OHS 135: Law and Ethics

OHS 135: LAW AND ETHICS

Module 1: Legal Systems and Frameworks

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OHS 135: Law and Ethics

Legal Systems and Frameworks

*All readings and learning activities can be downloaded in the “Downloadable Content” section.

1. Module 1: Legal Systems and Frameworks

After completing this module, you will be able to:
• Describe the characteristics of common law and civil law systems.
• Identify different sources of general and OHS law.
• Recognize how legal systems apply to OHS activities.

2. Introduction to Legal Systems

Globalization provides opportunities for organizations to extend beyond their traditional boundaries and
provide products, services, and resources to a larger, international market. While this creates trade,
growth, and expansion opportunities, it can also result in complexity due to the vast differences in legal
systems across countries. Safety professionals working for global organizations can be more effective if
they have a basic understanding of how these differences can be managed.

3. Legal Systems Around the World

Every country has its own legal system. The two dominant legal traditions in the world are:
• Civil law systems, in which core principles are codified as primary sources of law (i.e., the system
is based on written codes, such as civil code, tax law, or constitutional law).
• Common law systems, in which legal decisions made by judges have equal standing with statutes
enacted by legislatures and regulations adopted by administrative agencies.

Some jurisdictions, particularly those in Europe and the Western Hemisphere, have legal systems that fall
exclusively within either the civil law or the common law tradition. Other jurisdictions have mixed legal
systems that incorporate elements of two or more legal traditions. This is especially true in Africa and
Asia, where many countries that have adopted civil law or common law systems also have retained
elements of customary law or religious law.
In certain common law countries, courts (such as the Supreme Court of the United States) can declare
laws that were passed by legislators unenforceable if those laws are deemed unconstitutional or in
violation of federal law. By contrast, in the United Kingdom, the concept of parliamentary sovereignty
means that legislation can only be amended or revoked by Parliament, not the courts.

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OHS 135: Law and Ethics

4. The Origin of Civil Law and Common Law Systems

The common law system originated in the United Kingdom. Before 1066 and the Norman Conquest, the
UK had no coherent legal system. Instead, legal decisions were based on customs and varied within
different parts of the country. William the Conqueror (ca. 1028- 1087) was the first king to unite these
traditions and created courts and a legal system common to the whole country, hence the term
‘common law.’
The common law system developed alongside the courts of equity. These courts devised remedies to
legal issues based on fairness and equality to counter the sometimes-rigid common law. The decisions of
these courts were recorded and published, which made it possible for the judiciary to look at previous
court decisions and apply them to the case at hand. This process of relying on previously-made decisions
is known as judicial precedent. Judicial precedent works on the basis of the principle of stare decisis, a
Latin phrase which means ‘let the decision stand.’
Nowadays, common law includes certain rules. For instance, only specific parts of a judgment can
become binding precedent if handed down by a superior court.
Civil law, on the other hand, can be traced back to the legal system of ancient Rome. Civil law uses a
codified system as the primary source for law and is recorded in legal codes that apply to a particular
area.

5. Differences between Civil Law and Common Law Systems

The table below illustrates some differences and similarities between civil law and common law systems.
Civil Law Common Law
Definition A legal system originating in Europe A legal system characterized by case law,
whose most prevalent feature is that its which is law developed by judges through
core principles are codified into a decisions of courts and similar tribunals.

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OHS 135: Law and Ethics

referable system which serves as the

primary source of law.
Role of Judges function as chief investigators Judges function as a referee between
Judges who make rulings that are usually non- lawyers. They make rulings and set
binding to third parties. The judges’ role precedent. Judges decide matters of law
is to establish the facts of the case and and, where a jury is absent, they also find
to apply the provisions of the applicable facts. Most judges rarely inquire extensively
code, though the judges often bring the into matters before them, instead relying on
formal charge. arguments presented by the parties involved
in the case.
Major China, Japan, most African countries, United States, England, Australia, Canada,
Countries all South American countries (except India
Guyana), most of Europe
Written Always Not always
Constitution
Precedent Only used to determine the Used to rule on future or present cases.
administrative of constitutional court
matters.
Role of Jury In cases of civil law, the opinion of the Juries are comprised only of laypersons,
jury may not have to be unanimous. never judges. Their function is to weigh the
Laws vary by state and country. Juries evidence presented to them and to find the
are present almost exclusively in facts and apply the law.
criminal cases and virtually never
involved in civil actions. Judges ensure
that the law prevails over passion.
Origin The civil law tradition developed in Common law systems have evolved primarily
continental Europe and was applied in in England and its former colonies, including
the colonies of European imperial all but one US jurisdiction and all but one
powers such as Spain and Portugal. Canadian jurisdiction.
Sources of • Constitution. • Constitution (not in the UK).
Law • Legislation (statutes and • Legislation (statutes and subsidiary
subsidiary legislation). legislation).
• Customs. • Customs.
• International law. • International Law.
• Judicial precedent (common law and
equity).
• Convention.

Type of Inquisitorial. Judges, not lawyers, ask Adversarial. Lawyers ask witnesses
Argument questions and demand evidence. questions, demand production of evidence,
Lawyers present arguments based on and present cases based on the evidence
the evidence the court finds. they have gathered.
Evidence Evidence demands are within the Widely understood to be a necessary part of
sovereign inquisitorial function of the the litigants’ effective pursuit or defense of a
court, not within the lawyers’ role. claim.

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OHS 135: Law and Ethics

6. Sources of Law
A source of law is something (such as a constitution, treaty, custom, or statute) that provides the
authority for judicial decisions and legislation. Each country’s legal system has its own sources of law,
with greater weight placed on some sources than others. For safety professionals working across
international boundaries, it may be important to identify which sources of law apply in which country
and their relative weighting. The most common sources of law include:
Constitution
A country's constitution is a set of fundamental ground rules that lays out the power of the different
branches of the government (i.e., executive, legislative, and judicial) and how these branches operate
and interrelate.
A constitution can also set out basic principles, such as fundamental freedoms and rights. In civil law
systems, these rules are usually embodied in ‘codes.’ A constitution overrides any other source of law
and is usually highly difficult to amend. There may be a separate judicial court that considers
constitutional issues, namely whether any law, regulation, or administrative act is inconsistent with the
constitution and therefore void.
Legislation (Statute Law)
Legislation (statute law) is the second key source of law and usually takes priority over other sources of
law, except for constitutional law. A country might have more than one legislative body, for example,
central, provincial, state, or municipal authorities. Rules determine the extent to which and in what areas
one legislative body has priority over another.
Primary legislation may delegate powers to a particular ministry or regulator to prepare secondary
legislation designed to supplement and develop the principles set out in the primary legislation.
For example, tariff setting guidelines for a regulatory authority that is established by primary legislation
may be set out in secondary legislation. Secondary legislation is usually not subject to full parliamentary
scrutiny guidelines and thus is faster to enact. However, it may be more difficult to identify than primary
legislation as it might be recorded in subsidiary documents.
Judicial Decisions
In some countries, judicial decisions are authoritative and develop into a source of law known as case law
or common law. Common law may extend the application of legislation and is considered to form part of
the law. In other jurisdictions (mainly civil law jurisdictions), judicial decisions are formally only
considered to interpret the existing law and are not a binding source of law. However, in practice, they
are often treated as authoritative.
Treaties
Another source of laws are laws established in a treaty. Treaties are made by either regional or world
groupings. Examples include the laws of the European Union (EU), trade treaties, rules of the World
Trade Organization (WTO), and bilateral treaties. It is unlikely for a country to be able to easily amend
the rules of a treaty.

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OHS 135: Law and Ethics

An example of the laws of a regional grouping is the body of regulations and directives of the EU. EU
regulations have direct application in the respective member states’ legal systems and will take
precedence over each member's national laws. Directives have to be adopted separately into law by each
member state, but the member state must ensure consistency with the underlying EU directive.
Rules and guidelines may also be imported into law through treaties in relation to matters such as
standards of engineering or health and safety guidelines. For example, a country may adopt the World
Health Organization's standards for drinking water.

7. Self-Check
Let’s review some of the terms we just covered!

A: Constitution
B: Judicial precedent
C: Treaty
D: Common law
E: Civil law

1: A law system that originated from the UK, in which judge-made decisions can develop into a source of
law.
2: A source of law made by either regional or world groupings. Examples include the EU and World
Health Organization.
3: A set of fundamental ground rules that lays out the power of the different branches of the
government. This source of law overrides any other sources.
4: A law system in which core principles are codified as primary sources of law.
5: This is the process of relying on previously-made court decisions and applying them to the case at
hand.

Answer Key: A=3; B=5; C=2; D=1; E=4

8. Sources of OHS Law

In the health and safety world, we are primarily concerned with two sources of law:
• Legislation/statute law (the law made by the authorities).
• Common law (law made by judges in the exercise of both common law and equitable
jurisdiction).

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OHS 135: Law and Ethics

While legislation and common law are two logically separate sources of law, they interact in important
ways.
As a general principle, legislation may change the principles of common law. However, in a legal system
governed by a written national constitution, parliamentary power may be constrained by constitutional
limits. If a court rules that parliament has exceeded its powers, then legislation may be struck down as
invalid. In addition, legislation is not self-executing. For a legislative rule to have effect, a court will need
to decide that the rule has been breached. Consequently, courts have an important ongoing role in
interpreting the meaning of statutes and regulations.

9. Criminal vs. Civil Obligations

The distinction between criminal and civil obligations is another important differentiation for safety
professionals to keep in mind.
Criminal Obligations
In general terms, obligations classified as criminal are those that society has an interest in enforcing.
Violation of these obligations is seen as a threat to society.
A public official, such as the Director of Public Prosecutions or, in safety law cases, a regulator or an
inspector authorized by a regulator, usually prompts the enforcement of criminal law.
Violations of criminal obligations are punished either by imprisonment or by a fine payable to the
relevant government body.
Civil Obligations
Civil obligations are those owed by citizens to each other. A civil lawsuit (such as an action for damages,
breach of contract, or workers’ compensation) is initiated by the individual who has been harmed. Any
damages or compensation payment resulting from a civil lawsuit is made to that individual.

10. Criminal and Civil Law Implications for Safety Professionals

Safety professionals should understand the difference between criminal and civil legal action. Especially
in the area of safety law, injuries or risks may lead to two separate actions. For example, an injury in the
workplace may lead to a civil action for compensation for harm, which might result in financial
compensation for the worker. In completely separate court proceedings, the same injury may lead to a
criminal prosecution conducted by an inspector (or the regulator itself) resulting in a penalty imposed on
the responsible party.
Civil law plays an indirect role in improving safety in the workplace through the obligations it imposes on
employers and others to take reasonable care for the safety of workers, as well as through the impact of
awarded damages that may result when these obligations are not met. Criminal law addresses the issue
more directly by seeking to prevent accidents happening through penalizing risks to safety.

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OHS 135: Law and Ethics

11. History of Safety Legislation

The current state of safety legislation is difficult to understand without some knowledge of how it has
developed, particularly since the early 1970s. You can refer to the History of Safety Legislation (in the
Resources section) for a timeline overview of important developments in safety legislation.
Initially, most safety legislation was based on the standards of the United Kingdom in the 19th century.
Early statutes were mainly concerned with the working hours of children and young adults, and later
women.
In 1884, the Factories Act regulated machinery safety in the UK textile industry by establishing strict
liability specification safety standards in statutes, supplemented by regulations that also were
predominantly specification standards. A specification standard states the safeguard that has to be
adopted for an employer or factory owner to comply with the Act. Provisions in the 1844 Factories Act
were enforceable by an independent state inspectorate, which could resort to prosecution.
From the 1860s, regulatory protection was extended to other industries as needed.

12. Judiciary Systems

The main role of the judiciary system (bench/courts) is to resolve the disputes and cases brought before
them. As with any legal system, judiciary systems differ across countries.

Canada
The Constitution Act of 1867 provides for the establishment and operation of Canada's professional
judiciary. It gives the federal government exclusive law-making power over criminal law and criminal
procedure, but not over the establishment of criminal courts. It also gives the provinces exclusive law-
making power over the administration of justice in each province.
The federal government appoints the judges of the Supreme Court of Canada, the Federal Court of
Appeal, the Federal Court, and the federal Tax Court of Canada. (The Supreme Court is Canada's highest
court of appeal for all matters. The federal courts deal primarily with matters concerning the federal
government).

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USA
The United States is a federal system, with a central federal government and individual governments for
each of the fifty states. As with the other branches of government, each of the states has their own
complete judicial system (state courts) as does the United States itself (federal courts). Although there
are important differences between the federal courts and between the various state court systems, they
do share some common characteristics.
Each judicial system has a number of courts of original jurisdiction, in which cases are originally filed and
tried. The jurisdiction of these trial courts can be both geographically and subject matter based. Each
system also has a smaller number of intermediate appellate courts. These courts hear appeals from the
trial courts. An appeal is a claim by the losing party that the lower court has made a mistake of law.
Usually, a losing party is entitled to one appeal as a matter of right. Each court system also has a supreme
court, which hears appeals from the appellate courts. Appeals to the Supreme Court are usually
discretionary, i.e., the court may choose whether or not to hear the appeal.

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Australia
The judiciary of Australia comprises judges who sit in federal courts and courts of the states and
territories of Australia. The High Court of Australia sits on top of the Australian court hierarchy as the
ultimate court of appeal on matters of both federal and state law.
Many courts in Australia have different procedural powers and characteristics, different jurisdictional
limits, different remedial powers, and different cost structures. Under the Australian Constitution,
federal judicial power is vested in the High Court of Australia and such other federal courts as may be
created by the federal parliament. These courts include the Federal Court of Australia, the Federal Circuit
Court of Australia, and the Family Court of Australia. Federal jurisdiction can also be vested in state
courts.

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UK
Within the United Kingdom, England and Wales share one legal system, while Scotland and Northern
Ireland each have their own system. Nonetheless, there are some areas of the law that are covered by
tribunals that have jurisdiction over the entire UK, such as immigration law and military law.
Her Majesty’s Court and Tribunal Service oversees the Court of Appeal, the Crown Court, the High Court,
and the Magistrate’s Courts.

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Application to OHS
The judiciary is responsible for applying the laws of the state, including safety laws. The hierarchy of the
legal system that operates in your region is important to understand as the judiciary will make decisions
or set precedents that will be followed in similar cases. These decisions can be appealed and then
forwarded up the hierarchy in order to be heard again. An effective safety professional should seek and
maintain information sources from the judiciary that provides up-to-date legal information on matters
relating to workplace safety.

13. Legislative Hierarchy

OHS issues are significant for broader communities, countries, and businesses. The outcomes of poor
OHS management can include fatalities, injuries, damages to property and the environment, financial
costs, and even jail sentences. Compliance with legislation is the basic imperative for OHS activities. OHS
legislation across the world includes provisions aimed to lead to safer and more productive workplaces.
The OHS legislative hierarchy provides safety professionals and organizations with the information
required to safely and compliantly deal with hazards and risks within their operations. The hierarchy
provides levels of information that can be used to assist with developing management systems and to
understand or interpret the legal requirements. The hierarchy also identifies the primary and secondary
sources of law as well as supporting associated documents or guidance. Each country will have a
different hierarchy depending on their legal system, however, most will incorporate levels relating to law
and guidance.

14. Example: Australian OSH Legislative Hierarchy

In Australia, the OHS legislative hierarchy consists of three broad levels:
• The law.
• Guidance material.
• Systems and behaviours.

The relationship and intersection between the levels provide direction for work practices, processes, and
activities and help identify what is expected in specific industries. This means that they guide safety and
work practice standards for businesses, workers, and responsible officers.
Within Australia, the legal framework is similar across all types of law and between states and territories.
Many definitions, duties, rights, and obligations overlap with each other. For instance, OHS legislation is
closely linked to the Fair Work Act (Labour Laws) and workers’ compensation legislation along with
contract law and corporation law. This interconnectivity provides consistency for organizations and
assists professionals to develop compliant systems.
As we have just discussed, the Australian OHS legislative hierarchy consists of three levels that intersect
with each other. Each level includes different elements that impact the OHS practices of an organization:

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OHS Acts
The primary source of OHS law in most countries is the OHS Act. The OHS Act applies to all workplaces
and provides a broad framework for the administration and enforcement of OHS by placing certain
duties on individuals and parties who are involved in or contribute to the undertaking of the work.
Failure to comply with the duties outlined in the Act can result in breaches leading to notices, fines, or
prosecutions.
OHS Regulations
OHS regulations are interlinked with the OHS Act. They provide more detail of duties imposed by the OHS
Act. Regulations generally deal with particular areas of safety and the associated risks or they offer a
foundation for processes that support the achievement of safety outcomes. For example, Australian
regulations deal with work falling in the following categories:
• Confined spaces.
• Construction work.
• Working at heights.
• High-risk work.

Regulations also contain provisions on risk assessment and controlling risks. In some cases, the
regulations deal with the means for the management of specific risk (i.e., noise above thresholds), but
they generally do not prescribe exactly what must be done.

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Compliance with regulations is mandatory. Failure to comply can result in a breach of the OHS Act and
lead to potential prosecution.
OHS Codes of Practice
Codes offer guidance on how to comply with a general duty under the OHS Act or a specific duty
prescribed in the regulations. Basically, they provide an explanation of the various components and
obligations imposed by the regulations.
Within Australia, codes vary across states, with some states making them mandatory and others only
using them as recommendations for demonstrating compliance with the law. Codes are developed by
regulatory bodies and provide laymen’s interpretations of the law.
OHS Standards
The OHS Act, regulations, and codes are supported by other OHS standards, which can include:
• Industry guidelines.
• Australian standards.
• International standards.
• Research materials.

There is no legal obligation that requires a person to comply with any of these standards (apart from
Australian standards that relate to the design, manufacture, and supply of plants, equipment and
substances, etc.). However, standards can contain valuable guidance material on what is required in a
particular industry. Standards represent evidence of what is known about an activity, hazard, and
control. They also demonstrate what is considered to be an industry standard. Furthermore, they may
provide the necessary analysis to determine whether a risk control measure was reasonable in the
circumstance.
Workplace Systems
Many organizations develop operating systems that include policies, procedures, and associated
documentation. These systems include the tools and activities built on the foundations of the OHS Act,
regulations, and relevant codes. It is strongly recommended that organizations create a specific safety
management system (SMS) that suits the needs of the workplace activities. Organizations and individual
managers, who have a duty under the legislation, will be in a better position to demonstrate compliance
of meeting that duty if they implement effective workplace systems.
Individual Behaviours
An SMS only provides compliance if it is supported by commitment from senior management, effective
consultation and communication, training in the use and implementation of the system, and strong
enforcement through supervisors and monitoring. Individuals need to know and understand the system
before complying with it. Overall, the goal of an effective SMS is to be practical to allow for human
interaction but be systematic enough to demonstrate coverage of the law.

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OHS 135: Law and Ethics

15. Reading Assignment

The following are required reading assignments for this course. You can access them from the links
below, or you can locate them in the Resources section for this module.
The Role of the Judiciary in Occupational Health and Safety Prosecutions: Institutional Processes and the
Production of Deterrence
*This activity can be downloaded or printed from the “Downloadable Content” section.

16. Discussion Activity Board 1

There is a discussion activity for you in the Assignments and Activities section for this module. Take the
time to access it now and then return here to continue your learning.
*This activity can be downloaded or printed from the “Downloadable Content” section.

17. The Legal Landscape

OHS legislation is crucial in ensuring workplace safety standards and the ongoing health of workers. The
legal OHS framework is crucial in defining the obligations of employers, workers, and individuals who
control, operate, or maintain workplaces. However, the legal landscape does not operate by itself.
The political environment of the area, country, and even internationally can have a huge impact on
workplace safety, and so can the socioeconomic landscape. In most of the developed world, OHS is
typically planned and budgeted for as an everyday part of an organization’s operational life, however, as
the economic, political, and operational environments change, organizations often look in the other
direction when it comes to safety. The legal landscape has developed over time and across the globe to
promote the common good and encourage people to do the right thing. OHS law is no exception and by
itself cannot stop fatalities and injuries; it relies on people following it.

18. Self-Check
Question 1:
Early safety standards in the UK were mainly concerned with which of the following?
1. Fair compensation of workers.
2. Working hours of children.
3. Adequate ventilation in factories.
4. Mandatory safety training.

Question 2:
Who would initiate a civil lawsuit prompted by a workplace accident?

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1. The injured worker.

2. The safety committee.
3. A regulator or inspector.
4. The employer.

Question 3:
Criminal law contributes to workplace safety by penalizing the creation of safety risks.
1. True.
2. False.

Question 4:
Safety professionals are primarily concerned with which types of law? Select all that apply.
1. Legislation.
2. Treaties.
3. Civil law.
4. Common law.

Question 5:
______ plays an indirect role in improving safety in the workplace by imposing the obligation to take
reasonable care of workers’ safety on the employers.
1. Civil law.
2. Criminal law.
3. Common law.
4. Statue law.

19. Summary
You have successfully completed this module. You should now be able to:
• Describe the characteristics of common law and civil law systems.
• Identify different sources of general and OHS law.
• Recognize how legal systems apply to OHS activities.

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