What role do Elected Members have under the Work Health and Safety Act 2012 (SA)?

25 August 2017

This question has recently arisen as to whether Elected Members fall within the scope of the definition of “worker” for the purposes of the Work Health and Safety Act 2012 (SA) (“WHS Act”). If not, what duties or roles, if any, fall to or on Elected Members under the WHS Act. For the reasons outlined below, it is our view that Elected Members are not and cannot be considered to be ‘workers’ under the WHS Act. However, this does not mean that they do not have an important role or obligations with respect to workplace safety.

Role of Elected Members

In order to provide an appropriate context to the issue, the starting point is to consider the role of Elected Members and the legislative provisions governing their functions and responsibilities. Elected Members are elected by local electors to represent the residents and ratepayers of that council area. The election of persons and the subsequent roles and responsibilities of those elected are outlined in (and governed by) the Local Government Act 1999 (“LG Act”) and the regulations thereunder, including the prescribed Code of Conduct for Council Members. Under the LG Act, a ‘member’ of a council means the principal member or a councillor of the council. Section 62 of the LG Act outlines the general duties of Elected Members.

Under common law, the dominant test for employment for many years, dating back to very old English decisions, has been the control test, also known as the ‘master-servant relationship’. Whilst the definition of ‘worker’ under the WHS Act is intentionally wider than the definition of ‘employee’ at common law, the common law position is a useful starting point.

An Elected Member is not employed in the traditional sense of an offer and acceptance of employment leading to the establishment of a contractual relationship of service. An Elected Member is engaged as part of the democratic process and is elected to and holds an office both as an individual representative and as a member of the governing body of the council. An Elected Member does not receive remuneration in the nature of a salary or wages but, rather, an allowance to cover the costs of carrying out the functions, responsibilities and duties of their elected office.

From the above general summary, it is clear that Elected Members do not fall within the definition of ‘employee’ at common law but, instead, hold a position of public office that they have been elected to for a set term.

Are Elected Members ‘workers’ under the WHS Act?

As above, however, the critical issue in this matter is the potential application of the broader meaning of ‘worker’ under the WHS Act. Relevantly, section 7 of the WHS Act provides:

7—Meaning of worker

(1)         A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—

(a)          an employee; or

(b)          a contractor or subcontractor; or

(c)          an employee of a contractor or subcontractor; or

(d)          an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e)          an outworker; or

(f)           an apprentice or trainee; or

(g)         a student gaining work experience; or

(h)         a volunteer; or

(i)           a person of a prescribed class.

 (2)        For the purposes of this Act, a police officer is—

(a)          a worker; and

(b)          at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer.

 (3)       The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

The Second Reading Speech, when this Bill was introduced to the South Australian Parliament, echoed the Explanatory Memorandum of Safe Work Australia (which was instrumental in drafting the model uniform legislation) in providing an explanation of a worker as follows:

7—Meaning of worker

 The Act adopts a broad definition of ‘worker’ instead of ’employee’ to recognise the changing nature of work relationships and to ensure health and safety protection is extended to all types of workers.

 Clause 7 defines the term worker as a person who carries out work in any capacity for a PCBU, including work in any of the capacities listed in the provision. The examples of workers in the provision are illustrative only and are not intended to be exhaustive. That means that there will be other kinds of workers covered under the Act that are not specifically listed in this clause (e.g. students on clinical placement and bailee taxi drivers).

The term ‘work’ is not defined in the Act but is intended to include work, for example, that is carried out—

 under a contract of employment, contract of apprenticeship or contract for services;

or in a leadership role in a religious institution, as part of the duties of a religious vocation or in any other capacity for the purposes of a religious institution;

or as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership;

or as practical training as part of a course of education or vocational training.

 Clause 7(2) is included for the avoidance of doubt only. This subclause clarifies that a police officer is a ‘worker’ for purposes of the Act, while on duty or lawfully performing duties as a police officer.

 Clause 7(3) clarifies that a self – employed person may simultaneously be both a PCBU and a worker for purposes of the Act.

As set out below, Elected Members of a council are specifically excluded from the definition of ‘officer’ under the WHS Act and, therefore, do not fall within the further examples set out in the Second Reading Speech. Importantly, though, it is only when acting in the capacity of an Elected Member of a local authority that Elected Members are exempt from the definition of ‘officer’. Therefore, an Elected Member who is a member of a committee under section 41 of the

Local Government Act 1999, or a member of the committee of management of an incorporated association of which the council is a member, may be an ‘officer’ (and a worker) when acting in those capacities.

A ‘worker’ can include the person conducting a business or undertaking if the person is an individual who carries out work in that business or undertaking. For the reasons set out below, Elected Members are not persons conducting a business or undertaking (they are specifically excluded from the definition in section 5 of the WHS Act). Rather, it is the council, as a body corporate, that is the person conducting the business or undertaking and, therefore, Elected Members are not ‘workers’ for the purpose of section 7(3) of the WHS Act. It is a circular approach to suggest that the Parliament, which specifically excluded Elected Members from the definition of “officers” or “persons conducting a business or undertaking”, intended to include them in the definition of “worker”.

Are Elected Members “officers”, or “persons conducting a business or undertaking”?

 The nature of the duties and responsibilities of Elected Members raises the question as to whether they are ‘officers’ of their council, or fall within the scope of a person conducting a business or undertaking (“PCBU”).

A PCBU is defined in section 5 of the WHS Act and, pursuant to subsection (5), an Elected Member does not, in that capacity, conduct a business or undertaking (that is Elected Members are specifically excluded from the definition).

A council does fall within the definition of a public authority set out in section 4 of the WHS Act. A council is a body corporate pursuant to section 35 of the LG Act. As such, it is the council, as a body corporate, that is the PCBU. An ‘Officer of a Public Authority’ is defined in section 252 of the WHS Act as:

A person who makes, or participates in making, decisions that affect the whole, or a substantial part,

of the business or undertaking of a public authority is taken to be an officer of the public authority for the purposes of this Act.

However, the definition of “Officer” under the WHS Act includes “an officer of a public authority within the meaning of section 252, other than an elected member of a local authority acting in that capacity”. (our emphasis).

Therefore, the role of Elected Members acting in their capacity as Elected Members is to carry out functions which, prima facie, fall within the definition of a PCBU or Officer under the WHS Act. However, the Parliament has chosen to exclude them from these definitions.

Why is this important?

These definitions are important because the WHS Act, particularly Part 2 thereof, sets out specific duties that apply to PCBU’s, officers of PCBU’s and workers.

By excluding Elected Members from these definitions, these duties have no application to them.

Duties of Elected Members

Nevertheless, Elected Members do have duties under the WHS Act. Section 29 of the WHS Act prescribes that any person at a workplace must:

(a)         take reasonable care for his or her own health and safety; and

(b)         take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c)          comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

By virtue of the obligations imposed by section 29 of the WHS Act, Elected Members are subject to the offence and penalty provisions of the WHS Act. The offence provisions apply to “a person” who has a health and safety duty and breaches that duty.

Conclusion

Elected Members have a particular standing that arises from the LG Act. The LG Act creates the role of an Elected Member and manages the functions and duties of that role. Elected Members are elected to an office and cannot, in any clear and obvious sense, be considered to be ‘employees’ whether at common law or for the purposes of the WHS Act.

Although the definition of ‘worker’ under the WHS Act is broad, there is no apparent basis for asserting that it captures Elected Members acting in their capacity as an Elected Member. If anything, the position would seem to be to the contrary having regard to the particular legislation that applies.

Elected Members are also specifically excluded from the definitions of PCBU and officer of a PCBU under the WHS Act. Elected Members do, however, still have some health and safety duties under the WHS Act and are, therefore, within the scope of the WHS Act offence provisions, just not as ‘workers’. For this reason and to ensure a safe workplace, it is advisable for Elected Members to receive some

WHS training, as well as training for managers on how to deal with safety issues involving Elected Members.

This is in the same manner as any person who, in attending at a workplace, has health and safety obligations in respect of their own actions. However, it is important to acknowledge the potential for interaction involving Elected Members with management and staff and, therefore, the matter needs to be treated seriously and promptly.