Legislation

The careless worker notion originates from theories of a condition termed ‘accident proneness’.

This was before the worker’s compensation system had been established. Thus, most employers were still subject to liability suits from injured workers or the families of injured workers.

It was in the employer’s interest to establish that the accident in question was in fact the fault of the careless worker.

The whole industry attempted to scientifically establish the theory of accident proneness. There were suggestions of hereditary traits, racial traits and language problems that they said contributed to the development of the accidentprone worker. This line of thinking was disrespectful to workers.

Even when the worker’s compensation systems were established, this notion of the careless worker persisted. Academics guessed that between 85 and 90 percent of accidents were caused by an error or fault on the part of the worker.

The theory persisted and was detrimental as it resulted in a reliance on safety measures that started and stopped with the worker. Workers were told to ‘think safe’ and ‘work safe’ and to be careful. Some workers were issued with personal protective equipment (PPE) gear that was awkward and probably more hazardous, to their safety, rather than focusing on the hazardous element in the workplace.

After the Occupational Health and Safety Act 1985 had been in operation for nearly 20 years, the Victorian Government commissioned Chris Maxwell, Queen’s Counsel, to review it.

The Maxwell Review confirmed the effectiveness of the Roben’s approach, but recommended some improvements to make the Act clearer and more suited to modern workplaces. The Maxwell Review resulted in the updated Occupational Health and Safety Act 2004.

The model Work Health and Safety Act 2011 (WHS Act) is the current legislation for most of the states and territories of Australia.

The Act provides a general overview of how to make a workplace safe and healthy for everyone. It outlines an employer’s legal responsibilities and duties as a business owner. The WHS legislation applies to the Australian Capital Territory, New South Wales, Northern Territory, Queensland, South Australia and Tasmania.

Victoria is currently operating under the Occupational Health and Safety Act 2004, (Vic) and Western Australia is operating under the Occupational Safety and Health Regulations 1996 (WA).

‘The Victorian Government has confirmed that it will not be implementing the model WHS laws in their current form. WorkSafe Victoria continues to enforce Victoria’s existing occupational health and safety (OHS) legislation. This means that Victoria’s workplaces need to refer to Victoria’s codes and guidance materials for information about how to comply with Victoria’s OHS legislation …

WA is considering options to implement elements of the model WHS Regulations. A public consultation process is currently underway to enable all participants in WA workplaces to have input into the new legal framework’ (Safe Work Australia, 2016).

Regulations set out the standards you need to meet for addressing hazards and managing risks. In education and care services, these hazards include: • lifting children

• working at low levels

• moving equipment

• storing equipment

• removing office area hazards

• displaying documentation and children’s work

• children's indoor spaces, storage sheds, office and outdoor play spaces

• workplace vehicles and venues where meetings or training takes place.

Regulating agencies

Regulating agencies, also known as the ‘regulators’, are different in each state and territory. The regulators administer and are responsible for health and safety laws. They inspect workplaces, provide advice and assistance, and give notices and penalties when necessary.

If organisations breach workplace health and safety laws, the regulator will consider whether their state’s approved codes of practice have been followed. Approved codes of practice and safety standards are available from the regulators listed below.

The most recent national legislation commenced in most states in 2012 and changed some of the terminology that had existed in previous legislation.

Some of the changes are listed below: • employers — the term ‘employers’ changed to ‘persons conducting a business or undertaking’ (PCBU) • employees — the term ‘employees’ changed to

‘workers’ • workplace — a place where work is carried out for a business or undertaking, and includes any place where a worker goes, or is likely to be, while at work.

In education and care services, this includes children’s spaces, storage sheds, offices, children’s playgrounds, any workplace vehicles and places where meetings or training take place.

State or territory

Australian Capital Territory New South Wales

Northern Territory Queensland

South Australia

Tasmania

Victoria

Western Australia

Regulator

WorkSafe ACT

SafeWork NSW

NT WorkSafe

Workplace Health and Safety Queensland SafeWork SA

WorkSafe Tasmania

WorkSafe Victoria

WorkSafe WA

What is statute law and what is common law?

Statute law is made by Parliament on the recommendation of the government of the day. Examples of statute law are the Victorian Occupational Health and Safety Act 2004, the Accident Compensation Act 1985 and the Dangerous Goods Act 1985. If Parliament passes an Act, it overrides any common law related to the same matter.

Common law is made by judges as they decide cases –they use precedents from previous cases on the same matter. If there is no precedent, they may set a precedent for future cases through their judgements. Common law does not have much of a place in modern WHS laws; however, it is still a feature of the Accident Compensation Act 1985.

Hierarchy of legislation

The legislation hierarchy is as follows: • Work Health and Safety Act 2011 • Work Health and Safety Regulations 2011 • codes of practice • guidance documents.

WorkSafe Victoria developed a very useful guide for approved providers, managers and educators in education and care services titled Children’s services – occupational

health and safety kit: How to control the risks from the most common hazardous tasks in the children’s services sector (WorkSafe Victoria, n.d.).

Although this document is not the most up to date document and some of the terminology is embedded in old legislation, it is still a useful resource for early childhood education and care services.

Safe place versus safe person

Safety is a very complex issue that is not simply defined. There are many different points of view. The following provocations will generate several different responses: • Is human error a cause of workplace accidents or a consequence of trouble deep within an organisation? • Is compliance with rules and procedures a sufficient determinant of workplace safety, or is its role severely limited? • Is safety defined as the absence of negative things in a workplace or the presence of capabilities that are assisted by training? • Is safety a matter of getting rid of broken components or as a quality/value that emerges from the complexity of an interactive system?

The role of humans in creating or reducing safety in the workplace can be viewed from two perspectives. Let’s call the two perspectives ‘safe person’ versus ‘safe place’.

The Safe Person perspective is considered the old view and is also known as the ‘bad apple theory’.

According to the Safe Person perspective: • Workplaces would be safe if not for the erratic, ignorant or careless behaviour of some unreliable people (bad apples). • Workplace accidents are the result of human errors, violations and carelessness. • Workplace safety incidents are unpleasant surprises that do not belong in the organisation.

According to this theory, adverse outcomes can be avoided if individuals pay more attention, invest more effort, obey the rules or follow the procedures. WHS professionals and managers operating from this perspective wonder how they can cope with the unreliability of workers in their organisation. The Safe Place perspective is considered the new view of human error and begins with the assumption that people do not come to work to do a bad job nor do they go out of their way to create trouble. If they end up doing a bad job, the finger should not be pointed at the individual but at the workplace setting and the systems in place.

According to the Safe Place perspective: • Human error or rule violations are not the cause of workplace incidents; instead they are an effect or symptom of deeper trouble.

• Human errors or rule violations are not random; they are systemically connected to features of people’s tools, tasks, operating environments and organisational constraints.

• Human errors or rule violations are not the conclusion of a WHS investigation; they are the starting point.

According to this theory, adverse outcomes are not the result of an individual’s behaviour, rather safety system vulnerabilities. If these error-producing conditions are left in place, there will be a repetition of the same basic pattern of adverse outcomes.

In the safe person view, WHS professionals and managers see themselves as custodians of already safe systems. When something goes wrong, their question is: Who is responsible?

In the safe place view, WHS professionals and managers understand that people often must create safety under less than ideal circumstances. When something goes wrong, their questions are: What is the cause? What set of circumstances led to people doing their work in this way?

Safety in education and care services

Historically in children’s services, the focus on safety seemed to have entirely revolved around the safety of children, rather than both the children and the people who work in the service.

The Occupational Health and Safety Act 2004 (Vic) changed the landscape of occupational health and safety. Although widely publicised, many managers of children’s centres, early learning centres and schools did not realise that although the safety of the children fell under the Children’s Services Regulations 1998 (now Education and Care

Services Regulations 2011), they also had obligations for their staff under the Occupational Health and Safety Act 2004.

This worrying safety culture in educational and care institutions has begun to change, which is promising; however, there are still many organisations who could be exposed to litigation should a serious accident occur in the workplace.

‘In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a)the likelihood of the hazard or the risk concerned occurring, and (b)the degree of harm that might result from the hazard or the risk, and (c)what the person concerned knows, or ought reasonably to know, about: (i)the hazard or the risk, and (ii)ways of eliminating or minimising the risk, and d)the availability and suitability of ways to eliminate or minimise the risk, and e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk’ (WHS Act, 2011, Part 2, Division 1, Subdivision 2, Section 18). Managers of education and care centres, early learning centres, occasional care services, family day care services, out of school hours care services, schools and any other services concerned with the care and education of children must ensure that they are familiar with the current legislation related to WHS as they apply in their state or territory. Ignorance is not recognised as a defence in a court of law.

A PCBU must also ensure, as far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. A PCBU will be liable if they expose another person to risks to their health and safety if the risk arose from the work carried out above.

In looking at the legal definition of ‘reasonably practicable’, let’s try and break it down into more accessible, everyday language.

Reasonably practicable is: • the likelihood of a hazard or risk occurring, or the probability of a person being exposed to harm • the degree of harm that would result if the hazard or risk occurred, or the potential seriousness of injury or harm • what the person concerned knows, or ought reasonably to know, about the hazard or risk. If a hazard or risk is identified, what are some ways of eliminating or minimising it?

What are some suitable ways to eliminate or minimise the risk using the hierarchy of controls?

What is the cost of eliminating or minimising the hazard or the risk?

Roles and responsibilities of the PCBU

A PCBU must ensure, so far as ‘reasonably practicable’, the health and safety of: • workers who are engaged or caused to be engaged by the person • workers whose activities in carrying out work are influenced or directed by the person while at work in the business or undertaking.

What is required in education and care services?

The WHS Act requires PCBUs to: • provide a safe work environment • provide safe systems of work • ensure the safe use, handling and storage of equipment, buildings, playgrounds and dangerous chemicals or substances