All employees in the Australian Government Territory have rights to work in a safe environment. The rights which workers have are not consistent and may depend on whether you are employed in the private sector or in the public sector.

There can even be some differences between whether you are employed in the public sector by the ACT Government or the Federal Government. But to complicate matters even more if you are employed by the armed services your rights to a safe environment can be slightly different yet again.

For a long time the right to a safe working environment was under the control of laws made by the courts. This is known as common law. During the 1800s the courts said that by choosing to work in an unsafe workplace the worker was giving up his or her rights to get compensation following an injury. The view was that a sensible person would not put up with an unsafe workplace and get a job elsewhere.

Eventually the courts realised this was unrealistic and began to find that people could claim compensation if the workplace was unsafe.

During the 1900s governments introduced laws intended to make workplaces safer. This began with regulating the safe use of machines and by the end of the 1900s occupational health and safety legislation specified detailed requirements for a safe workplace. 

THE LAW RELATING TO OCCUPATIONAL HEALTH AND SAFETY: JUDGE MADE LAW

The Common Law?

By the end of the 1800s the courts and judges realised working people may have no real choice between starvation or dangerous employment. Because of this the courts began finding in favour of people injured at work and giving them compensation.

The economic imperative of this was that workplaces had to become safer or start paying out more money in compensation claims or at least more on insurance premiums to cover the compensation claims.

For a long time the courts and judges said the need to be safe in the workplace rested with individuals rather than their employer. Courts would find co-worker of the injured worker was to blame and the employer could escape paying the compensation. But, by the 1920s things began to change with the court recognizing that a worker may not have the ability or the power to change his workplace to protect himself or others.

The courts then began to rule that the employer had the primary and perhaps the sole obligation to make sure that a workplace was safe.

This area of judge made law is referred to as “negligence”. This means that the injured worker must show that the employer did something wrong.

Examples may be an employer failing to keep floors clear of rubbish causing workers to fall and injure themselves. It may also include having workers operate machines without proper guards, or lift weights which are excessive.

The limitation on court made law in protecting Occupational Health and Safety is the need to show that the employer did something wrong. There is an obligation on the injured worker to show how the injury occurred and to then show that the employer is at fault because he or she did not make sure that the workplace was safe or that there was a safer way of doing something. 

THE LAWS RELATING TO OCCUPATIONAL HEALTH AND SAFETY: LAWS MADE BY PARLIAMENT LEGISLATION

Laws made by Parliament are called legislation. The first way in which legislation began affecting Occupational Health and Safety was in the late 1800s when workers compensation laws were first introduced. The advantage these laws had over the common law was that the injured worker did not have to show that the employer had done anything wrong.

These workers compensation schemes are “no fault” schemes. A no fault scheme means that the injured worker only needs to show that the injury occurred in the workplace. This meant that employers could end up paying compensation for an injury in the workplace despite the fact that the workplace was as safe as it could possibly be.

The greatest advance however was that employers were forced to make sure the workplace was as safe as possible so they could avoid compensation claims from injured workers.

The next advance was legislation to control specific activities. In New South Wales and the Australian Capital Territory the main piece of legislation was the Scaffolding and Lifts Act. This Act was the cover-all legislation for a large number of regulations which in the Australian Capital Territory are now some 300 pages long.

These regulations cover areas such as:

• safety measures to be used in excavation work;
• safe guards in the use of explosives;
• basic requirements for the use of cranes and scaffolding.

The regulations are very detailed. They are also often ignored. For example it was not until well after the implosion of the old Royal Canberra Hospital that the Coroner noted that Regulation 84 did not allow explosives to be used in the demolition of buildings.

The Territory lagged behind the rest of Australia in other areas of occupational health and safety until self government in 1989. The new Territory Parliament (called the House of Assembly) introduced the Occupational Health and Safety Act 1989 (the Act) which is quite brief when compared to the very specific rules in the Scaffolding and Lifts Act. The most important part of this Act is the part which sets out the duties of employers.

Section 27 of the Act is very broad. It states that “an employer shall take all reasonably practicable steps to protect the health safety and welfare at work of the employer’s employees”. This wording is clearly meant to be a catch-all. The great advance with this sort of wording is the obligation that it places on employers.

Under the court made law the injured worker must show that the employer did something wrong. Act there is an obligation on an employer to take reasonable steps to protect employees. More importantly the Act refers not only to health and safety but also to the welfare of employees. At the moment it is not clear exactly what the phrase welfare means but it is clear it is meant to be a broader concept than simple health and safety. Perhaps it could extend to providing employee assistance schemes such as counselling, or training opportunities and career assistance. 

PROTECTING YOUR RIGHT TO A SAFE WORKPLACE

The common law and the courts have very little say in protecting health and safety before anyone gets injured. To get a matter into court you need to have an injury. A court will rarely look at a matter to decide that a workplace is unsafe. You need to go to court and say not only is the workplace unsafe but that you also got injured due the unsafe workplace.

In specific cases the Scaffolding and Lifts Regulations will govern how a workplace is to be made safe. Those regulations are only useful if you are in one of the specific industries mentioned in those regulations. These main industries are building and construction, and manufacturing.

For the majority of the work force the relevant laws governing workplace safety are to be found Occupational Health and Safety Act (the Act).

This Act governs all places of employment in the Australian Capital Territory. This includes all public sector areas both Federal and local and all private workplaces. It also covers all of the workplaces which are also under the control of the Scaffolding and Lifts Regulations.

The Act gives employees substantial power to control safety issues. The Act requires employers to set up work groups. These work groups represent and safeguard the interests of employees in the health and safety of their workplace. One of the important things in a work group can do is appoint a health and safety representative for the group.

The health and safety representative has power to as inspect the workplace if there has been a dangerous occurrence or believes that there is a threat of a dangerous occurrence. The representative can obtain access to information from the employer about health and safety.

If the health and safety representative believes that the workplace does not conform to the requirement of the Act then the representative can issue a “provisional improvement notice” or pin. The pin must then be brought to the attention of ACT WorkCover inspectors and made known to all workers who might be affected. The onus is then on the employer to deal with the problem identified by the notice. 

WHAT YOU CAN DO ABOUT SAFETY IN THE WORKPLACE

You can be proactive in protecting your own safety and the safety of other employees.

If you know your workplace is unsafe in some way you can raise it with your designated workgroup and with the health and safety representative. If appropriate action is next taken by your employer you can then raise the matter directly with ACT WorkCover and ask for an inspector to come to the workplace and investigate the issue.

If you have been harmed by an unsafe workplace you can still raise the matter with your designated work group, with the health and safety representative or with ACT WorkCover inspectors. You can also make a claim for compensation. A claim for compensation can be under the “no fault” workers compensation scheme or under the common law. However, your ability to claim compensation at common law is severely limited if you are employed in the public sector.

The restriction of common law right to compensation can remove a substantial incentive for employers to create a safer workplace. Generally common law awards of damages greatly exceed the amount of compensation available from workers compensation schemes. However, it is necessary to prove your employer was at fault or negligent if your common law claim is to be successful. The Territory retains employees common law rights to sue negligent employers without the substantial restrictions applied in other States. While legislation can fine employers with an unsafe workplace generally there is no better incentive than an award of damages to encourage an employer to fix the unsafe workplace. Unfortunately paying fines may be cheaper for a large employer than fixing up an unsafe workplace.