Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comprehensive and detailed information provided in the Government’s reports, and notes that the commonwealth, state and territorial legislation and regulations ensure legislative conformity with a majority of the provisions of the Convention. The Committee notes with interest the information indicating that under the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, Australian state and territorial governments have agreed to harmonize legislation on occupational health and safety by 1 January 2012. The Committee asks the Government to continue to provide information on legislative measures taken concerning the Convention.

The Committee also notes the communication by the Australian Council of Trade Unions (ACTU) received on 25 October 2010 and transmitted to the Government on 2 November 2010. The Committee notes the comments by the ACTU that there is a need to ensure that the ongoing harmonization process does not result in the diminution of occupational health and safety protections and rights for workers and trade unions in Australia. The Committee asks the Government to respond to the comments by the ACTU.

Article 4 of the Convention. National policy to prevent accidents and injury to health. The Committee notes the information provided by the Government that through a partnership of governments, employers’ and workers’ organizations, SafeWork Australia provides a national forum for leadership and coordination of efforts to prevent work-related death, injury and disease, including the implementation and further development of the National Occupational Health and Safety (OHS) Strategy 2002–12. The Government indicates that the Strategy, which was endorsed by governments, the ACTU and the Australian Chamber of Commerce and Industry, provides a framework for ensuring that there is a sustained and substantial improvement in Australia’s work health and safety performance. The Committee asks the Government to continue to provide information on the formulation, implementation and periodical review of a coherent national policy on occupational safety, occupational health and the working environment which aims to prevent accidents and injury to health; and to indicate the same for each state and territory.

Article 12(c). Responsibilities on those who design, manufacture, import, provide or transfer machinery, equipment and substances for occupational use. The Committee notes the information provided by the Government, including the activities undertaken by SafeWork Australia to encourage continual improvement of occupational health and safety (Commonwealth); the duty on almost all duty‑holders (employers, manufacturers, designers, and suppliers) to be cognisant of, and familiar with, the existing “state of knowledge” about hazards and risks and ways of removing or mitigating them (Victoria); the wide dissemination of information through newsletters and safety alerts (Queensland); and the requirement to provide toxicological data and material safety data sheets for substances (Western Australia, South Australia, Tasmania, Northern Territory, Australian Capital Territory). The Committee asks the Government to provide further information on measures taken or envisaged with a view to ensuring that those who design, manufacture, import, provide or transfer machinery, equipment and substances for occupational use undertake studies and research or otherwise keep abreast of the scientific and technical knowledge necessary to comply with subparagraphs (a) and (b) of Article 12.

Article 13 and Article 19(f). Protection of workers removed from situations presenting imminent and serious danger. The Committee notes the information provided by the Government on the measures taken in relation to Articles 13 and 19(f), including the rights of workers, who have removed themselves from a work situation, to be protected from undue consequences (New South Wales, Queensland, Western Australia, Tasmania, Northern Territory, Australian Capital Territory). The Committee notes that in the Commonwealth and Victoria, such a right exists under statute only when a workers is directed to by a health and safety representative, or an employer, and that it is not specifically addressed in South Australia. The Committee further notes the provisions requiring a worker to report forthwith to their immediate supervisor any situation presenting an imminent and serious danger (New South Wales, Western Australia, Tasmania) and which prohibit an employer to require workers to return to a work situation where there is a continuing imminent and serious danger (Commonwealth, Victoria, Queensland, Western Australia, Tasmania, Northern Territory, Australian Capital Territory). The Committee notes the comments of the ACTU that this is an important right that should be codified in the Occupational Health and Safety Act 1991, as it is in the Model WHS Act. The Committee requests the Government to provide further information on the measures taken or envisaged to ensure that a worker who has removed themselves from a work situation is protected from undue consequences: Commonwealth, Victoria, South Australia (Article 13); and that a worker must report forthwith to their immediate supervisor any situation which they have a reasonable justification to believe presents an imminent and serious danger to their life or health: Commonwealth, Victoria, Queensland, South Australia, Northern Territory, Australian Capital Territory; and that until the employer has taken remedial action, the employer cannot require workers to return to the work situation where there is a continuing imminent and serious danger to life or health: New South Wales and South Australia (Article 19(f)).

Article 17. Two or more undertakings engaged in activities simultaneously at one workplace. The Committee notes the following information: section 10(2) of the Occupational Health and Safety Act requires that where there are two or more “employing authorities”, the duties imposed by the Act must be performed “jointly” (Commonwealth); clause 8 of the Occupational Health and Safety (OHS) Regulation 2001 requires responsibility with respect to a particular OHS matter to be discharged in a coordinated manner where more than one person holds such responsibility (New South Wales); section 28 of the Workplace Health and Safety Act states that a person (the relevant person) who conducts a business or undertaking has an obligation to ensure the workplace health and safety of the person, each of the person’s workers and any other persons is not affected by the conduct of the relevant person’s business or undertaking (Queensland); regulation 1.3.1(3) of the Occupational Health, Safety and Welfare Regulations defines consultation to include sharing of information with other employers when required (South Australia); and section 22 of the Work Safety Act states that a person who has, to any extent, control of a workplace, shall take all reasonably practicable steps to ensure that it is safe and without risk to health (Australian Capital Territory). Noting that the information above, and that the information provided with regard to the application of this Article in Victoria, Western Australia and the Northern Territory indicates that legislative or other provisions do not explicitly require collaboration whenever two or more undertakings engage in activities simultaneously at one workplace, the Committee requests the Government to provide further information on measures taken or envisaged to ensure that the provisions of Article 17 are fully applied in these States and territories.

Article 18. Employers to provide measures to deal with emergencies and accidents, including adequate first-aid arrangements. The Committee notes the following information: section 11(7)(c) of the Occupational Health and Safety (Maritime Industry) Act which requires operators, and section 16(5)(c) of the Occupational Health and Safety Act which requires employers, to provide appropriate medical and first aid services for employees (Commonwealth); sections 335, 349 and 350 of the Workplace Health and Safety Regulations, which provide obligations in relation to the provision of first-aid facilities in workplaces and the relevant sections under the Mining and Quarrying Safety and Health Regulations and the Petroleum and Gas Act, which provide for risk management when dealing with emergencies, including identification, planning and provision of adequate first-aid arrangements (Queensland); regulation 24 (emergency procedures and training) of the Workplace Health and Safety Regulations, which requires evacuation procedures in the event of an emergency and regulation 25, which requires appropriate rescue equipment, training and instruction in action to be taken in an emergency (Tasmania); and section 23 of the Work Safety Act, which states that an employer must take all reasonably practicable steps to provide appropriate medical and first-aid services for employees and Division 2.8.2 of the Dangerous Substances (General) Regulation 2004, which provides for the implementation of an emergency plan (Australian Capital Territory). The Committee asks the Government to provide further information on measures to ensure employers are required to provide, where necessary, measures to deal with emergencies and accidents: Commonwealth; Queensland (in non-mining and petroleum workplaces); Australian Capital Territory (outside of workplaces with dangerous substances), including adequate first-aid arrangements; Tasmania.

Article 19(b) and (e). Arrangements at the level of the undertaking. While noting the information provided by the Government in its report, the Committee notes that full effect does not appear to have been demonstrated with regard to Article 19(b) and (e) in respect to a number of states and territories. The Committee notes that while there are provisions requiring representatives of workers in the undertaking to cooperate with the employer, in accordance with Article 19(b), in the Commonwealth, New South Wales, Western Australia, Tasmania and the Northern Territory, this requirement is only provided for health and safety committees in Victoria and South Australia, and that no provisions specify this requirement in Queensland and the Australian Capital Territory. The Committee also notes the provisions giving effect to Article 19(e) in Western Australia but notes that while there are provisions to enable workers and their representatives to be consulted by the employer in the Commonwealth, New South Wales, South Australia, Tasmania, Northern Territory and the Australian Capital Territory, no information is provided on the specific provisions that allow workers and their representatives to inquire into all aspects of occupational safety and health and for this purpose to bring in technical advisers from outside the undertaking. The Committee also notes that there are no provisions on the requirements under Article 19(e) in Victoria and that they are only provided for representatives of workers in Queensland. The Committee therefore asks the Government to provide further information on the measures taken or envisaged to enable representatives of workers in the undertaking to cooperate with the employer in the field of occupational safety and health, in accordance with Article 19(b): Victoria, Queensland, South Australia, Australian Capital Territory; and that workers or their representatives are enabled to inquire into, and are consulted by the employer on, all aspects of occupational safety and health associated with their work, and that for this purpose technical advisers may, by mutual agreement, be brought in from outside the undertaking, in accordance with Article 19(e): Commonwealth, New South Wales, Victoria, Queensland, South Australia, Tasmania, Northern Territory, Australian Capital Territory.

Article 21. Expenditure for workers. The Committee notes the information provided by the Government which indicates explicit provisions in the Commonwealth, New South Wales and Australian Capital Territory legislation ensuring occupational safety and health measures do not involve any expenditure for workers. The Committee asks the Government to provide information on the legislative or other measures which ensure that occupational safety and health measures do not involve any expenditure for workers: Victoria, Queensland, Western Australia, South Australia, Tasmania and Northern Territory.

Part V of the report form. Application of the Convention in practice. The Committee notes the information provided by the Government on the application of the Convention in practice in Victoria, Queensland, South Australia, Northern Territory and the Australian Capital Territory. The Committee asks the Government to continue to provide information and statistics on the application of the Convention in practice, in particular on the situation regarding occupational safety and health as a whole across the country, noting any trends or patterns that have emerged.

[The Government is asked to reply in detail to the present comments in 2012.]