Identifying the WHS-related legislation and regulations that organisations must comply with in their jurisdiction, is a critical step in establishing a safety management system.  While legislation is “a law or set of laws suggested by a government and made official by a parliament” (Cambridge Dictionary, n.d., para. 1), regulations “are rules made by a government or other authority in order to control the way something is done or the way people behave” (Collins Dictionary, n.d., para. 1).  It is the regulations that establish the role of any WHS regulator, as an enforcer of WHS legislation.

Legislation

In Australia, since the 1970s, there have been calls for a uniform approach to WHS legislation between all states and territories, with unions seeking to ensure equitable nation-wide safety benchmarks for workers, and all levels of government seeking to enhance business productivity through streamlining of WHS expectations for companies (Windholz, 2013).  In 2009 a national review, involving extensive consultation with employer groups, WHS regulators, legal experts, and worker representatives (unions), recommended an “optimal structure and content of a model OHS [WHS] Act that was capable of being adopted in all [Australian] jurisdictions” (Safe Work Australia, n.d.-a, para. 9).

By April 2010, a committee comprised of workplace relations ministers from federal and state jurisdictions endorsed a model bill—a prototype draft—that could be presented in each jurisdiction and, in due course, be passed legislation.  This collaborative piece of work became known as the Model Work Health and Safety Bill.  At October 2023 all jurisdictions, except the State of Victoria, have implemented legislation fundamentally derived from the Model Act (Department of Employment and Workplace Relations, 2023).  Table 8.1 summarises each Australian jurisdiction’s WHS legislation, WHS regulator, and workers’ compensation entity.

Table 8.1: Summary of WHS legislation and regulators across Australian jurisdictions

Source: AIMS Industrial (n.d., para. 15).

As each Australian jurisdiction is different, nuanced changes—distinct from Model Act— have been made when it has been legislated.  Box 8.1. contains resources that enable comparison of legislation between Australian jurisdictions with regards to their implementation of key elements of the Model Act.

In New Zealand, a 2013 WHS taskforce concluded that “New Zealand’s work health and safety system was failing” (WorkSafe, 2019a, para. 3).  This timing coincided with Australia’s WHS legislative reformation and harmonisation efforts.  New Zealand adopted many elements from Australia’s Model Work Health and Safety Bill in it’s Health and Safety at Work Act 2015, with careful adaptations for the New Zealand context (WorkSafe, 2019a).  To this end, Australia and New Zealand safety legislation share a common objective which is articulated in Box 8.2.

In practice, PCBUs responding to the legislative requirements are mostly involved in:

1. Managing hazards and risks: Keep workers, and other persons, safe from work or workplace derived harm (subsection a)
2. Consulting on health and safety: Ensure worker consultation within the business is fair and effective (subsection b) and that engagement with employer and worker representative bodies (unions) is constructive (subsection c)
3. Educating on health and safety: Ensure workers are informed and capable (education and training) to undertake their WHS responsibilities, as corresponding to their roles (subsection d)

Subsection (e) refers to the establishment of a WHS regulator to enact compliance with the Act, and subsection (f) builds in checks and balances to ensure the appropriate enactment of legislation by regulators so they do not breach their powers.  Subsection (g) states that continuous improvement is imperative (this supports a systems-based approach to safety management).  Finally, and only specific to Australia, is the goal expressed in subsection (h) of unifying national WHS legislation through adoption of the Model Act.

PCBU obligations to manage hazards and risks will be the focus of Chapter 9: Hazard Identification, Chapter 10: Risk Assessment, Chapter 11: Hazard Control, and Chapter 12: Emergency Response, as compliance with  subsection (a) comprises the majority of an organisation’s WHS management activities.  Consulting and educating on health and safety will be explained briefly here but, more importantly, will be contextualised within Chapters 9 to 12, given this is when these interventions would roll out.  Subsequent to this, the discussion will explain the role of regulations and, specifically, the WHS regulator and any legislated or regulated bodies that enact worker compensation rights.

Consulting on Health and Safety

What comprises worker consultation that fulfils the legal and moral requirements of WHS management?  Good safety consultation:

Enables workers to respond and contribute to issues that directly affect them, and provide valuable information and insights.  It’s a two-way process where information and views are shared between PCBUs and workers. PCBUs can become more aware of hazards and issues experienced by workers, and involve them in finding solutions or addressing problems. (Safe Work South Australia, n.d, para. 8)

Consultation can range from extensively planned strategies for complex organisations, through to hazard and risk-based chats in smaller, lower risk, settings.  The extent of worker consultation that is reasonably practicable is determined by factors such as:

• the size of the business and how it is structured,

• the way work is arranged and where workers are located,

• what suits workers – ask your workers how they would like to be consulted and consider their needs, and

• the complexity, frequency and urgency of the issues that require consultation.  (Safe Work Australia, n.d.-b, para. 1)

 For due diligence purposes, the terms of reference and composition of any committees should be documented along with minutes of meetings that capture any safety concerns raised and, in subsequent meetings, how these were addressed in a reasonably practicable manner.  As such, staff need to be aware that they are fulfilling an obligation under the WHS legislation, so the PCBU and workers should take this responsibility seriously.

 Businesses should consult with workers regarding safety because “workers often notice issues and practices, or foresee consequences, that might otherwise be overlooked” (Safe Work South Australia, n.d, para. 8), leading to better overall hazard identification (see Chapter 9), risk assessment (see Chapter 10), and hazard control (see Chapter 11) i.e. safety outcomes.  As Reason (1997) points out, when endorsing a flexible culture, it is important that the people who do the task, and know it well, are those who are most empowered to control its safety management.  From Dekker’s perspective, it is only through having worker-driven WHS that safety can actually ever be achieved (Dekker, 2018).

So genuine attempts to consult with workers will ensure representation of workers from all parts of the business and across all work shifts (Safe Work Australia, n.d.-b); this will be further explored across Chapters 9–12 in examples, such as, Risk Assessment Example 1: Exposure to sunlight (and Glastonbury Festival!) in Chapter 10.

Educating on Health and Safety

Organisations have a legislated (legal) responsibility to inform, educate, and train workers regarding their safety rights and responsibilities; it is useful to understand the obligations of inform, educate and train specifically.

To inform is to “impart knowledge of some particular fact, occurrence, situation, etc.” (Oxford English Dictionary, n.d.-a, part 1.2).  This communication is likely in one direction, from the organisation to the worker.  The inform-ation will predominantly be top-down, generated centrally and broadly across the organisation (see Figure 8.1).  From an HR perspective, informing can occur when:

• Inducting a worker to a workplace, including when they change roles or sites, to ensure they are aware of relevant organisational policies and procedures as part of due diligence.
• Keeping workers up to date on safety initiatives or safety outcomes.  This supports an organisation’s learning culture but also reinforces its reporting culture as workers will see how their reporting of data generates safety initiatives.

Figure 8.1: An informational communication

Source: “Lightning Safety infographic” by State Farm, flickr.com, CC BY 2.0

To educate is to “help or cause (a person, the mind, etc.) to develop the intellectual and moral faculties in general; to impart wisdom to; to enlighten” (Oxford English Dictionary, n.d.-b, part 5).  The goal of educate is ambitious as it seeks to establish awareness to evoke cognitive and behavioural change (Arlinghaus & Johnson, 2018).  In the WHS management context, education will predominately involve adults, which likely requires two-way engagement between the educator, as an organisational representative, and workers, the participants in the course, to enable learning that encourages individuals to change their perceptions or perspectives.  This moral and behavioural aspect is particularly important if the educational intervention seeks to establish or align workers with the organisation’s desired safety culture (see Box 8.3).  From an HR perspective, education is likely to take place:

• Prior to hiring an employee, if formal studies are required to be eligible for recruitment into a specific role.
• As part of a worker’s continuing professional development by an external tertiary education provider, or run internally if tailored to address organisational issues or work conditions.

To train is to “subject to discipline and instruction for development of character, behaviour, or skill” (Oxford English Dictionary, n.d.-c, part 11.10).  Training is developing a specific skill to achieve targeted competency.  From an HR perspective, training can include:

• Familiarising a worker with machinery to ensure their competency (due diligence). A new recruit may have used a different model at their prior workplace or training institution, or, if the organisation upgrades machinery, all operators will require re-training.
• Familiarising a worker with a new job role to ensure competency (due diligence), such as when they transition to become a supervisor.

Legislative requirements to inform, educate and train are designed to pre-emptively strengthen an organisation’s safety defence layers (see Swiss Cheese Model, Figure 5.1).  To achieve this, every worker must be, and stay, informed.  Education can happen without training, for example this publication is an educational, not a training, resource.  While training can occur without education, this is strongly cautioned against.  A worker who has the skill to operate a machine, without any intellectual or moral understanding of safety, is vulnerable to an incident.  Only pathological and reactive businesses (see Figure 6.2; Hudson’s Safety Culture Ladder) would train without educate, whereas generative businesses would never separate safety education from training.

To achieve subsection (a), protecting workers and others from harm (see Box 8.2), the potential role of information, education and training in an organisation is embedded in further discussions of hazard identification (Chapter 9), risk assessment (Chapter 10) and hazard control (Chapter 11), and is central to the enactment of and emergency response (Chapters 12).  The effectiveness of inform, educate and train should be evaluated, as required by subsection (g), as part of continuous improvement (Chapter 13).

Regulation and the WHS regulator

Legislation is delegated as regulations to a minister or government department.  These entities are then responsible for monitoring and, when necessary, updating the regulations (Parliament Counsel Office, n.d.).  Legislation establishes the WHS regulator, an entity responsible for implementation of fines and penalties as specified in the regulations (see Box 8.5, where the role of a WHS regulator is defined in Australia).  Essentially, WHS regulators are responsible for ensuring an organisation’s due diligence.

In New Zealand, the WHS regulator is WorkSafe who consider that their job:

Isn’t just about compliance with the rules.  We also aim to promote and embed positive health and safety practices around the country, and to do this, we collaborate with persons conducting a business or undertaking (PCBUs), workers, health and safety representatives, and industry bodies.” (WorkSafe, 2018, para. 3)

This educative, versus punitive, approach recognises the innate challenge that WHS regulators face; there is always likely to be more businesses requiring inspection than inspectors available to conduct visits.  This was even the case during the British Industrial Revolution when the Health and Morals of Apprentices Act of 1802 was introduced, but only four inspectors were employed to inspect over 4000 mills (see Chapter 2).  Moreover, it makes sense that regulators would be more effective if they focus on shifting reactive or calculative organisations up Hudson’s Safety Culture Ladder (see Figure 6.2), rather than solely focusing on pathological businesses.  Box 8.5 defines the role of the WHS regulator, as implemented in full from the Model Health and Safety Bill, in the Australian federal legislation.

In practice, PCBUs will engage with their WHS regulator in some of the following ways:

1. Collaborating: Working together to enhance worker safety through exchanging information on occupational health issues (see Chapter 4) or best practice hazard and risk assessment.
2. Inspecting: Receiving a site visit and this can include unannounced workplace inspections if potential safety breaches have been reported by a whistle-blower (see Box 8.6).
3. Notifying: Reporting on scheduled or completed work as required by legislation;  or reporting on their hazardous substances; or notifying illnesses, injuries or incidents (see Box 8.7).
4. Investigating: Receiving a site visit specifically designed to investigate active failures and latent conditions (causes) of a WHS incident to determine if safety management was  reasonably practical or negligent.
5. Prosecuting: Defending due diligence against accusations of negligence in a court of law.

Both WHS regulators and PBCUs should strive to engage via collaboration.  Investigations and prosecution are very undesirable given it likely involves a tragic incident and, from the organisation’s perspective, is associated with considerable business risk.  Box 8.8 contains a short news podcast on an investigation undertaken when two port workers died within a week of each other at two different ports in New Zealand.

While poor regulatory compliance does exist, there are businesses that choose to go above and beyond compliance and adhere to voluntary compliance initiatives, such as those endorsed by the United Nations as is now discussed in Past Influencing the Present.

Worker Compensation Rights Regulation

In many jurisdictions, legislation will afford workers the right to be compensated for any work-derived injury or illness.  This ‘workers’ compensation’ emerged as a response to limitations in British common law that previously required employees to sue for compensation (see the following Past Influencing the Present for more details).  The goal of most modern workers’ compensation schemes is to ensure that workers, who offer their labour to an employer, are compensated for the costs of any illness or injury associated with the provision of their labour.

In turn, employers pay levies into a scheme that should seek to fairly compensate worker costs, without exposing the business to safety liability (Safe Work Australia, 2011).  The WHS regulator, rather than workers, retains the capacity to prosecute businesses for safety negligence (see Box 8.5).  Moreover, levies can incentivise good safety practice as payments can be reduced according to “a good record of managing worker safety and recovery at work” (Icare, n.d.).

Where possible, the goal for all parties in workers’ compensation schemes is that the worker return to work because this is good for business but, importantly, for workers as “work is one of the most effective ways to improve wellbeing” because it supports “participation, independence and social inclusion” (Comcare, 2023a, para. 2).

Even today, as influenced by their histories, different countries’ jurisdictions will tend more towards a universal health approach or adhere strictly to workers’ compensation schemes.  As we will now find out, New Zealand has a more universal health approach and Australia has a workers’ compensation scheme.

Worker compensation rights in New Zealand

New Zealand has a universal coverage approach to injury:

If someone in New Zealand has an accident and we cover their injury, we use this money to help pay for and support their recovery. This includes treatment, health, rehabilitation and support services, loss of income or financial help and injury prevention in the community. (Accident Compensation Corporation, 2018, para. 2)

This coverage applies to anyone who incurs an injury, including visitors, within New Zealand (see Box 8.9).  This compensation is administered via the Accident Compensation Corporation (ACC).

Unlike overseas workers’ compensation schemes, where levies may be solely collected from businesses, in New Zealand the accident compensation scheme is funded via a broad base including business, income, fuel and vehicle levies, and broader government funded via tax.  However, like in other workers’ compensation schemes, business premiums are linked to business safety performance with a poor claims record leading to higher levies (Accident Compensation Corporation, 2018).  While having universal accident cover can be considered positive, in the context of workplace health and safety it is noted by WorkSafe that “New Zealand has high rates of workplace fatalities, serious harm injuries, and work related illness compared to other OECD [Organisation for Economic Co-operation and Development] member countries” (WorkSafe, 2023, para. 2).  This infers that the accident compensation scheme may be so (cost) effective that it may inadvertently be leading to an over-reliance on prosecution to address business safety negligence.

In contrast to worker’s compensation schemes, there is no coverage provided for worker illness and “every year, more than 100,000 New Zealanders are made redundant, laid off, or have to stop working because of a health condition or a disability” (Ministry of Business, Employment and Innovation, 2022, p. 4).  Those who lose their jobs can experience considerable disadvantage if not eligible for redundancy payments or welfare therefore, in 2022, the New Zealand Government put out a discussion document to consider if an income insurance scheme might be viable to introduce (Ministry of Business, Employment and Innovation, 2022).

Worker compensation rights in Australia

In Australia, workers receive compensation for “medical treatment, rehabilitation or time off to recover after being injured at work” (Health Direct, 2021, para. 2).  It also provides compensation for those who have a work-acquired occupational disease (Health Direct, 2021).  Notably, “to be eligible, workers only have to prove that their injuries were work related—they do not need to prove negligence on the part of an employer” (Safe Work Australia, 2011, p. 5).  This means it only addresses workplace illness or injuries (unlike the accident cover in New Zealand), but still embeds a ‘no fault’ (no blame-the-victim or blame-the-system) approach.

Australian-based workers’ compensation are managed as insurance schemes and “under Australian law, employers must have insurance to cover their workers in case they get sick or injured because of work” (Safe Work Australia, n.d.-c, para. 1).   Businesses pay levies that are calculated according to the risk their industry poses to workers and worker compensation claims are linked to the specific business (Icare, n.d.).  The compensation to workers can include some wages while recovering, medical costs (including those associated with rehabilitation or care being provided), lump sums for permanent disability (to enable reasonable adjustments around home), or compensation to families in the case of a fatality (Safe Work Australia, 2011).

PCBU engagement with compensation schemes

In practice, PCBUs will engage with the compensation regulator, or their delegated insurer, in some of the following ways when an employee is injured:

1. Registering: Confirm that the effected worker is registered with the scheme to ensure their medical care is sufficient and all costs are compensated.
2. Administrating: Provide any required details, and process any relevant documents, to enable the worker’s care.
3. Monitoring: Engage with the compensation body to monitor the progress of recovery and stay engaged with your worker(s) to enhance their wellbeing.
4. Collaborating: Working together with the compensation body, occupational health professionals and the worker to develop a return to work plan to make reasonable adjustments so they can work until their full, if possible, recovery.

This chapter has broadly outlined the compliance expectations established by the Model Work Health and Safety Bill (Safe Work Australia, n.d.-a), which has subsequently been brought into law via legislation in all jurisdictions,  except for the State of Victoria, and in New Zealand.  This chapter is not designed to replace the ‘compliance’ checking phase of any organisation’s safety management system but, instead, it seeks to explain the rationales behind the act, some of the implications for practice and to cite reliable information sources that could be accessed and further considered.

With compliance notionally understood, implementation will be the focus on the next five chapters which will move step-by-step through hazard identification, risk assessment, and determining what hazard controls are reasonably practicable before, finally, designing emergency responses enabling workers to escape safely as a final safety defence layer.