst

an

da

rdis

ed

)

Sou

rce:

fig

ure

9, p

age

16,

WR

MC

, C

omp

arat

ive

Per

form

ance

Rep

ort,

DE

WR

, A

ugus

t 20

02.

Injuries per million hours worked

Injuries per million hours worked

1997

/98

ad

ce

fb

gh

kj

li

nm

op

qr

1998

/99

1999

/00

2000

/01

Con

stru

ctio

n

Aus

Av

05101520253035

a d

e f

b g

hk

j A

us A

v l

in

mo

q p

r19

97/9

833

.0

16.5

15

.2

16.0

17

.112

.410

.8

12.0

11

.110

.6

8.9

8.4

8.9

5.6

4.7

5.4

2.1

1998

/99

24.6

15

.4

14.9

15

.3

13.5

12

.111

.110

.8

11.1

10.0

8.

2 7.

6 7.

18.

0 5.

7 4.

3 5.

8 1.

919

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018

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14.9

14

.9

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13.1

11

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9.8

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5 8.

4 7.

8 7.

45.

5 5.

5 4.

76.

3 1.

720

00/0

114

.9

14.4

13.6

12

.9

12.5

11

.19.

9 9.

9 9.

8 9.

0 8.

4 8.

1 5.

5 5.

2 5.

0 4.

8 4.

41.

6

a =

Mar

itim

eb

= M

inin

gc

= C

ons

truc

tion

d =

Tra

nspo

rt &

Sto

rage

e =

Agr

icul

ture

, For

estr

y &

Fis

ing

f = M

anuf

actu

ring

g =

Hea

lth &

Com

mun

ity S

ervi

ces

h =

Per

sona

l & O

ther

I =

Who

lesa

le T

rade

j =

Acc

omm

odat

ion,

Caf

es &

Res

taur

ants

k =

Cul

tura

l & R

ecre

atio

n S

ervi

ces

l = R

etai

l Tra

de

m =

Com

mun

icat

ion

Ser

vice

s n

= E

lect

ricity

, Gas

& W

ater

Sup

ply

o =

Pro

pert

y &

Bus

ines

s S

ervi

ces

p =

Gov

ernm

ent A

dmin

istr

atio

n q

= E

duca

tion

r =

Fin

ance

and

Insu

ranc

e 05101520

1997

/98

1998

/99

1999

/00

2000

/01

16.6

10.6

15.1

10.0

14.0

9.5

14.3

9.0


Tre

nd

s –

Fre

qu

en

cy

rate

of

co

mp

en

sate

d in

juri

es

resu

ltin

g in

1+

we

ek

s o

ff w

ork

(u

nst

an

da

rdis

ed

)

Sou

rce:

fig

ure

10,

pag

e 17

, W

RM

C,

Com

par

ativ

e P

erfo

rman

ce R

epor

t, D

EW

R,

Aug

ust

2002

.

Injuries per 1000 employees

1997

/98

NS

WV

ICQ

LDW

AS

ATA

SN

TA

CT

Priv

ate

Aus

Av

1998

/99

1999

/00

2000

/01

01020304050

N

SW

V

IC

QLD

W

AS

A

TAS

N

TA

CT

Priv

ate

Aus

Av

1997

/98

42

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25.5

24

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36.5

34

.2

31

22.5

33.4

1998

/99

39

.5

23.4

17

.5

40.1

31

.9

16.7

18

.6

30

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99/0

0

33.8

21

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34

27

.8

22.8

13

.6

29 2

8.

320

00/0

1

34.8

21

.9

25.3

31

27

.5

26.2

20

.1

21.3

28

.3


Co

nst

ruc

tio

n –

In

cid

en

ce

ra

te o

f c

om

pe

nsa

ted

inju

rie

s re

sult

ing

in 1

+ w

ee

ks

off

wo

rk b

y S

tate

, st

an

da

rdis

ed

fo

r su

b-i

nd

ust

ry

Sou

rce:

fig

ure

15,

pag

e 21

, W

RM

C,

Com

par

ativ

e P

erfo

rman

ce R

epor

t, D

EW

R,

Aug

ust

2002

.

Injuries per 1000 employees

1997

/98

NS

WV

ICQ

LDW

AS

ATA

SN

TA

CT

Priv

ate

Aus

Av

1998

/99

1999

/00

2000

/01

024681012

NS

W

VIC

Q

LD

WA

SA

TA

S

NT

AC

T P

rivat

e A

us A

v19

97/9

810

.3

7.3

48.

7 8.

5 8.

1 4.

28

1998

/99

9.6

6.9

2.2

9.7

8.1

5.6

5

7.4

8.7

6.6

3.8

9.1

6.7

44

6.3

7.2

2000

/01

9.9

6.3

6.4

8.8

6.7

5.4

3.9

4.9

7.8


Co

nst

ruc

tio

n –

In

cid

en

ce

ra

te o

f c

om

pe

nsa

ted

inju

rie

s re

sult

ing

in 1

2+ w

ee

ks

off

wo

rk b

y S

tate

, st

an

da

rdis

ed

fo

r su

b-i

nd

ust

ry

Sou

rce:

fig

ure

16,

pag

e 21

, W

RM

C,

Com

par

ativ

e P

erfo

rman

ce R

epor

t, D

EW

R,

Aug

ust

2002

.

Ind

ustr

y S

ecto

r 19

96-9

7 19

97-9

8 19

98-9

9 19

99-0

0 20

00-0

1 A

vera

ge

ove

r To

tal o

ver

five

year

s f

ive

year

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gric

ultu

re, F

ores

try

& F

ishi

ng

27

26

21

23

24

24

121

Min

ing

24

17

14

10

19

17

84M

anuf

actu

ring

35

35

14

23

13

24

120

Ele

ctric

ity, G

as &

Wat

er S

uppl

y 0

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4 2

2 10

Con

stru

ctio

n 30

24

30

26

21

26

13

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hole

sale

Tra

de

13

10

2 7

6 8

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etai

l Tra

de

7 6

13

8 9

9 43

Acc

omm

odat

ion,

Caf

es &

Res

taur

ants

5

16

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1 5

26Tr

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ort &

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rage

35

29

37

25

34

32

16

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omm

unic

atio

n S

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ces

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7Fi

nanc

e &

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ranc

e 4

0 2

1 1

2 8

Pro

pert

y &

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ines

s S

ervi

ces

16

10

13

11

10

12

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over

nmen

t Adm

inis

trat

ion

6 3

3 7

8 5

27E

duca

tion

2 1

2 4

4 3

13H

ealth

& C

omm

unity

Ser

vice

s 4

2 1

2 4

3 13

Cul

tura

l & R

ecre

atio

nal S

ervi

ces

3 4

4 3

2 3

16P

erso

nal &

Oth

er S

ervi

ces

6 7

3 5

7 6

28N

ot s

tate

d 61

74

72

58

40

61

30

5To

tal

279

267

238

220

206

242

1210

Not

e: F

or A

ustr

alia

n sc

hem

es, t

he d

ata

for

fata

litie

s is

bas

ed o

n th

e ye

ar in

whi

ch a

cla

im fo

r a

fata

lity

was

lodg

ed, w

hich

may

not

be

the

y

ear

in w

hich

the

fata

lity

actu

ally

occ

urre

d.


Ind

ust

ry F

ata

litie

s b

y ye

ar

in A

ust

ralia

– in

juri

es

on

ly,

exc

lud

ing

co

mm

uti

ng

cla

ims

Sou

rce:

Tab

le 5

, p

age

35,

WR

MC

, C

omp

arat

ive

Per

form

ance

Rep

ort,

DE

WR

, A

ugus

t 20

02.

Tran

spor

t & S

tora

ge13

%C

omm

unic

atio

n S

ervi

ces

1%

Fina

nce

& In

sura

nce

1%

Pro

pert

y &

Bus

ines

s S

ervi

ces

5%

Gov

ernm

ent A

dmin

istr

atio

n2%E

duca

tion

1%

Hea

lth &

Com

mun

ity S

ervi

ces

1%

Cul

tura

l & R

ecre

atio

nal S

ervi

ces

1%

Per

sona

l & O

ther

Ser

vice

s2%

Not

sta

ted

25%

Who

lesa

le T

rade

3%R

etai

l Tra

de4%

Acc

omm

odat

ion,

Caf

es &

Res

taur

ants

2%

Agr

icul

ture

, For

estr

y &

Fis

hing

10%

Min

ing

7%

Man

ufac

turin

g10

%

Ele

ctric

ity, G

as &

Wat

er S

uppl

y1%

Co

nstr

uctio

n11

%


Pro

po

rtio

n o

f to

tal i

nd

ust

ry f

ata

litie

s o

ver

five

fin

an

cia

l ye

ars

to

200

0-01

.

Sou

rce:

Tab

le 5

, p

age

35,

WR

MC

, C

omp

arat

ive

Per

form

ance

Rep

ort,

DE

WR

, A

ugus

t 20

02.

percentage

Agriculture, Forestry & Fishing24

17

24

2

26

8

9

5

32

12

12

5

33

3

6

Mining

Manufacturing

Electricity, Gas & Water Supply

Construction

Wholesale Trade

Retail Trade

Accommodation, Cafes & Restaurants

Transport & Storage

Communication Services

Finance & Insurance

Property & Business Services

Government Administration

Education

Health & Community Services

Cultural & Recreational Services

Personal & Other Services

05101520253035


Ave

rag

e n

um

be

r o

f fa

talit

ies

by

ind

ust

ry (

wh

ere

sta

ted

) o

ver

the

fiv

e y

ea

rs u

p t

o J

un

e 2

001.

Sou

rce:

Tab

le 5

, p

age

35,

WR

MC

, C

omp

arat

ive

Per

form

ance

Rep

ort,

DE

WR

, A

ugus

t 20

02.

Average yearly fatalities from workplaceinjury, July 1996 to June 2001

020406080100

NSW

VIC

QLD

WA

SA

TAS

NT

ACT Private

ACTGS

Commonwealth

Seacare

86

60

38

29

15

63

20

40

Juri

sdic

tion

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

Ave

rag

e o

ver

Tota

l ove

r fiv

e ye

ars

fiv

e ye

ars

NS

W

93

101

86

84

66

86

430

VIC

60

74

69

58

40

60

301

QLD

51

30

26

38

47

38

192

WA

31

34

32

20

2729

14

4S

A

2717

10

9 13

15

76

TAS

7

5 8

3 7

6 30

NT

3 2

3 2

3 3

13A

CT

Priv

ate

NA

NA

NA

21

23

AC

TGS

0

0 0

10

0 1

Com

mon

wea

lth

74

43

24

20S

eaca

re

0 0

0 0

0 0

0To

tal A

ustr

alia

27

9 26

7 23

8 22

0 20

6 24

212

10

Not

e: F

or A

ustr

alia

n sc

hem

es, t

he d

ata

for

fata

litie

s is

bas

ed o

n th

e ye

ar in

whi

ch a

cla

im fo

r a

fata

lity

was

lodg

ed, w

hich

may

not

be

the

year

in w

hich

the

fata

lity

actu

ally

occ

urre

d.


Fa

talit

ies

by

juri

sdic

tio

n b

y ye

ar

– in

juri

es

(exc

lud

ing

dis

ea

ses

& c

om

mu

nit

ing

cla

ims)

Sou

rce:

Tab

le 5

, p

age

35,

WR

MC

, C

omp

arat

ive

Per

form

ance

Rep

ort,

DE

WR

, A

ugus

t 20

02.

Per cent of Payroll

Per cent of Payroll

1997

/98

ec

fd

hb

jn

gl

pi

km

po

r

1998

/99

1999

/00

2000

/01

Agr

icul

ture

, For

estr

y an

d Fi

shin

g

Con

stru

ctio

n

Man

ufac

turin

g

Tran

spor

t and

Sto

rage

0123456

e f

d h

b j

ng

lp

ik

mq

o r

1997

/98

5.18

3.

45

3.41

2.

51

2.43

2.

45

2.44

2.33

2.

19

2.51

1.

771.

38

1.64

0.

88

1.06

0.

4619

98/9

95.

50

3.75

3.

43

2.47

2.78

2.

69

2.16

2.

49

2.36

2.

271.

91

1.32

1.

50

1.17

1.09

0.

4819

99/0

05.

56

3.80

3.

52

2.78

2.

98

2.64

2.

87

2.51

2.

441.

92

1.95

1.

62

1.42

1.21

1.04

0.

5120

00/0

15.

53

3.89

3.

48

3.27

2.

98

2.86

2.

62

2.53

2.

52

2.09

2.

02

1.77

1.31

1.

111.

09

0.51

a =

Mar

itim

e

b =

Min

ing

c

= C

ons

truc

tion

d =

Tra

nspo

rt &

Sto

rage

e

= A

gric

ultu

re, F

ores

try

& F

ishi

ng

f = M

anuf

actu

ring

g

= H

ealth

& C

omm

unity

Ser

vice

s

h =

Per

sona

l & O

ther

I =

Who

lesa

le T

rade

j =

Acc

omm

odat

ion,

Caf

es &

Res

taur

ants

k

= C

ultu

ral &

Rec

reat

ion

Ser

vice

s

l = R

etai

l Tra

de

m =

Com

mun

icat

ion

Ser

vice

s

n =

Ele

ctric

ity, G

as &

Wat

er S

uppl

y

o =

Pro

pert

y &

Bus

ines

s S

ervi

ces

p

= G

over

nmen

t Adm

inis

trat

ion

q

= E

duca

tion

r

= F

inan

ce a

nd In

sura

nce

0123456

1997

/98

1998

/99

1999

/00

2000

/01

5.18

4.35

3.45

3.41

5.50

4.92

3.75

3.43

5.56

4.92

3.80

3.52

5.53

5.07

3.89

3.48


Ave

rag

e P

rem

ium

Ra

tes

by

Ind

ust

ry in

Au

stra

lia

Sou

rce:

fig

ure

10,

pag

e 17

, W

RM

C,

Com

par

ativ

e P

erfo

rman

ce R

epor

t, D

EW

R,

Aug

ust

2002

.

Per

cen

t in

dus

try

rep

rese

ntat

ion

O

rig

inal

dat

a Ju

ly 1

994

to J

une

2000

A

vera

ge

fata

litie

s In

dus

try

Fat

al

No

n-fa

tal

Tota

l F

atal

No

n-fa

tal

Tota

l p

er y

ear.

Agr

icul

ture

, For

estr

y &

Fis

hing

9.

93.

8 3.

8 22

0 35

254

3547

4 37

Min

ing

5.2

2.3

2.3

116

2165

2 21

768

19M

anuf

actu

ring

17.0

24

.6

24.6

37

9 22

7618

22

7997

63

Ele

ctric

ity, G

as &

Wat

er S

uppl

y 2.

2 1.

1 1.

1 50

10

221

1027

1 8

Con

stru

ctio

n 13

.0

9.2

9.2

291

8542

5 85

716

49W

hole

sale

Tra

de

6.0

5.1

5.1

135

4669

9 46

834

23R

etai

l Tra

de

4.7

9.0

9.0

105

8361

0 83

715

18A

ccom

mod

atio

n, C

afes

& R

esta

uran

ts

2.2

4.3

4.3

49

3969

0 39

739

8Tr

ansp

ort &

Sto

rage

16

.2

7.9

7.9

361

726

04

7296

5 60

Com

mun

icat

ion

Ser

vice

s 0.

2 1.

7 1.

7 4

1610

0 16

104

1Fi

nanc

e &

Insu

ranc

e 1.

3 1.

0 1.

0 30

93

87

9417

5

Pro

pert

y &

Bus

ines

s S

ervi

ces

7.5

5.9

5.9

167

5420

2 54

369

28G

over

nmen

t Adm

inis

trat

ion

& D

efen

ce

3.4

4.6

4.6

76

4279

6 42

872

13E

duca

tion

2.4

3.7

3.6

53

3376

3 33

817

9H

ealth

& C

omm

unity

Ser

vice

s 3.

0 10

.2

10.2

66

94

672

9473

8 11

Cul

tura

l & R

ecre

atio

nal S

ervi

ces

2.1

2.0

2.0

48

1829

8 18

346

8P

erso

nal &

Oth

er S

ervi

ces

3.7

3.5

3.5

83

3258

8 32

671

14N

ot s

tate

d

1 10

9 11

0 To

tal

100

100

100

2234

92

4688

92

6923

37

2

Not

e: C

autio

n sh

ould

be

used

in in

terp

retin

g fa

talit

ies

data

as

wor

kers

' com

pens

atio

n co

vera

ge o

f fat

aliti

es h

as s

ome

defic

ienc

ies,

for

exam

ple

w

here

ther

e ar

e no

hei

rs to

lodg

e cl

aim

s or

in th

e ca

se o

f lon

g la

tenc

y di

seas

es. I

n ad

ditio

n, ju

risdi

ctio

ns d

o no

t app

ly a

sta

ndar

d de

finiti

on a

s to

wha

t con

stitu

tes

a co

mpe

nsab

le fa

talit

y.


Wo

rke

rs’

Co

mp

en

sati

on

fo

r in

jury

an

d f

ata

lity

by

ind

ust

ry in

Au

stra

lia,

July

199

4 to

Ju

ne

200

0.

Sou

rce:

Nat

iona

l Occ

upat

iona

l Hea

lth a

nd S

afet

y da

taba

se o

nlin

e ht

tp:/

/noh

sc.in

fo.a

u.co

m, v

iew

ed J

anua

ry 2

003;

Nat

iona

l Occ

upat

iona

l Hea

lth &

Saf

ety

Com

mis

sion

.N

ote:

Cau

tion

shou

ld b

e us

ed in

inte

rpre

ting

fata

litie

s da

ta a

s w

orke

rs’ c

ompe

nsat

ion

cove

rage

of f

atal

ities

has

som

e de

ficie

ncie

s, fo

r ex

ampl

e w

here

the

re a

re n

o he

irsto

lodg

e cl

aim

s or

in t

he c

ase

of lo

ng la

tenc

y di

seas

es. I

n ad

ditio

n, ju

risdi

ctio

ns d

o no

t ap

ply

a st

anda

rd d

efin

ition

as

to w

hat

cons

titut

es a

com

pens

able

fata

lity.

July

199

4 to

Ju

ne 2

000

19

99-2

000

19

98-9

9

1997

-98

19

96-9

7

1995

-96

19

94-9

5 In

dus

try

Fat

al

Tota

l F

atal

To

tal

Fat

al

Tota

l F

atal

To

tal

Fat

al

Tota

l F

atal

To

tal

Fat

al

Tota

lA

gric

ultu

re, F

ores

try

& F

ishi

ng

220

3547

4 30

60

68

35

5861

40

59

92

40

5603

26

59

84

49

5966

Min

ing

116

2176

8 13

25

17

18

2442

19

34

39

28

3946

11

43

45

27

5077

Man

ufac

turin

g 37

9 22

7997

43

30

864

47

3161

8 71

36

247

69

3966

2 63

44

050

86

4556

2E

lect

ricity

, Gas

& W

ater

Sup

ply

50

1027

1 3

1134

3

1133

10

1446

5

1736

19

23

97

10

2430

Con

stru

ctio

n 29

1 85

716

32

1396

2 54

13

015

46

1416

4 48

13

894

51

1485

4 60

15

826

Who

lesa

le T

rade

13

5 46

834

11

7155

17

68

02

27

8032

30

82

43

32

8240

18

83

57R

etai

l Tra

de

105

8371

5 14

14

308

25

1265

3 15

13

861

14

1457

4 18

14

458

19

1386

2A

ccom

mod

atio

n, C

afes

& R

esta

uran

ts

49

3973

9 4

6509

4

6090

21

64

60

9 71

91

4 68

47

7 66

44Tr

ansp

ort &

Sto

rage

36

1 72

965

42

1091

2 64

10

727

69

1180

7 60

13

001

66

1322

8 60

13

297

Com

mun

icat

ion

Ser

vice

s 4

1610

4 2

1708

1

1979

1

2847

0

3252

0

3304

0

3014

Fina

nce

& In

sura

nce

30

9417

3

1243

3

1371

1

1494

10

15

87

718

42

6 18

79P

rope

rty

& B

usin

ess

Ser

vice

s 16

7 54

369

15

9410

32

92

39

28 8

856

32

9231

36

92

86

24

8351

Gov

ernm

ent A

dmin

istr

atio

n &

Def

ence

76

42

872

11

4643

5

4247

8

4947

21

87

46

21

9409

10

10

880

Edu

catio

n 53

33

817

7 54

37

11

4601

9

5574

8

5247

10

65

61

8 64

02H

ealth

& C

omm

unity

Ser

vice

s 66

94

738

7 15

110

12

1404

6 6

1531

3 14

16

511

11

1663

9 16

17

118

Cul

tura

l & R

ecre

atio

nal S

ervi

ces

48

1834

6 5

2707

9

2910

9

3214

12

32

97

7 3

242

6 29

72P

erso

nal &

Oth

er S

ervi

ces

83

3267

1 13

49

49

15

4948

18

56

24

9 56

25

17

5680

11

58

45N

ot s

tate

d 1

110

7 66

0 17

11

75

3 67

0 2

30

1 36

1

46To

tal

2234

92

6923

26

2 13

9296

37

2 13

4857

40

1 14

9987

411

16

1376

40

0 17

0402

41

8 17

3528

Not

e: C

autio

n sh

ould

be

used

in in

terp

retin

g fa

talit

ies

data

as

wor

kers

' com

pens

atio

n co

vera

ge o

f fat

aliti

es h

as s

ome

defic

ienc

ies,

for

exam

ple

whe

re th

ere

are

no h

eirs

to lo

dge

cl

aim

s or

in th

e ca

se o

f lon

g la

tenc

y di

seas

es. I

n ad

ditio

n, ju

risdi

ctio

ns d

o no

t app

ly a

sta

ndar

d de

finiti

on a

s to

wha

t con

stitu

tes

a co

mpe

nsab

le fa

talit

y.


Wo

rke

rs’

Co

mp

en

sati

on

fo

r in

jury

an

d f

ata

lity

by

ind

ust

ry in

Au

stra

lia,

July

199

4 to

Ju

ne

200

0.

Sou

rce:

Nat

iona

l Occ

upat

iona

l Hea

lth a

nd S

afet

y da

taba

se o

nlin

e ht

tp:/

/noh

sc.in

fo.a

u.co

m, v

iew

ed F

ebru

ary

2003

; Nat

iona

l Occ

upat

iona

l Hea

lth &

Saf

ety

Com

mis

sion

.N

ote:

Cau

tion

shou

ld b

e us

ed in

inte

rpre

ting

fata

litie

s da

ta a

s w

orke

rs’ c

ompe

nsat

ion

cove

rage

of f

atal

ities

has

som

e de

ficie

ncie

s, fo

r ex

ampl

e w

here

the

re a

re n

o he

irsto

lodg

e cl

aim

s or

in t

he c

ase

of lo

ng la

tenc

y di

seas

es. I

n ad

ditio

n, ju

risdi

ctio

ns d

o no

t ap

ply

a st

anda

rd d

efin

ition

as

to w

hat

cons

titut

es a

com

pens

able

fata

lity.

Agr

icul

ture

, For

estr

y an

d Fi

shin

g

1999

-200

0

30

43

32

42

35

47

54

64

40

71

46

69

40

69

48

60

26

63

51

66

49

86

6060

1998

-99

1997

-98

1996

-719

95-9

619

94-9

5

Con

stru

ctio

nM

anuf

actu

ring

Tran

spor

t and

Sto

rage

020406080100


Fa

talit

ies

by

se

lec

ted

ind

ust

rie

s.

Sou

rce:

NO

SI d

atab

ase.

Agr

icul

ture

, For

estr

y an

d Fi

shin

g

1999

-200

0

6068

3086

4 1396

2 1091

2

5861

3161

8

1301

5 1072

7

5992

3624

7 1416

4 1180

7

5603

3966

2

1389

4 1300

1

5984

4405

0

1485

4 1322

8

5966

4556

2

1582

6 1329

7

1998

-99

1997

-98

1996

-719

95-9

619

94-9

5

Con

stru

ctio

nM

anuf

actu

ring

Tran

spor

t and

Sto

rage

0

1000

0

2000

0

3000

0

4000

0

5000

0


Tota

l cla

ime

d in

juri

es

by

sele

cte

d in

du

stri

es.

Sou

rce:

NO

SI d

atab

ase.

Leve

l 2 S

ub In

dus

try

Per

cen

t in

dus

try

rep

rese

ntat

ion

O

rig

inal

dat

a Ju

ly 1

994

to J

une

2000

F

atal

N

on-

fata

l To

tal

Fat

al

No

n-fa

tal

Tota

lG

ener

al C

onst

ruct

ion

45

47.6

47

.6

131

4062

6 40

757

Con

stru

ctio

n Tr

ade

Ser

vice

s 55

52

.4

52.4

16

0 44

796

4495

6N

ot S

tate

d 0

0 0

0 0

0To

tal

100

100

100

291

8542

2 85

713

Leve

l 3 S

ub In

dus

try:

Gen

eral

Co

nstr

uctio

n

Per

cen

t in

dus

try

rep

rese

ntat

ion

O

rig

inal

dat

a Ju

ly 1

994

to J

une

2000

F

atal

N

on-

fata

l To

tal

Fat

al

No

n-fa

tal

Tota

lB

uild

ing

Con

stru

ctio

n 43

.5

46.1

46

.1

57

1874

6 18

803

Non

-Bui

ldin

g C

onst

ruct

ion

56.5

53

.9

53.9

74

21

880

2195

4N

ot S

tate

d 0

0 0

0 0

0To

tal

100

100

100

131

4062

6 40

757

Leve

l 3 S

ub In

dus

try:

Co

nstr

uctio

n Tr

ade

Ser

vice

s

Per

cen

t in

dus

try

rep

rese

ntat

ion

O

rig

inal

dat

a Ju

ly 1

994

to J

une

2000

F

atal

N

on-

fata

l To

tal

Fat

al

No

n-fa

tal

Tota

lS

ite P

repa

ratio

n S

ervi

ces

18.8

9.

4 9.

4 30

42

13

4243

Bui

ldin

g S

truc

ture

Ser

vice

s 20

.6

22.8

22

.8

33

1020

0 10

233

Inst

alla

tion

Trad

e S

ervi

ces

35.6

31

.8

31.8

57

14

260

1431

7B

uild

ing

Com

plet

ion

Ser

vice

s 12

.5

23.8

23

.8

20

1067

4 10

694

Oth

er C

onst

ruct

ion

Ser

vice

s 9.

4 8.

7 8.

7 15

39

08

3923

Not

Sta

ted

3.1

3.4

3.4

5 15

41

1546

Tota

l 10

0 10

0 10

0 16

0 44

796

4495

6


Su

b I

nd

ust

ry C

on

stru

cti

on

Cla

im s

tati

stic

s fo

r In

jury

an

d F

ata

lity,

Ju

ly 1

994

to J

un

e 2

000

Sou

rce:

NO

SI d

atab

ase.

Oth

er C

onst

ruct

ion

Ser

vice

s 5%

Bui

ldin

g C

ompl

etio

n S

ervi

ces

7%

Inst

alla

tion

Trad

e S

ervi

ces

20%

Not

Sta

ted

2%B

uild

ing

Con

stru

ctio

n20

% Non

-Bui

ldin

g C

onst

ruct

ion

25%

Site

Pre

para

tion

Ser

vice

s10

%

Bui

ldin

g S

truc

ture

Ser

vice

s11

%

Inst

alla

tion

Trad

e S

ervi

ces

Bui

ldin

g C

ompl

etio

n S

ervi

ces

Oth

er C

onst

ruct

ion

Ser

vice

sN

ot S

tate

d

Bui

ldin

g C

onst

ruct

ion

Non

-Bui

ldin

g C

onst

ruct

ion

Site

Pre

para

tion

Ser

vice

sB

uild

ing

Str

uctu

re S

ervi

ces


Su

b I

nd

ust

ry C

on

stru

cti

on

Cla

im s

tati

stic

s fo

r F

ata

lity,

Ju

ly 1

994

to J

un

e 2

000

Sou

rce:

NO

SI d

atab

ase.

Oth

er C

onst

ruct

ion

Ser

vice

s5%

Bui

ldin

g C

ompl

etio

n S

ervi

ces

12%

Inst

alla

tion

Trad

e S

ervi

ces

17%

Not

Sta

ted

2%

Bui

ldin

g C

onst

ruct

ion

22%

Non

-Bui

ldin

g C

onst

ruct

ion

25%

Site

Pre

para

tion

Ser

vice

s5%

Bui

ldin

g S

truc

ture

Ser

vice

s12

%

Inst

alla

tion

Trad

e S

ervi

ces

Bui

ldin

g C

ompl

etio

n S

ervi

ces

Oth

er C

onst

ruct

ion

Ser

vice

sN

ot S

tate

d

Bui

ldin

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Education

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Personal & Other


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Agriculture, Forestry & Fishing

Bod

y st

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mec

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20%

30%

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01

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rce:

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MC

, Aug

ust

2002

.

Retail Trade

Wholesale Trade

Construction


Transport & Storage

Aus Av


Manufacturing

Education





Mining

Finance & Insurance


Personal & Other


Str

ain:

lift/

carr

y/ p

uttin

g do

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ain:

pus

h/pu

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ve m

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load

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10%

20%

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40%

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Mec

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ry –

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rce:

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MC

, Aug

ust

2002

.

Mining


Transport & Storage

Construction



--- Aus Av---


Wholesale Trade

Manufacturing



Retail Trade


Education


Finance & Insurance


1997

/98

1998

/99

1999

/00

2000

/01

05

1015202530

Aus

t Av

200/

01

Fatalities per 100,000 employees


Inc

ide

nc

e R

ate

of

Co

mp

en

sate

d F

ata

litie

s b

y In

du

stry

Sou

rce:

WR

MC

, Aug

ust

2002

.

Mining


Transport & Storage

Construction



--- Aus Av---


Wholesale Trade

Manufacturing



Retail Trade

Education



Finance & Insurance


1997

/98

1998

/99

1999

/00

2000

/01

02468

1012

Aus

t Av

200/

01

Fatalities per hundred million hours worked


Fre

qu

en

cy

Ra

te o

f C

om

pe

nsa

ted

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talit

ies

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ry

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ust

2002

.

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AS

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SN

TA

CT

Priv

ate

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t Av

NZ

1997

/98

1998

/99

1999

/00

2000

/01

02468

10

Aus

t Av

200/

01

% of payroll


Ave

rag

e P

rem

ium

Ra

tes

for

Co

nst

ruc

tio

n

Sou

rce:

WR

MC

, Aug

ust

2002

.

Some conclusions that may be adduced from the tables of this appendix

page 134: The construction industry has almost twice the injury rate of theaverage injury rate for all industries combined. Only the maritimeand mining industries have consistently had worse incidencerates over the four years surveyed by WRMC.

page 135: The frequency of injury in the construction industry is about oneand a half times the national average across all industries. Thetrend is marginally declining.

pages 136 and 137: The incidence of injury in the construction industry is highest inNew South Wales and Western Australia. This is true for injuriesof short and long term nature.

pages 138 and 144: Fatalities in WRMC and NOSI aggregates differ, and presumablythe definitions will show this. The table on page 138 has a largenumber of ‘not stated’ industry fatalities.

page 139: The average yearly fatality column from page 138 forms a piechart with a large proportion of ‘not stated’. It may bereasonable to discard this ‘not stated’ sector and attributeindustry proportions to the rest of the data. Page 140 showsthe data omitting ‘not stated’.

page 140: The WRMC data attributes construction a yearly average of 26workplace fatalities, behind transport and storage with 32 peryear.

page 141: Workplace fatalities in all industries are distributed by state andterritory in approximate proportion to distribution of population.

page 142: Insurance premiums in construction industry are secondhighest in Australia. Only ‘agriculture, forestry and fishing’ ishigher.

page 143: According to NOSI database, construction accounted for 13per cent of all fatalities and 9.2 per cent of all injuries over the sixyears to June 2000. On average, 49 deaths and 14 286 injuriesoccurred per financial year in that six year period in constructionjobs.

page 144: The ‘all Australian’ total of deaths and injuries is declining yearby year, but for the construction industry the trend is not asclearly defined, for example 1999-2000 saw a decline in thenumber of construction deaths, but an increased number ofinjuries.



page 145: According to NOSI data, the number of workplace deaths hasdeclined noticeably across the four most dangerous industries,which includes construction. The same could be said verygenerally of the numbers of workplace injuries depicted in thechart on page 146, although any industry-specific analysis forconstruction seems inconclusive.

page 147: In the six years to June 2000, 291 construction workerssuffered workplace fatalities. Just under half of these wereworking at general construction.

page 147: In the six years to June 2000, 160 construction trade servicesworkers suffered workplace fatalities. Installation trade serviceshad the most dangerous jobs as they accounted for 36 per centof fatalities and 32 per cent of all injuries in that sub-category.

pages 148 and 149: These charts show the percentage proportions of the fatalitiesand injuries respectively in all ANZSIC construction sub-industrysectors according to NOSI data. One in four fatalities occur in ‘non-building construction’ (25 per cent), with ‘buildingconstruction’ and ‘installation trade services’ each incurring 20per cent of the fatalities over the six years.

page 150: This chart shows that the construction industry had more thanthe average number of ‘falls, slips, and trips of person’contributing to injury in 2000-01.

page 151: The incidence of injury in construction work due to strainingfrom ‘lifting, carrying and putting down’ was 57 per cent – thethird highest industry behind the retail trade (63 per cent) andwholesale trade (60 per cent).

pages 152 and 153: The national incidence rate of compensated fatalities across allindustries showed the construction industry as fourth highest atbetween 11 per cent and 7 per cent over the five years leading toJune 2001. While the rate was more than twice the nationalaverage across all industries, it was about a third of the rate forthe mining industry at between 31 per cent and 27 per cent overthose same years. The frequency rates for compensated claimedfatalities approximately mirrored the shape of the incidence chart.

page 154: We saw on page 142 that the premium rates for constructioninjuries were second highest among all industries. This chartshows that ACT has the highest premiums for the constructionindustry, but New South Wales is the only other state or territoryabove the national average. This implies that New South Wales,with by far the largest construction industry workforce, haspushed up the average for the industry as a whole for premiumrates as a proportion of the payroll.

Appendix C:

A short history of occupational health and safety law and

regulation in Australia

Reform – Occupational Health and Safety 159Reform – Occupational Health and Safety



A short history of occupationalhealth and safety law andregulation in Australia

The early history

1 From 1883 when the first factory legislation was passed in the United Kingdom until 1972 whenthe Committee on Safety and Health at Work chaired by Lord Robens delivered its landmarkreport, factory legislation in the United Kingdom was ‘a typical example of English practicalempiricism’. Each successive statute was intended to find ‘a practical remedy for a provedwrong,’ regardless of logic, general principle or consistency.1

2 Australia followed suit as each State followed the British empirical model without much regardfor local political, economic, industrial or social conditions.2 Legislation was extended to covernew industries, technologies and problems in a series of ‘piecemeal and ad hoc developments’.3

The Robens Report

3 The operation of Britain’s occupational health and safety laws was reviewed by a Committee onSafety and Health at Work, chaired by Lord Robens (the Robens Committee). The RobensCommittee delivered its report in 1972 (the Robens Report).

4 The Robens Committee emphasised the problems caused by apathy:

Our deliberations over the course of two years have left us in no doubt that the mostimportant single reason for accidents at work is apathy. There is a curious paradox here.Society as a whole reacts keenly to major disasters. There is also some ephemeralreaction to the annual statistics of industrial death and injury. But safety is mainly a matterof the day-to-day attitudes and reactions of the individual, and whatever the total picturethe fact is that serious accidents at work are rare events in the experience of individuals…Many practical implications flow from this. Perhaps the most important is that if individualexperience is not in the normal course conducive to safety awareness, then safetyawareness must be deliberately fostered by as many specific methods as can bedevised… There is no single panacea and there are no simple short cuts. Progress in thisfield will rarely be dramatic. But we believe that by patient and unremitting effort it ispossible to raise the status, so to speak, of the subject of safety and health at work in theminds of individuals.4

161


5 The Robens Committee found that the existing industrial safety legislation had ‘emerged inremarkably piecemeal fashion decade after decade’5 in order to remedy specific problems asthey arose, and did not take a broader view of occupational health and safety. The law thereforerequired constant extension and amendment to address new problems. This approach wasunsatisfactory at a time of ‘rapid change in industrial structures and technologies as well as in social attitudes and expectations’.6

6 The Robens Committee identified three major defects of the existing system. First, it found thatthere was ‘too much law’. This ‘mass of law’ encouraged people to view occupational healthand safety as ‘a matter of detailed rules imposed by external agencies’. More significantly, itcontributed to apathy amongst those in the workplace.7

7 In the Robens Committee’s view, ‘[t]he primary responsibility for doing something about thepresent levels of occupational accidents and disease lies with those who create the risks andthose who work with them’. It found, however, that the existing system encouraged reliance onstate regulation, at the expense of personal effort and involvement. The Robens Committeeexpressed the view that the role of state regulation should be to influence attitudes in theworkplace and to encourage action on the part of industry.8

8 Second, the existing laws were inappropriate and inadequate. According to the RobensCommittee, the legislation was ‘badly structured, and the attempt to cover contingency aftercontingency has resulted in a degree of elaboration, detail and complexity that deters even themost determined reader’. It was drafted in such a way that it was unintelligible to managers,supervisors and employees and did not influence their actions. The size of the body of lawfurther ensured that maintaining and updating it was ‘an endless and increasingly hopelesstask’.9 In addition, most of the legislation dealt with physical hazards and safeguards, such asthe fencing of machinery and the provision of lighting. It therefore paid little attention to whatwas really important – ‘the attitudes, capacities and performance of people and the efficiencyof the organisational systems within which they work’.10 The Robens Committee saw a need toaddress this problem:

…preoccupation with the physical environment has tended to dominate this field to theneglect of equally important human and organisational factors, such as the roles oftraining and joint consultation, the arrangements for monitoring safety performance, orthe influence of work-systems and organisation upon attitudes and behaviour. We believethat a deliberate effort must be made to redress this imbalance.11

9 Third, the Robens Committee identified the fragmentation of administrative jurisdictions as amajor flaw. The responsibility for enforcement and administration of the various health andsafety acts was split between a number of departments and inspectorates. The lack of acomprehensive health and safety system caused problems at a number of levels. For theindividual workplace, some workplaces were covered by multiple provisions and administrativebodies, while some were not covered at all.12 At the level of the inspectorates, the complexityof the legislation caused further problems:

…the fact that the application of the statutory provisions – and with this the locus standiof the various enforcing agencies – is dependent upon a variety of definitions of premises,processes and activities results in demarcation lines of considerable complexity. For


example, railway running sheds and workshops are subject to the Factories Act and tothe attentions of the Factory Inspectorate, as are building operations on railway land; butworks of engineering constructions on existing railways are not.13

10 The fragmentation of jurisdictions also had a tendency ‘to diffuse and compartmentalize theexpertise and resources of the inspection services’, preventing co-operation and the sharing ofknowledge between inspectorates.14

11 Having highlighted these three important defects, the Robens Committee outlined the keyobjectives of reform, and noted that a large-scale and thorough overhaul of the system wasrequired. The first objective was ‘the creation of a more unified and integrated system toincrease the effectiveness of the state’s contribution to safety and health at work’.15 Thesecond objective was described in the following terms:

The most fundamental conclusion to which our investigations have led us is this. Thereare severe practical limits on the extent to which progressively better standards of safetyand health at work can be brought about through negative regulation by externalagencies. We need a more effectively self-regulating system. This calls for theacceptance and exercise of appropriate responsibilities at all levels within industry andcommerce. It calls for better systems of safety organisation, for more managementinitiatives, and for more involvement of workpeople themselves. The objectives of futurepolicy must therefore include not only increasing the effectiveness of the state’scontribution to safety and health at work but also, and more importantly, creating theconditions for more effective self-regulation.16

12 The Robens Committee examined the mechanisms by which workplace health and safety canbe improved. In particular, it addressed the role of management and the involvement ofworkpeople. In the Robens Committee’s view:

Promotion of safety and health at work is an essential function of good management…if directors and senior managers are unable to find time to take a positive interest in safetyand health, it is unrealistic to suppose that this will not adversely affect the attitudes andperformance of junior managers, supervisors and employees on the shop floor. If, as webelieve, the greatest obstacles to better standards of safety and health at work areindifference and apathy, employers must first look to their own attitudes.17

Promotion of safety and health should therefore be a normal management function.18

13 To prevent injuries, reduce loss and increase efficiency, employers

…must look systematically at the total pattern of accidental happenings – whether or notthey caused injury or damage – and must plan a comprehensive system of preventionrather than rely on the ad hoc patching-up of deficiencies which injury-accidents havebrought to light.19

14 The Robens Committee stated that better management performance in this area required boththe establishment of policy objectives and effective organisation in which responsibilities wereclearly allocated and defined.20

163


15 The Robens Committee considered that the participation of employees in the making of safetyand health arrangements for their workplace was vital, and that

…real progress [in improving workplace health and safety] is impossible without the fullcooperation and commitment of all employees… We believe that if workpeople are toaccept their full share of responsibility…they must be able to participate fully in themaking and monitoring of arrangements for safety and health at their place of work.Moreover, if the new inspection approaches which we discuss in subsequent chaptersare to work, increasing reliance will have to be placed on the contribution thatworkpeople themselves can make towards safety monitoring.21

16 The Robens Committee stated that employees must have representatives to communicatewith management on health and safety issues. It noted that in this area there is a greateridentity of interest between management and employees than in most other matters, and that‘the employees’ safety representative can contribute expertise of a special kind – the intimateknowledge of working habits and attitudes on the shop floor’.22 Better co-operation betweenemployers and workpeople should be developed.23 The Robens Committee thereforerecommended that

…there should be a statutory duty on every employer to consult with his employees ortheir representatives at the workplace on measures for promoting safety and health atwork, and to provide arrangements for the participation of employees in the developmentof such measures. The form and manner of such consultation and participation wouldnot be specified in detail, so as to provide the flexibility needed to suit a wide variety ofparticular circumstances and to avoid prejudicing satisfactory existing arrangements.24

17 The Robens Committee recommended that the existing statutory arrangements should beunified.25 This process would entail bringing the relevant statutes under a single administration,and replacing them with a single comprehensive statute. This included bringing large industriesthat had separate legislative schemes under the new single statute.26 It noted that many ofthese industries have unique features, but pointed out that:

Under the comprehensive Act…we see no difficulty in making special provisions andspecial enforcement and advisory arrangements for particular industries, including miningand agriculture.27

18 The Robens Committee recommended that the new comprehensive enactment should beenabling in character, dealing only with matters that would not require frequent amendment.The new enabling statute should specify ‘the basic and over-riding responsibilities of employersand employees’ in a statutory declaration. The declaration should:

…spell out the basic duty of an employer to provide a safe working system including safepremises, a safe working environment, safe equipment, trained and competentpersonnel, and adequate instruction and supervision. It should also spell out the duty ofan employee to observe safety and health provisions and to act with due care for himselfand others.28

19 The Robens Committee recommended that the new statute should otherwise be limited toessential matters, including provisions for administering the statute, a general regulation-making


power, powers to make regulations on some specific matters, powers to undertake andpromote research and training, and provisions dealing with offences and penalties.29 The newstatute should be supported by an organised structure of regulations and voluntary codes and standards.

20 The Robens Committee recommended that regulations should be limited to the prescription ofgeneral requirements, with detailed specifications and guidance on their implementation to beprovided by codes and standards.30

21 The Robens Committee also examined the issue of sanctions and enforcement. It suggestedthat

…criminal proceedings are inappropriate for the generality of offences that arise undersafety and health at work legislation. We recommend that criminal proceedings should,as a matter of policy, be instituted only for infringements of a type where the imposition ofexemplary punishment would be generally expected and supported by the public. Wemean by this offences of a flagrant, wilful or reckless nature which either have or couldhave resulted in serious injury.31

22 The Robens Committee recommended that provision should be made for the imposition ofhigher penalties in the case of repeated offences, and that the Act should make it clear thatdirectors, managers and operatives, as well as corporate bodies, can be liable.32 It suggestedthat greater reliance should be placed on non-judicial administrative sanctions,33 such asimprovement notices34 and prohibition notices35 issued by inspectors.

23 The Health and Safety at Work etc Act 1974 (UK) introduced most of the recommendationsmade by the Robens Committee.36

The impact of the Robens Report on Australia’s occupational health and safety legislation

24 The weaknesses identified by the Robens Report in occupational health and safety regulationin the United Kingdom also existed in Australia. Australia’s legislation was based on the Britishmodels, and as in the United Kingdom, legislative development had been ad hoc in nature.37

25 The Robens Report had a strong influence in each Australian jurisdiction. A number of Statesundertook reviews of their occupational health and safety legislation, and all States reformedtheir existing systems. The first reforms were carried out by South Australia in 1972, Tasmaniain 1977 and Victoria in 1981. Each of these States introduced statutes broadly based on theRobens approach.38

26 In 1981 the New South Wales Government established a Committee of Inquiry, chaired byformer Chief Industrial Magistrate Williams, to examine the existing occupational health andsafety legislation. The Occupational Health and Safety Act 1983 (NSW) followed.

165


The Industry Commission Report

27 Despite the reforms that followed the Robens Report

…the ad hoc development of OHS legislation in Australia has resulted in a complex webof Commonwealth, State and Territory statutes, with different obligations placed onemployers, occupiers, employees and suppliers and other parties responsible forproviding plant, equipment and substances to workplaces; inconsistent exposure limitsand standards for hazardous substances, plant, and processes; different procedures fordeveloping new standards; inconsistent provisions for worker involvement in OHS; anddifferent enforcement agencies and enforcement powers, policies and practices.39

28 As the legislation stands currently, the principal statutes share a number of features. However,there are also significant differences in many areas. The level of and mechanisms for workerinvolvement, the regulations and codes, and the general duties imposed on employers are notuniform across jurisdictions.40 As amendments have been made to State legislation, thesedifferences have been exacerbated. In addition, a vast number of other statutes remain in effectin each jurisdiction, detracting from the goal of unification.41

29 Following a review of the British occupational health and safety laws in 1994, Australia’sIndustry Commission produced a report on health and safety at work in 1995 (IndustryCommission Report). The Industry Commission Report highlighted the extent to which theAustralian system has departed from the Robens model.

30 First, the Industry Commission Report noted that the principal Australian occupational healthand safety statutes fail to define clearly the relevant rights and obligations, and that manyregulations ‘merely restate…the rights and duties in the principal OH&S statutes’.42

31 Second, the Industry Commission Report pointed out that there were then more than 150statutes regulating occupational health and safety in Australia. It stated:

… [t]here has been considerable progress in every jurisdiction in repealing the statutesand their regulations which were meant to be replaced by the OHS legislation – asproposed by the Robens Committee – but the process is incomplete.43

32 Third:

The existing regimes do not adequately accommodate the different situations inindividual workplaces. They do not allow for different capabilities of employers to developtheir own safety management. Nor are they flexible enough to meet the desire of someemployers for straight-forward, specified safety measures and certainty in compliance.44

33 A further criticism made by the Industry Commission Report was the extent of inconsistencybetween jurisdictions. It noted that different obligations were placed on employers, employeesand suppliers in different States, and that there are differences in enforcement. The result is that‘there are different levels of protection for workers doing the same job in the variousjurisdictions – this is inequitable’.45 With respect to the use of codes of practice, the IndustryCommission Report stated:

Governments have developed official codes of practice to provide guidance on how tocomply with the law. Most focus on how to manage a particular hazard in all workplaces


in all industries. Consequently, their advice is inadequate in extent and too general to beof practical help to most workplaces.46

34 Importantly, the Industry Commission Report stated that, ‘Nationally uniform OH&S standardshave been a goal since the creation of the National Occupational Health and SafetyCommission [NOHSC] in 1984’. However, it noted that the development of national standardsby NOHSC and their implementation had been problematic:

• Jurisdictions have legislated ‘national standards’ in various ways with differenteffects. This is confusing and has reinforced perceptions that governments do nothave a clear view of the appropriate approach.

• The content of the standards implemented can differ to a significant degree fromthose declared by NOHSC. Significant differences in content undermine theconcept of uniform standards.

• Despite concerted effort by NOHSC since 1991, many criticised the progress indeveloping and implementing national standards. Not one of the priority standardshas been fully implemented across the country.47

35 The Industry Commission Report found that, ‘There has been no agreement on operationalobjectives because of the difficulty in developing standards applicable to all workplaces in alljurisdictions’. Further, governments had been unable to agree on implementation of the nationalstandards, ensuring that ‘significant differences in OH&S law remain between the jurisdictions’.48

36 The Industry Commission called for a better regulatory regime, which it suggested would havethe following features:

The solution to achieving better OHS outcomes is to be found in a more faithfulapplication of the principles for the regulation of health and safety enunciated in theRobens Report. These are:

• a single enabling statute to define clearly the rights and duties of all parties whoinfluence the risks to health and safety at the workplace;

• subordinate legislation to mandate certain minimum health and safety standards,expressed in terms of outcomes as far as practicable; and

• a preference for voluntary standards and codes of practice to provide the practicalmeans of implementing those legal requirements in the workplace.

Regulatory reform is needed to promote best practice. It should take the form of requiringthose in the workplace to take greater responsibility for the management of the risks tohealth and safety, while enabling them to do so. This means changing the approach ofmuch OHS legislation and the programs that support it. Regulation has to shift fromimposing solutions towards enabling those at the workplace to make informed choicesabout [how best] to reduce the risks to life and limb at their workplace.49

37 The Industry Commission Report discussed the need for consistency in occupational healthand safety arrangements. The Industry Commission stated that ‘greater consistency betweenthe jurisdictions in OH&S regulation should be achieved by a process of cooperative

167


federalism’.50 This course was preferred because, as the Industry Commission pointed out, itwas desirable to avoid ‘a Commonwealth/State contest. Such a contest would havedebilitating consequences for effective OH&S measures at both the national and State levels.Co-operation is preferred as the States have responsibility for OH&S and possess theadministrative infrastructure and expertise’.51 After noting the difficulties of achievingagreement in a Federation, the Commission made further recommendations:

The Commission proposes a new approach to national consistency in OHS protectionbased upon:

• template legislation for the core elements of OHS legislation;

• national standards that are confined to exposure limits and other appropriatelymandated requirements for OHS legislation;

• provision for industry-based codes of practice and enterprise safety managementsystems to be recognised in all jurisdictions; and

• consistency in enforcement across jurisdictions.

The core elements in the template legislation should include:

• the duty of care of employers, employees and third parties;

• the specific duties which elaborate each duty of care;

• any defences given to holders of a duty of care;

• provisions for employee workplace representation; and

• provisions to recognise codes of practice and safety management systems.

This approach would achieve the benefits of greater consistency at least cost to thecommunity.52

38 The recommendations of the Industry Commission reinforced the view that ‘the developmentof nationally uniform OH&S legislation is…an important issue in OH&S regulation in Australia’.55

The establishment of the National Occupational Health and Safety Commission

39 On 23 April 1985, the then Minister for Employment and Industrial Relations gave his secondreading speech on the introduction of the National Occupational Health and SafetyCommission Bill. In that speech the Minister made a range of observations about theimportance of bringing about a sustained improvement in occupational health and safety inAustralian workplaces, and outlined the role anticipated for the proposed NOHSC in achievingthat objective.

40 The Minister said:

The nation as a whole is incurring enormous losses from unsafe and unhealthy workingenvironments. Individual employees suffer the hardship of physical pain, disabilities andloss of income. Employers bear losses through reduced output and higher workers’


compensation insurance premiums. The community as a whole faces higher prices andtaxes to meet the spiralling costs of occupational injury and ill health. Conservativeestimates are that more than $6 billion a year is wasted through loss of production andassociated costs because of occupational injury and ill health. About 300 people arekilled each year in work-related accidents and a further 150,000 people are injured atwork each year. This is a gigantic social, human and economic penalty that can bereduced significantly only by concerted action on a national scale and this Bill representsthe first substantial legislation by a Federal government to bring about a change for thebetter in the working environment.

For too long occupational disease, injury and death have been seen as an almostinevitable part of the human and social cost of production. Companies must produce anadequate return and often the company that is only marginally economic is also the onewith the worst problems in the health and safety area. There is often not enough incentivewithin an organisation to improve health and safety conditions because a great deal ofthe cost of illness, injury or death is borne by the community at large–medical, nursingand hospital costs, lifetime care for the permanently disabled worker and the value, innational terms, of lost production.

Although the top management of a company may believe in principle that it is in the longterm interests of the company to adopt sound health and safety practices, it may at thesame time assess the short term performance of its middle management by productionmeasurement criteria that could result in injury and other incidence rates higher than theywould otherwise be. Such commitment at the senior level must be translated into actionthrough all levels of management and on the shop floor. This is one reason why a nationalfocus and strategy is so necessary.54

41 The Bill provided for a tripartite statutory national commission, consisting of 17 members: achairperson; three members nominated by the ACTU; three members nominated by theConfederation of Australian Industry; one member nominated by the Premier of each State andthe Chief Minister of the Northern Territory; one member nominated by the Minister forEmployment and Industrial Relations; one member nominated by the Minister for Health; andone member nominated by the Minister for Territories.

42 Apart from minor changes in nomenclature, and the addition of the Chief Executive Officer as amember, the structure of the NOHSC remains the same today.

43 The new statute was said to

…underline[s] the Commission’s primary role of co-ordination and facilitation, with themajor jurisdiction over occupational health and safety remaining with the States...55

44 It would still be up to each State to implement standards within its own jurisdiction. In thisregard, the Minister said:

The roles and responsibilities of the States, Territories and the Commonwealth are clearand distinct and the Bill does not seek to transfer any of these. The Bill specifically sets upthe Commission within the limits of the constitutional power afforded to the FederalGovernment. It will enable the Commission to undertake additional beneficial activities in

169


the fields of standards development, research, training and information collection anddissemination at a national level, thus representing a positive initiative in co-operativefederalism.56

45 The functions of the NOHSC included the declaration of national standards and codes ofpractice. In this regard, the Minister said:

…the most significant powers being given to the Commission are those of inquiry andinformation gathering for the purpose of developing appropriate national standards.57

46 He went on to say:

Because of the multiplicity of regulations affecting occupational health and safety, one ofthe important aims of the Bill is to enable the Commission to declare national standardsand codes of practice. These will be advisory in character and will only be declared afterconsultation with interested parties and after interested persons have had an opportunityto make representation. The application of national standards will be a matter for Stateand Territory governments in their jurisdictions…58

47 The Act was assented to on 27 May 1985, and commenced on 20 December 1985.

The period to 1995

48 The Industry Commission Report reviewed the progress to 1995 towards establishingnationally consistent occupational health and safety arrangements in Australia. Appendix H tothe Industry Commission Report59 provides a detailed account of relevant developments. Thefollowing summary is substantially based on that account:

• The drive for national uniformity in occupational health and safety regulatory regimes hadtaken place on two fronts:

– efforts at making the various occupational health and safety statutes consistentacross jurisdictions; and

– attempts at achieving uniformity in the area of occupational health and safetyrequirements.

• Most effort had been directed at achieving uniformity in the area of requirements throughthe development of model regulations and codes of practice.

• The NOHSC had the responsibility for developing national standards.

• In May 1990, the then Ministers of Labour Advisory Committee (MOLAC) resolved that:

Commonwealth, State and Territory Governments agree that, as far as practicable,any standards endorsed by NOHSC will be accepted as minimum standards andimplemented in the State/Territory jurisdiction as soon as possible afterendorsement.

• In August 1990 NOHSC initiated a Standards Development Action Plan.

• In November 1990, the Review of Occupational Health and Safety in Australia, preparedby a Committee to the Minister for Industrial Relations, declared:


It is imperative that, if Australia is to improve its OHS performance, the question ofuniformity in OHS legislation and standards be seriously addressed. States need amechanism to develop and declare standards in areas of urgent priority and theirlegislation provides them with the charter to do this. However, a number ofsubmissions to the Review have pointed out the problems resulting from differentregulations in each State and the ‘...desperate need to have uniform legislation andstandards throughout the country’.

• In April 1991 NOHSC convened a National Standards Summit to review the standardsetting process. Following the summit, the Commonwealth Minister for IndustrialRelations commissioned reports on legislative impediments to national uniformity(Grabosky 1991) and occupational health and safety training (Else 1992).

• Grabosky identified three main legislative impediments: the extraordinary complexity ofthe standards development process, involving, as it had, tripartite consultative processesin nine separate jurisdictions; resistance to change in general, especially by vestedinterests; and the idiosyncratic nature of parliamentary procedure and practice in statesand territories of Australia.

• In November 1991 Labour Ministers agreed to achieve national uniformity in occupationalhealth and safety standards by the end of 1993. To achieve uniformity, MOLAC was givenresponsibility for the standardisation of the parent acts, while NOHSC was to beresponsible for the development of subordinate instruments (regulations and codes ofpractice) to a stage where they could be uniformly adopted.

• Later that month Premiers and Chief Ministers agreed to ‘direct relevant Ministers toachieve nationally uniform occupational health and safety standards and uniformstandards in relation to dangerous goods by the end of 1993’.

• In April 1992 Labour Ministers endorsed a comprehensive strategy developed by theNOHSC to achieve national uniformity in key standards by the end of 1993.

• The seven first-order priorities for ‘key standards’ were plant; certification of users andoperators of industrial equipment; workplace hazardous substances; occupational noise;manual handling; major hazardous facilities; and storage and handling of dangerousgoods. According to the Industry Commission, these hazards were estimated to accountfor between 65 and 80 per cent of all compensated occupational injuries and diseases.

• As at August 1995 NOHSC had declared five of the seven first-order priority nationalstandards (plant–declared December 1992; certification of users and operators ofindustrial equipment – June 1994; workplace hazardous substances – December 1993;occupational noise – March 1992; and manual handling – October 1989).

49 The Industry Commission found in 1995 that the entire process, from commitment to developa standard to declaration, took from two to five years. It found that none of the five prioritynational standards declared by the time of its report had been implemented in all jurisdictions,although most jurisdictions that had not yet adopted the standards were ‘planning to do so’.60

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50 It is relevant to note here that the first edition of the national standard for the control of majorhazard facilities was declared in 1996, with the second edition declared in October 2002.NOHSC had endorsed the development of this national standard in 1991.

51 At the meeting of the WRMC in December 2000 Ministers endorsed the release of a nationalstandard for the storage and handling of dangerous goods in workplaces. Following theCouncil’s endorsement, in March 2001, NOHSC formally declared the national standard. Inendorsing the release of the standard, Ministers noted that:

…in implementing the standard a need existed for consistency across jurisdictions and toaddress cost implications for small business.61

52 In summary, the task of declaring the seven so-called ‘first order standards’ was completed in2001, some ten years after the commitment by MOLAC in 1991 to achieve national uniformityin occupational health and safety standards. As noted above, the expectation, at the time,seems to have been that the task would be completed by the end of 1993.62

The Industry Commission’s assessment and conclusions

53 The Industry Commission noted that:

Nationally uniform OHS standards have been a goal since the creation of the NationalOccupational Health and Safety Commission (NOHSC) in 1984. However, NOHSC madelittle progress towards that goal until November 1991 when Heads of Governmentagreed to implement nationally uniform standards through NOHSC by the end of 1993.63

54 The Industry Commission reported that participants in its inquiry generally expressed thefollowing concerns about the development of national standards by NOHSC and theirimplementation by the states:

(a) jurisdictions have legislated ‘national standards’ in various ways with different effects.This is confusing and has reinforced perceptions that governments do not have a clearview of the appropriate approach;

(b) the content of the standards implemented can differ to a significant degree from thosedeclared by NOHSC. Significant differences in content undermine the concept of uniformstandards; and

(c) despite concerted effort by NOHSC since 1991, many criticised the progress indeveloping and implementing national standards. Not one of the priority standards hasbeen implemented fully across the country.64

55 The Industry Commission expressed the view that the concerns expressed by participantswere

…symptoms of fundamental problems with the national uniformity program.Governments have failed to agree on operational objectives or how they are to beachieved.65


56 It went on to say that:

Standards have been developed for the hazards associated with high workers’compensation pay-outs rather than those which impose the highest costs on thecommunity. Fatality and permanent disability account for almost 60 percent of total costsof injury or disease at work.66

57 Importantly, the Industry Commission observed that:

The program has not recognised that hazards can only be successfully managed at theworkplace. Much effort has gone into developing national codes of practice but theyprovide little or no practical guidance to workplaces. As a result, some industries havemoved away from the NOHSC codes.67

58 Further, the Industry Commission noted that:

There has been no agreement on operational objectives because of the difficulty indeveloping standards applicable to all workplaces in all jurisdictions. Governments havebeen reluctant to agree to them and have reserved the right to modify declaredstandards to fit the needs of their jurisdictions.

In principle, uniform regulation implies uniform legislation. Governments have attemptedto achieve greater regulatory consistency while maintaining flexibility by implementing the‘common essential requirements’ in national standards as they see fit. As governmentshave been unable to agree on how to implement the national standards, significantdifferences on OHS law remain between the jurisdictions. Furthermore there has beenlittle coordination between implementation of national standards and reform of OHSregulation.68

The Report of the Small Business Deregulation Task Force (The Bell Report)

59 The Small Business Deregulation Task Force, under the chairmanship of Mr Charlie Bell, wascommissioned by the Commonwealth Government to ‘review the compliance and paperburden imposed on small business’. The Task Force was asked to take into account, amongstother matters, ‘Commonwealth regulatory requirements’, and ‘an assessment of theinteraction with State/Local Government business regulation and compliance requirements’.69

60 The Task Force submitted its report, Time for Business, to the Prime Minister on 1 November1996. It addressed the impact of occupational health and safety arrangements on smallbusiness.

61 The Task Force reported that small businesses were

...concerned that they do not have the expertise to deal with technically complexoccupational health and safety regulation. They are not able to translate the regulationsinto effective workplace management strategies without the additional cost of hiringprofessional advisers. This has significant implications for small business as it can affectthe safety of its employees, result in lost productivity and increase workers compensationpremiums.70

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62 The Task Force stated that small business concerns about occupational health and safety wereconsistent with many of the problems identified in the Industry Commission Report,summarising the principal problems with existing arrangements as including:

(a) too much legislation; and

(b) inconsistency between jurisdictions – importantly, the jurisdictions placed differentobligations on employers, employees and suppliers.71

63 The Task Force argued:

The complexity, size and detail of OH&S regulations and codes of practice can in part beattributed to the institutional arrangements and processes for their development.Outcomes of the National Occupational Health and Safety Commission, WorksafeAustralia and individual State OH&S authorities are not effectively coordinated and linesof responsibility and accountability are unclear. In view of these problems there is a needfor significant change. The Labour Ministers Council has addressed national OH&Sissues in the past, and it is appropriate that it be charged with refocusing andaccelerating progress with national OH&S reform.72

64 The Bell Report therefore recommended that:

…the Labour Ministers Council be accountable for delivery of nationally consistent OH&Spolicy and programs, agree implementation of declared minimum standards and codesof practice within specified time frames and determine priorities for the development ofnew standards and codes of practice. OH&S codes of practice, where possible, shouldinclude deemed to comply provisions;

the Labour Ministers Council address the Industry Commission Report with respect tothe accountability and transparency of existing OH&S institutional arrangements, whichshould include consideration to stronger industry representation; and

OH&S standards comply with the COAG Principles and Guidelines for MinisterialCouncils and Standards setting Agencies, be less prescriptive and expressed in terms ofoutcomes. All jurisdictions and Worksafe Australia should provide simple and practicalguidance for small business on implementing OH&S standards and codes of practice.73

65 The Task Force recommended that new occupational health and safety arrangements be inplace by 1 October 1997.74

66 The Commonwealth Government’s response to the Bell Report, entitled More Time forBusiness, was announced on 24 March 1997.75

67 The Prime Minister, in his foreword to the response, stated that the CommonwealthGovernment, in cooperation with State and Territory Governments, would be acceleratingreforms in a range of areas, including occupational health and safety. It was anticipated that

…(t)hese reforms will reduce overlap and duplication, encourage greater nationalconsistency and simplify processes.76

68 The Commonwealth Government agreed to the Bell Report’s occupational health and safetyrecommendations ‘in principle’. The Commonwealth Government stated that the Labour


Ministers’ Council (LMC)77 had been asked to develop a program and timetable for theconsideration and implementation of the relevant recommendations, and that the LMC wouldreport on progress to the Council of Australian Governments by June 1997.78

69 The Commonwealth Government noted in its response that the LMC, at its meeting on 18 December 1996, had agreed to continue to be involved in determining the generalapproach and future directions of the NOHSC activity

…which is to embrace the development of practical materials for small business and tocontinue work in national standards consistency.79

70 The Commonwealth Government’s response also stated that the LMC had agreed that ‘theChair of NOHSC should undertake consultations with the responsible Minister in eachjurisdiction on the future role of NOHSC in national occupational health and safety matters’, andreport so as to enable LMC to consider future directions at a meeting scheduled for May 1997.80

The May 1997 meeting of the Labour Ministers’ Council

71 The LMC met on 30 May 1997. This was a significant meeting in defining the approach toimproving national consistency in occupational health and safety. Apart from the considerationof the proposals developed by the Chairman of the NOHSC (who had been appointed in 1996)following his consultations with state and territory ministers, LMC was yet to settle theapproach to be taken to the Industry Commission and Bell Reports.

72 Following their meeting, the Commonwealth, State and Territory Labour Ministers issued a jointcommunique. In relation to the LMC’s deliberations on occupational health and safety, includingthe Industry Commission and Bell Reports, the communique stated:

The Council agreed to several initiatives for continuing OHS reform nationally.

The Council considered and agreed to proposals for the future directions of the NationalOccupational Health and Safety Commission (NOHSC) as developed by its Chairman, inconsultation with all jurisdictions and NOHSC. As the source of strategic direction tonational efforts in OHS reform, NOHSC will identify significant current and emerging OHSproblems and provide practical solutions for workplaces, with recognition of the needs ofsmall business.

There will be less emphasis on the development and/or promulgation of national OHSstandards and codes developed by NOHSC. The prior agreement of the LMC as thepeak OHS policy body will be sought before any further national standards or codes ofpractice are developed. Where new standards or codes are supported, they will beconsistent with the overall objectives of regulatory reform.

The Council agreed to support the implementation of a national comparativeperformance monitoring system of OHS jurisdictions under the auspices of NOHSC. Thiswill focus on outcomes and be used in conjunction with performance monitoring ofworkers’ compensation schemes to enable jurisdictions to better target their OHSprograms.

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Under the new NOHSC directions, there will be an annual report from NOHSC to theCouncil on NOHSC’s activities and achievements incorporating a comprehensive reporton national consistency and performance.

The Council recognised that its endorsement of the future directions for NOHSC providesa continuing response to a number of recommendations of the Industry Commission’s1995 Report on OHS (Work, Health and Safety) and will assist the States and Territoriesin their further consideration of those recommendations which fall within theirresponsibility.

The national OHS reform agenda agreed to by Ministers will assist small business andaddress the concerns set out in the Small Business Deregulation Task Force Report.81

Standard setting by Standards Australia

73 Where NOHSC ‘declares’ national standards and national codes of practice, StandardsAustralia sets ‘Australian Standards’.

74 Standards Australia is an independent organisation, which prepares and publishes voluntarytechnical and commercial standards used in Australia. It prepares standards through an openprocess in which all interested parties from a variety of industries are invited to participate.Through a memorandum of understanding, Standards Australia is recognised by theCommonwealth Government as the peak non-government standards writing body.82

75 Some of its technical and design standards are relevant to occupational health and safety, andit has been the practice, in some cases, for some jurisdictions to refer to Australian Standardsin their occupational health and safety regulations. When this is done employers must meet therequirements of the particular Australian Standard.83

76 In 1998 a Department of Labour Advisory Committee working group was asked to report toLMC on the extent and nature of existing references to Australian Standards in occupationalhealth and safety acts, regulations and codes of practice. It was found that 1838 suchstandards were referenced overall, with 996 of these having the effect of compliance.84

77 Following the finalisation of the Commonwealth’s memorandum of understanding withStandards Australia in February 1998, draft principles for a new memorandum ofunderstanding between the NOHSC and Standards Australia were taken up with StandardsAustralia. The principles were said by the NOHSC to be aimed at ensuring:

(a) a mutually agreed understanding of the respective roles and responsibilities of the twoorganisations;

(b) compatibility and minimisation of overlap in the occupational health and safety standardsdeveloped by the NOHSC and Standards Australia; and

(c) facilitation of a constructive working relationship.85

78 In November 1998 the LMC agreed to a number of strategies to eliminate referencing ofAustralian Standards in occupational health and safety legislation on a progressive basis,following consultations among all jurisdictions.86


79 A new memorandum of understanding between Standards Australia and the NOHSC wassigned on 25 January 2000.

National Comparative Performance Monitoring Project

80 At its meeting on 20 May 1997, the LMC agreed to several initiatives for continuingoccupational health and safety reform nationally, including the implementation of a nationalcomparative performance monitoring (CPM) system of occupational health and safetyjurisdictions under the auspices of NOHSC, which would:

focus on outcomes and be used in conjunction with performance monitoring of workers’compensation schemes to enable jurisdictions to better target their OHS programs.87

81 The NOHSC describes the aim of CPM as being:

to inform governments, employers, employees and other interested parties upon howdifferent approaches and activities influence outcomes in work-place safety and workers’compensation.88

82 CPM is seen, in the long term, as helping to improve performance and to promote greaternational consistency in arrangements. The high-level objective of the CPM system is said to be:

• to reduce the incidence, severity and cost of workplace injury and disease throughmeasuring comparative performance on:

• effective prevention of workplace injury and disease;

• consistent, cost effective compensation (premium rates, liabilities, benefits); and

• effective injury management (return-to-work).89

83 The CPM project was an important element of the new priorities established for the NOHSC bythe LMC at its meeting on 27 November 1998. The new priorities, which were to ‘define anddifferentiate NOHSC’s role from that of State and Territory jurisdictions’, and were ‘aimed atsupporting an effective national infrastructure’, included providing comprehensive and accuratenational data, particularly to support the CPM project. 90

84 The CPM project uses National Data Set for Compensation-based Statistics (NDS) data toproduce occupational health and safety indicators of jurisdictional performance.

85 In his foreword to the second CPM report, the Commonwealth Minister noted that ‘animportant goal’ of the project

is continuous improvement in the comparability and reliability of the data used.91

86 A LMC92 meeting in November 1998 endorsed proposals for further work on the CPM project,including the development of comparative case studies to analyse high level performanceoutcomes in detail. Ministers, in establishing the CPM project in 1997, agreed that

the interpretation of high level outcomes, published in the CPM annual report, is anintegral part of the project to inform stakeholders on factors influencing outcomes acrossjurisdictions and industries.93

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87 New South Wales and Queensland agreed to undertake parallel case studies of occupationalhealth and safety performance of their health services industries, to analyse high-levelperformance outcomes in more detail.94 The report of the study was published in December2001. The outcomes of a second cross-jurisdictional study, examining the aged care sector,were published in August 2002.

88 Work has commenced on a similar study into the construction industry.

House of Representatives Standing Committee on Employment andWorkplace Relations Inquiry into Aspects of Australian WorkersCompensation Schemes

89 On 20 June 2002 the Minister for Employment and Workplace Relations asked the House ofRepresentatives Standing Committee on Employment and Workplace Relations to inquire intoand report on matters that are relevant and incidental to Australian workers compensationschemes in respect of:

(a) the incidence and costs of fraudulent claims and fraudulent conduct by employees andemployers and any structural factors that may encourage such behaviour;

(b) the methods used and costs incurred by workers compensation schemes to detect andeliminate:

(i) fraudulent claims; and

(ii) the failure of employers to pay the required workers compensation premiums orotherwise fail to comply with their obligations; and

(c) factors that lead to different safety records and claims profiles from industry to industry,and the adequacy, appropriateness and practicability of rehabilitation programs and theirbenefits.95

90 The Committee commenced public hearings in September 2002.

Proposed Productivity Commission Inquiry

91 On 24 July 2002 the Commonwealth Minister for Employment and Workplace Relations, andthe Commonwealth Parliamentary Secretary to the Treasurer announced that theCommonwealth Government would ‘examine streamlining Australia’s various workers’compensation and occupational health and safety schemes’. They announced that:

While the Government considers primary responsibility for workers compensation shouldremain with the States, it believes there may be benefits in establishing nationallyconsistent arrangements for workers’ compensation and occupational health andsafety.96

92 The Minister said:

Currently, national businesses must enter up to eight separate workers’ compensationschemes. This can impose a great deal of cost and complexity.


Employees, even those working for the same employer, have varying levels ofentitlements depending upon the State or Territory in which they work.

It is in the best interest of employers and employees to have workers’ compensationarrangements that provide a high level of return to work for injured employees, premiumsthat reflect safety experience of the workplace and provide injured employees with anappropriate level of compensation.97

And:

The nation’s performance in workplace safety needs to improve. The diverse State andTerritory OHS arrangements, with their complex and inconsistent regulation, can addcosts to business, create uncertainty for employers and employees and hamperimprovements in workplace safety.98

The development of a National Occupational Health and Safety Strategy2002–2012

93 The decisions taken at the LMC meeting in May 1997 served as the basis for the subsequentdevelopment, by NOHSC, of the current National Occupational Health and Safety Strategy(National OH&S Strategy).

94 As a result of the May 1997 meeting there was to be closer involvement of the LMC in thedirections being pursued by NOHSC; less direct emphasis on uniformity and consistencybetween jurisdictions; and increasing emphasis on improving occupational health and safetyoutcomes.

95 Following their meeting in November 1998 the LMC announced new priorities for NOHSC inthe following terms:

The Council set new priorities for the National Occupational Health and SafetyCommission (NOHSC) which define and differentiate NOHSC’s role from that of Stateand Territory jurisdictions. The priorities are aimed at supporting an effective nationalinfrastructure through:

providing comprehensive and accurate national data, particularly to support theCouncil’s comparative performance monitoring project;

facilitating and coordinating research efforts;

developing and updating a nationally consistent standards framework;

coordinating and disseminating information, including industry specific practicalguidance material; and

developing a National Prevention Strategy.99

96 One year later at its meeting in November 1999 the WRMC (as the LMC had become)endorsed the release of the National Occupational Health and Safety Framework, which hadbeen developed by NOHSC.

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National Occupational Health and Safety Framework

97 The Framework,100 developed in co-operation with State, Territory and Commonwealthoccupational health and safety regulatory bodies as well as with peak bodies representingemployers and employees, was described as being aimed at ‘improving performance at alllevels by OH&S stakeholders’.

98 The document set out what was described as a ‘national framework for improving Australia’sOH&S performance over the next decade’. Amongst other matters, it identified what werereferred to as ‘national infrastructure requirements’ which were ‘expected to lead to betternational outcomes’. In the context of the Framework, ‘infrastructure’ was described as ‘theprogram elements that underpin or support efforts to prevent work-related injury or disease’.

99 The Framework set out national goals and objectives. The achievement of these goals andobjectives was said to depend on ‘coordinated development of the national OH&Sinfrastructure’. Nine key areas of infrastructure were identified as requiring improvement,including the area of ‘a nationally consistent regulatory framework’ .

100 The Framework included the following observations about the relevance of a consistentframework and the matters to be addressed in achieving it:

A nationally consistent approach to OHS regulation in Australia is essential for employersand employees alike.

Regular review by government of regulatory requirements is necessary to ensure thatthey remain relevant, effective and practicable and are not unnecessarily prescriptive.

Outcomes must be expressed clearly in terms of the level of performance required. Thereneeds to be a balance between allowing for flexibility in achieving the required outcomesand prescribing certain actions or processes where necessary.

Regulatory requirements should not place unnecessary restrictions on competition orinternational trade.

101 The Framework identified several actions to be taken to improve the regulatory framework. Italso anticipated ‘the development of action plans to meet national infrastructure requirements’,and foreshadowed annual reports to the WRMC to ‘provide a stocktake of activitiesundertaken by OH&S stakeholders to address the national infrastructure goals.’

National OHS Strategy

102 On 24 May 2002, the WRMC endorsed the release of the National OHS Strategy, stating that:

The OHS Strategy is significant in that, for the first time, Australia will have all jurisdictions,and the peak employer and employee organisations (ACCI and ACTU) committed tominimum national targets and national priorities for improving OHS.

Ministers noted that the national OHS strategy represents a significant step towardsuniting the national effort to reduce injury, disease and fatalities in Australianworkplaces.101

103 The National OHS Strategy, which replaces the National Occupational Health and SafetyFramework, was developed by the members of NOHSC. By the Strategy, the Commonwealth


Government, all of the State and Territory governments, the Australian Chamber of Commerceand Industry and the Australian Council of Trade Unions made the following commitment:

As the parties to the National Occupational Health and Safety Commission, we haveaccepted responsibility for the development and implementation of the National OHSStrategy. We all share a responsibility for ensuring that Australia’s performance in work-related health and safety is continuously improved.

The Strategy will focus our efforts in working together to implement interventions todramatically improve Australia’s occupational health and safety performance over thenext decade and to foster sustainable, safe and health enterprises that prevent work-related death, injury and disease.

We are committed to working cooperatively on the priorities and actions identified in theStrategy. We also commit to regularly reviewing our achievements against the Strategy’splans and targets and will further develop the Strategy in light of these achievements. Werecognise that there are many other stakeholders who make significant contributions toimproving Australia’s occupational health and safety performance. We invite them toadopt or contribute to the Strategy and their contributions will be taken into account in itsfuture development.102

104 The National OHS Strategy noted among its ‘national prevention principles’ that:

Effective national action requires major national stakeholders, including all governments,to be committed to coordinated, consistent and cooperative approaches to OHSimprovement.103

105 The National OHS Strategy nominated as its ultimate goal Australian workplaces free fromdeath, injury and disease.104

106 The National OHS Strategy set national targets. The initial national targets are:

• to sustain a significant, continual reduction in the incidence of work-related fatalities witha reduction of at least 20 per cent by 30 June 2012 (with a reduction of 10 per cent beingachieved by 30 June 2007); and

• to reduce the incidence of workplace injury by at least 40 per cent by 30 June 2012 (witha reduction of 20 per cent being achieved by 30 June 2007).

Individual industries and jurisdictions are encouraged to set or refine their own targets tocomplement the national targets.105

107 Five national priorities have been identified to bring about short and long-term OHSimprovements, as well as longer-term cultural change. They are to:

• reduce high incidence/severity risks;

• develop the capacity of business operators and workers to manage OHS effectively;

• prevent occupational disease more effectively;

• eliminate hazards at the design stage; and

• strengthen the capacity of government to influence OHS outcomes.106

181


108 Each of the national priorities will be periodically evaluated to assess its ongoing relevance andeffectiveness. They will be refined or replaced by new priorities in light of these assessments.Evaluation methods, benchmarks, milestones and other indicators to measure progress will bedeveloped in the initial stages of implementing the National OHS Strategy.107

109 Of the fifth priority the National OHS Strategy said:

Governments are major employers, policy makers, regulators and purchasers ofequipment and services. They have a leadership role in preventing work-related death,injury and disease in Australia.

This national priority aims to sharpen the effectiveness of Governments in securing betterOHS outcomes and providing examples of good practice.

Outcomes expected from this priority

• Continual improvement in Governments’ OHS performance as employers.

• Whole of Government approaches are taken that ensure OHS implications areconsidered and accounted for in all of the work of Government.

• Where practicable, Governments, project managers and contractors improve OHSthrough use of the supply chain.

• Practical guidance on measuring and reporting OHS outcomes is available forpublic sector agencies.

• Continual improvement in Governments’ performance as OHS policy makers andregulators.108

110 The National OHS Strategy identified nine areas for national action, including:

• Comprehensive occupational health and safety data collections;

• A coordinated research effort; and

• A nationally consistent regulatory framework.109

111 Through NOHSC, parties to the National OHS Strategy agreed to report annually to the WRMCon progress in implementing the National OHS Strategy. Reports will cover the action plans, theprogress against the national targets and the extent of cooperation and coordination amongnational stakeholders.110

112 The National OHS Strategy effectively reiterates the terms of the Framework in respect of eachof the nine areas for national action. In relation to the third area, ‘a nationally consistentregulatory framework’, the accompanying expressions of intention and actions are expressedin terms significantly more direct than those used in the Framework.

113 The chief executive officer of NOHSC told the Workplace Health and Safety Conference that

…the importance of this strategy is that this is the first time that Australia has had thisdegree of commitment by all governments and by employers and unions to not only acommon approach on occupational health and safety, but also the accountability andmeasurability that comes from the adoption of national targets, and it is hoped that we


will see across industries in Australia, as I said at the outset, the adoption of targets forthose particular industries.111

114 The Commonwealth addressed the National OHS Strategy in its submissions:

Because the construction industry is a high risk industry, it is expected that the newstrategy will impact on its through the national efforts to reduce OHS risks, throughenhanced business capacity to manage OHS more effectively and through theelimination of hazards, for example, in building design.112

National Priority Action Plans

115 The National OHS Strategy anticipated that three-year national action plans being developedand implemented in the first year of its operation. The action plans - to be submitted to theWRMC for its endorsement - were to outline:

(a) actions to be taken against each of the national priorities; and

(b) benchmarks, milestones and other indicators to be used to measure progress andoutcomes of the national priorities.

116 In October 2002 NOHSC agreed to a set of National Priority Action Plans for the five nationalpriorities identified in the Strategy, for the period 2002–05. The Plans were endorsed by theWRMC at its 8 November 2002 meeting.

117 The fifth national priority, ‘Strengthen the capacity of government to influence OH&Soutcomes’, is addressed by National Priority Action Plan 5. The second of the improvementstrategies outlined under the Action Plan is directed to governments in their roles as policymakers and regulators. In this regard, the Action Plan states that:

Research and expert opinion have indicated that well-articulated, relevant and crediblelegislation is a significant motivator for OHS compliance. Nationally-consistent legislationwould enable many businesses with cross-border activity to comply with requirementseffectively and efficiently. It would enhance ease of business and increase the support bybusiness of OHS regulation.113

118 The Plan sets out key activities, including:

(a) to develop and implement strategies to improve regulatory consistency between States,and between Federal, State and Local levels of government;

(b) to establish processes to effectively identify and consistently adopt best practiceoccupational health and safety regulation; and

(c) to incorporate best practice initiatives identified from other areas of public regulation intooccupational health and safety policy-making and regulation, for example public health,transport safety.114

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Notes to Appendix C1 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee

1970–1972, London, HSMO, paragraph 22, exhibit 1476, document 092.0836.0193.0001 at 0011.2 Johnstone, R.1997, Occupational Health and Safety Law and Policy, LBC, Sydney, pp. 46–493 Cunningham, N. 1984, Safeguarding the Worker: Job Hazards and the Role of Law, LBC, cited in

Johnstone, 1997, Occupational Health & Safety Law and Policy, LBC, Sydney p.48-49.4 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee

1970–1972, London, HSMO, paragraph 13, exhibit 1476, document 092.0836.0193.0001 at 0009–0010.5 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee

1970–1972, London, HSMO, paragraph 22, exhibit 1476, document 092.0836.0193.0001 at 0011.6 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee









1970–1972, London, HSMO, paragraphs 36–37, exhibit 1476, document 092.0836.0193.0001 at 0014.15 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee






1970–1972, London, HSMO, paragraphs 51–53, exhibit 1476, document 092.0836.0193.0001 at 0017.21 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee



1970–1972, London, HSMO, paragraph 66, exhibit 1476, document 092.0836.0193.0001 at 0019.


24 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee1970–1972, London, HSMO, paragraph 70, exhibit 1476, document 092.0836.0193.0001 at 0020.






30 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee1970–1972, London, HSMO, paragraph 161, exhibit 1476, document 092.0836.0193.0001 at 0031–0032.




34 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee1970–1972, London, HSMO, paragraph 269, exhibit 1476, document 092.0836.0193.0001 at 0045..

35 Committee on Safety and Health at Work 1972, Safety and Health at Work – Report of the Committee1970–1972, London, HSMO, paragraph 276, exhibit 1476, document 092.0836.0193.0001 at 0045–0046.

36 Johnstone, R. 1997, Occupational Health and Safety Law and Policy, LBC, Sydney, p.75.37 Mayhew, C., An Evaluation of the Impact of Robens Style Legislation on the OHS Decision-Making of

Australian and United Kingdom Builders with Less Than Five Employees, exhibit 1699, document048.0029.0376.0001 at 0024.

38 Johnstone, R.1997, Occupational Health and Safety Law and Policy, LBC, Sydney, p.75.39 Johnstone, R.1997, Occupational Health and Safety Law and Policy, LBC, Sydney, p.88.40 Johnstone, R.1997, Occupational Health and Safety Law and Policy, LBC, Sydney, pp.80–84.41 Johnstone, R.1997, Occupational Health and Safety Law and Policy, LBC, Sydney, pp.86–87.42 Industry Commission 1995, Work, Health and Safety – An Inquiry into Occupational Health and Safety,

Vol.1, Report No.47, exhibit 2010, document 085.0707.0815.0001 at 0024.43 Industry Commission 1995, Work, Health and Safety – An Inquiry into Occupational Health and Safety,





Vol.1, Report No.47, exhibit 2010, document 085.0707.0815.0001 at 0027–0028.48 Industry Commission 1995, Work, Health and Safety – An Inquiry into Occupational Health and Safety,

Vol.1, Report No.47, exhibit 2010, document 085.0707.0815.0001 at 0028.

185


49 Industry Commission 1995, Work, Health and Safety – An Inquiry into Occupational Health and Safety,Vol.1, Report No.47, exhibit 2010, document 085.0707.0815.0001 at 0034.




53 Johnstone, R.1997, Occupational Health and Safety Law and Policy, LBC, Sydney, p.89.54 Willis, The Hon R. 1985, National Occupational Health and Safety Commission Bill 1985: Second

Reading,House Hansard commencing page 1658, exhibit 2009, document 074.0476.0104.0001 at0001–0002.

55 Willis, The Hon R. 1985, National Occupational Health and Safety Commission Bill 1985: Second Reading,House Hansard commencing page 1658, exhibit 2009, document 074.0476.0104.0001 at 0003.




59 Industry Commission 1995, Work, Health and Safety – An Inquiry into Occupational Health and Safety, Vol.2Appendices, Report No.47, exhibit 2012, Appendix H – National Uniformity, document015.0795.0430.0001.

60 Industry Commission 1995, Work, Health and Safety – An Inquiry into Occupational Health and Safety, Vol.2Appendices, Report No.47, exhibit 2012, Appendix H – National Uniformity, document 015.0795.0430.0001at 0004–0006.

61 The Hon Peter Reith MP 2000, Media Release, Joint Communiqué from Commonwealth, State and TerritoryWorkplace Relations Ministers, exhibit 2057, document 098.0435.0892.0001 at 0003.

62 Industry Commission 1995, Work, Health and Safety – An Inquiry into Occupational Health and Safety, Vol.2Appendices, Report No.47, exhibit 2012, Appendix H – National Uniformity, document015.0795.0430.0001at 0002.


64 Industry Commission 1995, Work, Health and Safety – An Inquiry into Occupational Health and Safety,Vol.1, Report No.47, exhibit 2010, document 085.0707.0815.0001 at 0027–0028.





69 Small Business Deregulation Task Force 1996, Report Time for Business, exhibit 2014, document075.0053.0506.0001.

70 Small Business Deregulation Task Force 1996, Report Time for Business, exhibit 2014, document075.0053.0506.0001at 0002.





74 Small Business Deregulation Task Force 1996, Report Time for Business, exhibit 2014, document075.0053.0506.0001 at 0005.

75 The Prime Minister, The Hon John Howard, MP 1997, Statement – More Time for Business, AustralianGovernment Publishing Service, Canberra, exhibit 2015, document 077.0364.0493.0001.

76 The Prime Minister, The Hon John Howard, MP 1997, Statement – More Time for Business, AustralianGovernment Publishing Service, Canberra, exhibit 2015, document 077.0364.0493.0001at 0006.

77 Now the Workplace Relations Ministers Council.78 The Prime Minister, The Hon John Howard, MP 1997, Statement – More Time for Business, Australian

Government Publishing Service, Canberra, exhibit 2015, document 077.0364.0493.0001at 0008.79 The Prime Minister, The Hon John Howard, MP 1997, Statement – More Time for Business, Australian

Government Publishing Service, Canberra, exhibit 2015, document 077.0364.0493.0001at 0008.80 The Prime Minister, The Hon John Howard, MP 1997, Statement – More Time for Business, Australian

Government Publishing Service, Canberra, exhibit 2015, document 077.0364.0493.0001at 0008.81 The Hon Peter Reith MP 2000, Media Release, Joint Communiqué from Commonwealth, State and Territory

Workplace Relations Ministers, exhibit 2057, document 098.0435.0892.0001 at 0002.82 Memorandum of Understanding between Australian Building Codes Board and Standards Australia

International Limited, 30 June 2000, exhibit 2019, document 027.0434.0564.0001 at 0003.83 National Occupational Health and Safety Commission Web Publication, as at 3 January 2003, Occupational

Health and Safety in Australia, exhibit 2017, document 045.0103.0809.0001 at 0002.84 National Occupational Health and Safety Commission, Annual Report 1997–1998, exhibit 2020, document

020.0986.0052.0001 at 0011.85 National Occupational Health and Safety Commission, Annual Report 1997–1998, exhibit 2020, document

020.0986.0052.0001 at 0011.86 National Occupational Health and Safety Commission, Annual Report 1997–1998, exhibit 2020, document

020.0986.0052.0001 at 0010.87 The Hon Peter Reith MP 1997, Media Release, Joint Communiqué from Commonwealth, State and Territory

Labour Ministers, exhibit 2016, document 031.0274.0401.0001 at 0002.88 National Occupational Health and Safety Commission Web Publication as at 6 January 2003, Overview of

Data Collection Activities, exhibit 2023, document 015.0014.0599.0001 at 0005.89 National Occupational Health and Safety Commission Web Publication as at 6 January 2003, Overview of

Data Collection Activities, exhibit 2023, document 015.0014.0599.0001 at 0005.90 The Hon Peter Reith MP 1998, Media Release, Continuing Workplace Relations Reform, exhibit 2032,

document 062.0199.0165.0001 at 0004.91 Workplace Relations Ministers’ Council 2000, Comparative Performance Monitoring, Second Report into

Australian & New Zealand Occupational Health and Safety and Workers’ Compensation Programs, exhibit2024, document 073.0544.0623.0001.

92 At its meeting in May 1999, the Labour Ministers’ Council agreed to change its name to the WorkplaceRelations Ministers’ Council

93 Workplace Relations Ministers’ Council 2001, Comparative Performance Monitoring, Occupational Healthand Safety and Worker’s Compensation, Comparison between Queensland and New South Wales

187


Hospitals Exploratory Cross-jurisdictional Case Study, exhibit 2026, document 089.0786.0177.0001 at 0002.

94 Workplace Relations Ministers’ Council 2001, Comparative Performance Monitoring, Occupational Healthand Safety and Worker’s Compensation, Comparison between Queensland and New South WalesHospitals Exploratory Cross-jurisdictional Case Study, exhibit 2026, document 089.0786.0177.0001 at 0002.

95 Parliament of Australia, House of Representatives, Web Publication as at 26 June 2002, StandingCommittee on Employment and Workplace Relations, Inquiry into aspects of Australian workers’compensation schemes, Terms of Reference, exhibit 2031, document 010.0157.0764.0001.

96 Tony Abbott MP and Senator Campbell 2002, Joint Media Release, Government to Consider Workers’Compensation Reform, exhibit 2037, document 032.0887.0909.0001 at 0001.



99 The Hon Peter Reith MP 1998, Media Release, Continuing Workplace Relations Reform, exhibit 2032,document 062.0199.0165.0001 at 0004.

100 National Occupational Health and Safety Commission 1999, National OHS Improvement Framework, exhibit2027, document 018.0026.0027.0001.

101 The Hon Peter Reith MP 2002, Media Release, Joint Communiqué from Commonwealth, State and TerritoryWorkplace Relations Ministers, exhibit 2036, document 033.0592.0907.0001at 0004.

102 National Occupational Health and Safety Commission 2002, National Occupational Health and SafetyStrategy 2002-2012, May, Commonwealth of Australia, exhibit 2028, document 093.0307.0998.0008 at 0013.


104 National Occupational Health and Safety Commission 2002, National Occupational Health and SafetyStrategy 2002-2012, May, Commonwealth of Australia, exhibit 2028, document 093.0307.0998.0008at 0012 and 0016.




108 National Occupational Health and Safety Commission 2002, National Occupational Health and SafetyStrategy 2002-2012, May, Commonwealth of Australia, exhibit 2028, document 093.0307.0998.0008at 0022.




111 Stewart-Crompton, T14365/23–29.112 Commonwealth of Australia 2002, Submission to the Royal Commission into the Building and Construction

Industry - Phase Two, August, exhibit 494, paragraph 2.42, document 100.0721.0253.0002 at 0038.113 National Priority Action Plan 5 (2002-2005): Strengthen the capacity of government to influence OHS

outcomes, exhibit 2030, document 070.0571.0243.0001 at 0002.114 National Priority Action Plan 5 (2002-2005): Strengthen the capacity of government to influence OHS

outcomes, exhibit 2030, document 070.0571.0243.0001 at 0002.


Appendix D:

Construction (Design and Management)

Regulations 1994 (UK)

(This regulation was reproduced from the website of The Stationery Office Limited at http://www.hmso.gov.uk. It is subject to Crown copyright.)



Citation and commencement

1. These Regulations may be cited as the Construction (Design and Management) Regulations1994 and shall come into force on 31st March 1995.

Interpretation

2.— (1) In these Regulations, unless the context otherwise requires—

“agent” in relation to any client means any person who acts as agent for a client inconnection with the carrying on by the person of a trade, business or other undertaking(whether for profit or not);

“cleaning work” means the cleaning of any window or any transparent or translucent wall,ceiling or roof in or on a structure where such cleaning involves a risk of a person fallingmore than 2 metres;

“client” means any person for whom a project is carried out, whether it is carried out byanother person or is carried out in-house;

“construction phase” means the period of time starting when construction work in anyproject starts and ending when construction work in that project is completed;

“construction work” means the carrying out of any building, civil engineering orengineering construction work and includes any of the following—

(a) the construction, alteration, conversion, fitting out, commissioning, renovation,repair, upkeep, redecoration or other maintenance (including cleaning whichinvolves the use of water or an abrasive at high pressure or the use of substancesclassified as corrosive or toxic for the purposes of regulation 7 of the Chemicals(Hazard Information and Packaging) Regulations 1993[2]), de-commissioning,demolition or dismantling of a structure,

(b) the preparation for an intended structure, including site clearance, exploration,investigation (but not site survey) and excavation, and laying or installing thefoundations of the structure,

(c) the assembly of prefabricated elements to form a structure or the disassembly ofprefabricated elements which, immediately before such disassembly, formed astructure,

(d) the removal of a structure or part of a structure or of any product or waste resultingfrom demolition or dismantling of a structure or from disassembly of prefabricatedelements which, immediately before such disassembly, formed a structure, and

(e) the installation, commissioning, maintenance, repair or removal of mechanical,electrical, gas, compressed air, hydraulic, telecommunications, computer or similarservices which are normally fixed within or to a structure,

but does not include the exploration for or extraction of mineral resources or activitiespreparatory thereto carried out at a place where such exploration or extraction is carriedout;



“contractor” means any person who carries on a trade, business or other undertaking(whether for profit or not) in connection with which he—

(a) undertakes to or does carry out or manage construction work,

(b) arranges for any person at work under his control (including, where he is anemployer, any employee of his) to carry out or manage construction work;

“design” in relation to any structure includes drawing, design details, specification and billof quantities (including specification of articles or substances) in relation to the structure;

“designer” means any person who carries on a trade, business or other undertaking inconnection with which he—

(a) prepares a design, or

(b) arranges for any person under his control (including, where he is an employer, anyemployee of his) to prepare a design,

relating to a structure or part of a structure;

“developer” shall be construed in accordance with regulation 5(1);

“domestic client” means a client for whom a project is carried out not being a projectcarried out in connection with the carrying on by the client of a trade, business or otherundertaking (whether for profit or not);

“health and safety file” means a file, or other record in permanent form, containing theinformation required by virtue of regulation 14(d);

“health and safety plan” means the plan prepared by virtue of regulation 15;

“planning supervisor” means any person for the time being appointed under regulation6(1)(a);

“principal contractor” means any person for the time being appointed under regulation6(1)(b);

“project” means a project which includes or is intended to include construction work;

“structure” means—

(a) any building, steel or reinforced concrete structure (not being a building), railwayline or siding, tramway line, dock, harbour, inland navigation, tunnel, shaft, bridge,viaduct, waterworks, reservoir, pipe or pipe-line (whatever, in either case, itcontains or is intended to contain), cable, aqueduct, sewer, sewage works,gasholder, road, airfield, sea defence works, river works, drainage works,earthworks, lagoon, dam, wall, caisson, mast, tower, pylon, underground tank,earth retaining structure, or structure designed to preserve or alter any naturalfeature, and any other structure similar to the foregoing, or

(b) any formwork, falsework, scaffold or other structure designed or used to providesupport or means of access during construction work, or


(c) any fixed plant in respect of work which is installation, commissioning, de-commissioning or dismantling and where any such work involves a risk of a personfalling more than 2 metres.

(2) In determining whether any person arranges for a person (in this paragraph called ‘therelevant person’) to prepare a design or to carry out or manage construction work regardshall be had to the following, namely—

(a) a person does arrange for the relevant person to do a thing where—

(i) he specifies in or in connection with any arrangement with a third person thatthe relevant person shall do that thing (whether by nominating the relevantperson as a subcontractor to the third person or otherwise), or

(ii) being an employer, it is done by any of his employees in-house;

(b) a person does not arrange for the relevant person to do a thing where—

(i) being a self-employed person, he does it himself or, being in partnership it isdone by any of his partners; or

(ii) being an employer, it is done by any of his employees otherwise than in-house, or

(iii) being a firm carrying on its business anywhere in Great Britain whoseprincipal place of business is in Scotland, it is done by any partner in the firm;or

(iv) having arranged for a third person to do the thing, he does not object to thethird person arranging for it to be done by the relevant person,

and the expressions “arrange” and “arranges” shall be construed accordingly.

(3) For the purposes of these Regulations—

(a) a project is carried out in-house where an employer arranges for the project to becarried out by an employee of his who acts, or by a group of employees who act,in either case, in relation to such a project as a separate part of the undertaking ofthe employer distinct from the part for which the project is carried out; and

(b) construction work is carried out or managed in-house where an employer arrangesfor the construction work to be carried out or managed by an employee of his whoacts or by a group of employees who act, in either case, in relation to suchconstruction work as a separate part of the undertaking of the employer distinctfrom the part for which the construction work is carried out or managed; and

(c) a design is prepared in-house where an employer arranges for the design to beprepared by an employee of his who acts, or by a group of employees who act, ineither case, in relation to such design as a separate part of the undertaking of theemployer distinct from the part for which the design is prepared.

(4) For the purposes of these Regulations, a project is notifiable if the construction phase—

(a) will be longer than 30 days; or

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(b) will involve more than 500 person days of construction work,

and the expression ‘notifiable’ shall be construed accordingly.

(5) Any reference in these Regulations to a person being reasonably satisfied—

(a) as to another person’s competence is a reference to that person being satisfiedafter the taking of such steps as it is reasonable for that person to take (includingmaking reasonable enquiries or seeking advice where necessary) to satisfy himselfas to such competence; and

(b) as to whether another person has allocated or will allocate adequate resources is areference to that person being satisfied that after the taking of such steps as it isreasonable for that person to take (including making reasonable enquiries orseeking advice where necessary)—

(i) to ascertain what resources have been or are intended to be so allocated;and

(ii) to establish whether the resources so allocated or intended to be allocatedare adequate.

(6) Any reference in these Regulations to—

(a) a numbered regulation or Schedule is a reference to the regulation in or Scheduleto these Regulations so numbered; and

(b) a numbered paragraph is a reference to the paragraph so numbered in theregulation in which the reference appears.

Application of regulations

3.— (1) Subject to the following paragraphs of this regulation, these Regulations shall apply toand in relation to construction work.

(2) Subject to paragraph (3), regulations 4 to 12 and 14 to 19 shall not apply to or in relationto construction work included in a project where the client has reasonable grounds forbelieving that—

(a) the project is not notifiable; and

(b) the largest number of persons at work at any one time carrying out constructionwork included in the project will be or, as the case may be, is less than 5.

(3) These Regulations shall apply to and in relation to construction work which is thedemolition or dismantling of a structure notwithstanding paragraph (2).

(4) These Regulations shall not apply to or in relation to construction work in respect ofwhich the local authority within the meaning of regulation 2(1) of the Health and Safety(Enforcing Authority) Regulations 1989[3] is the enforcing authority.

(5) Regulation 14(b) shall not apply to projects in which no more than one designer isinvolved.


(6) Regulation 16(1)(a) shall not apply to projects in which no more than one contractor isinvolved.

(7) Where construction work is carried out or managed in-house or a design is prepared in-house, then, for the purposes of paragraphs (5) and (6), each part of the undertaking ofthe employer shall be treated as a person and shall be counted as a designer or, as thecase may be, contractor, accordingly.

(8) Except where regulation 5 applies, regulations 4, 6, 8 to 12 and 14 to 19 shall not applyto or in relation to construction work included or intended to be included in a projectcarried out for a domestic client.

Clients and agents of clients

4.— (1) A client may appoint an agent or another client to act as the only client in respect of aproject and where such an appointment is made the provisions of paragraphs (2) to (5)shall apply.

(2) No client shall appoint any person as his agent under paragraph (1) unless the client isreasonably satisfied that the person he intends to appoint as his agent has thecompetence to perform the duties imposed on a client by these Regulations.

(3) Where the person appointed under paragraph (1) makes a declaration in accordancewith paragraph (4), then, from the date of receipt of the declaration by the Executive,such requirements and prohibitions as are imposed by these Regulations upon a clientshall apply to the person so appointed (so long as he remains as such) as if he were theonly client in respect of that project.

(4) A declaration in accordance with this paragraph—

(a) is a declaration in writing, signed by or on behalf of the person referred to inparagraph (3), to the effect that the client or agent who makes it will act as client forthe purposes of these Regulations; and

(b) shall include the name of the person by or on behalf of whom it is made, theaddress where documents may be served on that person and the address of theconstruction site; and

(c) shall be sent to the Executive.

(5) Where the Executive receives a declaration in accordance with paragraph (4), it shall givenotice to the person by or on behalf of whom the declaration is made and the notice shallinclude the date the declaration was received by the Executive.

(6) Where the person referred to in paragraph (3) does not make a declaration in accordancewith paragraph (4), any requirement or prohibition imposed by these Regulations on aclient shall also be imposed on him but only to the extent it relates to any matter within hisauthority.

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Requirements on developer

5.— (1) This regulation applies where the project is carried out for a domestic client and the cliententers into an arrangement with a person (in this regulation called ‘the developer’) whocarries on a trade, business or other undertaking (whether for profit or not) in connectionwith which—

(a) land or an interest in land is granted or transferred to the client; and

(b) the developer undertakes that construction work will be carried out on the land;and

(c) following the construction work, the land will include premises which, as intendedby the client, will be occupied as a residence.

(2) Where this regulation applies, with effect from the time the client enters into thearrangement referred to in paragraph (1), the requirements of regulations 6 and 8 to 12shall apply to the developer as if he were the client.

Appointments of planning supervisor and principal contractor

6.— (1) Subject to paragraph (6)(b), every client shall appoint—

(a) a planning supervisor; and

(b) a principal contractor,

in respect of each project.

(2) The client shall not appoint as principal contractor any person who is not a contractor.

(3) The planning supervisor shall be appointed as soon as is practicable after the client hassuch information about the project and the construction work involved in it as will enablehim to comply with the requirements imposed on him by regulations 8(1) and 9(1).

(4) The principal contractor shall be appointed as soon as is practicable after the client hassuch information about the project and the construction work involved in it as will enablethe client to comply with the requirements imposed on him by regulations 8(3) and 9(3)when making an arrangement with a contractor to manage construction work wheresuch arrangement consists of the appointment of the principal contractor.

(5) The appointments mentioned in paragraph (1) shall be terminated, changed or renewedas necessary to ensure that those appointments remain filled at all times until the end ofthe construction phase.

(6) Paragraph (1) does not prevent—

(a) the appointment of the same person as planning supervisor and as principalcontractor provided that person is competent to carry out the functions underthese Regulations of both appointments; or


(b) the appointment of the client as planning supervisor or as principal contractor or asboth, provided the client is competent to perform the relevant functions underthese Regulations.

Notification of project

7.— (1) The planning supervisor shall ensure that notice of the project in respect of which he isappointed is given to the Executive in accordance with paragraphs (2) to (4) unless theplanning supervisor has reasonable grounds for believing that the project is not notifiable.

(2) Any notice required by paragraph (1) shall be given in writing or in such other manner asthe Executive may from time to time approve in writing and shall contain the particularsspecified in paragraph (3) or, where applicable, paragraph (4) and shall be given at thetimes specified in those paragraphs.

(3) Notice containing such of the particulars specified in Schedule 1 as are known or canreasonably be ascertained shall be given as soon as is practicable after the appointmentof the planning supervisor.

(4) Where any particulars specified in Schedule 1 have not been notified under paragraph(3), notice of such particulars shall be given as soon as is practicable after theappointment of the principal contractor and, in any event, before the start of constructionwork.

(5) Where a project is carried out for a domestic client then, except where regulation 5applies, every contractor shall ensure that notice of the project is given to the Executivein accordance with paragraph (6) unless the contractor has reasonable grounds forbelieving that the project is not notifiable.

(6) Any notice required by paragraph (5) shall—

(a) be in writing or such other manner as the Executive may from time to time approvein writing;

(b) contain such of the particulars specified in Schedule 1 as are relevant to theproject; and

s(a) be given before the contractor or any person at work under his control starts tocarry out construction work.

Competence of planning supervisor, designers and contractors

8.— (1) No client shall appoint any person as planning supervisor in respect of a project unlessthe client is reasonably satisfied that the person he intends to appoint has thecompetence to perform the functions of planning supervisor under these Regulations inrespect of that project.

(2) No person shall arrange for a designer to prepare a design unless he is reasonablysatisfied that the designer has the competence to prepare that design.

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(3) No person shall arrange for a contractor to carry out or manage construction work unlesshe is reasonably satisfied that the contractor has the competence to carry out or, as thecase may be, manage, that construction work.

(4) Any reference in this regulation to a person having competence shall extend only to hiscompetence—

(a) to perform any requirement; and

(b) to conduct his undertaking without contravening any prohibition,

imposed on him by or under any of the relevant statutory provisions.

Provision for health and safety

9.— (1) No client shall appoint any person as planning supervisor in respect of a project unlessthe client is reasonably satisfied that the person he intends to appoint has allocated or, asappropriate, will allocate adequate resources to enable him to perform the functions ofplanning supervisor under these Regulations in respect of that project.

(2) No person shall arrange for a designer to prepare a design unless he is reasonablysatisfied that the designer has allocated or, as appropriate, will allocate adequateresources to enable the designer to comply with regulation 13.

(3) No person shall arrange for a contractor to carry out or manage construction work unlesshe is reasonably satisfied that the contractor has allocated or, as appropriate, will allocateadequate resources to enable the contractor to comply with the requirements andprohibitions imposed on him by or under the relevant statutory provisions.

Start of construction phase

10. Every client shall ensure, so far as is reasonably practicable, that the construction phase of anyproject does not start unless a health and safety plan complying with regulation 15(4) has beenprepared in respect of that project.

Client to ensure information is available

11.—(1) Every client shall ensure that the planning supervisor for any project carried out for theclient is provided (as soon as is reasonably practicable but in any event before thecommencement of the work to which the information relates) with all informationmentioned in paragraph (2) about the state or condition of any premises at or on whichconstruction work included or intended to be included in the project is or is intended tobe carried out.

(2) The information required to be provided by paragraph (1) is information which is relevantto the functions of the planning supervisor under these Regulations and which the clienthas or could ascertain by making enquiries which it is reasonable for a person in hisposition to make.


Client to ensure health and safety file is available for inspection

12.—(1) Every client shall take such steps as it is reasonable for a person in his position to take toensure that the information in any health and safety file which has been delivered to himis kept available for inspection by any person who may need information in the file for thepurpose of complying with the requirements and prohibitions imposed on him by orunder the relevant statutory provisions.

(2) It shall be sufficient compliance with paragraph (1) by a client who disposes of his entireinterest in the property of the structure if he delivers the health and safety file for thestructure to the person who acquires his interest in the property of the structure andensures such person is aware of the nature and purpose of the health and safety file.

Requirements on designer

13.—(1) Except where a design is prepared in-house, no employer shall cause or permit anyemployee of his to prepare, and no self-employed person shall prepare, a design inrespect of any project unless he has taken reasonable steps to ensure that the client forthat project is aware of the duties to which the client is subject by virtue of theseRegulations and of any practical guidance issued from time to time by the Commissionwith respect to the requirements of these Regulations.

(2) Every designer shall—

(a) ensure that any design he prepares and which he is aware will be used for thepurposes of construction work includes among the design considerationsadequate regard to the need—

(i) to avoid foreseeable risks to the health and safety of any person at workcarrying out construction work or cleaning work in or on the structure at anytime, or of any person who may be affected by the work of such a person atwork,

(ii) to combat at source risks to the health and safety of any person at workcarrying out construction work or cleaning work in or on the structure at anytime, or of any person who may be affected by the work of such a person atwork, and

(iii) to give priority to measures which will protect all persons at work who maycarry out construction work or cleaning work at any time and all persons whomay be affected by the work of such persons at work over measures whichonly protect each person carrying out such work;

(b) ensure that the design includes adequate information about any aspect of theproject or structure or materials (including articles or substances) which mightaffect the health or safety of any person at work carrying out construction work orcleaning work in or on the structure at any time or of any person who may beaffected by the work of such a person at work; and

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(c) co-operate with the planning supervisor and with any other designer who ispreparing any design in connection with the same project or structure so far as isnecessary to enable each of them to comply with the requirements andprohibitions placed on him in relation to the project by or under the relevantstatutory provisions.

(3) Sub-paragraphs (a) and (b) of paragraph (2) shall require the design to include only thematters referred to therein to the extent that it is reasonable to expect the designer toaddress them at the time the design is prepared and to the extent that it is otherwisereasonably practicable to do so.

Requirements on planning supervisor

14. The planning supervisor appointed for any project shall—

(a) ensure, so far as is reasonably practicable, that the design of any structure comprised inthe project—

(i) includes among the design considerations adequate regard to the needs specifiedin heads (i) to iii) of regulation 13(2)(a), and

(ii) includes adequate information as specified in regulation 13(2)(b);

(b) take such steps as it is reasonable for a person in his position to take to ensure co-operation between designers so far as is necessary to enable each designer to complywith the requirements placed on him by regulation 13;

(c) be in a position to give adequate advice to—

(i) any client and any contractor with a view to enabling each of them to comply withregulations 8(2) and 9(2), and to (ii) any client with a view to enabling him to complywith regulations 8(3), 9(3) and 10;

(d) ensure that a health and safety file is prepared in respect of each structure comprised inthe project containing—

(i) information included with the design by virtue of regulation 13(2)(b), and

(ii) any other information relating to the project which it is reasonably foreseeable willbe necessary to ensure the health and safety of any person at work who is carryingout or will carry out construction work or cleaning work in or on the structure or ofany person who may be affected by the work of such a person at work;

(e) review, amend or add to the health and safety file prepared by virtue of sub-paragraph (d)of this regulation as necessary to ensure that it contains the information mentioned in thatsub-paragraph when it is delivered to the client in accordance with sub-paragraph (f) ofthis regulation; and

(f) ensure that, on the completion of construction work on each structure comprised in theproject, the health and safety file in respect of that structure is delivered to the client.


Requirements relating to the health and safety plan

15.—(1) The planning supervisor appointed for any project shall ensure that a health and safetyplan in respect of the project has been prepared no later than the time specified inparagraph (2) and contains the information specified in paragraph (3).

(2) The time when the health and safety plan is required by paragraph (1) to be prepared issuch time as will enable the health and safety plan to be provided to any contractorbefore arrangements are made for the contractor to carry out or manage constructionwork.

(3) The information required by paragraph (1) to be contained in the health and safety planis—

(a) a general description of the construction work comprised in the project;

(b) details of the time within which it is intended that the project, and any intermediatestages, will be completed;

(c) details of risks to the health or safety of any person carrying out the constructionwork so far as such risks are known to the planning supervisor or are reasonablyforeseeable;

(d) any other information which the planning supervisor knows or could ascertain bymaking reasonable enquiries and which it would be necessary for any contractor tohave if he wished to show—

(i) that he has the competence on which any person is required to bereasonably satisfied by regulation 8, or

(ii) that he has allocated or, as appropriate, will allocate, adequate resources onwhich any person is required to be reasonably satisfied by regulation 9;

(e) such information as the planning supervisor knows or could ascertain by makingreasonable enquiries and which it is reasonable for the planning supervisor toexpect the principal contractor to need in order for him to comply with therequirement imposed on him by paragraph (4); and

(f) such information as the planning supervisor knows or could ascertain by makingreasonable enquiries and which it would be reasonable for any contractor to knowin order to understand how he can comply with any requirements placed upon himin respect of welfare by or under the relevant statutory provisions.

(4) The principal contractor shall take such measures as it is reasonable for a person in hisposition to take to ensure that the health and safety plan contains until the end of theconstruction phase the following features:

(a) arrangements for the project (including, where necessary, for management ofconstruction work and monitoring of compliance with the relevant statutoryprovisions) which will ensure, so far as is reasonably practicable, the health andsafety of all persons at work carrying out the construction work and all personswho may be affected by the work of such persons at work, taking account of—

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(i) risks involved in the construction work,

(ii) any activity specified in paragraph (5); and

(b) sufficient information about arrangements for the welfare of persons at work byvirtue of the project to enable any contractor to understand how he can complywith any requirements placed upon him in respect of welfare by or under therelevant statutory provisions.

(5) An activity is an activity referred to in paragraph (4)(a)(ii) if—

(a) it is an activity of persons at work; and

(b) it is carried out in or on the premises where construction work is or will be carriedout; and

(c) either—

(i) the activity may affect the health or safety of persons at work carrying out theconstruction work or persons who may be affected by the work of suchpersons at work, or

(ii) the health or safety of the persons at work carrying out the activity may beaffected by the work of persons at work carrying out the construction work.

Requirements on and powers of principal contractor

16.—(1) The principal contractor appointed for any project shall—

(a) take reasonable steps to ensure co-operation between all contractors (whetherthey are sharing the construction site for the purposes of regulation 9 of theManagement of Health and Safety at Work Regulations 1992[4] or otherwise) so faras is necessary to enable each of those contractors to comply with therequirements and prohibitions imposed on him by or under the relevant statutoryprovisions relating to the construction work;

(b) ensure, so far as is reasonably practicable, that every contractor, and everyemployee at work in connection with the project complies with any rules containedin the health and safety plan;

(c) take reasonable steps to ensure that only authorised persons are allowed into anypremises or part of premises where construction work is being carried out;

(d) ensure that the particulars required to be in any notice given under regulation 7 aredisplayed in a readable condition in a position where they can be read by anyperson at work on construction work in connection with the project; and

(e) promptly provide the planning supervisor with any information which—

(i) is in the possession of the principal contractor or which he could ascertain bymaking reasonable enquiries of a contractor, and


(ii) it is reasonable to believe the planning supervisor would include in the healthand safety file in order to comply with the requirements imposed on him inrespect thereof in regulation 14, and

(iii) is not in the possession of the planning supervisor.

(2) The principal contractor may—

(a) give reasonable directions to any contractor so far as is necessary to enable theprincipal contractor to comply with his duties under these Regulations;

(b) include in the health and safety plan rules for the management of the constructionwork which are reasonably required for the purposes of health and safety.

(3) Any rules contained in the health and safety plan shall be in writing and shall be broughtto the attention of persons who may be affected by them.

Information and training

17.—(1) The principal contractor appointed for any project shall ensure, so far as is reasonablypracticable, that every contractor is provided with comprehensible information on therisks to the health or safety of that contractor or of any employees or other persons underthe control of that contractor arising out of or in connection with the construction work.

(2) The principal contractor shall ensure, so far as is reasonably practicable, that everycontractor who is an employer provides any of his employees at work carrying out theconstruction work with—

(a) any information which the employer is required to provide to those employees inrespect of that work by virtue of regulation 8 of the Management of Health andSafety at Work Regulations 1992; and

(b) any health and safety training which the employer is required to provide to thoseemployees in respect of that work by virtue of regulation 11(2)(b) of theManagement of Health and Safety at Work Regulations 1992.

Advice from, and views of, persons at work

18.—(1) The principal contractor shall—

(a) ensure that employees and self-employed persons at work on the constructionwork are able to discuss, and offer advice to him on, matters connected with theproject which it can reasonably be foreseen will affect their health or safety; and

(b) ensure that there are arrangements for the co-ordination of the views of employeesat work on construction work, or of their representatives, where necessary forreasons of health and safety having regard to the nature of the construction workand the size of the premises where the construction work is carried out.

Requirements and prohibitions on contractors

19.—(1) Every contractor shall, in relation to the project—

(a) co-operate with the principal contractor so far as is necessary to enable each ofthem to comply with his duties under the relevant statutory provisions;

(b) so far as is reasonably practicable, promptly provide the principal contractor withany information (including any relevant part of any risk assessment in hispossession or control made by virtue of the Management of Health and Safety atWork Regulations 1992) which might affect the health or safety of any person atwork carrying out the construction work or of any person who may be affected bythe work of such a person at work or which might justify a review of the health andsafety plan;

(c) comply with any directions of the principal contractor given to him under regulation16(2)(a);

(d) comply with any rules applicable to him in the health and safety plan;

(e) promptly provide the principal contractor with the information in relation to anydeath, injury, condition or dangerous occurrence which the contractor is requiredto notify or report by virtue of the Reporting of Injuries, Diseases and DangerousOccurrences Regulations 1985[5]; and

(f) promptly provide the principal contractor with any information which—

(i) is in the possession of the contractor or which he could ascertain by makingreasonable enquiries of persons under his control, and

(ii) it is reasonable to believe the principal contractor would provide to theplanning supervisor in order to comply with the requirements imposed on theprincipal contractor in respect thereof by regulation 16(1)(e), and

(iii) which is not in the possession of the principal contractor.

(2) No employer shall cause or permit any employee of his to work on construction workunless the employer has been provided with the information mentioned in paragraph (4).

(3) No self-employed person shall work on construction work unless he has been providedwith the information mentioned in paragraph (4).

(4) The information referred to in paragraphs (2) and (3) is—

(a) the name of the planning supervisor for the project;

(b) the name of the principal contractor for the project; and

(c) the contents of the health and safety plan or such part of it as is relevant to theconstruction work which any such employee or, as the case may be, which theself-employed person, is to carry out.



(5) It shall be a defence in any proceedings for contravention of paragraph (2) or (3) for theemployer or self-employed person to show that he made all reasonable enquiries andreasonably believed—

(a) that he had been provided with the information mentioned in paragraph (4); or

(b) that, by virtue of any provision in regulation 3, this regulation did not apply to theconstruction work.

Exclusion of civil liability

21. Breach of a duty imposed by these Regulations, other than those imposed by regulation 10and regulation 16(1)(c), shall not confer a right of action in any civil proceedings


Appendix E:

Union involvement inoccupational health and safety


This part sets out some provisions of Commonwealth, State and Territoryoccupational health and safety legislation that expressly refer to the involvement

of trade unions or other employee organisations, howsoever described.


1 Occupational Health andSafety (CommonwealthEmployment) Act 1991(C’wth)

Section 5 Interpretation

1 ‘Involved union’ means:

(a) in relation to an employee of an employer—a registered union of which the employee is amember, being an employee who is qualified to be such a member by virtue of the workthe employee performs as an employee of the employer; or

(b) in relation to a designated work group—a registered union of which an employeeincluded in the group is a member, being an employee who is qualified to be such amember by virtue of the work the employee performs as an employee included in thegroup.

Section 24 Designated work groups

2 (1) A request to an employer to enter into consultations to establish designated work groupsin respect of employees of the employer, or to vary designated work groups that havealready been established, may be made by:

(a) if there are involved unions in relation to employees of the employer—any suchinvolved union; or

(b) if there is no involved union in relation to any employee of the employer—any suchemployee.

(2) The employer may, at any time, and must, within 14 days after receiving such a request,enter into such consultations with:

(i) if there are involved unions in relation to employees of the employer—each suchinvolved union; or



(ii) if there is no involved union in relation to any employee of the employer—theemployee who made the request.

(3) Where an employer believes that designated work groups should be varied, the employermay, at any time, enter into consultations concerning the variation of the designated workgroups with:

(iii) if there are involved unions in relation to employees of the employer—each suchinvolved union; or

(iv) if there is no involved union in relation to any employee of the employer—the healthand safety representative of each designated work group proposed to be varied.

(4) If, in the course of consultations under subsection (2) or (3), there is a disagreementbetween any of the parties to the consultation concerning the manner of establishing orvarying a designated work group, any party may, for the purpose of facilitating thatconsultation, refer the matter of disagreement to the reviewing authority and, where thisis done, the parties to the disagreement must complete the consultation in accordancewith the resolution of that matter by the reviewing authority.

(5) Within 14 days after the completion of consultations concerning the establishment of thedesignated work groups, the employer must, by notifying the employees of the employer,establish the designated work groups in accordance with the outcome of theconsultations.

(6) Within 14 days after the completion of consultations concerning the variation ofdesignated work groups that have already been established, the employer must, if it hasbeen determined that the variation of some or all of those designated work groups isjustified, by notifying the employees of the employer who are affected by the variation,vary the designated work groups in accordance with the outcome of the consultations.

(7) Consultations relating to the establishment or variation of a designated work group mustbe directed principally at the determination of the manner of grouping employees:

(a) that best and most conveniently enables the employees’ interests relating tooccupational health and safety to be represented and safeguarded; and

(b) that best takes account of the need for any health and safety representativeselected for that designated work group to be accessible to each employeeincluded in the group;

(c) and, for these purposes, the parties to the consultations must have regard, inparticular, to:

(i) the number of the employees; and

(ii) the nature of each type of work performed by the employees; and

(iii) the number and grouping of the employees who perform the same or similartypes of work; and


(iv) the workplaces, and the areas within the workplaces, where each type ofwork is performed; and

(v) the nature of any risks to health and safety at the workplaces; and

(vi) any overtime or shift working arrangements at the workplaces.

(8) The designated work groups must be established in such a manner that, and must onlybe varied in such a manner that, so far as is reasonably practicable, each of theemployees is included in a designated work group.

(9) All of an employer’s employees may be included in one designated work group.

Section 25 Health and safety representatives

3 (1) One health and safety representative may be selected for each designated work group.

(2) A person is not eligible for selection as the health and safety representative for adesignated work group unless the person is an employee included in the group.

(3) A person is to be taken to have been selected as the health and safety representative fora designated work group if:

(i) all of the employees included in the group unanimously agree to the selection of theperson as the health and safety representative of the group; or

(ii) the person is elected as the health and safety representative of the group.

(4) An election for a health and safety representative for the designated work group may beconducted:

(a) if there is only one involved union in relation to the group—by that involved union;or

(b) if there is more than one involved union and all the involved unions are in agreementthat a specified one of those unions should conduct the election—by that specifiedunion; or

(c) if there is no involved union in relation to the group—by a person authorised by theCommission to conduct elections under this section.

(5) An employee in the designated work group may be a candidate in the election if and onlyif:

(a) the employee is not disqualified under section 32; and

(b) where an involved union in relation to the group is conducting the election—theemployee is nominated by an involved union in relation to the group.

(6) All the employees in the designated work group are entitled to vote in the election.

(7) Where there is only one candidate for the election, that person is to be taken to havebeen elected.

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(8) Where a person is selected as the health and safety representative for a designated workgroup:

(a) if the person is selected by agreement in accordance with paragraph (3)(a)—theperson; and

(b) if the person is selected by election in accordance with paragraph (3)(b)—theinvolved union or other person authorised under subsection (4) to conduct theelection;

(c) must, as soon as practicable after the person has been so selected, inform theemployer of all the employees included in the group of the name of the person soselected.

(9) As soon as practicable after being so informed, the employer must cause a notice thatthe person so selected is the health and safety representative for the group to bedisplayed in a prominent place at such workplaces, under the employer’s control, as willallow all of the employees in the group to be notified of the selection.

(10) An employer must prepare and keep up to date a list of all the health and safetyrepresentatives of designated work groups comprising employees performing work forthe employer, and must ensure that that list is at all reasonable times available forinspection by:

(a) the employees; and

(b) involved unions in relation to the designated work groups; and

(c) investigators.

Section 34 Health and safety committees

4 (1) A health and safety committee must be established in respect of the employer’semployees at a particular workplace if:

(a) the number of employees of the employer who work at the workplace is normallynot less than 50 (whether or not the employees are all at work at the workplace atthe same time); and

(b) the employees are included in one or more designated work groups in respect ofthe employer; and

(c) the employer is requested to establish the committee by:

(i) a health and safety representative for the designated work group or for one ofthe designated work groups; or

(ii) an involved union in relation to such a group.

(2) The health and safety committee consists of:

(a) the number of members specified in an agreement reached between the employerand:


(i) the involved unions in relation to the designated work group that includes, orthe designated work groups that include, all of the employees; or

(ii) if there are no such involved unions—the employees; or

(b) where there is no such agreement—an equal number of members, chosen byemployees, to represent the interests of the employees and members, chosen bythe employer, to represent the interests of management.

(3) The agreement referred to in paragraph (2)(a) may:

(a) specify the persons who are to be members to represent the interests ofmanagement; and

(b) provide for the manner in which persons who are to be members to represent theinterests of employees are to be chosen.

(4) Where regulations made for the purposes of this section specify procedures for theselection of persons as members of health and safety committees, to represent theinterests of employees, an agreement referred to in paragraph (2)(a) must not provide forsuch members to be chosen in a manner inconsistent with the regulations.

(5) A health and safety committee must hold meetings at least once every 3 months.

(6) The procedure at meetings of a health and safety committee must, except to the extentprovided for by the regulations, be the procedure agreed upon by the committee.

(7) A health and safety committee must cause minutes of its meetings to be kept, and shallretain those minutes for a period of not less than 3 years.

(8) Nothing in this section is to be taken as preventing an employer from establishing, inconsultation with registered unions or any other persons, committees concerned withoccupational health and safety in relation to undertakings carried on by the employer.

Section 41 Investigations

5 (5) An involved union may make a request to an investigator or to the Commission that aninvestigation be conducted at a workplace, being a workplace at which an employee,who is a member of the union, performs work for an employer.

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2 Occupational Health andSafety Act 2000 (NSW)

Section 69 Power of employees’ representative to accompany inspector

6 An inspector who is proposing to undertake an inspection of a place of work with respect to amatter that may affect the health, safety or welfare of employees at the place of work:

(a) must, to the extent that it is practicable, consult a representative of the employees or anindustrial organisation of employees whose members are employed at the place of work,and

(b) must, if requested to do so by the representative, take the representative on any suchinspection.

Section 76 Definition

7 ‘Authorised representative’ of an industrial organisation of employees, means an officer of thatorganisation (including any person who is concerned in, or takes part in, the management ofthat organisation) who is authorised under Part 7 of Chapter 5 of the Industrial Relations Act1996.

Section 77 Powers of entry of places of work

8 An authorised representative of an industrial organisation of employees may, for the purpose ofinvestigating any suspected breach of the occupational health and safety legislation, enter anypremises the representative has reason to believe is a place of work where members of thatorganisation (or persons who are eligible to be members of that organisation) work.

Section 78 Notice of entry

9 (1) An authorised representative authorised to enter premises under this Division may enterthe premises without notice.

(2) The authorised representative must notify the occupier of the premises of the authorisedrepresentative’s presence on the premises as soon as reasonably practicable afterentering the premises, unless:

217


(a) to do so would defeat the purpose for which the premises were entered or wouldunreasonably delay the authorised representative in a case of urgency, or

(b) the occupier is already aware that the authorised representative has entered thepremises or was notified in advance of when the authorised officer would enter thepremises.

Section 79 Authority to enter premises

10 (1) A power conferred by this Division to enter premises, or to make an inspection or takeother action on premises, may not be exercised unless the person proposing to exercisethe power is in possession of an authority issued by the Industrial Registrar under Part 7of Chapter 5 of the Industrial Relations Act 1996 and produces the authority if required todo so by the occupier of the premises.

(2) Entry may only be made at a reasonable time in the daytime or at any hour when work iscarried on or is usually carried on at the premises.

Section 80 Entry to premises used for residential purposes

11 The powers of entry conferred by this Division are not exercisable in relation to any part ofpremises used only for residential purposes except with the permission of the occupier of thepremises.

Section 81 Powers available on entry

12 For the purpose of investigating any suspected breach of the occupational health and safetylegislation, an authorised representative who enters premises under this Division may do any ofthe following:

(a) make searches and inspections (and take photographs and make video and audiorecordings),

(b) require the occupier of those premises to provide the authorised representative with suchassistance and facilities as is or are reasonably necessary to enable the representative toexercise his or her functions under this Division,

(c) require the production of and inspect any documents in or about those premises thatdirectly affect or directly deal with the occupational health and safety of employeesworking at those premises,

(d) take copies of or extracts from any such documents.

Section 82 Care to be taken

13 In the exercise of a function under this Division, an authorised representative must do as littledamage as possible.


Section 83 Authorised representative may request assistance from inspector

14 An inspector may accompany and take all reasonable steps to assist an authorisedrepresentative in the exercise of the representative’s functions under this Division if therepresentative reasonably believes that he or she may be obstructed in the exercise of thosefunctions.

Section 84 Offence of failing to comply with requirement of authorised representative

15 A person must not, without reasonable excuse, refuse or fail to comply with a requirementmade by an authorised representative in accordance with this Division.

• Maximum penalty: 20 penalty units.

Section 85 Offence of impersonating an authorised representative

16 A person must not impersonate, or falsely represent that the person is, an authorisedrepresentative.

• Maximum penalty: 100 penalty units.

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3 Occupational Health andSafety Act 1985 (Vic)

Section 29 Designated work groups

17 (1) An employee may ask the employer to establish designated work groups of employees inrespect of the workplace.

(2) The composition of the designated work groups is to be determined by negotiationbetween the employer and the employees.

(3) The employer must do everything that is reasonably possible to ensure that negotiationsto determine the composition of the designated work groups start within 14 days after arequest is made under sub-section (1).

(4) The employer may initiate negotiations for the establishment of designated work groupsat a workplace.

(5) If agreement cannot be reached on the composition of the designated work groups, theemployer or the employees may apply to the Authority to determine the composition ofthe groups.

(6) In determining the composition of designated work groups (or whether the compositionshould be varied), regard must be had to-

(a) the number of employees at the workplace; and

(b) the nature of each type of work performed at the workplace; and

(c) the number and grouping of employees who perform the same or similar types ofwork; and

(d) the areas at the workplace where each type of work is performed; and

(e) the nature of any hazards at the workplace; and

(f) any overtime or shift working arrangements at the workplace.

(7) All the employees at a workplace may be determined to be one designated work group.

(8) The composition of designated work groups may be varied at any time by negotiationbetween the employer and the employees.

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(9) If agreement cannot be reached on any proposal to vary the composition of designatedwork groups, the employer or the employees may apply to the Authority to determinewhether the proposal should be adopted.

(10) The employer must ensure-

(a) that a written list of the designated work groups at the workplace is prepared andkept up to date; and

(b) that a copy of the list is displayed in a prominent place at the workplace.

(11) A reference to an employee in this section includes a reference to any person authorisedby the employee to act as his or her representative for the purposes of this section.


4 Workplace Health and Safety Act 1995 (Qld)

Section 70 Negotiation between workers and employer about workplace health and safety representatives

18 (1) Workers at a workplace may negotiate with their employer about workplace health andsafety representatives for the workplace, including, for example—

(a) the number of workplace health and safety representatives for the workplace; and

(b) the extent to which the employer will facilitate the election of 1 or more workplacehealth and safety representatives for the workplace; and

(c) if there is to be more than 1 workplace health and safety representative—eachrepresentative’s area of representation; and

(d) the intervals at which a workplace health and safety representative is entitled toconduct inspections; and

(e) access by the representative to training designed to help the representative in theexercise of the representative’s entitlements.

(2) Workers may be represented during negotiations by the union of which they aremembers if they have told the employer that they want to be represented by their union.

(3) To remove any doubt, if the workers are members of more than 1 union, each of theunions asked may be involved in the negotiations.

Section 74 Workers may ask union to conduct election of workplace health and safety representative

19 (1) The workers may ask any union with members at the workplace to conduct the electionof 1 or more workplace health and safety representatives for the workplace.

(2) However, if a union agrees to conduct the election, it must conduct it for all workers at theworkplace.

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Section 76 Employer must negotiate with workers if asked

20 (1) An employer must, if asked by the employer’s workers, negotiate with the workers aboutworkplace health and safety representatives for the workplace.11

• Maximum penalty—10 penalty units.

(2) An employer must not exclude from the negotiations a union that has members who areworkers at the workplace if the workers have told the employer that they want to berepresented by the union.


5 Occupational Health, Safety and Welfare Act 1986 (SA)

Section 27 Health and safety representatives may represent groups

21 (1) A group of employees may elect a health and safety representative to represent a workgroup for the purposes of this Act.

(2) The constitution of a work group will be determined by agreement between the employerand-

(a) any interested employees; or

(b) a person appointed by such employees.

(3) Where an employer is requested by an employee to act to constitute a work group for thepurposes of this section, the employer must respond to the request within 14 days of itsreceipt.

(4) If an employee is a member of a registered association, that registered association must,at the request of the employee, be consulted in relation to any proposal relating to theformation of a work group that could affect the employee.

(5) A work group must be constituted in a manner that takes into account-

(a) the need for a health and safety representative representing that group to be ableto perform his or her functions effectively; and

(b) the need for the employer to be able to fulfil his or her responsibilities to a healthand safety representative representing that group effectively.

(6) Insofar as may be relevant to a particular case, and subject to any guidelines issued bythe Corporation after seeking the advice of the Advisory Committee, the followingmatters should be considered in relation to the constitution of a work group:

(a) the number of employees employed by the employer;

(b) the nature of each type of work performed by the employer’s employees;

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(c) the number and grouping of employees who perform the same or similar types ofwork;

(d) the areas or places where each type of work is performed;

(e) the extent to which any employee must move from place to place while at work;

(f) the times at which particular work is performed;

(g) the overtime or shift-work arrangements that apply in relation to the performance ofwork;

(h) the nature of particular risks involved in each type of work;

(i) any other relevant factor.

(7) Where-

(a) an employer fails to respond to a request in accordance with subsection (3); or

(b) a dispute arises in relation to the constitution of a work group under this section,

(c) an employee, the employer or, if any employee is a member of a registeredassociation, that registered association if so requested by such an employee, mayrefer the matter to the Industrial Commission.

(8) Where a matter is referred to the Industrial Commission under subsection (7), theIndustrial Commission must attempt to resolve the matter by conciliation.

(9) If a matter cannot be resolved within a reasonable time by conciliation under subsection(8), the Industrial Commission must refer the matter to the President of the IndustrialCourt for determination by a review committee.

(10) The review committee may determine how a particular work group or groups are to beconstituted and the decision of the review committee is binding on all parties.

(11) The constitution of a work group may be varied at any time-

(a) by agreement between the employer and-

(i) any interested employees; or

(ii) a person appointed by such employees; or

(b) in default of agreement, by a review committee.

(12) The employer must keep a list of the work groups constituted under this section.

(13) A copy of the list must be displayed by the employer in a prominent place at his or herprincipal place of business, or at any other place that is appropriate taking into accountthe constitution of the various work groups.

Section 30 Term of office of a health and safety representative

22 (1) Subject to this section, a health and safety representative shall hold office for a term ofthree years.


(2) A person ceases to be a health and safety representative for a work group if that person-

(a) completes a term of office as a health and safety representative expires and is notre-elected; or

(b) ceases to belong to the relevant work group; or

(c) resigns as a health and safety representative; or

(ca) is removed from office by a resolution of at least two-thirds of the recognisedmembers of the group on the ground that they consider that the person hasceased to be a suitable person to act as their representative; or

is disqualified by a review committee.

(3) Where there is a substantial change in the circumstances surrounding the constitution ofa work group and it is agreed at that time by at least one-half of the recognised membersof the group that a fresh election should be held to elect a health and safetyrepresentative, the health and safety representative who was representing that groupmust resign and a fresh election must be held.

(4) An application for the disqualification of a health and safety representative may be madeto the President of the Industrial Court for determination by a review committee by-

(a) the employer; or

(b) a registered association of which any recognised member of the work group thatthe health and safety representative represents is a member; or

(c) a majority of the employees who at any particular time are the members of the workgroup that the health and safety representative represents.

(5) The grounds upon which a health and safety representative may be disqualified are-

(a) that the health and safety representative has on repeated occasions neglected tocarry out the functions of a health and safety representative under this Act; or

(b) that the health and safety representative has-

(i) exercised or performed powers or functions under this Act for an improperpurpose; or

(ii) disclosed information (being information acquired from the employer) for animproper purpose.

(6) If a review committee is satisfied that a ground for disqualification exists, the reviewcommittee may, if it thinks fit, disqualify the health and safety representative for aspecified period.

(7) In determining what action (if any) should be taken under subsection (6), the reviewcommittee shall take into account-

(a) the harm (if any) that has been caused by the health and safety representative;

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(b) the past record of the health and safety representative in exercising or performingpowers or functions under this Act;

(c) whether the actions of the health and safety representative were contrary to thepublic interest;

(d) any other relevant consideration.

(8) For the purposes of this section, a reference to a health and safety representativeincludes a deputy to a health and safety representative.

Section 31 Health and safety committees

23 (1) At the request of-

(a) a health and safety representative; or

(b) a prescribed number of employees; or

(c) a majority of the employees at any workplace,

the employer must, within two months of the request, establish one or more health andsafety committees.

(1a) An employer must also establish one or more health and safety committees if required todo so by or under the regulations.

(2) The composition of a health and safety committee shall be determined by agreementbetween the employer, the health and safety representative and any interestedemployees.

(3) If an employee is a member of a registered association, that registered association shall,at the request of the employee, be consulted in relation to the composition of a healthand safety committee under this section.

(4) The membership of a committee should, so far as is reasonably practicable, represent areasonable cross-section of the persons whose activities, work, or health, safety orwelfare (whether as principal, manager, supervisor or employee) could be within theresponsibilities of the committee subject however to the following qualifications:

(a) any relevant health and safety representative should be encouraged to be amember of the committee; and

(b) at least half of the members of the committee must be employees.

(5) If at any time agreement cannot be reached on any matter relating to the establishmentor composition of a health and safety committee, an interested party may refer the matterto the Industrial Commission to resolve the disagreement.

(6) Where a matter is referred to the Industrial Commission under subsection (5), theIndustrial Commission shall attempt to resolve the matter by conciliation.


(7) If a matter cannot be resolved within a reasonable time by conciliation under subsection(6), the Industrial Commission shall refer the matter to the President of the IndustrialCourt for determination by a review committee.

(8) The review committee may determine any matter relating to the establishment orcomposition of a health and safety committee and its decision is binding on all theparties.

(9) Subject to the regulations, the proceedings of a health and safety committee shall beconducted in such manner as the committee may determine.

(10) A health and safety committee shall hold at least one meeting in every 3 months.

(11) A meeting of a health and safety committee shall be held-

(a) on the request of at least half of the members of the committee; or

(b) on the request of a health and safety representative; or

(c) on the request of the employer.

(12) The composition of a health and safety committee may be varied at any time byagreement between the employer, any relevant health and safety representative, and anyinterested employees who are within the responsibility of the committee.

(13) In addition to the other matters provided by this section, the regulations may makeprovision for-

(a) the term of office of a member of a health and safety committee;

(b) the disqualification of a person from acting, or continuing to act, as a member of ahealth and safety committee;

(c) the appointment of a person to a casual vacancy in the membership of health andsafety committee.

(14) This section does not apply to a prescribed employer or an employer of a prescribedclass (if any).

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6 Workplace Health and Safety Act 1995 (Tas)

Section 27 Composition of health and safety committee

25 (1) A health and safety committee for a workplace is to consist of –

(a) employees working at the workplace elected by those employees; and

(b) persons appointed by the employer of the employees.

(2) Subject to this section, the number of employees to be elected or persons to beappointed for the purposes of this section is to be as agreed between the employer andthe employees.

(3) Unless agreed otherwise between the employer and a majority of employees at aworkplace, not less than half of the members of a health and safety committee are to beemployees elected by the employees at the workplace.

(4) Subsection (1)(a) does not preclude an agreement being reached between an employerand his or her employees that the employees may elect an officer of a union who is notan employee of the employer.

(5) Any dispute between an employer and the employees employed at a workplace arisingunder subsection (2) is to be referred to the Director for determination.

(6) The Director’s determination is final and binding on the employer and the employeesemployed at the workplace.

(7) For the purposes of subsection (4), ‘union’ means –

(a) an organisation within the meaning of the Industrial Relations Act 1988 of theCommonwealth; or

(b) an employee organisation registered as an organisation under the IndustrialRelations Act 1984.

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7 Occupational Health andSafety Act 1989 (ACT)

Section 5 Interpretation

27 ‘Involved union’ means-

(a) in relation to an employee of an employer-a registered union of which the employee is amember, being an employee who is qualified to be such a member by virtue of the workthat the employee performs as an employee of the employer; or

(b) in relation to a designated work group-a registered union of which an employee includedin the group is a member, being an employee who is qualified to be such a member byvirtue of the work the employee performs as an employee included in the group

Section 37 Work groups designated by employers

28 (1) A person who is an employer on the commencement date shall-

(a) not later than 14 days after that date; and

(b) by notice in accordance with subsection (10); established designated work groupsin respect of his or her employees.

(2) A person who, after the commencement date, becomes an employer shall-

(a) not later than 14 days after becoming an employer; and

(b) by notice in accordance with subsection (10); establish designated work groups inrespect of his or her employees.

(3) A person who, without reasonable excuse, contravenes subsection (1) or (2) is guilty ofan offence punishable, on conviction, by-

(a) if the offender is a natural person-a fine not exceeding 10 penalty units; or

(b) if the offender is a body corporate-a fine not exceeding 50 penalty units.

(4) An employer may vary designated work groups by notice in accordance with subsection(10).

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(5) Designated work groups shall be so established or varied that the manner in whichemployees are grouped-

(a) best and most conveniently enables the employees’ interests relating tooccupational health and safety to be represented and safeguarded; and

(b) best takes account of the need for any health and safety representative selected fora designated work group to be accessible to each employee included in the group.

(6) In determining the manner of grouping employees in accordance with subsection (5), anemployer shall have regard, in particular to-

(a) the number of employees;

(b) the nature of each type of work performed by the employees;

(c) the number and grouping of the employees who perform the same or similar typesof work;

(d) the workplaces, and the areas within the workplaces, where each type of work isperformed;

(e) the nature of any risks to health and safety at the workplaces; and

(f) any arrangements at the workplaces relating to overtime or shift work.

(7) An employer shall not establish or vary a designated work group without consulting-

(a) each involved union in relation to the employees; and

(b) if there is no such involved union-such of the employees as the employer considersappropriate; in relation to the establishment or variation of the designated workgroup.

(8) Designated work groups for employees shall be so established or varied that each of theemployees is included in a designated work group.

(9) Subject to subsections (5), (6) and (7), all of an employer’s employees may be included in1 designated work group.

(10) A notice establishing a designated work group under subsection (1) or (2), or varying adesignated work group under subsection (4), shall-

(a) describe the group and the employees, or the class of employees, who areincluded in that group; and

(b) be displayed in each workplace under the employer’s control as will allow all of theemployees in the group to be notified of its establishment or variation.

Section 42 Lists of health and safety representatives

29 (1) An employer shall prepare and keep up to date a list of all the health and safetyrepresentatives for designated work groups that consist of employees of the employer,and shall ensure that the list is at all reasonable times available for inspection by-


(a) the employees;

(b) involved unions in relation to the designated work groups; and

(c) inspectors.

(2) An employer who, without reasonable excuse, contravenes subsection (1) is guilty of anoffence punishable, on conviction, by a fine not exceeding 1 penalty unit.

Section 48 Disqualification

30 (1) The Registrar may, upon application by-

(a) the employer of the employees in a designated work group;

(b) if a declaration under section 39 is in force in respect of a construction site-anyemployer who is a sub-contractor to whom the declaration relates;

(c) any involved union in relation to a designated work group; or

(d) if there is no involved union in relation to a designated work group-any employee inthe group; disqualify the health and safety representative for the group for aspecified period not exceeding 5 years from being a health and safetyrepresentative for any designated work group.

(2) An application referred to in subsection (1) shall be in writing setting out the grounds onwhich the disqualification is sought.

(3) The Registrar shall not disqualify a health and safety representative unless the Registrarbelieves on reasonable grounds that-

(a) action taken by the representative in the exercise or purported exercise of his or herpowers under this Act or the regulations was taken-

(i) with the intention of causing harm to the employer or to an undertaking of theemployer; or

(ii) unreasonably, capriciously or otherwise than for the purpose for which thepower was conferred on the representative; or

(b) the representative has intentionally used, or disclosed to another person, for apurpose that is not connected with the exercise of a power of a health and safetyrepresentative, information acquired from an employer.

(4) For the purpose of exercising the power under subsection (1), the Registrar shall haveregard to-

(a) the harm (if any) that was caused to the employer or to an undertaking of theemployer as a result of the action of the representative;

(b) the past record of the representative in exercising the powers of a health and safetyrepresentative;

(c) the effect (if any) on the public interest of the action of the representative; and

(d) such other matters as the Registrar thinks relevant.

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(5) Where the Registrar disqualifies a health and safety representative, the Registrar shalltake all reasonably practicable steps to give notice in writing of the disqualification to therepresentative.

Appendix F:

Prohibition notices

This appendix sets out provisions concerning ‘prohibition notices’ or the like inCommonwealth, State and Territory occupational health and safety legislation.




1 Occupational Health andSafety (CommonwealthEmployment) Act 1991 (C’wth)

Section 46 Power to issue prohibition notices

1 (1) Where, having conducted an investigation, an investigator forms the opinion that it isreasonably necessary to issue a prohibition notice to an employer in order to remove animmediate threat to the health or safety of any person, the investigator may issue such anotice, in writing, to the employer.

(2) The notice must be issued to the employer by giving it to the person who is, or who mayreasonably be presumed to be, for the time being in charge of the activity, undertaken bythe employer, in respect of which, in the investigator’s opinion, the threat to health orsafety has arisen.

(3) The notice must:

(a) specify the activity in respect of which, in the investigator’s opinion, the threat tohealth or safety has arisen, and set out the reasons for that opinion; and

(b) either:

(i) direct the employer to ensure that the activity is not engaged in; or

(ii) direct the employer to ensure that the activity is not engaged in in a specifiedmanner, being a manner that may relate to any one or more of the following:

(A) any workplace, or part of a workplace, at which the activity is not to beengaged in;

(B) any plant or substance that is not to be used in connection with theactivity;

(C) any procedure that is not to be followed in connection with the activity.

(4) The employer must ensure that, to the extent that the notice relates to any matter overwhich the employer has control, the notice is complied with.


• Penalty: in the case of a Government business enterprise—$25,000.

(5) Where an investigator is satisfied that action taken by an employer to remove the threatto health and safety that caused the notice to be issued is not adequate to remove thatthreat, the investigator must inform the employer accordingly.

(6) The notice ceases to have effect when an investigator notifies the employer that theinvestigator is satisfied that the employer has taken adequate action to remove the threatto health or safety that caused the notice to be issued.

(7) In making a decision under subsection (5), an investigator may exercise such of thepowers of an investigator conducting an investigation as the investigator considersnecessary for the purposes of making the decision.

(8) The notice may specify action that may be taken in order to satisfy an investigator thatadequate action has been taken to remove the threat to health and safety that causedthe notice to be issued.

(9) The employer must:

(a) give a copy of the notice to each health and safety representative (if any) for agroup of the employer’s employees performing work that is affected by the notice;and

(b) cause a copy of the notice to be displayed in a prominent place at or near eachworkplace at which that work is being performed.

(10) Where the notice relates to any workplace, plant, substance or thing that is owned by aperson other than an employer, the investigator must, upon issuing the notice, give acopy of the notice to that person.


2 Occupational Health andSafety Act 1985 (Vic)

Section 44 Inspector may issue prohibition notice

2 (1) Where an inspector is of the opinion that at any workplace there is occurring or mayoccur any activity which involves or will involve an immediate risk to the health and safetyof any person, the inspector may issue to the person who has or may be reasonablypresumed to have control over the activity a prohibition notice prohibiting the carrying onof the activity until an inspector certifies in writing that the matters which give or will giverise to the risk are remedied.

(2) A prohibition notice shall-

(a) state that the inspector is of the opinion that in the workplace there is occurring ormay occur an activity which involves or will involve an immediate risk to the healthand safety of any person;

(b) state the reasons for that opinion;

(c) specify the activity which in the inspector’s opinion involves or will involve the riskand the matters which give or will give rise to the risk; and

(d) where in the inspector’s opinion the activity involves a contravention or likelycontravention of any provision of this Act or the regulations, specify that provisionand state the reasons for that opinion.

(3) A person-

(a) to whom a prohibition notice is issued in relation to which an appeal has not beenmade under section 46; and

(b) who does not comply with the prohibition notice-

(c) shall be guilty of an offence against this Act and shall be liable-

(d) where that person is a body corporate, to a penalty of not less than 50 penaltyunits nor more than 2500 penalty units; or

(e) in any other case, to a penalty of not less than 10 penalty units nor more than 500penalty units or to imprisonment for not more than five years or both.

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(4) Where an appeal has been made under section 46, an inspector shall not give acertificate under sub-section (1) until after the appeal is withdrawn or decided.


3 Occupational Health andSafety Act 2000 (NSW)

Section 93 Issue of prohibition notices

3 (1) If an inspector is of the opinion that at any place of work there is occurring or about tooccur any activity which involves or will involve an immediate risk to the health or safety ofany person, the inspector may issue to the person who has or may be reasonablypresumed to have control over the activity a notice prohibiting the carrying on of theactivity until the matters which give or will give rise to the risk are remedied.

(2) A prohibition notice must:

(a) state that the inspector is of the opinion referred to in subsection (1), and

(b) state the reasons for that opinion, and

(c) specify the activity in respect of which that opinion is held, and

(d) if in the inspector’s opinion the activity involves a contravention or likelycontravention of any provision of this Act or the regulations—specify that provisionand state the reasons for that opinion, and

(e) include information about obtaining a review of the notice under this Part.

Section 94 Offence: failure to comply with prohibition notice

4 A person who, without reasonable excuse, fails to comply with a requirement imposed by aprohibition notice is guilty of an offence.

Maximum penalty:

• in the case of a corporation (being a previous offender)—1,500 penalty units, or

• in the case of a corporation (not being a previous offender)—1,000 penalty units, or

• in the case of an individual not acting in the capacity of an employee (being a previousoffender)—750 penalty units, or

• in the case of an individual not acting in the capacity of an employee (not being aprevious offender)—500 penalty units, or

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• in the case of an individual acting in the capacity of an employee (being a previousoffender)—45 penalty units, or

• in the case of an individual acting in the capacity of an employee (not being a previousoffender)—30 penalty units.


4 Workplace Health and SafetyAct 1995 (Qld)

Section 118 Prohibition notice

5 (1) This section applies if an inspector reasonably believes that circumstances causing, orlikely to cause, an immediate risk to workplace health and safety have arisen, or are likelyto arise, in relation to a workplace, workplace activity, plant or substance.

(2) The inspector may direct the person in control of the workplace, workplace activity, plantor substance that caused, or is likely to cause, the circumstances to stop using, orallowing to be used, the workplace, plant or substance or to stop the activity.

(3) The direction may be given orally, but must be confirmed by written notice (a “prohibitionnotice”) given to the person as soon as practicable.

(4) The person must comply with the direction or prohibition notice.

Maximum penalty—40 penalty units or 6 months imprisonment.

(5) Subsection (2) does not apply to an activity or procedure necessary to rectify thecircumstances.

(6) A prohibition notice must state—

(a) the inspector believes that circumstances causing, or likely to cause, an immediaterisk to workplace health and safety have arisen, or are likely to arise, at a workplace;and

(b) briefly, the circumstances that have caused or are likely to cause the risk; and

(c) if the inspector believes the circumstances involve a contravention, or likelycontravention, of a provision of this Act—the provision contravened or likely to becontravened; and

(d) the circumstances (if any) under which the notice will be lifted.

(7) For this section, a person is “in control” of a workplace, workplace activity, plant orsubstance if the person has, or reasonably appears to have, authority to exercise controlover the workplace, activity, plant or substance.

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5 Occupational Health, Safety and Welfare Act 1986 (SA)

Section 40 Prohibition notices

6 (1) Where an inspector is of the opinion that there is an immediate risk to the health or safetyof a person at work, or from any plant to which this Act extends by virtue of schedule 2,the inspector may issue to the person apparently in control of the activity from which therisk arises a prohibition notice prohibiting the carrying on of the activity until an inspectoris satisfied that adequate measures have been taken to avert, eliminate or minimise therisk.

(2) A prohibition notice must-

(a) identify the activity from which the immediate risk to health or safety arises; and

(b) state the grounds of the inspector’s opinion that there is an immediate risk to thehealth or safety of a person.

(3) An inspector may include in a prohibition notice directions as to the measures to be takento avert, eliminate or minimise the risk to which the notice relates.

(4) Subject to this Act a person who contravenes or fails to comply with a prohibition noticeis guilty of an offence.

• Maximum penalty: Division 2 fine plus $20,000 for each day that the contraventionor failure continues

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6 Occupational Safety andHealth Act 1984 (WA)

Section 49 Inspectors may issue prohibition notices

7 (1) Where an inspector is of the opinion that an activity is occurring or may occur at aworkplace which activity involves or will involve a risk of imminent and serious injury to, orimminent and serious harm to the health of, any person, the inspector may issue to aperson who is or will be carrying on the activity, or a person who has or may bereasonably presumed to have control over the activity, a prohibition notice prohibiting thecarrying on of the activity until an inspector is satisfied that the matters which give or willgive rise to the risk are remedied.

(2) An inspector who issues a prohibition notice shall remain at the workplace until theemployer has been advised of the notice and, where the notice is in respect of an activitythat is occurring, the prohibited activity has ceased.

(3) A prohibition notice shall—

(a) state that the inspector is of the opinion that in the workplace there is occurring ormay occur an activity which involves or will involve a risk of imminent and seriousinjury to, or imminent and serious harm to the health of, a person;

(b) state reasonable grounds for forming that opinion;

(c) specify the activity which in the inspector’s opinion involves or will involve the riskand the matters which give or will give rise to the risk;

(d) where in the inspector’s opinion the activity involves a contravention or likelycontravention of any provision of this Act, specify that provision and state thereasons for that opinion; and

(e) contain a brief summary of how the right to have the notice reviewed, given bysections 51 and 51A, may be exercised.

(4) A person, other than the employer, to whom a prohibition notice is issued shall forthwithgive the notice, or a copy of it, to the employer, and where —

(a) under subsection (1), a prohibition notice is issued to an employer; or

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(b) under this subsection a prohibition notice, or a copy thereof, is given to anemployer,

(c) the employer shall cause the notice, or a copy of it, to be displayed in a prominentplace at or near any workplace affected by the notice.

(4a) A person shall not remove a prohibition notice displayed under subsection (4) before therequirements of that prohibition notice, taking into account any modifications madeunder section 51(5), have been satisfied or the prohibition notice has ceased to haveeffect.

(4b) If a prohibition notice is issued to a self-employed person in respect of a contravention ofsection21, that person shall comply with subsection (4) as if the person were anemployer.

(5) Subject to sections 51 and 51A, a person to whom a prohibition notice is issued whodoes not comply with the prohibition notice commits an offence.

(6) A person who contravenes subsection (4), (4a) or (4b) commits an offence.


7 Workplace Health and Safety Act 1995 (Tas)

Section 38 Power of inspector in respect of safety and health risks

8 (1) If, by reason of circumstances existing at any workplace or in respect of the use orintended use of any amusement structure or temporary public stand, an inspector is ofthe opinion–

(a) that the safety or health of persons is endangered; or

(b) there is a contravention of this Act –

(c) the inspector, by notice in writing served on the employer, responsible officer orother persons on whom a duty is imposed under this Act, may direct that employer,responsible officer or other person to take any steps that the inspector thinks fitand are specified in the notice to remedy or alleviate those circumstances.

(2) If, in the opinion of the inspector, the circumstances existing under subsection (1) are ofsufficient urgency as to warrant immediate action to remedy or alleviate them and it is notpracticable to serve a notice in writing under that subsection, the inspector may give anoral direction to the employer, responsible officer or any other person on whom a duty isimposed under this Act.

(3) If an oral direction is given under subsection (2), the inspector must as soon aspracticable after giving that direction serve a notice in writing in the terms of this sectionon the person to whom the direction was given.

(4) Without limiting subsections (1) and (2), a notice or direction may, if the circumstancesreferred to in those subsections constitute the carrying on of any activity, direct thatactivity to cease immediately.

(5) An employer, responsible officer or other person on whom a notice is served or to whoma direction is given must comply with the notice or direction.

(a) Penalty:

(i) In the case of –

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• a body corporate, a fine not exceeding 500 penalty units and a dailyfine not exceeding 50 penalty units for each day that the bodycorporate fails to comply with the notice; and

• a natural person, a fine not exceeding 200 penalty units and a daily finenot exceeding 20 penalty units for each day that the person fails tocomply with the notice.

(6) A notice referred to in subsection (4) is to specify the reasons for requiring the activity tocease.

(7) Any notice under this section may be revoked –

(a) by another notice of an inspector; or

(b) by a notice of the Director.

(8) If an employer or responsible officer considers that a notice under this section wouldhave the effect of causing the cessation or substantial cessation of the business beingcarried on by the employer at the workplace, the employer or responsible officer mayrequest the Director to confirm, modify or revoke that notice.

(9) The Director must confirm, modify or revoke the notice within 24 hours of receiving therequest.

(10) Subsection (8) does not apply if an employer has applied for a review under section 41 inrespect of the notice.

Section 39 Prevention of accidents and risks to health

9 (1) For the purpose of preventing injuries to, and risks to the health of, employees,contractors, persons engaged by a contractor and any other person at a workplace, theDirector, by notice in writing served on an employer or responsible officer, may –

(a) direct the employer or responsible officer to take such steps as the Director mayconsider necessary and are specified in the notice; or

(b) direct that any specified plant, equipment, appliance or substance must not beused in or in connection with, or stored at, the workplace specified in the notice.

(2) Without limiting subsection (1), a notice may require that an employer or responsibleofficer must so far as is reasonably practicable do all or any, or a combination of all or any,of the following:

(a) monitor the health of persons employed or engaged at the workplace;

(b) keep information and records relating to the health and safety of those persons;

(c) employ or engage a person who, being suitably qualified in relation to occupationalhealth and safety, is able to provide advice to the employer in relation to the healthand safety of those persons;

(d) monitor at a workplace under the employer’s control or management conditionslikely to affect the health and safety of any person;


(da) prepare and implement a safety management plan that conforms with relevantstandards of any prescribed authority;

(e) prepare a written health and safety policy.

(3) An employer or responsible officer on whom the notice is served must comply with thenotice.

(a) Penalty:


• a body corporate, a fine not exceeding 500 penalty units and a dailyfine not exceeding 50 penalty units for each day that the bodycorporate fails to comply with the notice; and

• a natural person, a fine not exceeding 200 penalty units and a daily finenot exceeding 20 penalty units for each day that the person fails tocomply with the notice.

(4) Where an employer or responsible officer is required under this section –

(a) to monitor the health of persons employed or engaged at the workplace or theconditions at a workplace under the employer’s control or management; or

(b) to keep information and records relating to the health and safety of those persons–

(c) the employer or responsible officer, at the request of the person whose health wasmonitored, must make the results of that monitoring or the information available tothat person or a person authorised in writing by that person to receive or examinethe monitoring or information.

(d) Penalty:


• a body corporate, a fine not exceeding 100 penalty units; and

• a natural person, a fine not exceeding 50 penalty units.

(5) An employer or responsible officer must so far as is reasonably practicable –

(a) provide such information (other than information referred to in subsection (4)) as anemployee employed by the employer requests relating to health and safety at anyworkplaces under the employer’s control or management; and

(b) consult with the relevant employees about the development of measures topromote health and safety at any workplaces under the employer’s control ormanagement.

(c) Penalty:




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(6) Nothing in subsection (4) is to be taken to require or authorise an employer or responsibleofficer to make available to the person requesting the results or information anyinformation or record relating to the health of any other person except with thepermission in writing of that other person.

Section 40 Notice to remedy building defects, etc.

10 (1) Subject to subsection (2), if it appears to the Director that a workplace, or a part of aworkplace, which is a building is defective by reason of being unsafe or injurious tohealth, the Director is to serve written notice on the employer at the workplace requiringthe employer to remedy the defect.

(2) If a workplace referred to in subsection (1) is not owned by the employer, the Directormay, instead of serving notice on the employer under that subsection, serve writtennotice on the owner of the building or the person receiving the rent in respect of thebuilding.

(a) 40(3) If a notice is served on the owner or a person under subsection (2), thatowner or person is taken to be the employer at the workplace for the purposes ofthis section.

(b) 40(4) A notice under this section is to specify –

(c) the nature of the defect; and

(d) the repairs, alterations or improvements required to be made; and

(e) the time within which those repairs, alterations or improvements are to becompleted.

(f) 40(5) A person on whom the notice is served must comply with the notice.

(g) Penalty:





8 Northern Territory WorkHealth Act 1986 (NT)

Section 41 Authority May Issue Prohibition Notice

11 (1) Where the Authority is of the opinion that at a workplace there is occurring or may occuran act which involves or will involve an immediate risk to the health or safety of a person,it may issue to the person who has or it reasonably believes has control over the act orthe activity in which the act may occur a prohibition notice prohibiting the continuation ofthe act or the carrying out of the activity until the Authority certifies in writing that theimmediate risk has been removed or, in its opinion, the act will not occur.

(2) A prohibition notice shall —

(a) state that the Authority is of the opinion that in the workplace there is occurring ormay occur an act which involves or will involve an immediate risk to the health orsafety of a person;

(b) state the reasons for that opinion;

(c) specify the act which, in the Authority’s opinion, involves or will involve the risk andthe matters which give or will give rise to the risk; and

(d) where in the Authority’s opinion the act involves or will involve a contravention orlikely contravention of this Act, specify the relevant provision and state the reasonsfor that opinion.

(3) A person —

(a) to whom a prohibition notice is issued and in relation to which an appeal has notbeen made under section 43; and

(b) who contravenes or fails to comply with it,

is guilty of a regulatory offence.

(c) Penalty

• In the case of a body corporate — $15,000.

• In the case of a natural person — $3,000, or imprisonment for 6 months.

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(d) Default penalty


• In the case of a natural person — $200.

(4) Where an appeal has been made under section 43, against a prohibition notice, theAuthority shall not certify under subsection (1) until after the appeal is withdrawn ordecided.

(5) Where the Authority issues a prohibition notice in respect of an act relating to the use ofany plant at a workplace, the Authority may place a mark on the plant, or any part of theplant, to indicate that the plant, or the part so marked, is not to be used until the Authoritycertifies, under subsection (1), in respect of the act in respect of which the prohibitionnotice was issued.

(6) A person who —

(a) uses any plant, or a part of any plant, on which a mark has been placed; or

(b) without the permission of the Authority, removes, obliterates or otherwise interfereswith a mark placed on any plant, or a part of any plant,

under subsection (5) is guilty of a regulatory offence.

(c) Penalty:


• In the case of a natural person — $3,000 or imprisonment for 6 months.

(d) Default Penalty:


• In the case of a natural person — $200.


9 Occupational Health andSafety Act 1989 (ACT)

Section 77 Prohibition notices

12 (1) Where an inspector believes on reasonable grounds that an activity carried on at aworkplace involves a risk of imminent and serious injury to a person at or near theworkplace, the inspector may, by notice in writing given to the person who is, or whomthe inspector reasonably believes to be, in charge of that activity, direct that person toensure that-

(a) the activity is not carried on; or

(b) the activity is not carried on except in accordance with directions specified in thenotice.

(2) Without limiting the generality of paragraph (1) (b), directions referred to in that paragraphmay include directions relating to-

(a) the part of the workplace at which the prohibited activity is not to be carried on;

(b) any plant or substance that is not to be used in connection with the prohibitedactivity; or

(c) any procedure that is not to be followed in connection with the prohibited activity.

(3) Where a prohibition notice is given to an employer, the employer shall-

(a) give a copy of the notice to-

(b) the health and safety representative for each designated work group for theemployer’s employees performing work that is affected by the notice; and

(c) the Chairperson of any health and safety committee in existence in respect of thoseemployees; and

(d) cause a copy of the notice to be displayed in a prominent place at or near eachworkplace at which that work is being performed.

(4) A person who, without reasonable excuse, contravenes subsection (3) is guilty of anoffence punishable, on conviction, by-

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(a) if the offender is a natural person-a fine not exceeding 10 penalty units; or

(b) if the offender is a body corporate-a fine not exceeding 50 penalty units.

(5) Where an inspector issues a prohibition notice, the inspector shall take all reasonablypracticable steps to give a copy of the notice to-

(a) where the notice is given to an employee in connection with work performed by theemployee for an employer-that employer;

(b) where the notice relates to any workplace, plant, substance or thing in which aperson (other than the person to whom the notice is given or an employer referredto in paragraph (a) has a prescribed interest-each such person; and

(c) where the notice is issued to a person (not being an employer) who has aprescribed interest in any workplace, plant, substance or thing by reason of whichthe inspector believes a contravention of this Act or the regulations is occurring oris likely to occur-the employer of the employees who work in that workplace or whouse that plant, substance or thing.

(6) Where an inspector believes on reasonable grounds that adequate measures have beentaken to remove the risk in respect of which a prohibition notice has been given to aperson, the inspector shall, by notice in writing given to the person, revoke the prohibitionnotice.

Documents

Reform – Occupational Health and Safety – Occupational Health and Safety Contents Abbreviations 1 General 1 Contractors 3 1 Introduction 5 2 Improving occupational health and safety