EXPLANATORY STATEMENT
Issued by the authority of the
Minister for Employment and Workplace Relations.
Work Health and Safety Act 2011
Subsection 7(2F)
Work Health and Safety (Class of worker) Declaration 2022 (No. 1)
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This Declaration repeals and replaces the Work Health and Safety (Class of worker) Notice 2012 (No.1) due to sunsetting provisions. This Declaration remakes the sunsetting instrument in substantially the same form, with some consequential amendments to reflect changes in the legislation that establishes the Australian Defence Force Cadets.
The Work Health and Safety Act 2011 (the WHS Act) aims to provide a balanced and nationally consistent framework to secure the health and safety of workers and workplaces in a number of ways, including by:
protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work;
providing for fair and effective workplace representation;
encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices;
securing compliance with the Act through effective and appropriate compliance and enforcement measures; and
providing a framework for continuous improvement and progressively higher standards of work health and safety.
Section 7 of the WHS Act contains a number of definitions of ‘worker’. Specifically, subsection 7(2F) provides that:
The Minister may, by instrument in writing, declare that a person of a class specified in the declaration is, for the purposes of this Act:
(a) a worker; and
(b) at work throughout the time specified in the declaration; and
(c) carrying out work for a business or undertaking conducted by the Commonwealth, or a public authority specified in the declaration, when the person is performing functions of the kind specified in the declaration; and
(d) an employee of the Commonwealth, or a public authority specified in the declaration.
In this legislative instrument the Minister has declared that a person who is a member of the Australian Defence Force Cadets, other than as an officer or an instructor under section 62 of the Defence Force Act 1903, is:
a worker
at work throughout the time that the person is engaged in activities as a member of the Australian Air Force Cadets, the Australian Army Cadets or the Australian Navy Cadets; and
carrying out work for a business or undertaking by the Commonwealth when the person is engaged in activities connected with the Australian Air Force Cadets, the Australian Army Cadets or the Australian Navy Cadets, but not otherwise.
This means that Cadets participating in activities under the Australian Air Force Cadets, the Australian Army Cadets or the Australian Navy Cadets, will be covered by, and have the protection of, the WHS Act.
The note to section 6 clarifies that officers and instructors are already workers under
s 7(1) of the WHS Act.
The Office of Best Practice Regulation confirmed that a Regulation Impact Statement is not required for the Work Health and Safety (Class of Worker) Declaration 2022 (No.1) because it is being remade without significant change (OBPR22-03132).
Consultation between the Department of Employment and Workplace Relations and Department of Defence was undertaken in the development of this Declaration. Comcare, the Commonwealth work health and safety regulator was also consulted.
This Declaration is a legislative instrument for the purposes of the Legislation Act 2003.
The instrument commences on the day after it is registered on the Federal Register of Legislation.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Overview of the Legislative Instrument
In the Work Health and Safety (Class of worker) Declaration 2022 (No. 1), the Minister has declared that a person who is a member of the Australian Defence Force Cadets, other than as an officer or an instructor under section 62 of the Defence Force Act 1903, is:
a worker
at work throughout the time that the person is engaged in activities as a member of the Australian Defence Force Cadets; and
carrying out work for a business or undertaking for the Commonwealth when the person is engaged in activities connected with the Australian Defence Force Cadets.
This means that cadets will be covered by, and have the protection of, the Work Health and Safety Act 2011 (the WHS Act) when participating in the activities of the Australian Defence Force Cadets.
Human rights implications
This legislative instrument engages Article 7 of the International Covenant on Economic, Social and Cultural Rights, which recognises the right of everyone to the enjoyment of just and favourable conditions of work that ensure safe and healthy working conditions. This particular right is advanced by the Work Health and Safety (Class of worker) Declaration 2022 (No. 1) because it ensures that cadets will be covered by the WHS Act as workers.
Conclusion
This Legislative Instrument is compatible with human rights because it advances the protection of human rights.
Tony Burke, Minister for Employment and Workplace Relations