General Duty of Care
General Duty of Care
General Duty of Care
WESTERN AUSTRALIA
GUIDANCE NOTE
commission
for occupational
safety and health
2 0 0 5
Foreword
The Occupational Safety and Health Act 1984 established the Commission for Occupational
Safety and Health, which comprises representatives of employers, unions, government
and experts. The Commission has the function of developing the legislation and supporting
guidance material and making recommendations to the Minister for implementation. To fulfil
its functions, the Commission is empowered to establish advisory committees, hold public
enquiries and publish and disseminate information.
This guidance note has been developed through this tripartite consultative process, and the
views of employers and unions along with those of government have been considered.
The Act
The Occupational Safety and Health Act 1984 provides for the promotion, co-ordination,
administration and enforcement of occupational safety and health in Western Australia.
With the objective of preventing occupational injuries and diseases, the Act places certain
duties on employers, employees, self-employed persons, manufacturers, designers, importers
and suppliers.
In addition to the broad duties established by the Act, it is supported by a further tier of statute,
commonly referred to as regulations, together with lower tiers of non-statutory codes of
practice and guidance notes.
Regulations
Regulations have the effect of spelling out the specific requirements of the legislation.
Regulations may prescribe minimum standards. They may have a general application or they
may define specific requirements related to a particular hazard or a particular type of work.
Regulations may also be for the licensing or granting of approvals, certificates, etc.
Codes of practice
A code of practice is defined in the Act as a document prepared for the purpose of providing
practical guidance on acceptable ways of achieving compliance with statutory duties and
regulatory requirements.
• should be followed, unless there is another solution which achieves the same or better
result; and
ii
Guidance notes
A guidance note is an explanatory document issued by the Commission providing detailed
information on the requirements of legislation, regulations, standards, codes of practice or
matters relating to occupational safety and health.
Disclaimer
Information in this publication is provided to assist you in meeting your occupational safety and
health obligations. While information is correct at the time of publication, readers should check
and verify any legislation reproduced in this publication to ensure it is current at the time of
use.
Changes in law after this document is published may impact on the accuracy of information.
The Commission for Occupational Safety and Health provides this information as a service
to the community. The information and advice provided is made available in good faith and is
derived from sources believed to be reliable and accurate at the time of publication.
Authority
Issued by the Commission for Occupational Safety and Health under the Occupational Safety
and Health Act 1984.
Purpose
To explain the general duty in sections 19, 20, 21, 22 and 23 of the Occupational Safety and
Health Act 1984.
Application
To be read in conjunction with the Occupational Safety and Health Act 1984; and the
Occupational Safety and Health Regulations 1996.
iii
Preface
This guidance note provides information and assistance to employers and employees on
the ‘general duty of care’ provisions of the Western Australian Occupational Safety and
Health Act 1984.
The duty of care provisions of the Occupational Safety and Health Act 1984 are the
starting point from which all other safety and health measures begin. This guidance note
explains and clarifies the scope of the duties of care in the Act to assist people at work to
understand their responsibilities.
All parties in a workplace – employers, employees and self-employed persons – have
some responsibility for the safety and health of those at the workplace.
This duty of care also extends to those who control workplaces, design and construct
buildings or manufacture and supply plant.
Better understanding of the laws helps everyone in the workplace contribute towards
achieving a safe and healthy workplace environment.
Guidance notes are developed within the tripartite setting of the Commission
for Occupational Safety and Health, with input from representatives of employer
organisations, trade unions and the State Government.
The development process is also an example of the State Government’s belief that
employers and employees should work together to determine practical ways of improving
the work environment.
This guidance note has been approved for use in Western Australian workplaces.
iv
Contents
Introduction........................................................................................................................................1
Achieving the objects of the Act ........................................................................................................ 3
The legislative framework in Western Australia................................................................................. 4
Duties of employees.......................................................................................................................38
Meaning of ‘employee’......................................................................................................................... 39
Employee’s general duty: basic duty................................................................................................ 39
The extent of the duty......................................................................................................................... 40
Particular duties.................................................................................................................................. 40
v
Contractors, sub-contractors, labour hire and other alternative working arrangements........42
Contractors and sub-contractors...................................................................................................... 42
Premises............................................................................................................................................... 43
A matter of control.............................................................................................................................. 43
Labour hire arrangements.................................................................................................................. 44
Other labour arrangements................................................................................................................ 45
Reporting requirements..................................................................................................................46
Reporting of injuries and diseases to the Commissioner.............................................................. 46
Notification of hazard to person having control of workplace....................................................... 47
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GUIDANCE NOTE GENERAL duty of care IN WESTERN AUSTRALIAN WORKPLACES
Introduction
This document provides a detailed discussion of the ‘general duty of care’ provisions in
the Western Australian Occupational Safety and Health Act 1984.
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.
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The Occupational Safety and Health Act 1984 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 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 1996, 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 or jointly by Standards Australia and
Standards New Zealand and the Australian Safety and Compensation Council, formerly
the National Occupational Health and Safety Commission.
The Act provides a framework where consultation, cooperation, 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 on page 4 was established to achieve the objectives of
the Act.
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There may be additional risks at your workplace which have not been specifically
addressed. You are required under the Act to identify and assess these risks and ensure
that control measures are implemented and reviewed to prevent or minimise exposure to
these risks.
This guidance note should be read in conjunction with the Occupational Safety and
Health Act 1984, and the relevant Australian Standards, both of which assist in the
discharge of legal workplace health and safety obligations.
Occupational
Safety and Health
Act 1984
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An overview
‘General duty of care’ and ‘general duties’ are terms used to refer to the duties that the
Act places upon people to ensure their own safety at work and that of others who are
at the workplace or who might be injured by the work. These general duties are aimed
at preventing anyone being killed, injured or contracting an illness because of work or
activities at a workplace, including using plant or equipment.
The following people have general duties under the Act:
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Example:
If the person who owes the duty did not, at the relevant time, know that it was possible
to use a fall safety system to remove or reduce the risk of a fall and the seriousness of
any injury caused by a fall, but a reasonable person in their position would have known
that a fall safety system could be used, the fact that the person who owes the duty did
not know how to reduce the risk is not relevant. What is relevant is that a reasonable
person in their position would have known of a way to reduce the risk.
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Example:
If a reasonable person at the relevant time would not have known that a particular
chemical was a hazard, because that has only since become well known, the fact that
the chemical is now known to be hazardous is not relevant.
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 that must be taken into account.
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Example:
A person must not remove or alter a scaffold or any part of a scaffold at a construction
site without the authority of the main contractor (regulation 3.73).
This is a requirement that is not qualified by the phrase ‘so far as is practicable’, and
it must be complied with at all relevant workplaces (in this case construction sites)
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.
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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 improving money handling
procedures);
• 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 twoway radios for mobile patrols; and
• 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.
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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 for Occupational Safety
and Health (the Commission), they include policies and practices jointly developed by
Government, 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, amongst other things,
contains information which is applicable to persons with responsibility for a workplace’s
air conditioning 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.
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Example:
The notice could refer to the code of practice on The management of HIV/AIDS and
hepatitis at 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 could consider re-organising
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 that achieves equal or better levels of safety if the code is not applied.
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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 an
employee undertakes work in another State, the employer may have duties under that
State’s legislation.)
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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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Duties of employers
(towards their employees)
General duties
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Meaning of ‘employer’
An ‘employer’ is a person who engages workers under a contract of employment,
apprenticeship or traineeship scheme.
The meaning of ‘employee’ is discussed further in the section titled ‘Duties of employees’.
In situations where employees are at workplaces in Western Australia and their
employers reside elsewhere in Australia or overseas, the employers must still comply with
the legislation.
Example:
A large international company has a head office in Sydney and a branch in Western
Australia. All staff at the branch, including the State Manager, have contracts of
employment issued from the Sydney office.
In law, the company has a corporate identity and is the ‘employer’ of all staff in
Western Australia. The company therefore has an obligation to comply with all of the
employer’s duties under the Western Australian Occupational Safety and Health Act
1984. The company must also comply with all other occupational safety and health
provisions that apply in Western Australia.
The fact that the company is based outside of Western Australia does not limit this
obligation.
The employer’s duty also applies to people who engage labour in ways other than by
a contract of employment, where the Act specifically says so. (Refer to sections 23D,
23E and 23F dealing with contractors, paid work in circumstances similar to a contract
of employment and labour hire arrangements respectively – for information on these
provisions, see the section on ‘Contractors, sub-contractors, labour hire and other
alternative working arrangements’ later in this document).
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Chief Executive Officers of State Government agencies, employed under the Public
Sector Management Act 1994, have functions under that Act pertaining to the
implementation of occupational safety and health law, standards and programs.
Like others who have duties under the Western Australian Occupational Safety and
Health Act 1984, the Crown and its employees may be prosecuted for failure to comply
with the Act.
Other duties
Duties under the legislation may overlap. For example, where a contractor is self-
employed, he or she has duties under section 21, ‘Duties of employers and self-employed
persons’, covered later in this guidance note. If the contractor is also a ‘principal’
engaging contract labour, the duties of section 19 will also apply.
Similarly, an employer who is engaged by a ‘principal’ retains all the normal
responsibilities as an employer under sections 19 and 21.
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Working environment
The focus of the general duty is on the ‘working environment’. The term is not defined in
the Act, but it would be taken to include:
• the workplace itself: the building, structure, ship, aircraft, vehicle, etc;
• all plant at the workplace;
• the work process, including what is done and how;
• work arrangements, including the effects of shiftwork and overtime arrangements;
• the physical environment, including lighting, ventilation, dust, heat, noise, etc; and
• the psychological environment, including overcrowding, speed of process and other
stress factors.
Access to and egress from the workplace is discussed separately later in this guidance
note.
Particular duties
There are some specific duties in the Act that relate to the employer’s general duty to
ensure that employees are not exposed to hazards at work. These are described in more
detail as follows.
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Example 1:
Certain regulations apply to spray painting. The regulations cover specific aspects of
the spray painting process, including the requirement to carry out spray painting in a
booth.
A safe system of work would require compliance with these regulations and further
consideration of other factors such as the proximity of other workers to the spray
painting process, information on spray painting hazards, fire precautions, storage and
handling of hazardous substances, isolation of areas where workers may be eating
or drinking, provision of washing facilities, and provision and cleaning of personal
protective clothing and equipment.
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Example 2:
All dangerous parts of an hydraulic press must be securely fenced or guarded or set
up in accordance with regulations. To ensure a safe system of work, other factors, such
as safe storage and movement of the metal sheets pressed on the machine, good
housekeeping to keep the floor clear of debris, maintenance procedures and operator
training and supervision, should all be carefully planned to protect the operator and all
other people on site.
The provision of information, instruction, training and supervision and the provision of
personal protective clothing and equipment, as specified under the general duties for
employers, are an integral part of a safe system of work and are not dependent upon
specific mention in the regulations.
Foreseeability
Some risks cannot be predicted, and may only be identified with the benefit of hindsight,
after injury or harm has occurred. The Act only requires that measures be taken to avoid
a risk that a ‘reasonable person’ should have foreseen at the time.
When the likelihood of injury or harm to health can be predicted, it is ‘foreseeable’ and
employers have a duty to take preventative action.
Unintended consequences or mistakes do occur. Employers need to consider the
possibility of these occurring and take steps to avoid hazards.
When considering the potential for unintended consequences or mistakes, employers
should take into account the risks of danger through inattentive work or work carried out
without suitable instruction and training. Inadvertent acts by employees could result in
injury to themselves and others and, in situations where an employer can foresee that
misjudgment or inattention is likely, the system of work should minimise these risks.
Experience in similar workplaces can alert employers to the sorts of problems that may
occur in their own workplaces.
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Example:
Unguarded or inadequately guarded brake presses have been responsible for many
hand and finger amputations. It is insufficient to rely on the operator’s skill and
vigilance to prevent injury, because it is foreseeable that the operator could become
momentarily distracted or for some other reason place his or her hand in the path of
the descending ram. Action (ie practicable measures) must be taken to prevent this
foreseeable injury. In such cases, guards that either prevent body parts entering the
danger zone (physical guards) or prevent operation of the machine when a body part
is in the danger zone (eg light guards) provide the protection required.
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Information
Employers are required to provide information to employees as is necessary to enable
them to perform their work in such a manner that they are not exposed to hazards.
For example, visual warning signs, posters, booklets, brochures and other written or
electronic materials could be provided under this duty.
The regulations specify documents which must be made available to employees at
the workplace, including copies of the Act, regulations, relevant Australian Standards,
Australian/New Zealand Standards, NOHSC standards and relevant codes of practice
and guidance notes issued under the Act.
Under section 35 of the Act, an employer should provide safety and health
representatives with information on any hazards that may arise and other information
relating to the safety and health of employees at the workplace. To comply with the
general duty, the employer should ensure that there is a system for safety and health
representatives to receive and distribute relevant information and make it readily available
to all employees.
Safety and health representatives are not entitled to have access to an individual
employee’s medical information without the employee’s consent.
Employers are not required to reveal trade secrets to safety and health representatives.
Information does not always have to be written. Other forms of information which could
be used include electronic media, safety videos and tapes. A briefing or handover at the
beginning of each shift is a useful way of transferring safety information from person to
person.
Employers may also provide in-house training using their own employees as trainers, or
using specialist trainers. In-house training may provide an opportunity for management
and appropriate employees to share the delivery. Induction training is one example of
safety and health training which should be organised for each new employee. It is often
set up as an in-house training program.
Induction training
Induction programs are essential for new employees. Induction can be the first experience
or initiation for a person new to the job or particular work environment.
Information given during an induction should include:
• introduction to people with occupational safety and health responsibilities at the
workplace;
• workplace policies and procedures;
• how to identify hazards;
• reporting of hazards;
• how to carry out the job in a safe and healthy manner;
• information on hazardous work practices;
• details of any isolation or tagout procedures (where applicable);
• reporting of accidents or incidents;
• selection, use, fitting, storage and maintenance of personal protective equipment;
• where to obtain occupational safety and health information;
• information regarding safety and health committee meetings; and
• emergency evacuation procedures.
On-the-job training
Employee on-the-job training might include:
• showing the employee the task and a safe way of doing it;
• explaining the reasons, steps, key points and safety considerations;
• having the person practise;
• giving feedback on the practice; and
• correcting errors as they occur.
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Training programs
An effective training program should have at least the following features:
• adoption of adult learning principles;
• an analysis of training needs which identifies the tasks to be performed and the
hazards associated with those tasks;
• where appropriate, the level of competency to be achieved as a result of training;
• entry standards and induction programs;
• learning objectives and desired outcomes;
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Certification or accreditation
There are occasions when a person is required to obtain formal accreditation or
certification for some operations.
Employers must ensure that people undergoing training for accreditation or certification
are adequately supervised during training.
Where accreditation or certification is required, employers should ensure that it is current
and relevant to the operation. Persons holding formal accreditation or certification should
ensure any re-assessments or re-testing should be completed when required.
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Supervision
Employers must provide adequate supervision to ensure employees are not exposed
to hazards and take reasonable care of their own safety and health and the safety and
health of others.
Employers should:
• ensure that people in supervisory positions have the skills, knowledge and
authority to undertake this role;
• ensure that employees are adequately supervised;
• include sufficient monitoring of the work to ensure agreed safe work practices are
being followed; and
• ensure that personal protective equipment, such as respirators, garments, eye
and hearing protection are used and kept in reasonable condition.
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Employers may talk directly with employees on safety and health matters however, under
section 35, they must also consult with safety and health representatives on changes
likely to affect employee safety and health.
Employees may ask for the safety and health representative to be present during any
interview with the employer on occupational safety and health.
Working together
The general duty under section 19 requires the employer to co-operate with safety
and health representatives and other employees at the workplace on safety and health
matters. This means that employers and employees should actively work together with the
common aim of improving standards of safety and health in each workplace.
Safety and health committees provide a means for consultation and co-operation, and
establishment of these committees is encouraged. Under section 36 of the Act, any
employee who works at a workplace may request the employer to establish a safety and
health committee. Alternatively an employer may initiate the establishment of a safety and
health committee.
In workplaces where there is no safety and health representative or safety and health
committee, the employer still has a duty to consult and co-operate with employees.
The legal responsibility for safety and health decisions at a workplace rests with the
employer. The consultation process should help employers to reach decisions which take
into account information and recommendations provided by employees or the safety and
health committee in the workplace.
Also in the spirit of working together, section 23K of the Act requires the employer to
investigate and to report back to the employee on intended action to be taken, when
the employee reports to the employer either an unsafe situation that the employee
cannot correct, or injury or harm to a person. This feedback loop serves to ensure open
communication on safety and health concerns at the workplace, as well as ensuring
concerns are investigated.
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employee. Ownership of the personal protective clothing rests with the employer.
Personal protective clothing and equipment may include, for example, items such as
safety goggles when there is a risk of eye injury; steel-toed boots when there is a risk of
toe injury; and safety helmets when there is a risk of head injury.
The provision of ‘protection’ under this section may also include other items, such as hats
to protect against skin damage.
Employers should consider the individual needs of each employee. For example,
employees with disabilities may require additional protective clothing and equipment for
use at work.
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Employers are required to take measures that are practicable and reasonable, and the
duty extends to all matters under their control.
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Once again, the emphasis is on health as well as safety. Injuries caused by mechanical
equipment are usually quite obvious. 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.
Effects on health may not be so obvious. There is often a delay between exposure to the
hazard and the appearance of a related illness or disease.
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Duties of employees
General duties
Employees must take reasonable care for their own safety and
health at work and avoid harming the safety and health of
other people through any act or omission at work.
• reporting hazards;
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Meaning of ‘employee’
An ‘employee’ is a person who works under a contract of employment, apprenticeship or
traineeship scheme under the Industrial Training Act 1975.
Voluntary workers and workers who do not receive any payment, such as family members
helping in a family business, and students on work experience are not covered by the
‘employee’ definition.
The Western Australian Occupational Safety and Health Act 1984 covers all employees
in State Government agencies including departments, trading concerns, instrumentalities
and statutory bodies.
Employees of the Commonwealth Government are covered by other occupational safety
and health laws, not by the Western Australian Occupational Safety and Health Act 1984.
The employee’s duty also applies to workers in some other working relationships, where
the Act specifically says so (sections 23D, 23E and 23F dealing with contractors, paid
work in circumstances similar to a contract of employment and labour hire arrangements).
Example:
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exposed a person to a hazard by lifting him or her on the tynes of the forklift, this
would be an example of failure to take reasonable care to avoid adversely affecting the
safety of another person. Employers must facilitate the ability of an employee to meet
their duty of care eg in this example, by providing a work box.
Example:
A supervisor who directs that a particular task is done in a particular way clearly has
responsibilities to the employees who are directly involved in the performance of the
task, and to other employees and members of the public who may be affected by the
way in which the task is done.
A specific example of a failure to exercise reasonable care might be where a
supervisor, who has identified that a particular piece of plant requires use of a guard in
order to be operated safely, one day directs an employee to use the plant without the
guard, because the guard has been taken off to be repaired.
Particular duties
Under section 20 of the Act, the employee also has some specific duties. The employee
must:
• follow the employer’s instructions provided for safety and health reasons;
• use personal protective clothing and equipment that has been provided by the
employer in accordance with the employer’s duties in section 19. This duty is
dependent upon the employer providing proper instruction in its care, use and storage;
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• take good care of equipment provided in the interests of safety and health. In
particular, the employee must not misuse or damage the equipment. Under
this section it would be an offence to deliberately render fire-fighting equipment
inoperative or to remove guards from dangerous machinery for no good reason.
This point applies when employers have provided the necessary information,
instruction and training in safety and health matters, and an employee’s actions to
misuse or damage are quite deliberate;
• report hazards that the employee cannot correct. The requirement is to report to
the employer, however there could be a system in the workplace where employees
report to their immediate supervisor or area manager. Where that person is also
unable to correct the hazard, it should be reported to a more senior management
person.
Any procedure that sets up a chain of command or delegates the task of receiving
hazard reports should ensure there is prompt action to fix the problem or refer it on
to someone who can address it. The legal responsibility to ensure that employees
are not exposed to hazards rests with employers. In addition, supervisors who do
not follow an agreed reporting procedure could be affecting the safety and health of
other people through an omission at work, and may be failing to comply with their
duties as employees;
• report injury or harm to health that is connected with the work activity. This applies
to physical injuries and to the early symptoms of illness or disease that may be
connected with work.
For this reporting to occur, employees should have received information from the
employer about the early symptoms of which employees should be aware. For
example, keyboard operators should be aware of the symptoms of occupational
overuse injuries; and
• co-operate with the employer to allow the employer to carry out his or her duties
under the Act. This complements the employer’s duty and means that employees
should actively work with employers with the common aim of improving safety and
health at the workplace. This duty means that employees are required to follow
directions given by the employer in the interests of safety and health.
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Contractors, sub-contractors,
labour hire and other alternative
working arrangements
If the application of the Act were limited to people who are by definition employers and
employees, a whole section of the workforce would miss out. Many workers are engaged
under arrangements that fall outside the traditional employment relationship. These alternative
arrangements include work undertaken by contractors and labour hire arrangements.
Sections 23D, 23E and 23F of the Act capture these alternative working relationships
and ensure that the general duties of care of the employer, under section 19, and of the
employee, under section 20, apply to the relevant people in the working relationship.
The duty to report a notifiable injury or disease to the Commissioner (section 23I) also
applies to the person with the employer’s duty in such relationships.
These relationships are discussed in more detail below.
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Premises
The principal/contractor relationship is the only alternative working relationship where
the employer’s duty under section 23G of the Act applies (see under Duties of employers
to maintain safe premises). Where a principal provides a contractor or contractor’s
employees with residential accommodation, the principal has a duty to ensure that the
premises are safe (this duty is very limited and applies only in limited circumstances).
A matter of control
The duties of principals applies only in relation to matters over which the principal has
control or is capable of controlling. There are situations where this control is shared by
employers and contractors.
Example:
In a large workplace there could be many contractors and sub-contractors, and the legal
relationships may become very complex. Contractors could be employed by a principal
and also be principals in their own right if they use other contractors to carry out some of
their own work.
These legal arrangements apply to contractors and sub-contractors in all workplaces
covered by the Act.
Principals cannot use a contract for the purpose of handing over their responsibilities
under the Act to contractors, agents or other persons. It is important that principals
determine which matters are, or are not, within their capacity to exercise control. The Act
does not provide any guidance on this point.
While a contract cannot ‘hand over’ responsibility for occupational safety and health from
one party to another, contract provisions dealing with safety and health can be useful in
clarifying the requirements that will apply to a particular site. For example, a ‘principal’
may have a policy that no children are allowed on the site, and this policy could be written
into every contractor’s agreement to undertake work on the site.
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A good basis for contractor arrangements is to ensure that the same safety and health
policies set for employees are applied to contractors and their employees.
The important thing to remember when writing occupational safety and health
requirements into contracts is that the contract must reflect the reality of who has the
capacity to exercise control over a particular matter. For example, a contract that makes
an electrical contractor, with no scaffolding expertise, responsible for the scaffolding
supplied and erected by the principal would not reflect reality (in terms of capacity to
control). Not only would such a provision be invalid, it would also be misleading.
Some occupational safety and health matters need to be dealt with by both parties to
the contract. In other words, the duties overlap. Fall protection and the use of harnesses
is a good example of where this may occur. The principal may have control over the
installation of anchorage points for fall arrest systems and the implementation and
enforcement of policies that a fall arrest harness is to be worn and attached. The
contractor may have no control over the anchorage points, but would have control over
wearing and attaching his/her harness and that of any employees. Supply of harnesses
to the contractor’s employees is the responsibility of both the principal and the contractor,
and it would not be acceptable for each to leave it to the other.
Principals, employers, contractors or subcontractors who are unsure of the contractual
arrangements and their responsibilities under the Act should seek professional advice as
to the legalities of their contracts.
Reporting requirements
Reporting of injuries and diseases to the
Commissioner
Certain cases of injury or disease affecting employees at the workplace must be reported
to the WorkSafe Western Australia Commissioner. This includes all cases resulting in the
death of an employee. Injuries and diseases to employees, which must be reported, are
listed in the regulations. The regulations cover specified injuries, and certain diseases
which are known to be caused by occupational factors. Employers are responsible for the
reporting of injuries and diseases affecting their employees, including apprentices and
trainees.
This duty also applies to some other working relationships where the Act specifically
says so. Where a principal engages contract labour, the principal also has a duty to
report accidents and diseases affecting contractors and their employees. Other people
who need to report cases of injury or disease are agents and clients in labour hire
arrangements (section 2F), and a person who pays and directs a person to carry out
work in a manner that is similar to a contract of employment (section 2E).
The above provisions also apply where the injury or disease is incurred at residential
premises to which section 23G applies (see under ‘Duties of employers to maintain safe
premises’).
The Act also allows regulations to be written to require employers and self employed
persons to report certain injuries incurred to non-employees in connection with the
business or bystanders.
All accidents should be reported to the employer immediately, so an investigation can
be conducted if necessary. It may take longer to report an accident at a remote worksite,
nevertheless it should be reported to the employer within 24 hours.
Reporting of all incidents or ‘near misses’ to the employer is also important. Recording of
these incidents provides valuable data to improve safety and health, and allows for steps
to be taken to prevent injury.
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General duties
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Protecting non-employees
The non-employees covered under section 21 include groups such as customers, hospital
patients, visitors to the workplace including police, inspectors and other government
officials, clients, salespersons, persons attending meetings, voluntary workers, students,
an employee’s family and any other person who may be affected by the work activity.
The main point here is that it is not confined to the workplace. The duty refers to harm
that may occur as a result of the work undertaken by the employees.
Employers are required to take measures that are practicable and all of the points raised
in the discussion on ‘the meaning of practicable’ should be taken into account.
Example:
It is reasonable to expect that members of the public who pass by a construction site
would not be exposed to the risk of injury from objects dislodged or dropped during
crane lifting operations.
The employer with overall control of the site would be expected to bear the cost
of setting up the site so all crane lifts could occur on the site rather than over the
footpaths and public roadways. If it were not practicable to confine all lifts to the site,
the employer would be expected to establish other safeguards necessary for the
protection of the public.
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Duties of employers to
maintain safe premises
General duties
Section 23G of the Act contains provisions requiring an employer to, as far as practicable,
ensure that residential premises provided in connection with work are maintained so that
the employee occupying the premises is not exposed to hazards. The duty applies only in
limited circumstances, that is, where the following conditions apply:
• the residential premises are owned or under the control of the employer;
• the occupancy of the premises is necessary for the purpose of the employment
because there is no alternative accommodation reasonably available in the area
concerned;
• the accommodation is outside a city or town (including ‘cities’ such as Bunbury); and
• there is no written agreement containing terms that might reasonably be expected to
apply to the letting of residential premises (such as a lease or tenancy agreement).
If the obligation applies to the premises then it also applies to land and outbuildings that
are intended to be used in connection with the premises (for example separate laundry
facilities or outside showers).
Principals in a principal/contractor arrangement also have the duties of an employer in
relation to residential premises.
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General duties
While section 21 of the Act provides protection to people such as customers, visitors
and passers-by, sometimes a business is operated by a body corporate that is not an
employer. Section 21 does not apply to such bodies. Section 21B covers this potential
gap in coverage.
Section 21B applies to a body corporate that, in the course of trade or business, engages
labour under one of the alternative labour arrangements covered in the Act, ie principal/
contractor arrangements (section 23D), labour arrangements that mirror a contract of
employment (section 23E), and labour hire arrangements (section 23F). If the body
corporate is not covered by one of these three sections, then section 21B does not apply.
For example, this section does not cover a body corporate that engages solely volunteer
labour.
Where covered by this section, the body corporate must, as far as practicable, ensure
that the safety or health of a person is not adversely affected by the work of the body
corporate or a person carrying out work under the direction of the body corporate.
This duty provides protection to customers, visitors, passers-by and anyone else whose
safety or health might be adversely affected by the work.
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General duties
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A matter of control
Section 22 duties are limited to the areas that are under the person’s control, and it is
important that the areas of control are clearly defined in contracts between the parties.
Refer to the section on ‘contractors and sub-contractors’ for a further discussion on the
issue of control.
People who have, to any extent, control of a workplace are required to take measures
that are practicable. All of the points raised in the discussion on ‘the meaning of
practicable’ would apply.
Written contracts
It is recommended that a written record of safety and health policies and procedures is
provided as part of tenancy contracts and contracts to carry out maintenance, cleaning,
gardening or other contract work at a workplace. The record should specify safe methods
of work and safety standards required of all people associated with work in the building or
on the work site.
Note that a person cannot contract out of his or her responsibilities under the Act.
Where regulations apply, they must be complied with as a minimum requirement.
Premises covered
This section of the Act applies to persons who have control of a workplace, or the means
of entering or leaving it, in connection with the person’s trade, business or undertaking. It
applies whether or not the business or undertaking is carried out for profit. A householder
in control of domestic premises would not be covered because there is no connection
with the trade, business or undertaking of the householder.
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Duties of manufacturers,
suppliers and others
General duties
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The duties included in section 23 of the Act apply to the following groups of people:
• designers, manufacturers, importers or suppliers of plant for use at workplaces;
• erectors or installers of plant for use at workplaces;
• manufacturers, importers or suppliers of all substances used at workplaces; and
• persons who design or construct buildings or structures, including temporary
structures, for use at workplaces.
Substances at workplaces
Many substances used at work may be hazardous. Provided these hazards are known
and understood and appropriate precautions are taken, the substances can be used
safely. The key to this is the provision of information about each substance and the
precautions for use.
The duty of manufacturers, importers or suppliers of substances used at workplaces is
to provide adequate toxicological data. Suppliers of hazardous substances must ensure
up to date material safety data sheets (MSDSs) are provided to purchasers of hazardous
substances. Suppliers must also ensure containers of hazardous substances are labelled
in accordance with relevant standards.
The provision of this information should be a part of each employer’s safe system of work
to ensure that employees and others are not exposed to hazards.
Employers should ensure that the information is provided to safety and health
representatives and other employees at the workplace, in a form which can be readily
understood.
Where employers intend to change a substance used at the workplace, and the change
may reasonably be expected to affect the safety and health of the employees, employers
should consult with safety and health representatives and other employees before the
substance is introduced into the workplace. The provision of adequate information is an
important part of this consultation process.
The safe system of work may include using alternative substances which are safer, or
introducing controls or safe work practices that minimise the risk of exposure. A safe
system of work should also prevent transfer of substances to unmarked or inadequately
marked containers.
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Gross negligence
Higher maximum penalties apply to general duty of care breaches where gross
negligence is an element of the offence.
An offence is committed in circumstances of gross negligence if –
"(a) the offender –
(i) knew that the contravention would be likely to cause the death of, or serious
harm to, a person to whom a duty is owed under that provision; but
(ii) acted or failed to act in disregard of that likelihood;
and
(b) the contravention did in fact cause the death of, or serious harm to, such a person."
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The definition of gross negligence is targeted at the most serious offences where a
person has been killed or seriously harmed and the offender knew of the likelihood of
such an outcome and disregarded it.
The higher penalties for breaches involving gross negligence are consistent with the
seriousness of such offences. In particular, the Act makes provision for a possible prison
term of up to two years for an individual who is not an employee and is convicted of a
general duty of care offence involving gross negligence.
An employee is also subject to a potentially higher penalty where gross negligence
is involved, with the quantum of the penalty in keeping with the scale of penalties for
employees.
Where an offence involving gross negligence is committed by a body corporate, the
offender is subject to a higher monetary penalty. There is also scope (under section 55 of
the Act – see below) to pursue a director, manager or other officer of a body corporate
convicted of an offence in circumstances of gross negligence.
Offences involving gross negligence arise only from breaches of sections 19(1), 20(1),
20(3), 21(1), 21(2), 21B(2), 22(1), 23(1), 23(2), 23(3), 23(3a), 23A or 23G(2). These
are the general duty of care provisions within the Act, excluding some of the more
administrative duties such as the reporting of injuries and diseases.
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Appendix 1
Hazard identification, risk
assessment and risk control
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Three basic steps should be taken to ensure a safe and healthy workplace. They are
based on the concept that the workplace should be modified to suit people, not vice versa.
The three steps are:
• identifying the hazards – involves recognising things which may cause injury or
harm to the health of a person, for instance flammable material, ignition sources or
unguarded machinery;
• assessing the risk – involves looking at the possibility of injury or harm occurring to a
person if exposed to a hazard; and
• controlling the risk – by introducing measures which will eliminate or reduce the risk
of a person being exposed to a hazard.
It is important to regularly review the steps, especially if there are changes in the work
environment, new technology is introduced, or standards are changed.
Employers should consult with safety and health representatives, if any, and employees
during these steps.
Identifying hazards
There are a number of ways of identifying potential sources of injury or disease. Selection
of the appropriate procedure will depend on the type of work processes and hazards
involved.
A hazard means anything that may result in injury or harm to the health of a person.
Procedures may range from a simple checklist for a specific piece of equipment or
substance to a more open-ended appraisal of a group of related work processes. A
combination of methods may provide the most effective results.
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• Examining and considering material safety data sheets and product labels
Some hazards are inherent in the work process, such as mechanical hazards, noise,
or the toxic properties of substances. Other hazards result from equipment or machine
failures and misuse, control or power system failures, chemical spills, and structural
failures.
The conclusion of the first step of the risk assessment should result in a list of hazard
sources, the particular form in which that hazard occurs, the areas of the workplace or
work process where it occurs, and the persons exposed to that hazard.
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The most common hazards in terms of bodily injury or disease are those which result in:
• strain or overuse injuries and disease to back, shoulder, wrist etc;
• cut and abrasion injuries to the eyes, hands, fingers, feet and head;
• impact and crush injuries to the head, feet and fingers;
• burns (by heat, light or chemicals) to the eyes, feet, and skin;
• noise induced hearing loss; and
• toxic effects (short or long term) to respiratory system or skin, resulting in poisoning,
cancers or dermatitis.
A risk assessment of the hazards identified in the first step should result in a list of any
potential injuries or harm and the likelihood of these occurring. The potential for fatal injury
should be considered for each identified hazard. If hazards are listed, they should be in the
order of the most to the least serious, eg from fatal to minor injury.
In assessing risks, consideration should be given to the state of knowledge about the
frequency of injury or disease, the duration of exposure to injury or disease sources and
the likely severity of the outcomes. Knowledge gained from similar workplaces or similar
processes may be relevant to this risk assessment. Matters to be considered include:
• frequency of injury – how often is the hazard likely to result in an injury or disease?
• duration of exposure – how long is the employee exposed to the hazard?
• outcome – what are the consequences or potential severity of injury?
Assessing these three factors will indicate the probability or likelihood of injury or harm
occurring to workers involved in a particular work process. It also indicates the likely
severity of this harm.
Risk assessment requires good judgment and awareness of the potential risks of a
work process. Any person undertaking the risk assessment must have knowledge and
experience of the work process. Risk assessment will be more complicated or difficult if the
information or data regarding hazards of a work process is incomplete.
In some cases it may be necessary to break down the activity or process into a series of
parts and assess each part separately.
An assessment of the risk will help determine the consequences (potential injury or
disease) and assist to identify methods to reduce the risk.
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Preferred controls
The control of occupational injury and disease risks should preferably be dealt with by
elimination, substitution, isolation, engineering or administration controls. These controls
generally eliminate, reduce or minimise risk in a more reliable manner than personal
protective equipment.
Controls involve implementing measures which reduce the hazard and risk in the
workplace.
Where regulations require specific methods to control the risk, these must be complied with.
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Appendix 2
Other sources of information
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74
commission
for occupational
safety and health
November 2005
ISBN 1-920836-14-4
ISBN (web) 1-920836-15-2