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Introduction
This article refers specifically to NSW health and safety legislation, however, is useful to all employers in that the obligations are largely the same. However, it is always practical to check specific obligations in your state.
The Occupational Health and Safety Act
The Occupational Health and Safety Act 2000 (OHS Act 2000) is the all-embracing health and safety legislation that regulates the duties an employer owes to its employees. Section 8(1) of the 2000 Act states that as an employer you ‘must ensure the health, safety and welfare at work of all the employees’. This is clearly a wide obligation. In order to discharge the duty, you must take more specific action and furthermore, continue to remind employees of their duties and expectations. Ongoing training also provides an important role and can provide as a useful defence if a claim were to be made against you – that is, as long as the training was recorded on paper.
What must I do specifically?
To meet your responsibilities under the OHS Act 2000, you must provide:
- Safe premises;
- Safe machinery and substances;
- Safe systems of work;
- Information, instruction, training and supervision;
- A suitable working environment and facilities.
The Act also states that you are responsible for the health and safety of people other than your workers, who may be present at the workplace.
Company directors, managers and supervisors
Although the Act places the ultimate responsibility for the health, safety and welfare of all workers on the employer, section 26 of the Act extends the occupational health and safety (OHS) responsibility of the employer to company directors, managers and supervisors.
Managers and supervisors are directly responsible for OHS within areas under their control. If they are in a position to influence the conduct of the organisation or those involved, the responsibility is extended to any area where a health and safety hazard exists.
Section 26 of the Act states that company directors may be liable for contraventions of the OHS Act 2000 or regulations, unless they can demonstrate that they were not in a position to influence the conduct of the corporation or had used all due diligence.
Section 28 of the Act states that managers and supervisors will not be held responsible for OHS issues if they can prove that:
- It was not reasonably practicable for them to comply with the provision;
- The offence was due to causes over which they had no control and it was impractical to make provision for.
To determine if it is reasonably practical, the courts will decide:
- What is reasonable in the circumstances?
- What is the magnitude of the risk?
- What is the degree of probability of an incident occurring?
- Was an approved industry code of practice, other recognised document or safe work method of an equivalent or higher standard followed?
- Have changing technology, work methods, equipment, etc been accounted for?
- Are current accepted industry and/or community standards being adhered to?
- Has potential worker inattention, misjudgement or carelessness been considered?
- Is there a safer method that would have prevented an incident occurring?
- Are there any conflicting responsibilities that may influence actions to be taken?
- Is the cost of preventing an incident out of all proportion to the gravity of risk and probability of it occurring?
Where to start
The most obvious place to start is with risk assessments.
Simply, this means looking at all the different processes and systems you use in the workplace and having a responsible person assess the potential problems, who is at risk, what they are at risk from, the solution to the risk, whether the solution is a practical and reasonable on and so on.
Net Lawman also provide a number of health and safety documents which would assist in defending any claims made against you, as well as providing a suitable record of planning and action in relation to health and safety.