Occupational Health and Safety (Commonwealth Employment) Act 1991 - Persons Taken to be Employed by the Commonwealth (24/09/2001)

Overview

The Occupational Health and Safety (Commonwealth Employment) Act 1991 was enacted to provide for the health and safety of Commonwealth employees and others at work, establishing a cooperative framework between Commonwealth employers, employees, and involved unions to address health and safety issues. The Act was enacted by the Commonwealth Parliament to ensure that the occupational health and safety of individuals working under Commonwealth employment is adequately protected. A notable gap in the Act was the exclusion of certain classes of persons, such as those holding an honorary rank in the Defence Force and members of philanthropic organisations that provide services to the Defence Force, who nonetheless perform acts at the request or direction of the Commonwealth. The explanatory statement issued by the Minister for Employment, Workplace Relations and Small Business clarifies that it is appropriate for these individuals to be covered under the Act to ensure their occupational health and safety when performing acts for the Commonwealth. The declaration made by the Minister aims to extend the application of the Act to these classes of persons, ensuring they receive the necessary occupational health and safety protections.

Scope and Application

The Occupational Health and Safety (Commonwealth Employment) Act 1991 aims to ensure the health and safety of Commonwealth employees and others at work, establishing a collaborative framework involving employers, employees, and unions to address occupational health and safety issues within the Commonwealth. This Act applies to persons who are deemed to be employed by the Commonwealth, as defined under subsection 9(5), which allows the Minister for Employment, Workplace Relations and Small Business to declare certain classes of persons as employees if they engage in activities or perform acts at the request or direction of the Commonwealth, for its benefit, or under a Commonwealth law. Currently, the Act does not apply to those who hold an honorary rank in the Defence Force and members of philanthropic organisations that provide services to the Defence Force. However, the explanatory statement proposes that these individuals, due to their connection with or involvement in the Australian Defence Force, should also be covered under the Act to ensure comprehensive occupational health and safety provisions. The declaration made by the Minister will extend the Act's application to these classes of persons from the date of its publication in the Gazette.

Key Provisions

The Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act) primarily aims to ensure the health and safety of employees working for the Commonwealth and others affected by their work (s. 1). A key provision of the Act is found in section 9(5), which allows the Minister for Employment, Workplace Relations and Small Business to declare by written notice that specific classes of persons may be considered employees for the purposes of the Act. This declaration applies to those who engage in activities or perform acts at the request or direction, for the benefit, or under a requirement made by or under a law of the Commonwealth. This provision broadens the scope of the Act to include individuals who, although not traditionally considered employees, perform functions on behalf of the Commonwealth. Under this Act, the Commonwealth employers are required to ensure, as far as reasonably practicable, the health and safety of their employees and others who may be affected by their work (s. 16). Employees, in turn, have the obligation to take reasonable care for their own health and safety and comply with any reasonable instructions given by their employer (s. 17). Unions and safety representatives also play a role in ensuring that health and safety issues are addressed, with specific duties and rights provided for in the Act (ss. 33 and 34). Failure to comply with the requirements of the Act can lead to significant consequences. The Act imposes both civil and criminal penalties for breaches. For example, section 28 outlines that an individual who contravenes a direction issued under the Act may be liable to a civil penalty of up to $1,260,000 for a corporation, or $63,000 for an individual. Additionally, under section 30, an individual who is found guilty of a criminal offence under the Act may face imprisonment for up to six months, a fine of up to $37,500 for an individual, or both. These penalties serve as deterrents against non-compliance and underscore the seriousness with which the Act treats occupational health and safety issues.