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GUIDANCE NOTE: GENERAL DUTY OF CARE IN WESTERN AUSTRALIAN WORKPLACES CONTENTS

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* Introduction
* Safety and health at work
* Achieving the objectives of the Act
* The general duties
* Similarity to common law
* The meaning of "practicable"
* The general duties and regulations
* The general duties and codes of practice
* The general duties and standards
* Workplaces covered by the general duties

INTRODUCTION

This document provides a detailed discussion of the "general duty of care" provisions in the Western Australian Occupational Safety and Health Act. Under the Act, all parties involved with work have responsibilities for safety and health at work. This includes employers, employees, self-employed persons and others, such as people who control workplaces, design and construct buildings or manufacture and supply plant.

The duties under the Act are expressed in broad terms, for example: an employer must, as far as practicable, provide a work environment in which employees are not exposed to hazards; employees must take reasonable care for their own safety and health, and that of others, at work; and self-employed persons must, as far as practicable, ensure the work does not adversely affect the safety and health of others.

Such wide ranging duties are called "general duties" or "general duty of care" - the latter reflecting that a "duty of care" is owed in law by one person to another.

SAFETY AND HEALTH AT WORK

THE OCCUPATIONAL SAFETY AND HEALTH ACT AIMS TO:

PROMOTE AND SECURE THE SAFETY AND HEALTH OF PEOPLE AT WORK PROTECT PEOPLE AT WORK FROM HAZARDS ASSIST IN SECURING A SAFE AND HYGIENIC WORKING ENVIRONMENT ELIMINATE, REDUCE AND CONTROL HAZARDS ENCOURAGE CO-OPERATION AND CONSULTATION BETWEEN EMPLOYERS AND EMPLOYEES PROMOTE EDUCATION AND AWARENESS OF OCCUPATIONAL SAFETY AND HEALTH

Source: Section 5, Occupational Safety and Health Act 1984

ACHIEVING THE OBJECTIVES OF THE ACT

The Occupational Safety and Health Act sets objectives to promote and improve occupational safety and health standards. General duties are laid down in the Act, and are supported by other requirements in the Act and Regulations.

The Act describes behaviour required of people who affect safety and health at work. It imposes a general duty of care to protect persons at work from hazards and maintain safe and healthy workplaces.

The Act places emphasis on workplace consultation between employers and employees, and safety and health representatives, if the workplace has any. The general requirement for employers to consult and co-operate with safety and health representatives and other employees is a part of the employer's general duty under the Act. Similarly, employees are required to co-operate with employers in safety and health matters so that employers are able to meet their responsibilities.

The Act also provides for the election of employee safety and health representatives and the formation of workplace safety and health committees. Safety and health committees are made up of employer representatives and safety and health representatives, or employee representatives if the workplace has no safety and health representatives.

The Act encourages employers and employees to resolve safety and health issues in a spirit of cooperation, using procedures developed through consultation at each workplace. The Occupational Safety and Health Regulations, made under the Act, describe some of the requirements which apply to specific work situations.

Reference is also made in the legislation to codes of practice issued by the Minister and to standards produced by Standards Australia and the National Occupational Health and Safety Commission.

The Act provides a framework where consultation, co-operation, regulations, codes of practice, workplace standards and procedures to resolve issues support the general duty of care. The general duty of care is the guiding principle for all other parts of the Act. The legislative framework shown below was established to achieve the objectives of the Act.

THE LEGISLATIVE FRAMEWORK MAJOR PROVISIONS OF THE ACT

* The General Duties
* Resolution of Issues
* Safety and Health Representatives
* Safety and Health Committees
* Enforcement of Act and Regulations

REGULATIONS

The Occupational Safety and Health Regulations set minimum requirements for specific hazards and work practices, including reference to National Standards developed by the National Occupational Health and Safety Commission and Australian Standards developed by Standards Australia.

GUIDANCE MATERIAL NOT IN REGULATIONS

Codes of practice approved for Western Australia in accordance with Section 57 of the Act and guidance notes developed by the WorkSafe Western Australia Commission. National codes of practice and national standards developed by the National Occupational Health and Safety Commission. Australian Standards developed by Standards Australia.

THE GENERAL DUTIES

In Western Australia, the Occupational Safety and Health Act applies general duties to protect persons at work from hazards and to maintain safe and healthy workplaces. Some of the general duty provisions in the Act are qualified by the words "so far as is practicable".

AN OVERVIEW

* EMPLOYERS MUST PROVIDE A WORKPLACE WHERE EMPLOYEES ARE NOT EXPOSED TO HAZARDS.
* EMPLOYERS MUST ALSO PROVIDE A SAFE SYSTEM OF WORK.
* EMPLOYEES MUST TAKE REASONABLE CARE FOR THEIR OWN SAFETY AND HEALTH AND THAT OF OTHERS AFFECTED BY THEIR WORK.
* EMPLOYERS AND SELF-EMPLOYED PEOPLE MUST, AS FAR AS PRACTICABLE, LOOK AFTER THEIR OWN SAFETY AND HEALTH AND ENSURE THAT THE WORK DOES NOT AFFECT THE SAFETY AND HEALTH OF OTHERS.
* DESIGNERS, MANUFACTURERS, IMPORTERS AND SUPPLIERS MUST PROVIDE PLANT WHICH IS SAFE TO INSTALL, MAINTAIN AND USE AT WORKPLACES.
* ALL PLANT MUST BE INSTALLED OR ERECTED SO IT CAN BE USED SAFELY.
* SAFETY AND HEALTH INFORMATION MUST BE SUPPLIED WITH ALL PLANT AND SUBSTANCES USED AT WORK.
* EMPLOYEES AND SAFETY AND HEALTH REPRESENTATIVES MUST CONSULT AND CO-OPERATE IN MATTERS RELATED TO SAFETY AND HEALTH AT WORK.
* EMPLOYEES MUST BE PROVIDED WITH INFORMATION, INSTRUCTION, TRAINING AND SUPERVISION TO ALLOW THEM TO WORK IN A SAFE MANNER.

Source: Occupational Safety and Health Act 1984

SIMILARITY TO COMMON LAW

The law described in this document is called statute law. Statute law is developed through the process of Government and includes Acts and their supporting regulations. Statute law is enforceable and breaches may result in prosecution.

There is another body of law called common law, which has developed as a result of civil actions. This occurs when a person believes that he or she has been wronged by another party and takes that party to court, seeking justice.

The general duties of care in the Occupational Safety and Health Act are based on principles built up under common law. Because of this similarity, it is important not to confuse common law and statute law. In statute law, the requirements are written down in the legislation, which is considered by Parliament.

Common law is built up over time through decisions made by the courts. The courts have determined the common law duty to mean that all employers must take reasonable care for the safety of their employees. This assumes that control of working conditions rests largely with the employer, and consequently responsibility for occupational safety and health also rests largely with the employer.

Sometimes this common law duty is split into categories such as safe work practices (eg use of appropriate hand tools for the task), safe place of work (eg equipment is well laid out and lighting is suitable for the task) or safe system of work (eg tagging procedures exist for maintenance of equipment), but the overriding general duty always remains.

In common law, an employee may claim damages through a civil court for injuries arising from an employer's failure to take reasonable care. These are commonly called "negligence claims". The courts recognise that the actions of an employee may contribute to an injury and may reduce the size of a damages payout for "contributory negligence". Under common law, there must be some damage to a person or property before action can be taken.

Under the Occupational Safety and Health Act there is no need for an injury to occur before enforcement action can be taken to have an unsafe situation fixed. The focus is on prevention of such unsafe situations, because the duties are enforceable.

Under the Act, the courts may impose fines for breaches of the legislation, but there are no payouts for negligence to injured parties.

THE "REASONABLE PERSON"

In common law, each case is decided on its merits and the courts determine whether the action taken by the employer is reasonable in any particular case. They consider the way a hypothetical "reasonable person" might behave in each situation, to determine the standard of care which should apply in any particular case. It is based on the values of the society of the day and, in the end, will involve a value judgment.

There is no legal definition of how a reasonable person would behave, and the final decision would depend upon the facts of each situation. For employers, there is emphasis on the increased level of care that would be considered reasonable by today's standards. In a High Court decision, the following comment was made regarding the employer's obligation:

"...what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community ... What is considered to be reasonable in the circumstances of the case must be influenced by current community standards."

Source: Bankstown Foundry case final appeal: Mason, Wilson and Dawson JJ (160 CLR 301).

The employer's position is covered very well in the following summary:

"The overall test is the conduct of a reasonable and prudent employer taking positive thought for the safety of his workers in light of what he knows or ought to know; where there is a recognized and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it unless in the light of common sense or newer knowledge it is clearly bad; where there is developing knowledge, he must reasonably keep abreast of it and not be too slow to apply it; where he has in fact greater than average knowledge of the risks, he may therefore be obliged to take more than the average or standard precautions."

Source: a statement by Swanwick J. Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd (1968) 1 WLR 1776

THE MEANING OF "PRACTICABLE"

Some of the general duty provisions in the Act are qualified by the words "so far as is practicable". This applies to general duties for employers, self-employed people, people with control of workplaces, designers, manufacturers, importers, suppliers, erectors and installers. These people are expected to take measures that are practicable and reasonable.

If something is practicable, it is capable of being done. Whether it is also reasonable takes into account:

* The severity of any injury or harm to health that may occur.
* The degree of risk (or likelihood) of that injury or harm occurring.
* How much is known about the hazard and the ways of reducing, eliminating or controlling it.
* The availability, suitability and cost of the safeguards.

The risk and severity of injury must be weighed up against the overall cost and feasibility of the safeguards needed to remove the risk. Common practice and knowledge throughout the relevant industry are taken into account when judging whether a safeguard is "reasonably practicable".

Individual employers could not claim that they did not know what to do about certain hazards if those hazards were widely known by others in the same industry, and safeguards were in place elsewhere.

The cost of putting safeguards in place is measured against the consequences of failing to do so. It is not a measure of whether the employer can afford to put the necessary safeguards in place. While cost is a factor, it is not an excuse for failing to provide appropriate safeguards, particularly where there is risk of serious, or frequent but less severe, injury.

Example:

Exposed mechanical gears on rotating equipment are hazardous. Clothing, hair, hands or fingers can get caught, causing serious injuries. It can be argued that setting up machines with suitable guarding is costly and sometimes inconvenient.

However, industry has shown that mechanical gears can be easily guarded without adversely affecting the operation of the equipment. What is considered reasonable in any particular case will depend on the specific circumstances. The concept is very similar to the discussion of "reasonable person" under the section "Similarity to Common Law".

The difference is that the Act provides specific guidance by listing the factors which must be taken into account, as listed above.

HEALTH AS WELL AS SAFETY

A hazard means anything that may result in injury or harm to the health of a person. In providing an environment where employees are not exposed to hazards, employers must consider health as well as safety.

Injuries could result from the traditional range of physical safety issues such as falls, strains, being hit by objects and electric shock. "Health" is a broader concept. It includes work related injuries and diseases, such as industrial deafness, dermatitis, occupational overuse injuries, asbestosis and occupational cancers.

It could also include more general health problems like heart disease, high blood pressure and stress where the work environment and procedures could be shown to be contributing factors.

THE GENERAL DUTIES AND REGULATIONS

The Act is supported by regulations which specify more detailed requirements. Like the Act, regulations are enforceable and breaches may result in prosecution and fines.

WORKING WITH REGULATIONS

Where a regulation exists, the regulation must be complied with as a minimum requirement.

Example:

Elevating work platforms are required by regulation to be operated by a person with an appropriate certificate of competency. This is a minimum requirement, which is not qualified by the phrase "in so far as is practicable", and it must be complied with in all workplaces covered by the Act.

While regulations must be complied with, the overriding responsibility is to comply with the general duties in the Act. Compliance with a regulation does not necessarily mean that the whole of the general duty of care has been complied with.

Example:

An employer could provide eye protection in accordance with relevant regulations but would not fulfill all the requirements of an employer's general duty unless there was adequate information, instruction and training in the use of the eye protection. Further, the employer must provide adequate supervision to ensure the eye protection is properly used.

The employer also has a duty to take all practicable steps to eliminate, reduce or control any hazards which could cause eye injuries. The general duty includes the provision of protective equipment but only where it is not practicable to avoid the presence of hazards.

When eye protection is provided and employees have been properly instructed in its use, the employees must use the eye protection and ensure that it is not misused or damaged. This forms part of the employee's duty of care under the Act and can be enforced even though it is not specifically stated in the regulations.

Whenever a hazard poses a risk of harm or injury to persons at work, the general duties as set out in the Act and any relevant regulations should be taken into account. Through a process of consultation between employers, safety and health representatives and employees, workplaces may achieve better than the minimum requirement set in regulations, and are encouraged to do so.

WORKING WITHOUT REGULATIONS

Where hazards exist and there are no relevant regulations, employers still have a duty to eliminate, reduce or control the hazards.

Example:

Safe work practices to reduce the risk of personal attack and violence in the workplace are not covered by specific occupational safety and health regulations. Even so, all of the general duty provisions of the Act apply to workplaces such as prisons, psychiatric hospitals, banks, chemist shops and service stations where there is an increased risk of serious injury from an attack.

To comply with the general duty, employers, in consultation with employees, could consider:

* Systems of work which reduce the risk of attack (eg regular banking to reduce the amount of money held in a shop).
* Information and training for employees including action to be taken in an emergency.
* Consultation with safety and health representatives and committees or other employees to review safe work practices.
* Protective measures such as physical security, lighting and other deterrents.
* Adequate communication means, such as two-way radios for mobile patrols.
* Safe handling, storage and transportation of substances such as drugs, which could be the target of a hold-up or theft.

Consultation and co-operation are encouraged so that employers, safety and health representatives and employees can develop safety and health procedures which suit their particular work situations. It would be appropriate for these procedures to be developed through the safety and health committee where one exists.

THE GENERAL DUTIES AND CODES OF PRACTICE

Guidance on meeting the general duty provisions of the Act may be found in codes of practice dealing with specific matters. Codes of practice provide practical information on how to achieve safety and health standards at the workplace.

The preventive strategies outlined in a code of practice are not necessarily the only acceptable ways of achieving the required standard to which the code refers. It is acceptable to use an alternative that achieves the same level of safety.

Because codes of practice are recommended by the Commission, they include policies and practices jointly developed by the Government and representatives of employers and unions. Codes of practice are developed with the general duties in mind and, in most cases, compliance with a code of practice would achieve compliance with general duty provisions in the Act, in relation to the subject matter of the code.

Like regulations, codes of practice deal with particular issues and do not necessarily cover all hazards which may arise. The general duties require an employer to consider all potential hazards associated with the work, not only those for which regulations and codes of practice exist.

A code of practice applies to anyone who has a duty of care in the circumstances described in the code. This may include employers, employees, self-employed persons, manufacturers, designers, suppliers and so on.

For example, the code of practice on Legionnaires' Disease contains information which is applicable to persons with responsibility for a workplace's airconditioning system. In Western Australia, a code of practice does not have the same legal force as a regulation, and failure to comply with a code of practice is not, of itself, an offence.

However, a relevant code of practice may be considered as evidence in any court proceedings under the Act or Regulations. The Act or Regulations may be complied with either through observing the code of practice or by another equally effective means.

An inspector may refer to a code of practice when writing an improvement notice and may offer the person to whom the notice is issued a choice of ways in which to comply. Failure to comply with an improvement notice is an offence.

Example:

The code of practice on "The Managment of HIV/AIDS, Hepatitis B and Hepatitis C in Workplaces" states, "where there is a risk of contracting Hepatitis at work, the employer has a responsibity to provide vaccinations". There are no specific regulations dealing with vaccination or other measures to protect against cross-infection.

An inspector may issue an improvement notice to the employer at a workplace where unvaccinated employees have an increased risk of infection with Hepatitis B. The improvement notice would state that there was a breach of the employer's general duty under the Act and note that employees exposed to a hazard were not provided with adequate protection.

The notice could refer to the code of practice on "The Managment of HIV/AIDS, Hepatitis B and Hepatitis C in Workplaces" and direct the employer to provide vaccinations or take other measures to eliminate, reduce or control the risk of infection.

To comply, the employer could provide the vaccinations or, perhaps, reorganise the system of work so that unvaccinated employees do not come into contact with the source of infection.

While acceptable work practices recommended in a code of practice are not compulsory, the employer still has a legal responsibility to provide a safe system of work. In order to comply with the provisions of the Act or Regulations, the hazard must be addressed in some other way if the code is not applied.

THE GENERAL DUTIES AND STANDARDS

In Australia there are a number of national bodies with a common interest in establishing industry standards that apply to a wide range of workplaces. One such body is Standards Australia. This is a technical body which establishes standards, referred to as "Australian Standards" (AS) and "Australian Standards / New Zealand Standards" (AS/NZS).

Other standards, referred to as "National Standards", may be established by the National Occupational Health and Safety Commission. A standard does not by itself create a legal requirement. However, where the legislation adopts such a standard it has the force of law.

An example of an Australian Standard adopted in law in Western Australia is AS 1801-1981 "Industrial safety helmets". An example of a National Standard adopted as law in Western Australia is the National Exposure Standards for Contaminants in the Occupational Environment (NOHSC: 1003 (1995) ), which is referred to in regulations.

In the regulation dealing with the acceptance of the design of plant, the Commissioner may decide that the plant should meet particular requirements, such as specifications set in an Australian Standard, before the design is accepted.

STANDARDS NOT REFERRED TO IN REGULATIONS

If an Australian Standard or a National Standard is not referred to in the regulations or an approved code of practice, it has no legal significance under the Occupational Safety and Health Act, except perhaps as a guide to what is reasonable in that industry.

In complying with the general duties, these standards may be used as a guide. The application of Australian or National Standards varies according to their relevance to Western Australian industry. Common practice in an industry should be taken into account. If the majority are working to a particular standard that is not set in regulations, but which clearly complies with general duty requirements and achieves safe work practices, then it is likely that others would be expected to apply the same standard.

Inspectors may cite a breach of general duties in an improvement notice and refer to a particular standard in the directions of the notice.

WORKPLACES COVERED BY THE GENERAL DUTIES

A workplace is defined as any place where employees or self-employed persons work or are likely to be in the course of their work. The definition includes such places as aircraft, ships, vehicles, farms, forests, buildings and other structures. It is not limited to traditional workplaces such as factories, shops, warehouses and construction sites.

The Act applies to all workplaces in Western Australia except for those listed in section 4 of the Act. The exclusion includes mines, petroleum wells and petroleum pipelines, although coverage can be extended to these workplaces by an agreement between the Minister for Labour Relations and the Minister for Mines.

Workplaces under the control of the Commonwealth Government are covered by other occupational safety and health laws, not by the Western Australian Act.

A MATTER OF CONTROL

An employer's responsibility is limited to those aspects of the employment where the employer is capable of exercising some control.

The definition of a workplace in the Act is very broad and could apply to places such as streets where the employed person is a driver or delivery person, or a public oval where the employee is a teacher supervising school sports.

In the example of the delivery person, an employer could have control over the maintenance of the vehicle and the system of work, but would be unlikely to have any control over the streets, buildings or sites where the goods were to be delivered.

Similarly, an employer would have little control over the public oval in the second example. In the same way, an employer may not have any control over public transport used for interstate or international travel or over hotels or other workplaces outside Western Australia where employees could be in the course of their work. (Note that where and employee undertakes work in another State, the employer may have duties under that State's legislation.)

OVERLAPPING OBLIGATIONS

The following sections of this guidance note refer to duties of specific persons under the Act. In some cases a person will have duties under more than one section of the Act. For example, an employer will have duties under section 19, Duties of Employers, and section 21, Duties of employers and self-employed persons.

An employee who has management responsibilities as part of his or her job has the duties of an employee under the Act, however there may be occasions when he or she will represent the interests of the employer in occupational safety and health.

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Document ID: 295 - Posted: - Page Built: 26/03/00 18:55:09 (guidwswa0003)

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