EXPLANATORY STATEMENT
Issued by the authority of the
Minister for Tertiary Education, Skills, Jobs and Workplace Relations
Occupational Health and Safety Act 1991
Definition of “Employee” — subsection 9(5)
The Occupational Health and Safety Act 1991 (the Act) provides occupational health and safety coverage for Commonwealth employees.
Section 9 defines who is an “employee” for the purposes of the Act. Under subparagraph 9(5)(a)(i) of that definition, the Minister can declare that persons, being persons 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 are taken to be employed by the Commonwealth for the purposes of the Act.
This legislative instrument seeks to provide occupational health and safety coverage for approximately 500 volunteer persons who will assist in the preparation and running of activities associated with the Commonwealth Heads of Government Meeting (CHOGM) 2011 in Perth, under the supervision of the CHOGM 2011 Taskforce.
Coverage would apply to duties performed by such persons in connection with event preparations, providing transport and general assistance rendered to CHOGM 2011 delegates.
It is appropriate that persons assisting the CHOGM 2011 Taskforce in a voluntary capacity be covered by the Act as they will provide services at the request of the Commonwealth, which confer a public benefit. Accordingly, the declaration by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations under the Act will ensure that it applies to such persons when they perform relevant acts.
The declaration was requested by Senator the Hon Kate Lundy, Parliamentary Secretary to the Prime Minister. Consultation was undertaken with the CHOGM 2011 Taskforce as the affected body. Further consultation was unnecessary as no other body is affected by the declaration. An exemption from the preparation of a Regulation Impact Statement was granted by the Office of Best Practice Regulation.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
This declaration is expressed to commence the first day after it is added to the Federal Register of Legislative Instruments, for the duration of the period up to and including, 30 November 2011.
Overview
The Occupational Health and Safety Act 1991, enacted by the Commonwealth Parliament, provides occupational health and safety coverage for Commonwealth employees. In 2011, the Minister for Tertiary Education, Skills, Jobs and Workplace Relations issued a legislative instrument to address a gap in coverage for volunteers assisting in the preparation and running of activities associated with the Commonwealth Heads of Government Meeting (CHOGM) 2011 in Perth. This instrument was necessary to ensure occupational health and safety coverage for approximately 500 volunteers who were to be supervised by the CHOGM 2011 Taskforce. The policy objective was to extend the Act's coverage to these volunteers, who were performing duties at the request of the Commonwealth and providing a public benefit. The instrument was developed following consultation with the CHOGM 2011 Taskforce and exempt from a Regulation Impact Statement. It was declared to commence on the first day after its addition to the Federal Register of Legislative Instruments, lasting until 30 November 2011.
Scope and Application
The Occupational Health and Safety Act 1991 (the Act) is designed to provide occupational health and safety coverage for Commonwealth employees, and through this specific legislative instrument, extends its application to volunteers who will assist in the preparation and execution of activities related to the Commonwealth Heads of Government Meeting (CHOGM) 2011 in Perth. This extension under subsection 9(5)(a)(i) of the Act's definition of "employee" allows the Minister to declare that certain volunteers performing tasks at the Commonwealth's request or direction, for its benefit, or under a legal requirement, are considered Commonwealth employees for the purposes of the Act. This ensures that approximately 500 volunteers who will be involved in event preparations, transport, and general assistance for CHOGM 2011 delegates receive the same occupational health and safety protections as permanent employees. The declaration, which was requested by Senator the Hon Kate Lundy and follows consultation with the CHOGM 2011 Taskforce, is effective from the day it is added to the Federal Register of Legislative Instruments until 30 November 2011. This legislative instrument does not require a Regulation Impact Statement and operates under the Legislative Instruments Act 2003.
Key Provisions
The Occupational Health and Safety Act 1991 (the Act) primarily provides coverage for Commonwealth employees, ensuring their safety in the workplace. Section 9(5) of the Act defines who is considered an "employee" for its purposes, allowing the Minister to declare certain persons to be employed by the Commonwealth if they engage in activities or perform acts at the request or direction of the Commonwealth, or under a requirement made by or under a law of the Commonwealth (subsection 9(5)(a)(i)). This particular legislative instrument extends occupational health and safety coverage to approximately 500 volunteers who will assist in the preparation and running of activities associated with the Commonwealth Heads of Government Meeting (CHOGM) 2011 in Perth. This extension is intended to cover the duties performed by these volunteers, including providing transport and general assistance to CHOGM 2011 delegates.
The Act imposes specific obligations on the parties it governs. For instance, employers must ensure, as far as is reasonably practicable, the health and safety of their employees. This includes providing a safe working environment, necessary training, and adequate supervision. Employers must also consult with their employees on health and safety matters. Similarly, employees are required to take reasonable care of their own health and safety, as well as that of others who may be affected by their actions or omissions at work. Under this declaration, the Commonwealth assumes a duty of care towards the declared volunteers, ensuring they are provided with a safe working environment and necessary protections during their involvement with CHOGM 2011 activities.
Failure to comply with the provisions of the Occupational Health and Safety Act 1991 can lead to significant legal consequences. Offences under the Act can attract civil and criminal penalties. For example, breaches that result in serious harm or death can lead to criminal charges. Under section 28 of the Act, individuals found guilty of a breach that results in death can be liable for a maximum penalty of up to six months imprisonment, or a fine of up to $12,600 for individuals, and up to $63,000 for bodies corporate. Additionally, breaches that cause grievous bodily harm can result in a maximum penalty of up to five years imprisonment, or fines up to $252,000 for individuals, and $1,260,000 for bodies corporate. These penalties underscore the seriousness with which the Act treats the health and safety obligations of employers and employees alike.