Occupational Health & Safety Obligations
Workcover is the statutory body that functions to implement and enforce the legislation governing safe workplaces and practices. It has significant powers and investigative functions. It is an offence not to comply with a Workcover Inspector’s direction or requirement or answer an identification question.
Links to the Act and Regulations are below (just click on their title)
- Occupational Health & Safety Act 2000 (NSW)
- Occupational Health & Safety Regulation 2001 (NSW)
Links to the Act and Regulations are below (just click on their title)
- Occupational Health & Safety Act 2000 (NSW)
- Occupational Health & Safety Regulation 2001 (NSW)
Duty of Employers
Employers are to ensure health and safety of their employees and other persons at place of work.
This duty extends to:
- All premises under employer’s control
- Plant and substances used
- Systems of work and work environment
- Provision of training
- Provision of adequate facilities
Further Employer Requirements
- Duty to consult with employees
- Duty to identify hazards, assess risks, and eliminate or control risks
- Duty to provide instruction, training and information
- Duty to provide supervision
- Duty to ensure arrangements are made for emergencies and first aid
Obligations of Directors and Managers
Directors or “Persons involved in the management of a corporation” are deemed personally liable for the corporation’s offences.
Defences:
– Not in a position to influence the conduct of the corporation
– If in such a position, used all due diligence to prevent the contravention
Consultation
Employers must consult with employees to enable them to contribute to decisions affecting their health, safety and welfare at work. “Consultation” includes sharing relevant information, giving employees the opportunity to express their views and to contribute towards the resolution of complaints, and taking the views of those employees into account.
Consultation is required on a regular basis, and in particular when;
- risks are being assessed or reviewed;
- decisions are made about measures to control risks;
- introducing/altering procedures to monitor risks;
- decisions are made about the adequacy of facilities for welfare of employees;
- changes are proposed to the workplace, systems of work or plant and substances used that affect health, safety or welfare; and - where decisions are made about procedures for consultation.
To assist with consultation, a workplace can elect an OHS Committee, an OHS Representative, or consult by other agreed arrangements. There are situations where an OHS Committee or Representative must be set up and/or elected. Otherwise, they are optional.
OHS Committees
The Act requires that an OHS Committee must be established if;
- the employer employs 20 or more people and the majority of employees request a committee be formed; or
- if WorkCover directs a committee be formed.
OHS Representatives
The Act requires that a OHS Representative must be elected if;
- at least one employee so requests, or;
- if WorkCover so directs.
The functions of OHS Committees/Representatives include;
- reviewing measures taken for health, safety and welfare in the workplace;
- investigating matters that pose a risk to health and safety; and
- attempting to resolve any OHS matters or if unable to do so, to request an investigation by a WorkCover inspector.
Employers are also required to keep records of their consultation arrangements, publicise them amongst staff, and facilitate the obligations of their OHS Committees or Representatives by providing them with reasonable facilities and access to employees.
Hazard Identification
Employers must identify any foreseeable hazards arising from the work undertaken and which could potentially harm the health or safety of employees and others legally at the employer’s place of work (including contractors, clients, etc).
The Regulation particularises specific areas where hazards may arise from (Reg 9), including;
- work premises;
- work practices, systems etc;
- plant and equipment, including installation, use, repair etc;
- hazardous substances;
- presence of asbestos;
- manual handling (such as heavy lifting);
- layout and condition (eg lighting, workstation design);
- electrocution, drowning, fires;
- slips, falls or trips;
- exposure to noise, heat, cold, radiation etc;
- potential for violence.
The list is not exhaustive. A good way of ensuring all risks are identified is to physically inspect all areas of the workplace to identify what hazards or risks are present or likely.
The Regulation also provides that effective procedures must be in place, and implemented, to identify hazards at several stages, including;
- prior to use of the work premises,
- prior and during installation or alteration of equipment and substances,
- when changes to the workplace are undertaken,
- whenever new information becomes available, and
- Whilst work is carried out. Therefore, hazard identification is required constantly.
Risk Assessment
Employers must assess risks to employees and others which may arise from identified hazards. Risk assessment involves;
- Identifying the risk
- Identifying the severity of the risk
- Determining the likelihood of the risk occurring
- Prioritising risks
- Eliminating, or controlling, risks
Employers must eliminate any reasonable foreseeable risks to the health and safety of all persons.
Once hazards are identified, an employer must assess those risks to determine the harm that may be caused to the health and safety of any employees or persons at the workplace.
Risk assessment reports and records must be kept in relation to some specific hazards, although we would recommend that written records be kept in any event.
Risk assessments and control measures must be in place, undertaken, implemented regularly and reviewed immediately prior to using premises, before and during installation or alteration of equipment, before hazardous substances are introduced, where new authoritative information relevant to health and safety becomes available, where the risk assessment is no longer valid, where an injury has occurred, or when there are significant changes proposed to the workplace/practice.
Once the severity and the likelihood of the risk are identified, the risks can be prioritised to see at a glance which risks must be eliminated or controlled.
If it is not possible to eliminate a risk, then that risk must be controlled, by either:
- Substituting the hazard
- Isolating the hazard
- Minimising the risk by engineering or administrative means
- Using personal protective equipment
Instructions, Training & Information
An employer must ensure each employee receives induction training covering;
- OHS arrangements; - reporting of hazards; - procedures including risk control measures; and - how employees can access information on risks and other relevant matters taking into account the age, experience and competence of the employee.
All employees must be informed of potential risks and be provided with all necessary information, instruction and training to ensure the person’s health and safety. Specific requirements apply when working with certain plant, hazardous substances, hazardous processes, dangerous goods and for the construction industry.
Persons responsible for
- hazard identification;
- risk assessment, control and review; and
- provision of information
must be provided with all information necessary to enable them to fulfil their responsibilities. These could persons such as members of OHS committees or OHS Representatives.
Emergency Procedures
Employers must ensure that there are procedures in place for safe and rapid evacuation of persons, emergency communications, and appropriate medical treatment in the event of an emergency.
If the workplace is fixed (such as in an office), then there must be on display a rapid evacuation plan, and one or more persons must be trained and be responsible for overseeing the evacuation and trained in the use of any on-site fire fighting equipment.
Employers must also provide first aid facilities suitable for the size and/or industry, and a trained first aid personnel if there are more than 25 employees.
Emergency procedures and first aid facilities will depend on the nature and hazards of the workplace, size and location, and number, mobility and capability of the employees. Specific requirements are set out in the Regulations.
Injuries and Notification
Hopefully, if adequate OHS procedures are in place, injuries will be prevented.
However, if an injury or “incident” does occur, the Act and Regulations specify that in certain circumstances WorkCover must be notified, including where;
1. a fatality or serious injury has occurred, WorkCover must be immediately notified and the Workers Compensation Insurer notified within 48 hours;
2. an injury results in absence or unfitness for work for at least 7 days, WorkCover within 7 days and the Insurer within 48 hours;
3. an illness results in absence or unfitness for work for at least 7 days, WorkCover within 7 days;
4. in other specified circumstances.
Records must be keep for injuries and those notified to WorkCover, for at least 5 years. Records required include the date, time , place and nature of the incident, the date on which notice was given, and the record of acknowledgement by WorkCover.
The Workers Compensation Act and Workplace Injury Management and Workers Compensation Regulation prescribe further requirements for injury management, where injuries have occurred and procedures for an employee’s return to work.
Duties of Employees
Employees are to take reasonable care for the health and safety of others.
Employees are to co-operate with employers to enable compliance with the Act and Regulations.
Penalties
Corporation
– First offence – $550,000
– Previous offence – $825,000
– Reckless conduct causing death – $1.65 million
Individual
– First offence – $55,000
– Previous offence – $82,500 or 2 years imprisonment or both
– Reckless conduct causing death – $165,0000 or 5 years imprisonment or both
Defences
The employer must show that either:
– It was not reasonably practical to comply, or
– They had no control over the circumstances and it was not practical to make provision for the incident
For more information, contact us.