Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Occupational Safety and Health Convention, 1981 (No. 155) - Australia (Ratification: 2004)

Other comments on C155

Observation

Direct Request

2016
2012
2010
2009

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Further to its observation, the Committee would like to raise the following points.

The Committee notes the comprehensive and detailed information provided in the Government’s report, and in particular the responses provided by the Government demonstrating further effect given to Articles 12(c), 18 and 19(e) of the Convention. The Committee notes that the National Mine Safety Framework (NMSF) is focused on ensuring national consistency while avoiding overlap with the new Work Health and Safety (WHS) legislation, and is developing instructions that can be used for drafting legislative instruments, envisaged to come into force in 2013 for use in the three major mining States: Queensland, New South Wales and Western Australia. The Committee asks the Government to continue to provide information on legislative measures taken concerning the Convention.

Article 1 of the Convention. All branches of economic activity. The Committee notes that the Occupational Health and Safety (Maritime Industry) Act 1993 is currently being reviewed for, inter alia, harmonization with the new WHS Act (Commonwealth), and that the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act) applies provisions of this Convention in relation to persons engaged in offshore petroleum activities, but not off-take tankers, tugs or anchor handles and supply tenders and pipe-lay barges. The Committee asks the Government to continue to provide information on the measures taken to give adequate protection to workers in all branches of economic activity.

Article 4. Periodical review of national policy. The Committee notes with interest that the Australian Work Health and Safety Strategy 2012–22 was finalized and agreed by Safe Work Australia members in June 2012, following public comment. The strategy sets out four outcomes and seven action areas to achieve the vision of healthy and productive working lives by 2022, including a reduced incidence of work-related death, injury and illness, achieved by reduced exposure to hazards and risks, using improved hazard controls, supported by an improved national work health and safety infrastructure. The Committee asks the Government to continue to provide information on the progress made in relation to the abovementioned outcomes of this strategy.

Article 9(2). Adequate penalties. The Committee notes the communication by the Australian Council of Trade Unions (ACTU), dated 31 August 2012, which calls for serious penalties to be made available for the most serious offences, and that in this respect, with the exception of the Australian Capital Territory, other Australian jurisdictions lack “industrial manslaughter” legislation under which gross negligence or reckless endangerment causing the death or serious injury of a worker may lead to a jail term. In this respect, the Committee notes the maximum penalties indicated by the Government under sections 31–33 of the model WHS Act. The Committee further notes the maximum penalties for industrial manslaughter in the Australian Capital Territory, under Part 2A of the Crimes Act 1990. With reference to the foregoing, the Committee asks the Government to provide further information on the provision of adequate penalties, and in particular, in relation to gross negligence or reckless endangerment causing the death or serious injury of a worker.

Article 11(c). Notification of occupational accidents and diseases. The Committee welcomes the ratification by Australia of the 2002 Protocol to this Convention. The ACTU believes there is considerable scope for the Government to adopt measures to improve its data collection and reporting measures on occupational accidents and diseases, including collecting adequate statistics on matters relating to disease and illness, including psychosocial illnesses. The Committee asks the Government to respond to the comments by the ACTU, and to include detailed information in its next report on the application, in law and in practice, of the 2002 Protocol.

Articles 13 and 19(f). Protection of workers removed from situations presenting imminent and serious danger. The Committee notes the information provided by the Government in relation to sections 84, 86 and 104–106 of the model WHS Act, which appear to give full effect to Articles 13 and 19(f) of the Convention. The Committee notes that section 76(2)(d) of the Occupational Health and Safety Act 2004 (Victoria), states that an employer is guilty of an indictable offence if they discriminate against a worker who has raised an issue about health or safety, and that section 74 allows the employer or the health and safety representative, after consultation between them, to direct that any work involving an immediate threat to the health or safety of any person, cease. The Committee recalls that Article 19(f) prohibits an employer from requiring workers to return to a work situation where there is a continuing imminent and serious danger. The Committee further notes that section 36(3) of the Occupational Health, Safety and Welfare Act, 1986 (South Australia), allows a health and safety representative to direct that work cease until adequate measures are taken to protect the health and safety of a worker. In addition, the Committee notes that section 44 of the OPGGS Act, 2006 (Commonwealth) allows a worker, through a health and safety representative, to cease to perform work that is believed to present an imminent threat to health or safety. On the basis of the information that the Government has provided, in relation to Victoria, South Australia and in offshore petroleum activities, it would appear that the decision regarding whether a worker should cease work rests solely with the employer or health and safety representative, and not the workers themselves. The Committee asks the Government to provide further information on the measures taken in Victoria and South Australia, and in relation to offshore petroleum activities, to give full effect to Articles 13 and 19(f) of the Convention.

Article 17. Two or more undertakings engaged in activities simultaneously at one workplace. The Committee notes the effect given to this provision of the Convention in the Commonwealth, New South Wales, Queensland, Tasmania, the Northern Territory and the Australian Capital Territory through section 46 of the model WHS Act, which imposes a duty to consult with other duty holders. The Committee asks the Government to provide further information on the measures taken in Victoria, Western Australia and South Australia to give full effect to this provision of the Convention.

Article 19. Arrangements at the level of the undertaking. The Committee notes the response provided by the Government concerning effect given to Article 19(b). The Committee notes however, that information has not been provided in relation to Victoria and South Australia. The Committee asks the Government to provide information on the measures taken, in Victoria and South Australia, to ensure that representatives of workers in the undertaking co-operate with the employer in the field of occupational safety and health. The ACTU believes that there is considerable scope for improvement with respect to the participation of workers, their representatives and their representative organizations in relation to occupational safety and health matters. In this respect, the ACTU advocates for improved health and safety representative rights; improved access to unions; approved training and an increase in the number of training days; regional and roving health and safety representatives; and improved protection against discrimination. The ACTU further indicates that 118,300 (or 18.5 per cent) of workers that experienced a workplace injury had not received any training in occupational health and safety risks. The Committee asks the Government to respond to the comments by the ACTU, in particular concerning the practical application of Article 19(d) of the Convention.

Article 21. Expenditure for workers. The Committee notes the effect given to this provision of the Convention by section 273 of the model WHS Act which prohibits a person conducting a business or undertaking to levy or charge a worker for anything done or provided in relation to work health and safety. The Committee notes however, that legislation on this matter is limited to the right of health and safety representatives to take time off with pay (Victoria and Western Australia); that the costs for personal protective equipment are not borne by workers (Western Australia); and the reimbursement of training expenses (South Australia). The Committee asks the Government to provide information on the measures taken to ensure that occupational safety and health measures shall not involve any expenditure for the workers in Victoria, Western Australia and South Australia.

Part V of the report form. Application in practice. The ACTU indicates that of the approximately 12 million people that worked at some time in the 12 months to July 2010, 640,700 (or 5.3 per cent) workers experienced a workplace injury. In addition, in 2009–10, 337 people died from work-related traumatic injury – 216 killed while at work, 79 while travelling to or from work and 42 as bystanders to someone else’s work. The Committee notes that the Work Health and Safety Strategy 2012–22 sets three targets to measure the progress towards achieving its vision, including a reduction of at least 20 per cent in the number of worker fatalities due to injury; a reduction of at least 30 per cent in the incidence rate of claims resulting in one or more weeks off work; and a reduction of at least 30 per cent in the incidence rate of claims for musculoskeletal disorders resulting in one or more weeks off work. The Committee also notes the information contained in the 13th Edition of the Safe Work Australia “Comparative Performance Monitoring Report” published in October 2011. The report indicates that the highest incidence rate was recorded in the transport and storage industry (23.9 serious claims per 1,000 employees) followed by the manufacturing industry (22.1) and the agriculture, forestry and fishing industry (21.6), while the construction industry recorded a rate of 18.0 claims per 1,000 employees. The Committee welcomes the programme of work currently under way in New South Wales to target the top ten high risk industries and five most frequent injuries and illnesses, in consultation with affected industries. 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.