Work Health and Safety (Class of Worker) Declaration 2022 (No. 1)

Overview

The Work Health and Safety (Class of worker) Declaration 2022 (No. 1) was enacted to address the gap in coverage for Australian Defence Force Cadets under the Work Health and Safety Act 2011 (WHS Act). This legislative instrument was introduced by the Minister for Employment and Workplace Relations to ensure that cadets, who are not officers or instructors, are recognised as workers under the WHS Act while they are engaged in activities with the Australian Air Force Cadets, Australian Army Cadets, or Australian Navy Cadets. The primary policy objective is to extend the protections and rights provided under the WHS Act to these cadets, ensuring their health and safety while they participate in Commonwealth-related activities. This declaration is a legislative instrument made under the Legislation Act 2003 and was developed following consultations between the Department of Employment and Workplace Relations, the Department of Defence, and Comcare, the Commonwealth's work health and safety regulator.

Scope and Application

The Work Health and Safety (Class of worker) Declaration 2022 (No. 1) applies to members of the Australian Defence Force Cadets who participate in activities as cadets, specifically those in the Australian Air Force Cadets, the Australian Army Cadets, or the Australian Navy Cadets, excluding officers and instructors as defined under section 62 of the Defence Force Act 1903. This declaration recognises these cadets as workers for the purposes of the Work Health and Safety Act 2011, thereby ensuring they are covered by the Act and entitled to its protections when engaged in cadet-related activities for the Commonwealth. The geographic scope of the Act is national, as it is a Commonwealth Act, and it applies to all activities conducted within Australia. The declaration does not specify any exclusions, but it is important to note that officers and instructors are already considered workers under section 7(1) of the WHS Act. This legislative instrument serves to clarify and continue the protection provided to cadets under the WHS Act, ensuring they are safeguarded against health and safety risks during their cadet activities.

Key Provisions

The Work Health and Safety (Class of Worker) Declaration 2022 (No. 1) (the Declaration) specifies that members of the Australian Defence Force Cadets, excluding officers and instructors under section 62 of the Defence Force Act 1903, are classified as workers under section 7(2F) of the Work Health and Safety Act 2011 (WHS Act). This means that these cadets are covered by the WHS Act when they are engaged in activities as members of the Australian Air Force Cadets, the Australian Army Cadets, or the Australian Navy Cadets. The Declaration ensures that these cadets are protected by the WHS Act, which aims to provide a balanced and nationally consistent framework to secure the health and safety of workers and workplaces. The Declaration effectively extends the definition of 'worker' to include these cadets for the purposes of the WHS Act. The Declaration imposes several obligations on the parties it governs. Firstly, the Australian Defence Force Cadets, as defined in the Declaration, must comply with the WHS Act's provisions regarding the health, safety, and welfare of workers. This includes the requirement to eliminate or minimise risks arising from work. Secondly, the Commonwealth, as the entity conducting the business or undertaking, must ensure that appropriate measures are in place to protect the health and safety of cadets engaged in cadet activities. This includes providing a safe working environment, training, and necessary resources. Thirdly, officers and instructors within the Australian Defence Force Cadets, who are already classified as workers under section 7(1) of the WHS Act, must adhere to the same safety standards and obligations as other workers. Breaches of the obligations set out in the WHS Act can result in both civil and criminal consequences. For individuals, contraventions of the Act can lead to fines, with the maximum penalty varying depending on the nature and severity of the offence. For example, for a serious contravention that results in death, the maximum penalty can be up to $3.3 million for an individual and up to $16.5 million for a body corporate. Additionally, officers and directors of a body corporate can be personally liable for penalties if they are found to have been negligent in ensuring compliance with the WHS Act. In the case of a body corporate, failure to comply with the Act can also result in public prosecution, which can further lead to significant fines and potential imprisonment for directors or officers involved in the non-compliance.