As a Commonwealth Authority, legal liability for the University and its employees in relation to OHS primarily arises under the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act). There are also contractual and common law obligations that are relevant.

Universitys Liability
Under the Act (sections 16 and 17) the University has a general duty to ensure that all reasonably practicable steps are taken to protect the health and safety of its workers and third parties under the Universitys control.

Reasonably practicable means the requirements of the law vary with the degree of risk (such as the likelihood and severity of injury or disease) in a particular activity or environment and the resources (including knowledge, time, effort, and/or money) available to reduce it. The University could be held liable under the Act where it or its employees do not take steps that are reasonably practicable in the circumstances.

Under section 11 the University is liable for civil sanctions, such as pecuniary penalty orders, where the University is found by a Court to have breached its general duty under section 16 to protect the health and safety of its employees. The University may also be subject to injunctions and remedial orders where the University is either in breach, breached or proposes to breach its obligations under the Act.

In addition to its responsibilities under the Act, the University has contractual and legal obligations for the health and safety of its employees arising from its general duty of care.

Employee Liability
Employees have a general duty under subsection 21(1) of the Act to take all reasonably practicable steps to:
(a)ensure that they do not take any action, or make any omission, that creates or increases a risk to the health and safety of another employee; and
(b)to cooperate with the University to ensure the University complies with its obligations under the Act; and
(c)to use equipment in accordance with the instructions given by the University and is consistent with the equipments safe and proper use.

Under subsection 11(4) a University employee may be liable for civil prosecution for breach of one of the following duties:
duties of employees in relation to occupational health and safety - $9,900;
requirement to provide assistance and information (ss 43(2)) - $3,300;
requirement to ensure compliance with direction that workplace etc. not be disturbed (ss 45(5)) - $27,500;
requirement to ensure compliance with oral direction that workplace etc. not be disturbed (ss 45A(3)) - $27,500;
requirement to ensure that prohibition notice complied with (ss 46(4)) - $27,500;
requirement to comply with improvement notice (ss 47(6)) - $1,100;
requirement not to prejudice witnesses in employment (s 64) - $3,300;
requirement not to levy employees etc. (s 73) - $27,500;
requirement not to dismiss etc. employees on certain grounds (s 76) - $27,500.

A University employee may also be criminally prosecuted for breach of the following provisions where the breach results in death or serious injury, or a substantial risk of death or serious injury:
duties of person erecting or installing plant in a workplace (ss 20(1)) - $99,000 (for natural person);
duties of employees in relation to occupational health and safety (subsection 21(1)) - $19,800;
requirement to provide assistance and information (ss 43(2)) - $3,300 or 6 months imprisonment or both;
requirement to ensure compliance with direction that workplace etc. not be disturbed (ss 45(5)) - $55,000;
requirement to ensure compliance with oral direction that workplace etc. not be disturbed (ss 45A(3)) - $55,000;
requirement to ensure that prohibition notice complied with (ss 46(4)) - $55,000;
requirement to comply with improvement notice (ss 47(6)) - $99,000;
requirement not to tamper with notices (s 50) - $3,300 or 6 months imprisonment or both;
interference etc. with equipment etc. (s 72) - $3,300 or 6 months imprisonment or both;

An employee will be liable under this category of offences where their behaviour was either negligent or reckless as to whether the breach would result in death or serious injury of a person.

An employee will also be liable for criminal prosecution where they intentionally breach the following provisions:
(a)requirement to give information or produce documents (ss 54(1)) $3,300 or 6 months imprisonment or both;
(b)failure of witness to attend (s 57) $3,300 or 6 months imprisonment or both;
(c)refusal to be sworn or to answer questions (s 59) $3,300 or 6 months imprisonment or both;
(d)contempt of Commission (s 61) - $3,300 or 6 months imprisonment or both.

The defence of reasonable excuse is available for paragraphs (a) to (c) above.

Liability of Health and Safety Representatives
Health and Safety Representatives are given powers under the Act to enable them to promote or ensure the health and safety of employees (section 28). Representatives are also given specific protection. They are not liable for civil prosecution if they do not use or exercise the powers they are given nor are they liable in civil proceedings for failure to exercise the powers or because of the manner in which they exercised their powers.

Liability of Health and Safety Committee Members
Health and Safety Committees are prescribed a number of functions under the Act, however, like representatives, members of a committee are given specific protections. Members of a committee have no obligation to perform the functions conferred on the committee, nor can they be held liable for civil prosecution for failure to perform those functions, or because of the manner in which they performed those functions. The provisions are designed to facilitate Health and Safety Representatives and Committees to discharge their responsibilities without fear of legal penalty for errors they may make in doing so.

However the statutory protections above do not extend to criminal prosecutions. However an employees act or omission must be a direct cause of a persons death or serious injury or have exposed a person to a substantial risk of death or serious injury, before a person may be liable for criminal prosecution.

Liability of other volunteers
Where an employee volunteers to undertake an occupational health and safety role other than those outlined above, there are no specific legislative protections. Where actions are taken by those volunteers in an OHS role (and they have not engaged in serious misconduct), their acts are deemed to be acts of the University and the University will accept responsibility for them.

Employees are entitled to take advantage of coverage provided by the Universitys insurance policies. Where an employee takes action which results in a liability for the University, and the Universitys insurer pays out the claim on behalf of the University, the insurance company cannot then seek to recover amounts it has paid from the employee. Volunteers are therefore afforded the same protection as an ordinary staff member who acts in the course of their employment and have no increased legal liability as a result of volunteering for an occupational health and safety role.

However the Universitys insurance policies will not cover those acts that are liable for criminal prosecution.