Occupational Health & Safety Practitioner

Reading THE DUTY OF CARE PART 1

January 2009

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Contents
OVERVIEW .....................................................................................................................1 SECTION 1: INTRODUCTION.......................................................................................2 SECTION 2: CONCEPTS AND DEFINITIONS ............................................................11 SECTION 3: EMPLOYERS’ DUTIES ...........................................................................15 REFERENCES & FURTHER READING.......................................................................30

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READING-THE DUTY OF CARE PART 1

Overview
This reading covers the concept of "general duty of care" as it applies to OHS legislation. It briefly outlines the similarity with common law, the Robens Report and ILO Convention 155 (both of which have had a significant impact on modern OHS legislation) and discusses in detail the duties of employers. To give the discussion a legislative context and to show how the principles discussed have been applied in law, reference is made throughout to the Western Australian Occupational Safety and Health Act 1984 (WA OSH Act) and, to a lesser extent, legislation in other Australian jurisdictions. These references are illustrative only, and the broad discussion remains relevant to the student of OHS, irrespective of jurisdiction.

Objectives
After reading this information you should be able to:  outline the key differences between statute law and common law, particularly as it relates to the general duty of care concept; recognise the influence of the Robens Report and ILO Convention 155 on modern OHS legislation; describe the concept of practicability; and describe the key elements of the statutory general duties of employers.

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Author
Wendy Clarkson B.Sc., Grad. Dip. OH&S

JANUARY 2009

SAFETYLINE INSTITUTE

PAGE 1

Statute law is developed through the process of Government and includes Acts and supporting regulations. Common law claims typically seek some form of redress. glossary terms are indicated with an asterisk (*). Statute Law Common Law PAGE 2 SAFETYLINE INSTITUTE JANUARY 2009 . The Committee's report. through decisions made by the courts (precedents). became widely known as the "Robens Report". Common law has developed as a result of civil actions. however the principle is the same. seeking justice. Statute law is enforceable and breaches may result in prosecution. including Australia. for example.THE DUTY OF CARE PART 1 Section 1: INTRODUCTION Glossary of terms When they are first used. Common law is established (and changed) over time. This occurs when a person believes that he or she has been wronged by another party and takes that party to court. the term ordinance is used in some jurisdictions but not others. which was presented to Parliament in July 1972. The terminology may differ in various jurisdictions. frequently monetary. which was established in 1970 to review the provisions made for occupational safety and health and to recommend any changes required (Robens 1972).READING . Make sure that you are familiar with the Glossary of terms before going any further. Robens Report Lord Robens chaired the British Committee of Inquiry in Safety and Health at Work. This report had far reaching effects beyond Britain and its recommendations have formed the basis of modern OHS legislation in a number of countries.

gov. Some examples are sourced from the guidance note. The definition includes such places as aircraft. which relates to the application of Western Australian legislation to Western Australian workplaces.READING . For example. ships. vehicles. In contrast. buildings and other structures.wa. a workplace is defined as any place where employees or selfemployed persons work or are likely to be in the course of their work. This is reflected in the definitions of "workplace" adopted in the various acts.au/WorkSafe/PDF/Guidance_notes/index. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 3 . under the WA OSH Act. farms. a feature of modern general duty of care style legislation is that it applies as broadly as possible. shops. forests.THE DUTY OF CARE PART 1 Workplace "Traditional" OHS legislation applied narrowly to specified areas such as factories.docep. Note: Much of the information in this reading is drawn from the WA Commission for Occupational Safety and Health guidance note General duty of care in Western Australian Workplaces www.htm This reading takes a broader approach than the guidance note. warehouses and construction sites.

The concept reflects the fact that a "duty of care" is owed in law by one person to another. seeking justice. 1. Statute law is enforceable and breaches may result in prosecution.THE DUTY OF CARE PART 1 1. however. of a wide range of persons who are connected with the work or working environment. Statute law is developed through the process of Government and includes acts and their supporting regulations. which has developed as a result of civil actions. ensure the work does not adversely affect the health and safety of others. design and construct buildings or manufacture and supply plant.2 Statute law and common law The OHS legislation referred to in this reading is statute law. employees.READING . development and implementation of such legislation vary across jurisdictions. including Australia. for example. expressed in general terms. and self-employed persons must. such as people who control workplaces. selfemployed persons and others. Examples of such duties include:    an employer must. The terminology may differ in various jurisdictions. While the history. the term ordinance is used in some jurisdictions but not others. provide a work environment in which employees are not exposed to hazards. There is another body of law called common law.1 Duty of care is owed by one person to another The concept of general duty of care is the cornerstone of modern OHS legislation in many jurisdictions throughout the world. This occurs when a person believes that he or she has been wronged by another party and takes that party to court. employees must take reasonable care for their own health and safety. the principle is the same. These may include employers. and that of others. at work. as far as practicable. common principles apply. "duty of care" or "general duties" relate to broad responsibilities. Common law claims PAGE 4 SAFETYLINE INSTITUTE JANUARY 2009 . The terms "general duty of care". as far as practicable.

Depending on how the relevant requirements are framed in individual legislation.g. depending on the wording of the legislation. 1.g.READING . While consideration of the common law duty is useful for the understanding of legislation incorporating the concept. and the employer's consequent greater control over matters affecting OHS. In particular. safe place of work (e. This recognises the greater level of control the employer has over working conditions.3 The common law duty The courts have determined the common law duty to mean that all employers must take reasonable care for the safety of their employees. more extensive or otherwise different to common law duties. tagging procedures exist for maintenance of equipment). JANUARY 2009 SAFETYLINE INSTITUTE PAGE 5 . use of appropriate hand tools for the task). statutory duties may vary considerably between jurisdictions. The overriding general duty always remains. it is important not to confuse common law and statute law. the statutory provisions may be more limited. compared to the employee. Common law is established (and changed) over time.THE DUTY OF CARE PART 1 typically seek some form of redress. Nevertheless.g. frequently monetary. "general duty of care style" legislation contains similar principles across jurisdictions. or safe system of work (e. Similarly. The general duty of care concept is based on principles established under common law and has subsequently been incorporated into statute law. through decisions made by the courts (precedents). Sometimes this common law duty is described in terms of:    safe work practices (e. it is important to recognise that the general duty of care in statute law may vary significantly from similar duties under common law. equipment is well laid out and lighting is suitable for the task).

and there are usually no payouts for negligence to injured parties. 1. there must be some damage to a person or property before action can be taken. 1. the courts may impose fines for breaches of the legislation.THE DUTY OF CARE PART 1 In common law. the prosecution must prove the case "beyond reasonable doubt" (the standard for criminal law). will involve a value judgment. the court needs only to be convinced of the plaintiff's case "on the balance of probabilities". These are commonly called "negligence claims". In the case of OHS statutes in jurisdictions such as Australia. They consider the way a hypothetical "reasonable person" might behave in each situation. 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".5 The “reasonable person” In common law.4 The differences between common law and statute law Under common law. Under statute law. an employee may claim damages through a civil court for injuries arising from an employer's failure to take reasonable care. to determine the standard of care which should apply in any particular case. through enforceable duties. Under common law. on the other hand. in the end. A further difference relates to the standard of proof required in the event of an action in the courts. Under statute law there is no need for an injury to occur before enforcement action can be taken to have an unsafe situation fixed.READING . PAGE 6 SAFETYLINE INSTITUTE JANUARY 2009 . The focus is on prevention of such unsafe situations. It is based on the values of the society of the day and. each case is decided on its merits and the courts determine whether the action taken by the employer is reasonable in any particular case.

he is entitled to follow it unless in the light of common sense or newer knowledge it is clearly bad. 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. For employers. . 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 . where there is developing knowledge. and where he has in fact greater than average knowledge of the risks.READING ."    from a statement by Swanwick J. the following comment was made regarding the employer's obligation: ". In a High Court of Australia decision. there is emphasis on the increased level of care that would be considered reasonable by today's standards. Wilson and Dawson JJ (160 CLR 301). Stokes v Guest. he may therefore be obliged to take more than the average or standard precautions. . Keen and Nettlefold (Bolts and Nuts) Ltd (1968) 1 WLR 1776 JANUARY 2009 SAFETYLINE INSTITUTE PAGE 7 . . he must reasonably keep abreast of it and not be too slow to apply it. . and the final decision would depend upon the facts of each situation.THE DUTY OF CARE PART 1 There is no legal definition of how a reasonable person would behave (although there is considerable case law or precedents). where there is a recognized and general practice which has been followed for a substantial period in similar circumstances without mishap." from Bankstown Foundry case final appeal: Mason. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards.

supported by general legislative requirements and voluntary codes and standards. by conditioning people to rely on rules imposed by external agencies. This report had far reaching effects beyond Britain and its recommendations have formed the basis of modern OHS legislation in a number of countries." PAGE 8 SAFETYLINE INSTITUTE JANUARY 2009 . safe equipment. The report noted that there was an excessive amount of this legislation. In the words of the Report: "the Act should begin by enunciating the basic and over-riding responsibilities of employers and employees. became widely known as the "Robens Report". inflexible.THE DUTY OF CARE PART 1 1. This central statement should spell out the basic duty of an employer to provide a safe working environment. trained and competent personnel. which was presented to Parliament in July 1972. including Australia. and its enforcement was not particularly effective. limited in its coverage. It was recommended the existing statutory provisions be replaced with a new comprehensive enabling Act containing a clear statement of the general principles of health and safety responsibility. The Committee's report.6 The Robens Report Lord Robens chaired the British Committee of Inquiry in Safety and Health at Work. and adequate instruction and supervision. out of date.READING . which was established in 1970 to review the provisions made for occupational safety and health and to recommend any changes required (Robens 1972). which was characterised by detailed prescriptive requirements. whereby employers and workers would consult and achieve a high degree of "selfregulation". The report proposed a flexible system. It should also spell out the duty of an employee to observe safety and health provisions and to act with due care for himself and others. The report considered the existence of too much law to be counterproductive. Robens made a number of criticisms of the then current (often referred to as "traditional") legislative framework. that it was fragmented.

the chemical. equipment and processes under their control are safe and without risk to health. New Zealand and many other jurisdictions particularly those which use British or Australian legislation as a base. broad terms as the general duty of care style legislation discussed in this reading. and as a means of providing practical guidance towards progressively higher standards" (page 46). physical and biological substances and agents under their control are without risk to health when the appropriate measures of protection are taken. Employers shall be required to ensure that. the Select Committee envisaged a system which would rely on statutory regulations for the statement of detailed requirements (rather than through voluntary codes as proposed by Robens) (Brooks 1993). 2. so far as is reasonably practicable.THE DUTY OF CARE PART 1 It was recommended the principal Act be supported by regulations and non statutory codes of practice. However. machinery. so far as is reasonably practicable. Whilst certainly the most significant report of its time. expressed in similar. with a preference for the latter "in the interests of intelligibility and flexibility. all Australian jurisdictions.7 ILO Convention 155 The International Labour Organisation's (ILO) Convention 155 (1981) concerning Occupational Safety and Health and the Working Environment sets standards for national policy on OHS for member countries ratifying the convention. Article 16 deals with the employer's duty. Whilst lacking the detail of the Robens Report. Many of the principles outlined in the Robens report have subsequently been adopted by legislation in Britain. unlike Robens. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 9 . a report recommending legislation incorporating general duty of care provisions was released in South Australia.READING . the workplaces. Employers shall be required to ensure that. similar conclusions were being drawn elsewhere. 1. the general comments and recommendations contained in the report of the Select Committee of the South Australian House of Assembly were similar (Brooks 1993). Article 16 states: "1. Some three months before the release of the Robens Report.

adequate protective clothing and protective equipment to prevent. manufacturers.READING . Adoption of new OHS legislation. risk of accidents or of adverse effects on health. where necessary. provision of information and training. and duties of designers. consistent with the Robens philosophy. equipment or substances for occupational use. so far as is reasonably practicable." The convention also deals with matters such as workplace cooperation. importers and providers of machinery. PAGE 10 SAFETYLINE INSTITUTE JANUARY 2009 . Employers shall be required to provide. including that of workers.THE DUTY OF CARE PART 1 3. has assisted many jurisdictions to move towards ratification of ILO Convention 155.

1 Practicability An absolute requirement for an employer to ensure the health and safety of employees at work would be particularly onerous and most jurisdictions qualify (or moderate) the duty through use of the concept of "practicability" or "reasonably practicable". we can see that the manner in which "practicability" is defined will influence the manner in which the legislation is interpreted. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 11 .READING . Using the WA OSH Act as an example.THE DUTY OF CARE PART 1 Section 2: CONCEPTS AND DEFINITIONS 2.

it must be measured against the consequences of failing to do so. The action must be capable of being done (practicable). the Act further specifies the matters which must be taken into account.THE DUTY OF CARE PART 1 The WA OSH Act defines practicable as follows: "practicable" means reasonably practicable having regard. PAGE 12 SAFETYLINE INSTITUTE JANUARY 2009 . While the cost of putting safeguards in place is a factor. where the context permits. The risk and severity of injury must be weighed up against the overall cost and feasibility of the safeguards needed to remove the risk. This definition provides clear guidance on what is meant by practicable. Cost is not an excuse for failing to provide appropriate safeguards. suitability. Common practice and knowledge throughout the relevant industry are taken into account when judging whether a safeguard is "reasonably practicable". and cost of the means referred to in paragraph (b)(iii). or frequent but less severe. means of removing or mitigating the risk or mitigating the potential injury or harm to health.READING . II. the injury or harm to health referred to in paragraph (a). the risk of that injury or harm to health occurring. in assessing what is reasonable. and c) the availability. and safeguards were in place elsewhere. injury. b) the state of knowledge about I. to: a) the severity of any potential injury or harm to health that may be involved. particularly where there is risk of serious. and the degree of risk of it occurring. it must also be reasonable (reasonably practicable) and. 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. in the context of what is known about the hazard. and III.

such as industrial deafness. The WA OSH Act does this by defining a hazard as follows: "hazard". In the WA OSH Act. asbestosis and occupational cancers.) 2.THE DUTY OF CARE PART 1 Example: Exposed mechanical gears on rotating equipment are hazardous. hands or fingers can get caught. where the work environment and procedures could be shown to be contributing factors. industry has shown that mechanical gears can be easily guarded without adversely affecting the operation of the equipment. It could also include more general health problems like heart disease. It can be argued that setting up machines with suitable guarding is costly and sometimes inconvenient. Clothing.2 Hazard General duty of care style legislation applies to both health and safety at work. the factors which must be taken into account are specifically listed. however. However. account must be taken of how the general duty is qualified. occupational overuse injuries. 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". high blood pressure and stress.READING . (Brooks 1993 examines the issue of this omission in some detail and concludes that the omission has little impact. or  harm to the health of the person. Injuries are easily recognised. The situation in Victoria is similar. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 13 . hair. The difference is that in statutory law. dermatitis. in relation to a person. "Health". causing serious injuries. however the word "reasonable" is omitted from the Victorian Act. is a broader concept. It includes work-related injuries and diseases. means anything that may result in  injury to the person.

READING .) PAGE 14 SAFETYLINE INSTITUTE JANUARY 2009 . This is reflected in the definitions of "workplace" adopted in the various Acts. under the WA OSH Act. shops. buildings and other structures. a feature of modern general duty of care style legislation is that it applies as broadly as possible. The definition includes such places as aircraft. ships. 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. (Note however that application of the WA OSH Act is limited to non mining. In contrast.3 Workplace "Traditional" OHS legislation applied narrowly to specified areas such as factories. Mines and Federal Government workplaces are covered by separate legislation. vehicles. farms. non petroleum and non Federal Government workplaces. forests.THE DUTY OF CARE PART 1 2. warehouses and construction sites. For example.

JANUARY 2009 SAFETYLINE INSTITUTE PAGE 15 .THE DUTY OF CARE PART 1 Section 3: EMPLOYERS’ DUTIES 3.1 Definition of employer Most Australian OHS statutes contain definitions which pick up categories developed by the courts to distinguish between the employer/employee relationship and other types of work relationship (Johnstone 1997).READING . The Victorian OHS Act defines an employer as "a person who employs one or more other persons under contracts of employment or under contracts of training" (Johnstone 1997). A comparison of definitions of employment across OHS statutes in Australia is provided in Johnstone (1997).

however. The definition of employer may be specifically extended beyond the employment relationship discussed above. PAGE 16 SAFETYLINE INSTITUTE JANUARY 2009 . These duties are expressed in a similar way in all jurisdictions except New South Wales and Queensland (Johnstone 1997). as occurs in some Australian legislation which applies certain duties of the employer to independent contractors and their employees (Johnstone 1997) . In many cases it will be clear whether an employment relationship exists.this is discussed in more detail under the section on Contractors and Sub-contractors. it is more specific in relation to the particular training arrangements included. or an independent contract (contract for services).2 Overview of employer’s duty All Australian States. Territories and the Federal Government have enacted OHS legislation which places general duties on employers towards their employees.THE DUTY OF CARE PART 1 Western Australia adopts a similar definition. particularly in relation to determining whether a particular arrangement represents a contract of employment. and in relation to an apprentice or trainee. 3. The Western Australian definition is: "employer" means –   a person that employs an employee under a contract of employment.” There is a considerable body of common law which deals with the employer/employee relationship. It is beyond the scope of this reading to examine these issues in detail.READING . the person that employs the apprentice or trainee under an apprenticeship or traineeship scheme under the Industrial Training Act 1975.

THE DUTY OF CARE PART 1 It is usual for the employer's duty to be outlined in very broad terms. provide and maintain a working environment in which the employees of the employer (the “employees”) are not exposed to hazards. in summary. These. which apply without limiting the broader statement above. These particular elements.. and specified injuries and disease. consult and cooperate with safety and health representatives and employees." This duty is further particularised by the specification of five particular duties.READING . JANUARY 2009 SAFETYLINE INSTITUTE PAGE 17 . handling. All the duties listed above have some equivalent in at least one other jurisdiction. The duty to maintain safe workplaces. although they may operate and be expressed differently. instruction. transportation and disposal of plant and substances. where other measures are not practicable.. included separately under the general duty provisions of the WA OSH Act. plant and systems of work. provide information. however. are to:      provide safe workplaces. training and supervision. A typical general duty is established under the WA OSH Act as follows: "An employer shall. are not exclusive and do not in any way impinge on the generality of the overall duty. are common with other Australian Acts (Brooks 1993). and provide arrangements for safe use. provide personal protective equipment. A further employer duty. supported by the specification of some particular elements of the duty. plant and systems of work. so far as is practicable. Each of the above mentioned particulars of the employer's general duty of care is discussed in more detail on the following pages. and to provide employees with information instruction and training to enable them to safely carry out their work. is to report fatalities.

including the need for warning devices.THE DUTY OF CARE PART 1 3.3 Provide safe systems of work Employers are required to provide and maintain workplaces. While the work may be broken into tasks for the purpose of hazard identification. to limit the time spent at keyboards and to reduce the risk of occupational overuse injuries. so that one part does not endanger a person who is working in or on another part. This system of work should take into account the layout of the workplace. for dealing with problems or mishaps. A safe system of work implies that all aspects of the work have been considered as an integrated whole. The following matters need to be considered:     Planning. emergency stop buttons. whether they are appropriate for the job and whether employees know how to use them. evacuation plans and so on. so far as is practicable. PAGE 18 SAFETYLINE INSTITUTE JANUARY 2009 . plant and systems of work so that. it is necessary to consider the effects of all components on each other. People. Examples: Safe systems of work would ensure that:     workers are relocated elsewhere in an excavation while a crane lifts materials over their work area. employees are not exposed to hazards. a workplace is designed with a one-way circuit to avoid industrial lifttrucks reversing towards workers on site.READING . training and supervision. a product is packaged to avoid strain injuries when the packages are handled. of the work. instruction. the storage and handling of all materials and the location and movement of all people on site. carrying out the task need to have appropriate information. Plans and procedures. The emphasis here is on the coordination of all work activity. and data entry operators are given other clerical duties. Equipment and appliances.

could result in injury to themselves and others. When the likelihood of mishaps can be predicted they are "foreseeable" and employers have a duty to prevent them. assess the risk of injury or harm to health associated with each hazard. Experience in similar workplaces can alert employers to the sorts of problems that may occur in their own workplaces. employers should take into account the risks of danger through inattentive work or work carried out without suitable instruction and training. Identification of Hazards. and consider and apply the means by which the risk may be eliminated. A safe system of work. Assessment and Control of Risk Employers should apply the following three-step process to ensure employees are provided with a safe and healthy work environment. Employers need to consider the possibility of these occurring and take steps to avoid them.READING . reduced or controlled. These steps are:    identify any hazards associated with the work.THE DUTY OF CARE PART 1 The provision of information. as specified under the general duties for employers. takes into account unintended consequences or mistakes ("mishaps"). When considering the potential for mishaps. and in situations where an employer can foresee that misjudgment or inattention is likely. Inadvertent acts by employees. instruction. the system of work should minimise these risks. training and supervision and the provision of personal protective clothing and equipment. are an integral part of a safe system of work. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 19 .

using graphics. to alert them to areas where hazards may exist and to improve their understanding of safe work practices. audio visual aids.4 Provide information. using interpreters. Where employees do not speak or are unable to read the workplace language. provision of written information. posters. training and supervision to carry out the work safely. instruction. visual warning signs. employers should find an alternative method of providing information and training. demonstrating points. For example. All information. brochures and other written materials could be provided under this duty. simple phrases. and access to computer based information through the Internet. Methods which may be used include:         organising information to be provided for people in groups with the same language.THE DUTY OF CARE PART 1 3. instruction. training and instruction should be provided in a way that all employees at the workplace can understand. This would apply to employees with a non-English speaking background (in countries where English is the official language) and to workers who for physical. PAGE 20 SAFETYLINE INSTITUTE JANUARY 2009 . Checks should be made to ensure all information. Information Employers are required to provide information to employees. intellectual or cultural reasons are unable to read. booklets. instruction and training is understood. using short.READING . training and supervision The general duty requires employers to provide employees with the necessary information.

of some parts of the work process with other employees under their supervision. and "in house" programs. The type of training that suits each workplace may vary from place to place and should be determined following consultation with employees and health and safety representatives (where they exist). Information does not always have to be written.READING .THE DUTY OF CARE PART 1 Where provisions exist for the election of health and safety representatives. They may have management. hazard specific training. The position of employees as managers or supervisors would also affect the nature of the training provided.e. include electronic media. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 21 . "on the job" training. industry based training (i. This level of responsibility would require more comprehensive training in the administration of health and safety and the organisation of systems of work so employees are not exposed to hazards. Other forms of information. Instruction and Training Instruction and training should be relevant to the health and safety of employees in the workplace and should take the functions of each employee into account. safety videos and tapes. the employer should ensure that there is a system for health and safety representatives (where they exist) to receive and distribute relevant information and make it readily available to all employees. The training and instruction given should include:      health and safety induction training.: accredited or certificated courses). To comply with the general duty. A briefing or hand-over at the beginning of each shift is a useful way of transferring safety information from person to person. an employer should provide them with information on any hazards that may arise and other information relating to the health and safety of employees at the workplace. which could be used. or control.

where applicable.READING . procedures. storage. and maintenance of personal protective equipment.THE DUTY OF CARE PART 1 Induction Training Induction programs are essential for new employees. information on hazardous work practices. Information given during an induction should include:             introduction to people with OHS responsibilities at the workplace. equipment. The employer's duty to instruct and warn employees covers all employees. reporting of hazards. Further training or re-training is particularly required when the methods. and emergency evacuation procedures. Induction can be the first experience or initiation for a person new to the job or particular work environment. environment. workplace policies and procedures. use. An employer should not assume that an experienced person does not need to be instructed about the obvious. where to obtain OHS information. and if new laws are introduced. selection. details of any isolation or "tag-out" procedures. PAGE 22 SAFETYLINE INSTITUTE JANUARY 2009 . how to identify hazards. reporting of accidents or incidents. including experienced ones. or job change. how to carry out the job in a safe and healthy manner. information regarding health and safety committee meetings. Instruction to Experienced Employees Employers should continue to provide information instruction and training to experienced employees who have previously had relevant health and safety training. fitting.

such as respirators. Ensure that personal protective equipment. or failure to implement an adequate system of supervision to ensure the work is undertaken in a safe manner. Failure to act to rectify unsafe behaviour. garments. Employers have the major responsibility under the general duty. eye and hearing protection are used and kept in reasonable condition. Special consideration must be given to the requirement for supervision of employees working on their own or working in an isolated area. employers must provide a safe system of work with adequate information. through supervision. instruction. exploration geologists and surveyors. would not satisfy the employer's general duty. An employer is expected. for example. knowledge and authority to undertake this role.READING . timber workers. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 23 . the employer must ensure that employees have suitable access to amenities and can easily communicate with the employer to obtain instructions and emergency assistance. Employers should:     Ensure that people in supervisory positions have the skills.THE DUTY OF CARE PART 1 Supervision Employers must provide adequate supervision to ensure employees are not exposed to hazards and take reasonable care of their own health and safety and the health and safety of others. training and supervision before employees can take reasonable care for their own health and safety at work. to ensure that employees are following safe work procedures and working in a manner consistent with the instruction and training provided. Include sufficient monitoring of the work to ensure agreed safe work practices are being followed. It is not sufficient to introduce safe procedures without monitoring their implementation to ensure that they are adopted and are effective. Ensure that employees are adequately supervised. As supervision of employees in these circumstances is limited. In most cases.

Workplace Policies and Procedures Policies and procedures may need to be developed and implemented.READING . and with other employees on OHS matters. Participation of employees is important. where they exist in the workplace. have an important role in this consultation.THE DUTY OF CARE PART 1 3. PAGE 24 SAFETYLINE INSTITUTE JANUARY 2009 .5 Consult and co-operate A common objective of many of the modern OHS Acts in various jurisdictions. A statutory requirement for "every employer to consult with his employees or their representatives at the workplace on measures for promoting safety and health at work" was an important recommendation of the Robens Report (Robens 1972). as they are most likely to know about risks associated with their work. where they exist. This approach recognises that consultation and cooperation between employers and employees is a key to providing and maintaining a safe and healthy workplace. Employers are required to consult and cooperate with health and safety representatives. Health and safety representatives. in consultation with employees and the health and safety representative. Employer and employee involvement in identifying hazards and assessing and controlling the risks will help ensure employees have a commitment to this process and any changes that result. is to foster cooperation and consultation between employers and employees. if there is one.

Some Acts specifically require a written OHS policy. and provide for a formal mechanism for consultation and cooperation through health and safety representatives and committees. rescue or fire. means of access to additional hazard specific information. safe work practices. and record keeping. This means that employers and employees should actively work together with the common aim of improving standards of health and safety in each workplace. emergency evacuation procedures in the event of an accident. Health and Safety Representatives and Committees The general duty may require the employer to cooperate with health and safety representatives and other employees at the workplace on health and safety matters. which may reasonably be expected to affect the safety or health of employees. resolution of issues procedures.READING . policies and procedures to monitor performance and to review control measures. the employer may be required to consult health and safety representatives before the changes are implemented. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 25 . dealing with unique characteristics of the work.THE DUTY OF CARE PART 1 These require effective planning and may include:           consultative mechanisms. accident investigation procedures (including involvement of the health and safety representative). induction and training programs. Where an employer intends to make changes.

consultation should occur before they are introduced. it is preferable for this consultation to occur in the planning phase. In Western Australia.THE DUTY OF CARE PART 1 This consultation gives employees an opportunity to review the intended changes so they can apply their experience and expertise to identify any health and safety problems. For this reason. 3. and where necessary replace. Ownership of the personal protective clothing rests with the employer. and establishment of these committees is encouraged. The legal responsibility for health and safety decisions at a workplace rests with the employer. The employer must provide. free of charge to the employee. This might include periods while a workplace or work process is redesigned. employers must protect employees from the hazards by providing adequate personal protective clothing and equipment. all personal protective clothing and equipment. In Western Australia. The legislation varies considerably across jurisdictions regarding the conditions under which establishment of a health and safety committee may be required. Health and safety committees may provide a means for consultation and cooperation. it may not be possible to totally avoid certain hazards.6 Provide of personal protective clothing and equipment In some work situations. this requirement is specifically stated under the employer's general duty under the WA OSH Act. Even where programs are designed to improve the working environment and conditions. The consultation process should help employers to reach decisions which take into account information and recommendations provided by employees or the health and safety committee in the workplace. In such cases. a committee may be established by the employer or may be requested by an employee who works at the workplace. PAGE 26 SAFETYLINE INSTITUTE JANUARY 2009 .READING .

for example. steel-toed boots when there is a risk of toe injury. In workplaces where workers require respiratory protection. facial hair may prevent a proper seal being formed and it may result in a worker being exposed to hazardous substances. Example: When a respirator is placed over a worker's nose and mouth. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 27 . For example. The employee in this instance would be required to assist the employer in fulfilling the duty of care. Employers should consider the individual needs of each employee. in the matter between the Australian Workers' Union and another and Tiwest Pty Ltd (Dec 1754/93). by remaining clean shaven (to the extent necessary for the proper fit of the respirator). employees with disabilities may require additional protective clothing and equipment for use at work. it must form a good seal where it fits against the skin so that all fumes in the air are drawn in through the filters and not through a "leaky" seal. The provision of "protection" under this section may also include other items. items such as safety goggles when there is a risk of eye injury.THE DUTY OF CARE PART 1 Personal protective clothing and equipment may include.* * As determined in the Australian Industrial Relations Commission on 21 August 1993. employers may need to provide different types of respirators to ensure that each employee is supplied with suitable fitting equipment which does not "leak".READING . and safety helmets when there is a risk of head injury. Equally. such as hats to protect against skin damage.

In the WA OSH Act. computers.7 Provide safe plant and substances The employer's duty includes a requirement to provide for the safe use. "plant" is defined as "any machinery.READING .THE DUTY OF CARE PART 1 3. mixture or formulation. heavy industrial machinery. The employer must ensure that employees are not exposed to hazards arising from:   the use. implement or tool and any component or fitting thereof or accessory thereto". and the duty extends to all matters under their control. Plant may also include scaffolding. and disposal of plant and substances at workplaces. appliance. other than an article. to plant and substances. Plant may include items such as cranes. cleaning. in legislation. handling. Employers are required to take measures that are practicable and reasonable. transportation and disposal of plant. PAGE 28 SAFETYLINE INSTITUTE JANUARY 2009 . "Substances" means any natural or artificial entity. electrical tools and appliances. transportation and disposal of substances. training and supervision apply to all plant and substances at the workplace. ladders and other equipment used on a construction site. forklift trucks. gas cylinders. composite material. Where hazards cannot be eliminated. Reference. reminds employers that their duties to provide and maintain a safe system of work and to provide information. and the use. instruction. Personal protective clothing and equipment must be provided when hazards cannot be avoided. as well as hand held tools. maintenance. equipment. transportation. railway carriages and vehicles. storage. microwave ovens. employers have a duty to reduce or control them. robotic arms. processing.

for example in a lead process. and allows for steps to be taken to prevent injury.THE DUTY OF CARE PART 1 The emphasis is on health as well as safety. so an investigation can be conducted if necessary. This includes cases resulting in the death of an employee.8 Report of injury and disease Most OHS legislation requires the reporting of certain cases of injury and/or disease affecting employees at the workplace.READING . All accidents should be reported to the employer immediately. Injuries caused by mechanical equipment are usually quite obvious. The purpose of this monitoring is to identify any health effects at an early stage and to provide the necessary medical care. Reporting of all incidents or "near misses" to the employer is also important (as required under the employee's duty). Workplaces should have a reporting and recording system which includes details of the location where the accident occurred and the action taken to prevent further similar injuries. All injuries are preventable. 3. Effects on health may not be so obvious. In some industries. employers are expected to monitor the health of all employees at risk. There is often a delay between exposure to the hazard and the appearance of a related illness or disease. JANUARY 2009 SAFETYLINE INSTITUTE PAGE 29 . Recording of these incidents provides valuable data to improve health and safety.

A. Report of the Committee on Safety and Health at Work 1970-72. Occupational Health and Safety Law and Policy: Text and Materials. London. LBC Information Services. Sydney.READING . Robens. REFERENCES & FURTHER READING WA Commission for Occupational Safety and Health guidance note General duty of care in Western Australian Workplaces.THE DUTY OF CARE PART 1 Your feedback WorkSafe is committed to continuous improvement. HMSO. Johnstone. R. 1972. PAGE 30 SAFETYLINE INSTITUTE JANUARY 2009 . 1997. CCH Limited. Brooks. Occupational Health and Safety Law in Australia. If you take the time to complete the online Feedback Form at the SafetyLine Institute website you will assist us to maintain and improve our high standards. Sydney.