EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 93
Issued by the authority of the Minister for Tertiary Education, Skill, Jobs and Workplace Relations
Occupational Health and Safety Act 1991
Occupational Health and Safety (Safety Arrangements) Amendment Regulations 2011 (No. 1)
The Occupational Health and Safety Act 1991 (the Act) establishes a statutory framework to secure the health and safety at work of employees of the Commonwealth, Commonwealth authorities and non-Commonwealth licensees.
Section 82 of the Act provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Regulations prescribe the Director-General of the Australian Agency for International Development (AusAID) as employing authority for Australian Civilian Corps (ACC) employees.
The Australian Civilian Corps Act 2011 (ACC Act) was passed by Parliament on
22 March 2011 and creates a legal framework for the management of ACC personnel and provides for employment arrangements for these personnel. The purpose of the ACC is to enable the rapid deployment of civilian specialists into countries experiencing or emerging from conflict or disaster.
The ACC Act provides that the Director-General of AusAID, on behalf of the Commonwealth, will have all the rights, duties and powers of an employer in respect of an ACC employee. The Director-General will also have the power to engage persons as ACC employees and determine the remuneration and other employment terms and conditions of ACC employees.
Section 10 of the Act requires the Commonwealth to act through an employing authority and paragraph 5(1)(a) of the Act defines ‘employing authority’, in part, to mean the person or body specified in the regulations to be the employing authority. Regulation 4 of the Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Principal Regulations) is the provision that prescribes the employing authorities and the persons in relation to which the employing authorities hold that role.
The Regulations amend Regulation 4 of the Principal Regulations to prescribe the Director-General of AusAID as employing authority for a person engaged as an employee the ACC Act.
The Act does not impose any conditions that need to be satisfied before the power to make the Regulations may be exercised.
The amendment has been requested by the Department of Foreign Affairs and Trade and consultation has been undertaken with that department as well as with AusAID.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required.
The Regulations commence the day after they are registered on the Federal Register of Legislative Instruments.
Overview
The Occupational Health and Safety (Safety Arrangements) Amendment Regulations 2011 (No. 1) were enacted to address the need for a designated employing authority for Australian Civilian Corps (ACC) employees as established by the Australian Civilian Corps Act 2011. These regulations amend the Occupational Health and Safety (Safety Arrangements) Regulations 1991, prescribing the Director-General of the Australian Agency for International Development (AusAID) as the employing authority for ACC employees. This amendment ensures compliance with the requirement under Section 10 of the Occupational Health and Safety Act 1991 that the Commonwealth must act through an employing authority, a role now explicitly defined in the regulations for ACC employees. The regulations were developed following consultation with the Department of Foreign Affairs and Trade and AusAID, and they provide a clear legal framework for the occupational health and safety responsibilities of ACC employees.
Scope and Application
The Occupational Health and Safety (Safety Arrangements) Amendment Regulations 2011 (No. 1) modify the Occupational Health and Safety (Safety Arrangements) Regulations 1991 by specifically designating the Director-General of the Australian Agency for International Development (AusAID) as the employing authority for employees of the Australian Civilian Corps (ACC). This amendment aligns with the creation of the Australian Civilian Corps Act 2011, which establishes the ACC as a means to rapidly deploy civilian specialists into conflict or disaster-affected countries. Under Section 10 of the Occupational Health and Safety Act 1991, the Commonwealth is mandated to act through an employing authority, with the Regulations now identifying the Director-General of AusAID as such for ACC employees. This legislative instrument applies to the Commonwealth, Commonwealth authorities, and non-Commonwealth licensees as defined by the Act, ensuring the health and safety of employees across these entities. The Regulations do not impose any conditions or thresholds for their application and are effective immediately upon registration on the Federal Register of Legislative Instruments.
Key Provisions
The Occupational Health and Safety (Safety Arrangements) Amendment Regulations 2011 (No. 1) are instrumental in updating the existing framework established by the Occupational Health and Safety Act 1991. Section 82 of the Act allows for the creation of regulations that are necessary or convenient for the implementation of the Act, and these Regulations specifically address the identification of employing authorities. Under Regulation 4, the Director-General of the Australian Agency for International Development (AusAID) is designated as the employing authority for Australian Civilian Corps (ACC) employees, as stipulated in the Australian Civilian Corps Act 2011. This amendment ensures that the Director-General, on behalf of the Commonwealth, has the necessary rights, duties, and powers in relation to ACC employees, including the authority to engage them and determine their remuneration and employment terms.
The Occupational Health and Safety (Safety Arrangements) Amendment Regulations 2011 (No. 1) impose obligations on the Director-General of AusAID to act as the employing authority for ACC employees, thereby ensuring that the provisions of the Occupational Health and Safety Act 1991 apply to these employees. This includes responsibilities for ensuring compliance with occupational health and safety standards, which are critical for the protection of ACC employees engaged in often high-risk environments. The regulations also necessitate that AusAID provide necessary resources and support to meet these obligations effectively.
Failure to comply with the requirements set out in the Occupational Health and Safety Act 1991 can result in significant consequences. The Act allows for the imposition of civil and criminal penalties for breaches of its provisions. The exact penalties depend on the nature and severity of the breach but can include substantial fines for individuals and corporations. It is imperative for the Director-General of AusAID to adhere strictly to the occupational health and safety standards to avoid such penalties. The precise penalties are determined by the courts, taking into account the specifics of each case, but they can be severe, reflecting the importance of workplace safety and health.