Workplace health and safety law in Australia

1255 Pages·2016·7.032 MB·English

by  Neil Foster

To Jenny; Rachel, Daniel, Sasha, Martyn, Silas and Anthea; James,
Daphne, William and Eleanor; Claire, Andrew and Jack; and
Miriam.
WORKPLACE HEALTH AND
SAFETY LAW IN AUSTRALIA
Second Edition
Neil Foster
BA, LLB (UNSW), BTh (ACT), DipATh (Moore), LLM (UoN)
Associate Professor, Newcastle Law School
University of Newcastle, NSW
LexisNexis Butterworths
Australia
2016
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National Library of Australia Cataloguing-in-Publication entry
Author: Foster, Neil.
Title: Workplace health and safety law in Australia.
Edition: 2nd edition.
ISBN: 9780409342833 (pbk).
9780409342840 (ebk).
Notes: Includes index.
Subjects: Law — Australia. Criminal law — Australia.
Civil law — Australia. Industrial safety — Law
and legislation — Australia. Industrial hygiene —
Law and legislation — Australia. Labor laws and
legislation — Australia.
Dewey Number: 344.940465.
© 2016 Reed International Books Australia Pty Limited trading as
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First Edition 2012.
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FOREWORD TO THE FIRST
EDITION
The Honourable Justice Roger Boland
It is not surprising that at some point I would meet Neil Foster. As
a judge of the Industrial Court of New South Wales, in the court’s
criminal jurisdiction I deal regularly with the prosecution of
offenders under the state’s workplace health and safety laws. Neil
is an Associate Professor at the University of Newcastle in the
Newcastle Law School. One of Neil’s main interests has been
workplace health and safety and he has researched and written
extensively on the subject. In my opinion, Neil is one of the
country’s leading academics in the field of workplace health and
safety.
This common field of interest eventually drew us both together
and we have from time to time conversed on the operation and
effect of workplace health and safety laws. We have also
participated jointly as speakers in seminars on the subject.
What so impresses me about Neil is his deep and broad
understanding of this area of the law, his ability to communicate
that understanding in a clear and insightful way and the
intellectual force of his critiques of judgments of the various
courts and legislative provisions. This specialised field of law is,
after all, complex; made even more so by recent changes instigated
by the Commonwealth seeking to introduce a nationally
harmonised set of laws across all Australian states and territories.
This publication that Neil has written is a most timely addition
to the texts on workplace health and safety law, especially given
the move towards nationally uniform laws. Workplace health and
safety has developed into an important area of the law and is
attracting far greater interest and attention than hitherto has been
the case. Neil has sought to address the increase in demand for
more information and explanation and has done so in a unique
format.
The book is much more than one simply focused on an area of
new statute law, although it does that. The added attractiveness of
the publication is that it discusses workplace health and safety law
in the overall context of the Australian legal system and identifies
its place in the scheme of criminal and civil laws that operate in
this country; that is, how workplace health and safety laws
interact with or relate to those other laws.
A publication that simply addresses the black letter law of
workplace health and safety may be quite useful for practitioners
with a background in the general law. But it may be of limited
assistance where that is not the case. This publication admirably
fills the gap.
The scope of the publication is impressive; written in plain
language it addresses statutory interpretation and the rules to be
applied, the law of employment, the law of negligence, breach of
statutory duty, workers’ compensation law, discrimination law,
statute law regulating workplace health and safety, including the
new model Work Health and Safety Act 2011, and an overview of
legal issues arising in the process of both civil and criminal
litigation that may impact on court proceedings dealing with
workplace safety breaches. It will be seen that the book is
obviously the work of someone extremely well versed in the law
generally.
It is apparent from the style of the book it is primarily aimed at
students, especially law students. But Neil’s treatment of case law,
both domestic and overseas, and his explanation of various
legislative provisions (especially the new provisions) I found to be
a valuable reference source and quite useful for lawyers and even
judges with an interest or role in respect of workplace health and
safety law, as well as for employers and unions.
However, for anyone seeking the complete guide to workplace
health and safety law in Australia I would commend Neil Foster’s
book.
I thank the author and the publisher for the honour of writing
this foreword.
Roger Boland
Industrial Court of New South Wales
President’s Chambers, Sydney
April 2012
FOREWORD TO THE SECOND
EDITION
Emeritus Professor Ron McCallum AO
I was delighted when Associate Professor Neil Foster asked me to
pen this foreword to accompany the second edition of this
splendid book.
I first began teaching occupational health and safety law (as it
was then styled) in 1985 at Monash University. Three decades ago
it was a somewhat neglected area of labour relations law. Yet, its
importance to the physical and mental health of workers cannot
be over-emphasised. Since then, the legal academy has produced a
sizable number of volumes and articles dissecting and critiquing
our workplace health and safety laws. This scholarship, to which
Neil Foster has ably contributed, has enriched the public
discourse.
In his foreword to the first edition, retired Justice Roger Boland
has ably sketched the outline of this volume and I need not repeat
his fulsome summary. It suffices to write that Associate Professor
Neil Foster’s book goes way beyond analysing the model Work
Health and Safety statute which has been enacted in seven of
Australia’s nine jurisdictions, together with related safety statutes.
Instead, this volume adopts a broad approach to our workplace
safety laws by introducing and unpacking the ways in which the
common law of contract and tort, together with a broad range of
civil and criminal statutes impact upon workplace health and
safety. Obviously, these statutes include the Work Health and
Safety Acts and their attendant regulations, but this work also
examines the statutes governing workers’ compensation, together
with relevant aspects of the anti-discrimination laws. This book is
squarely aimed at tertiary students who are engaged in legal
studies. However, legal practitioners, human resources managers
and workplace health and safety personnel will gain much from
Neil Foster’s many insights into the operation of these statutory
provisions and the approaches of courts and tribunals to
workplace health and safety issues.
Of course, this foreword would not be complete without me
commenting upon several of the matters discussed in this second
edition. In the field of common law, developments in both
vicarious liability and breach of statutory duty are discussed.
Associate Professor Neil Foster has over the years written
thoughtful pieces on breach of statutory duty and he brings this
knowledge together to give readers a clear and comprehensive
analysis of this area of law.
As would be expected, there is a detailed and up-to-date analysis
of the recent case law on the Model Workplace Health and Safety
Statute. This case law also covers decisions on the personal liability
of company directors, which is another field of expertise of
Associate Professor Neil Foster’s.
Finally, the recent changes to workers’ compensation law in
New South Wales, which in my opinion have had an adverse
impact on many injured workers, are unpacked.
I most certainly commend this book to all those who wish to
gain an understanding of this broad and growing field of
workplace health and safety law.
Emeritus Professor Ron McCallum AO
Sydney
April 2016