Duty of Care

Whether you are a business owner and employer or an employee, you are obliged under law to exercise a 'duty of care' to your co-workers, customers and anyone visiting your workplace.

In law a 'Duty of Care' means that you have a duty to ensure that your actions do no harm to others.

In workplace safety the principle of a duty of care extends into a legal obligation by an organisation to anticipate possible causes for work related illness or injury. These causes could exist in the environment or as a result of somebody's actions. An organisation or a person must do everything they possibly can to remove or minimise the possible causes of the harm. You, your organisation and your colleagues all have a duty of care  to your customers, suppliers, visitors and each other. This duty of care is extends jointly and individually.

Organisations have a duty of care to their employees.

This means that an employer or PCBU must provide:

*      a safe workplace and safe working equipment

*      information and instruction for a worker on how to perform their job role safely

*      training and supervision to help them to perform their job role safely

*      reasonably competent staff to safely run the business

*      sufficient numbers of staff to carry out the work safety

*      implement a program to make sure that all employees understand their own responsibilities for workplace safety

§  It is common practice for larger businesses to engage an OH&S consultant to advise what safety measures and improvements are required. However, any recommendations must be fully implemented, and this is not always the case. A professional WHS consultant can and should be engaged, however if there is not the structure in place to implement the recommendations then the employer is liable.

§  The WHS consultation procedure for organisations as outlined in this course will ensure that any OH&S recommendations made by consultants are implemented. Moreover, staff are appraised of and involved in WHS activities. Implementing OH&S or WHS recommendations by consultants involves making a person in the company responsible for it. If they have not been implemented, then it should become an agenda point at the regular WHS meetings that must be set up by the organisation if it wants to comply with the law. If an accident happens and the incident might have been prevented, then the employers are liable.

As an employer, your duty of care and specific responsibilities for workplace safety will naturally depend on your workplace.

 

Employer's Obligations and Duty of Care in WHS

These requirements impose obligations on employers to:

•identify foreseeable hazards that may arise from the conduct of the employer's work;

•assess the risks of those hazards and to eliminate those risks or, if not reasonably practicable to do so, to control the risks;

•comply with risk control obligations for certain activities, eg fall prevention measures, lift safety and electricity precautions; and

•introduce procedures for workplace consultation and training.

Procedures that employers can adopt to fulfil these obligations include implementing appropriate WHS or OH&S management plans, establishing employee consultation committees, providing appropriate WHS or OH&S training for employees, and assessing, eliminating or controlling workplace risks. The duty on an employer is recognised as a non-delegable duty and cannot be renounced or delegated.

Controller's obligations

The Act imposes a general duty on a 'person who has control of premises' used by people as a place of work to ensure that the premises are safe and without risks to health.' Control' refers to the ability of a person to compel or direct corrective action to secure safety. A 'person who has control of premises' includes:

•a person who has only limited control of the premises (in which case the duty applies only to the matters over which the person has control); and

•a person who has, under any contract or lease, an obligation to maintain or repair the premises (in which case the duty applies only to the matters covered by the contract or lease).

A common assumption of building owners and property developers is that the appointment of building managers or contractors responsible for an entire development, or the passing of WHS or OH&S responsibilities to tenants in a lease, exempts the owner/developer from having to comply with WHS or OH&S obligations, or from liability for the breach of WHS law by the building manager, contractor or tenant. But this is rarely the case. A building owner will, for example, retain liability for common areas, lifts and the provision of safe ventilation, these being areas over which they are almost certainly capable of exercising control through a contract with the building manager.

Passing responsibility for WHS obligations will also certainly be ineffective where the principal is aware that the contractor, manager or tenant is operating in a manner contrary to the WHS obligations.

Further, an owner or developer may retain liability because duties under the Act are increasingly being considered as non-delegable. This occurs particularly where a contractor is found to have inappropriate or insufficient experience, where there is an inherent risk of damage to persons or property, or where some other special vulnerability between the contractor or tenant and principal exists.

Given this ongoing liability, principals should ensure that their contracts with third parties, such as building managers, provides the principal with sufficient power to discharge their WHS obligations, by ensuring that best practice in relation to WHS is implemented and that adequate management and compliance systems are in place. Active steps should be taken by the principal to review building managers' performance in relation to workplace health and safety, including regular reviews of safety management plans. Appropriate inspection and maintenance procedures should be adopted, including periodic site checks of the common areas. The contract should require that building owners be provided with regular reports on WHS compliance and monitoring reports of ventilation systems or atmospheric quality. Principals and owners are also responsible to stop any activities, or facilitate improvements to systems or repairs to plant where there is a potential for a breach of WHS law.

 

Construction sites – owner obligations

 

The Regulations impose particular obligations on owners in relation to construction work in a workplace where:

•the cost of work exceeds $250,000; or

•the work is high-risk construction work and the cost of the work does not exceed $250,000; or

•the work is demolition work or asbestos removal for which a licence is required (regardless of the cost of the work).

In these circumstances, the workplace owner must appoint a principal contractor and must authorise the principal contractor to exercise such authority of the owner as is necessary to enable them to discharge the responsibilities imposed on a principal contractor under the WHS  Regulation. Only owners are capable of appointing a principal contractor under the regulations and, if the owner does not properly appoint and authorise a principal contractor, the owner will be deemed to be the principal contractor for the construction work and will be subject to the extensive WHS obligations imposed on principal contractors.

 

Building owners and property developers who divest almost all control and project management to another party particularly must be aware of these legal obligations. As owners of workplaces, they must ensure that they are made aware of any construction work that is to be undertaken at the workplace and, if the WHS Regulation applies, ensure that a principal contractor is appointed. As with controllers of premises, buildings or sites, owners should ensure that sufficient powers are incorporated in the contract with the principal contractor to enforce WHS compliance, and should continue to monitor and review the WHS compliance of the principal contractor.

 

 

WHS Liability cannot be extinguished by contract

The WHS legislation is clearly intended to impose obligations for safe workplaces across a wide range of people. Although building owners, property developers and commercial enterprises can engage a third party to carry out some of their obligations, overall responsibility will remain with the principal. The opportunities for principals to avoid liability for the acts and omissions of their managers, contractors or tenants are severely limited because the non-delegable nature of many WHS duties.

 

whs thbnail   Although still used sometimes, the term 'Occupational Health and Safety' (OH&S) is now redundant has been replaced by 'Workplace Health and Safety' (WHS).   whs thbnail