Occupational Health and Safety Act Part 3 ‘general duties’ on duty holders

1 Feb

The OHS Act does not require employers to ensure that accidents never happen. There is no absolute liability (with a single exception being (OHS Act s 21(2)(e)) the provision of necessary information, instruction, training or supervision). Duty holders must ensure elimination of OH&S risks so far as is reasonably practicable unless that is not possible. Where it is not reasonably practicable to eliminate OH&S risks, they must reduce those risks so far as is reasonably practicable (OHS Act s 20(1)). Regard must be had to:

likelihood of hazard or risk eventuating;
degree of resulting harm;
duty holder knowledge or what they ought reasonably to know about the hazard or risk and any ways of eliminating or reducing it;
availability and suitability of ways to eliminate or reduce the hazard or risk; and
the cost of doing so (OHS Act s 20(2)).

Accordingly, what is required are practical steps to eliminate or reduce OH&S risks that are objectively reasonable. Objective assessment involves having regard to the duty holder’s actual knowledge together with knowledge existing within the particular trade or industry including compliance codes, Australian Standards and industry experts. Compliance with codes of compliance or regulations constitute deemed duty compliance (OHS Act s 152). What is reasonable is a question of fact and degree in each case.

Employer means a person who employs one or more other persons under contracts of employment or training (OHS Act s 5). Employers must ensure, so far as is reasonably practicable, provide and maintain a ‘working environment’ for their employees (OHS Act s 21(1)) and independent contractors (OHS Act s 21(3)) that is safe and without risks to health. This is an indictable offence which may be determined summarily (i.e. in the Magistrates’ Court of Victoria). Working environment is not confined to permanent premises or environments with clear physical boundaries and includes anywhere an employee may be expected to work and may move with the employee based on the nature or the work. That duty is contravened (OHS Act s 21(2)) where employers fail to ensure there are no risks to health and safety, so far as is reasonably practicable of any of the following:
- provision and maintaining of plant or systems of work;
- arrangements with the use, handling, storage or transport of plant or substances;
- the condition of each workplace under the employer’s management or control;
- adequate facilities for the welfare of employees at any workplace under the employer’s management or control; and
- provide necessary information, instruction, training or supervision to enable safe work performance.
This is not an exhaustive list. This list is also instructive when assessing employer breaches in relation to non-employees.
Employers must, so far as is reasonably practicable:
- monitor employee health;
- keep information and records on the health and safety of employees;
- employ or engage qualified people to provide health and safety advice;
- monitor workplace conditions; and
- inform employees (in appropriate languages) of how, and to whom, a health and safety enquiry or complaint may be made (OHS Act s 22).
Employers must ensure, so far as is reasonably practicable, members of the public (e.g. nonemployees such as occupiers of private houses near to a workplace) are not exposed to risks to their health and safety arising from the conduct of the employer’s undertaking (OHS Act s 23). This is an indictable offence which may be determined summarily.
Self-employed person means a person, other than an employer, who works for gain or reward otherwise than under a contract of employment or training (OHS Act s 5). They must ensure, so far as is reasonably practicable, persons are not exposed to risks to their health and safety arising from the conduct of the self-employed person’s undertaking (OHS Act s 24). This is an indictable offence which may be determined summarily
Employee means a person employed under a contract of employment or training (OHS Act s 5). While ‘at work’ an employee must take ‘reasonable care’ (having regard to employee knowledge of relevant circumstances) for health and safety of persons (including themselves) who may be affected by the employee’s acts or omissions at a workplace. Employees must cooperate their employer actioning OH&S compliance (OHS Act s 25(1) (3)). ‘Reasonable care’ involves an objective standard assessed against the skills and expertise expected of a person holding themselves out to be able to undertake that work. In other words, the civil standard of negligence is appropriate (rather than the criminal standard involving gross negligence). Employees must also not intentionally or recklessly interfere with or misuse anything provided for OH&S compliance purposes (OHS Act s 25(2)). This offence involves proving the mental element and is not assessed by the civil standard of negligence. All employee offences are indictable and may be determined summarily.
Persons who to any extent manages or controls a workplace (whether as owner or otherwise) must ensure, so far as is reasonably practicable, that the workplace and the means of entering and leaving that workplace are safe and without risks to health. This duty can extend to an entity or person who holds the legal authority to carry out work at a site (OHS Act s 26). This is an indictable offence which may be determined summarily. Management and control of a workplace may be shared by a number of people.
Designers of plant (OHS Act s 27) and buildings or structures (OHS Act s 28) to be used at a workplace (OHS Act s 27); manufacturers (OHS Act s 29) and suppliers (OHS Act s 30) and installers (OHS Act s 31) of plant or substances for use at a workplace must ensure plant or substance safety, as far as reasonably practicable. Further, testing and examination, providing adequate information with respect to plant or substance purpose and conditions necessary to ensure it is supplied, installed, operated and maintained safely. These are indictable offences which may be tried summarily.
An ‘officer’ (OHS Act s 5) has the same meaning as per section 9 of the Corporations Act 2001 (Cth) including persons who participate in making decisions that affect the whole or a substantial part of the business of an organisation.
If a body corporate, duty contravention is attributable to an officer.
Officers (but not officers who are ‘volunteers’) of bodies corporate (OHS Act s 144) and unincorporated bodies or associations or partnerships (OHS Act s 145) can be charged personally if their organisation breaches an OH&S general or specific duty which is attributable to them as officer(s) failing to take reasonable care. Volunteer means a person acting on a voluntary basis (irrespective of receiving ‘out of pocket’ expenses). No conviction against the organisation/company is necessary. In determining whether an officer is guilty of an offence regard must be had to what they knew, what ability they had to make decisions in relation to the matter concerned, whether contravention is attributable to another person and any other relevant matter (OHS Act ss 144(3), 145(4)).
The general duties imposed in Part 3 of the OHS Act are supplemented by a broad range of specific duties in the OHS Regs. Some of these regulations apply to all workplaces while other regulations are specific to hazards. The wide range of hazards and risks addressed in the OHS Regs include plant, hazardous substances, asbestos, confined spaces, manual handling, and major hazardous facilities. Breach of an OHS regulation is a summary offence. An employee who is injured as a result of a failure by their employer to comply with an OHS regulation made under the OHS Act may recover damages from their employer by bringing an action for breach of statutory duty.
Person’s duty not to recklessly endanger persons at workplaces
A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence. A natural person can be sentenced to five years maximum imprisonment (OHS Act s 32).
A person (who is not a volunteer) (OHS Act s 39G(1)) and an officer of a body corporate or unincorporated body or association or a partnership (who is not a volunteer) (OHS Act s 39(2)(3)) must not engage in ‘negligent conduct’; which constitutes a breach of an applicable duty that the person owes to another person (but not duty holders who are employees (OHS Act s 25) or persons with duty not to recklessly endanger persons at workplaces (s 32)); and causes the death of the person to whom the duty is owed (OHS Act s 39G). A natural person found guilty of this offence can be sentenced to 25 years maximum imprisonment. (See ‘Officer duties’ above for definition of volunteer).