Commonwealth	Occupational Health and Safety (Commonwealth Employment) Act 1991
ACT	Occupational Health and Safety Act 1989
NSW	Occupational Health and Safety Act 2000
NT	Work Health Act 1991
QLD	Workplace Health and Safety Act 1995
SA	Occupational Health, Safety and Welfare Act 1986
Tas	Workplace Health and Safety Act 1995
Vic	Occupational Health and Safety Act 2004
WA	Occupational Safety and Health Act 1984

The provisions of the respective Acts impose duties on: employers; employees; persons who are self-employed; persons who control work premises; and those who manufacture, supply and install goods and services, plant and equipment.

It is worthy of note that in 2008, an inter-governmental agreement for Regulatory and Operational Reform in Occupational Health and Safety was signed between the federal, state and territory governments. While the present laws are based on similar underlying principles, it was recognised that there were still differences between the jurisdictions in the details and application of these laws. The Council of Australian Governments agreed to work to harmonise occupational health and safety legislation according to the principles and processes outlined in the document.

OBLIGATIONS AND RESPONSIBILITIES OF THE EMPLOYER

The legislative provisions in each of the jurisdictions are, in the main, very similar. The following will therefore provide an overview of the statutory obligations imposed on employers:

• The employer must provide for, and has the responsibility to, ensure the health, safety and welfare of employees within the workplace. The obligation extends to visitors, clients and independent contractors who may enter the place of work which is under the control of the employer. Those who are self-employed also have a duty to others who may be affected by their work. The obligation requires the employer to ensure plant and substances are safe and without risk if used properly, the system of work is safe, there is safe access to and from the workplace and the workers are provided with education, training, supervision and adequate facilities.

• While the Northern Territory ^[1] requires that some employers have a written health and safety plan, the Commonwealth^[2], South Australia^[3] and the ACT^[4] require that all employers have such a plan.

• All jurisdictions other than New South Wales require the employer to do all that is reasonably practicable to ensure workplace safety. However, in New South Wales it has been held that the obligation to ‘ensure’ health, safety and welfare in the workplace is an absolute obligation that is overcome only by the statutory defences as contained in section 28 the Occupational Health and Safety Act 2000 (NSW). Section 28 provides a defence where an employer can prove:

(a) it is not reasonably practicable to comply with a particular work place provision grounding the offence; or

(b) The commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

The employer is obliged to identify and control any risks to safety that are, or may be, present in a workplace. That is, the legislation imposes a positive and proactive obligation on the employer to identify hazards, and then to undertake a risk analysis with the aim of eliminating or controlling hazards in the workplace. In pursuit of this objective, employers in all jurisdictions have access to authorities established to assist in the development of codes of practice that aim to provide safe working environments.^[5] A failure by an employer or self-employed individual to abide by such a code may be used as evidence of a failure to provide a safe system or safe place of work. Codes of practice and national standards are also provided by the Australian Safety and Compensation Council (ASCC), which was established under the Australian Workplace Safety Standards Act 2005 (Cth). It should be noted however, that these codes are advisory documents only and do not carry any legislative or regulatory force. The ASCC has, as part of its membership, representatives from the federal, state and territory governments together with representatives from employer and employee organisations.

OBLIGATIONS AND RESPONSIBILITIES OF EMPLOYEES

Employees under the respective federal, state and territory legislation and regulations are obliged to take care of the health and safety of themselves and others in their workplace. It is an expectation under the legislation that employees will cooperate with others, including the employer, in establishing and maintaining a safe place of work. Although the specific obligations are identified in the legislation in each of the jurisdictions, employees are generally required to take reasonable care to ensure the safety of themselves and others, cooperate with the instructions of the employer in promoting workplace health and safety and ensure they use equipment in a manner that is consistent with the health and safety of themselves and others. As an example, section 20 of the Occupational Health and Safety Act 2000 (NSW) provides:

Duties of employees

(1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee’s place of work and who may be affected by the employee’s acts or omissions at work,

(2) An employee must, while at work, co-operate with his or her employer or other persons so far as necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person.

Section 21 states:

Person not to interfere with or misuse things provided for health, safety and welfare

(1) A person must not, intentionally or recklessly, interfere with or misuse anything provided in the interests of health, safety and welfare under occupational health and safety legislation.

Should an employee become aware of an imminent threat to their health and safety, or the health and safety of others, they have a duty to take reasonable measures to ensure both their safety and the safety of others. In such circumstances an inspector may also order the cessation of work. (For information on inspectors see the section under ‘Compliance’ in this chapter.)

HEALTH AND SAFETY REPRESENTATIVES

In all jurisdictions, other than the Northern Territory, employees have the right to elect a health and safety representative. Under the respective legislation ^[6] a health and safety representative may take time away from work for training, have access to certain categories of information, inspect workplaces, accompany official inspectors, make inquiries into accidents, require an employer to establish a health and safety committee and accompany inspectors and employees engaged in interviews on health and safety matters. They are empowered, under Commonwealth, ACT, South Australian and Victorian legislation, to issue Provisional Improvement Notices or Default Notices identifying that there has been a breach of the Occupational Health and Safety Act of that jurisdiction and some action needs to be taken. It is a requirement in such circumstances that a notice of the breach is displayed within the workplace and reasonable steps are taken to remedy the identified breach.

Staff–management committees

The federal, state and territory occupational health and safety legislation requires employers to consult with employees in relation to health and safety issues within the workplace. This may take place through discussions between employers and workplace health and safety representatives, an occupational health and safety committee or individual arrangements negotiated with, and suitable to, both the employers and employees. In workplaces employing more than 20 workers, an occupational health and safety committee must be established where half of the workforce requests it. While the composition and size of the joint staff-management occupational health and safety committee will vary depending on the legislative provisions in the particular jurisdiction, the committee membership should reflect, and be representative of, the workforce. In workplaces that include separate divisions or sections there should be a committee representing each of the different divisions or sections.

These joint staff-management committees fulfil an advisory, consultative and investigative role within the workplace and have the legal authority to access, inspect and investigate. Their functions include:

• reviewing processes and procedures implemented for the purpose of promoting health and safety

• investigating any issues or complaints in relation to health and safety

• developing policies, procedures and education programs for the improvement and promotion of workplace health and safety

• making recommendations as to health and safety issues in the workplace

• representing health and safety issues on behalf of the employee

• investigating any accidents or incidents within the workplace

• studying incident reports to detect trends and identify potential hazards or risks in the workplace.

However, it is not the role of these committees to assume responsibility for the health and safety of the workforce as this responsibility remains with the employer.

PROTECTION OF WORKERS INVOLVED IN OCCUPATIONAL HEALTH AND SAFETY ACTIVITIES

In all jurisdictions, other than Queensland, a worker, health and safety representative or member of the joint staff-management committee within a workplace is accorded a level of protection under the occupational health and safety legislation. The level of protection differs between the jurisdictions but generally provides that the person cannot be victimised, demoted, dismissed or otherwise disadvantaged because of their involvement in workplace health and safety activities. Section 76 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) states:

Employer not to dismiss etc. employee on certain grounds

(1) An employer must not:

(a) dismiss an employee; or

(b) do an act that results in an employee being injured in his or her employment; or

(c) prejudicially alter the employee’s position (whether by deduction or withholding or remuneration or by any other means); or

(d) threaten to take action, in relation to the employee, that is referred to in paragraphs (a), (b), or (c);

because the employee:

(e) has complained or proposes to complain about a matter concerning the health, safety or welfare of employees at work; or

(f) has assisted or proposes to assist, by the giving of information or otherwise, the conduct of an investigation; or

(g) has ceased, or proposes to cease, to perform work in accordance with a direction by a health and safety representative under paragraph 37 (1) (b)…

Note: An employer who breaches this section may be subject to civil action.

Compliance

Occupational health and safety legislation in all jurisdictions provides for the appointment of inspectors or investigators. Part of the role of an investigator or inspector is to ensure compliance with legislative provisions and make recommendations about the causes of accidents, illness or death in a workplace. Inspectors or investigators are authorised to enter workplaces without notice, inspect the premises, inspect and copy documentary materials, take photographs, remove equipment, interview individuals and give legally binding directions under a notice. A Prohibition Notice means that all work must cease until the issue is resolved; an Improvement Notice provides that work may continue until the issue has been resolved; and an Infringement Notice may be issued in circumstances in which an inspector identifies a minor breach of the legislation. An inspector or investigator may also assume a role in circumstances in which there is a difficulty in resolving a health and safety issue in a particular workplace. Employers are also required to notify the occupational health and safety authority in their particular jurisdiction of any deaths or serious injuries that result from a workplace accident.

In the respective jurisdictions a breach of the occupational health and safety legislation may constitute an offence. The particular legislative provisions in the jurisdiction in which the offence occurred will determine whether there has been a breach, and the appropriate outcome of that breach. Monetary penalties in the form of a fine will generally apply where there is a failure to comply with the recording and/or reporting requirements as set out under the legislation; however, in some circumstances a term of imprisonment may be applied. Where there has been a death of a person, workplace criminal provisions apply. All states and territories have in place specific provisions under the occupational health and safety legislation that create penalties in respect of the death of a worker in the course of their employment. In addition, the criminal law also creates the crime of manslaughter. The Crimes (Industrial Manslaughter) Amendment Act 1903 (ACT) which amends the Crimes Act 1900 (ACT) creates an offence of ‘industrial manslaughter’. Part 2A ensures that where the conduct of an employer, or a senior officer of the employer, causes the death of a worker they can be held responsible where they were ‘reckless about causing serious harm to the worker … [or] negligent about causing the death of the worker’ (s49C). ‘Conduct’, under the Act, includes omissions and the offence is punishable by imprisonment for up to 20 years.

OCCUPATIONAL HEALTH AND SAFETY AND MEDICINES OF A HAZARDOUS NATURE

One area of pharmacy practice of particular relevance to occupational health and safety issues is the preparation of medicines of a hazardous nature. Medicines exhibiting one or more of the following properties in humans or animals — carcinogenicity, teratogenicity, reproductive toxicity, organ toxicity at low doses and/or genotoxicty — are considered hazardous.^[7] The most commonly used medicines so recognised are the antineoplastic agents (cancer chemotherapy drugs, cytotoxic drugs). While these agents pose a significant risk to patients because of their high cell toxicity, mainly through the action on cell reproduction, there are also significant risks to health workers and the environment. There is little argument with the premise that health practitioners preparing or administering antineoplastic agents run a very real risk of contaminating not only themselves, but also the environment if proper precautions are not taken.^{[8, 9, 10, 11, 12]}

As discussed earlier, occupational health and safety legislation places a positive and proactive obligation on both employers and employees to establish and maintain a safe place of work. In regard to antineoplastic agents there are three health and safety aspects that must be addressed. The first is the safety of the patient, so the product must be aseptically prepared and clinical services should be in place to ensure an optimal level of (pharmaceutical) care. The second is the safety of the operator, so any risk of contamination to the individual must be minimised. The final aspect is the safety of the environment so that the risk of more general contamination must be minimised. It is thus critical that standards, both of a national and professional nature, are implemented and adhered to when any service involving the preparation of antineoplastic agents is contemplated. For example, it is mandatory that consideration of and compliance with the following Australian Standards precede any processes involving the preparation of antineoplastic agents:

• AS2567, laminar flow cytotoxic drug safety cabinets ^[13]

• AS4273, design, installation and use of pharmaceutical isolators ^[14]

• AS2639, laminar flow cytotoxic drug safety cabinets — installation and use ^[15]

• AS1386, clean rooms and clean workstations ^[16]

• AS1807, clean rooms, workstations, safety cabinets and pharmaceutical isolators — methods of test ^[17]

• AS/NZS 1716, respiratory protective devices.^[18]

While the Australian Standards address many of the environmental concerns the preparation of antineoplastic agents may present, there are also a range of professional issues that are relevant. These include:

• scope of the service

• policies and procedures

• resources

• staffing and structure levels