From Regulating the Employment Relationship to Regulating Work: Regulating OSH in Australia's Harmonised Work Health and Safety Act

The Labor and Employment Club, The University of Cincinnati College of Law, 14 February 2013

Posted: 3 Feb 2013

See all articles by Paul Harpur

Paul Harpur

University of Queensland - T.C. Beirne School of Law

Date Written: February 3, 2013

Abstract

During the middle of the 20th century, law makers and scholars concerned with conditions of work focused almost exclusively upon the employer and employee relationship. This paper argues that the employment relationship is only one of many forms of work relationships. Johnstone Et Al notes that the 'dominance of the employment paradigm was confined to the 50 or so years spanning the middle of the 20th century, and that before that time workers were, and, more importantly, since that time workers have been, engaged to work under a variety of contractual arrangements', including contracting and sub-contracting, supply chains, franchises, labour hire and bailment. In this paper, I will argue that law makers and scholars are increasingly recognising the need to focus remedial interventions on all forms of renumerated work relationships.

As a case study to illustrate the transition to regulating work relationships, this paper will analyse the far reaching provisions of Australia's new harmonised Work Health and Safety Act (WHS Act). In 2010 the Australian governments in the federal, 6 states and 2 territories reached an agreement to harmonise their different occupational health and safety statutes. In 2011 and 2012 the respective parliaments enacted mirror statutes into law. The WHS Act does more than just harmonise existing laws. This statute contains transformational provisions which shifts the regulatory focus from the employment relationship to work relationships more broadly. The Primary Duty of Care provisions in the Model WHS ACT transform the way in which businesses and undertakings approach workplace safety and health. Under the occupational health and safety regimes that existed prior to the national harmonization, OHS duties were mostly connected with employment relationships and control of workplaces. This focus flowed from the concept that OHS laws should focus upon regulating safety and health in factories and the people most at risk were workers of the employer. The WHS ACT does not determine safety or health duties by reference to an employment relationship, by the corporate veil or by a geographical location. The WHS ACT moves beyond the traditional understanding of OHS duties to vest duties where risks may arise where a person conducts a business or undertaking (PCBU).

The move in the WHS Act to regulate work relationships represents a significant shift in regulatory focus. This paper will conclude by exploring how this regulatory trend could benefit other labour rights. The right to health and safety at work is just one labour right. Other labour rights, such as anti-discrimination and freedom of association, largely limit their remedial focus to the employment relationship. I suggest that, similar to OSH, remedial statutes protecting other workplace rights should move to regulate the work paradigm. In Australia there have been various legislative and administrative moves to intermingle the regulation of various workplace rights, including OSH. This creates the possibility that the regulatory vehicles employed in the WHS Act could influence remedial interventions protecting other labour rights. This paper argues, that it is important for scholars to challenge laws which focus exclusively on the employment paradigm, and to analyse how regulatory interventions could be broadened to include all forms of work relationships.

Suggested Citation

Harpur, Paul David, From Regulating the Employment Relationship to Regulating Work: Regulating OSH in Australia's Harmonised Work Health and Safety Act (February 3, 2013). The Labor and Employment Club, The University of Cincinnati College of Law, 14 February 2013, Available at SSRN: https://ssrn.com/abstract=2211290

Paul David Harpur (Contact Author)

University of Queensland - T.C. Beirne School of Law ( email )

Brisbane, Queensland 4072
Australia

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