The scope of employers' responsibilities under Australian occupational health and safety legislation

Abstract

At the heart of Australian occupational health and safety legislation is a broad duty on employers to provide for the health and safety of their employees at work. However, employers dispute the scope of this duty, arguing that they should not be responsible for the unsafe actions of their employees that create a breach of Occupational Health and Safety (OHS) laws. Through a comparison of the NSW and Victorian OHS legislation, this paper analyses how the relevant state courts respond to employers' attempts to limit their responsibility for employees' risky, careless or inattentive behaviour. We also look at whether this responsibility differs between the two states, and in what circumstances employees' unsafe behaviour falls outside the scope of the employers' duty. Finally we examine how concerns about the scope of the duty might be remedied by the introduction of the model OHS law, and by the High Court’s judgment in Kirk v Industrial Relations Commission.