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THE CROWN WHAT YOU NEED TO KNOW By Robert Coen, Maurice Blackburn Lawyers

Work towards national harmonisation of health and safety laws resulted in the introduction of the Work Health and Safety Act 2011 (“WHS Act “) coming into effect in the ACT on 1 January, 2012. This Act repealed and replaced the Work Safety Act 2008 which in turn had replaced and repealed the Occupational Health and Safety Act 1989. In essence the duties of care imposed by the WHS Act are the same as those which existed under the earlier Acts. However, the new legislation binds the Crown in the right of the Territory so that the penalty provisions of the Act now apply to teachers and other government employees and officers as well as the Education Directorate itself. The prior legislation dealing with workplace safety did not remove the “shield of the crown”1 except to require breaches of the relevant legislation to be reported in annual reports of the relevant Government entity. However, now State and Territory government directorates and employees face the same penalties as businesses and workers in private enterprise with regard to breaches of workplace safety requirements. In general terms, the WHS Act imposes a duty on teachers to take reasonable care for their own health and safety as well as for the health and safety of other persons. Teachers have a duty to comply and cooperate with reasonable policies and procedures of the Directorate relating to health and safety in the workplace. The duty imposed on a Principal and to a lesser extent on executive teachers is higher and requires them to exercise due diligence which includes the taking of reasonable steps to acquire and keep

up-to-date knowledge of work health and safety matters, to gain an understanding of the hazards and risks associated with the operation of a school and to ensure that the Directorate has appropriate processes for receiving and considering information regarding incidents, hazards and risks in the workplace. This would include providing training and instruction to teachers about work health and safety and reporting incidents to the Directorate. However, the WHS Act only requires the elimination or minimisation of risks so far as is “reasonably practicable”. Determining what actions or procedures are “reasonably practicable” involves taking into account and weighing up relevant matters including: . L ikelihood of the hazard or risk concerned occurring; . T he degree of harm which might result from the hazard or risk; . W  hat the person knows or reasonably ought to know about the hazard or the risk and ways of eliminating or minimising the risk; . T he availability and suitability of ways to eliminate or minimise the risks; and . T he cost associated with available ways of eliminating or minimising the risk including whether the cost is grossly disproportionate to the risks. The penalties for breaches have been substantially increased by the WHS Act. The Act applies three categories of offence for breach of a work health and safety duty with penalties ranging from $50,000 for a Category III offence - (failure

to comply with health and safety duty) to $300,000 and/or imprisonment for 5 years for a Category I offence - (reckless conduct exposing an individual to a risk of death or serious injury or illness). The maximum penalties for the Directorate range from $500,000 (Category III) to $3,000,000 (Category I) with the Act providing that conduct engaged in or on behalf of the Education Directorate by a teacher acting within the actual or apparent scope of his or her employment, is conduct engaged in by the Directorate. The Work Health and Safety Regulations impose a variety of duties upon the Education Directorate in relation to a safe workplace including a duty to ensure, so far as reasonably practicable the following : . W  ork areas with space for work to be carried out without risk to health and safety; . L ighting to enable work to be carried out without risk to health and safety and for safe evacuation in an emergency; . V entilation enabling workers to carry out work without risk to health and safety; . A  dequate facilities including toilets, drinking water, washing and eating facilities; and . P rovision of personal protective equipment to workers at the workplace and ensuring that the equipment is worn. A maximum penalty of $30,000 is prescribed. CONTINUED ON PAGE 7

Public Education Voice • Official Journal of the AEU - ACT Branch • PAGE 5

Profile for Australian Education Union ACT

Public Education Voice March 2012  

Public Education Voice March 2012