THE GENERAL DUTIES SET OUT IN THE ACT

Duties of Employers

Occupational health & safety in Victoria is regulated by the Occupational Health and Safety Act 1985 (Vic) (“the Act”) and subordinate Regulations and approved Codes of Practice.

Sub-section 21(1) of the Act provides that:

“An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.”

This general duty is supported by the more particular duties set out in sub-section 21(2) but it also applies in its own right.

The duty is very far reaching. “Working environment” means not only the physical environment or characteristics of the workplace but also such things as when, by whom and how the work is done.

Intangible things, such as the state of mind (for example, levels of stress) among employees, and the underlying factors behind this, must also be considered. In simple terms, the duty is to take all necessary steps to ensure the health and safety of employees that are “practicable”.

Sub-section 21(2) of the Act provides that:

“Without in any way limiting the generality of sub-section (1), an employer contravenes that sub-section if the employer fails:

• to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health;
• to make arrangements for ensuring so far as is practicable safety and absence of risks to health in connexion with the use, handling, storage and transport of plant and substances;
• to maintain so far as is practicable any workplace under the control and management of the employer in a condition that is safe and without risks to health;
• to provide adequate facilities for the welfare of employees at any workplace under the control and management of the employer; or
• to provide such information, instruction, training and supervision to employees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health.”

These provisions set out examples of failures on the part of employers that will constitute a breach of the main duty set out in sub-section 21(1).

In practice, when the Authority prosecutes under the Act, a single workplace risk or accident may give rise to several charges of breach of sub-section 21(1) based on separate breaches of the five sub-sections 21(2)(a)-(e).

It is important to note that the emphasis is on eliminating the risk of illness or injury. It is no defence that the risk did not actually result in illness or injury. In other words, there does not have to be a workplace accident, or illness or injury to an employee, for an employer to be liable to prosecution.

Sub-section 21(3) provides that the general duties apply not only to employees but also to:

• independent contractors engaged by the employer; and
• any employees of the independent contractor,

in relation to matters over which the employer has control, or would have had control but for a contractual agreement limiting that control (in other words, the employer cannot “contract out” of the obligations).

Related obligations are set out in sub-section 21(4), which provides that:

“An employer shall so far as is practicable-

• monitor the health of the employees of the employer;
• keep information and records relating to the health and safety of the employees of the employer;
• employ or engage persons who being suitably qualified in relation to occupational health and safety are able to provide advice to the employer in relation to the health and safety of the employees of the employer;
• nominate a person with, or persons each with an appropriate level of seniority (not being a health and safety representative) to be the employer’s representative or representatives under sections 26 and 31;
• monitor conditions at any workplace under the control and management of the employer; and
• provide information to the employees of the employer, in such languages as are appropriate, with respect to health and safety at the workplace, including the names of persons to whom an employee may make an inquiry or complaint in relation to health and safety.”

Sub-section 21(4)(c) is important. It requires employers to obtain professional advice on occupational health and safety matters.

Section 22 sets out the duties owed by employers and self-employed persons to people other than their employees. It provides that:

“Every employer and every self-employed person shall ensure so far as is practicable that persons (other than the employees of the employer or self-employed person) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer or self-employed person.”

In other words, employers and self-employed persons must take all practicable steps to make sure that no one is exposed to risks to their health and safety by the way the business is carried out. This would apply for example, to customers and members of the public who may be “passing by”.

Practicability

The duties set out above are far reaching but generally employers are only required to take steps that are “practicable”. This term is defined to mean:

“…practicable having regard to:

• the severity of the hazard or risk in question;
• the state of knowledge about that hazard or risk and any ways of removing or mitigating that hazard or risk;
• the availability and suitability of ways to remove or mitigate that hazard or risk; and
• the cost of removing or mitigating that hazard or risk.”

In other words, you do not have to take steps to ensure the health and safety of employees and others that are impracticable or unfeasible, having regard to the above definition.

It is important to note that the particular employer’s knowledge about the hazard or risk and the availability and suitability of ways to remove or mitigate the hazard or risk is not the focus. Rather, the question is, from an objective point of view, what is the situation generally, in the industry and beyond?

As with negligence claims in civil law, the question of “foreseeability” is relevant, that is, could the risk (or the illness or injury if the risk was realised) be anticipated or was it “far-fetched” or “fanciful”?

It is no defence that the risk arose through disobedience, carelessness or foolishness on the part of the employees themselves because such behaviour is clearly foreseeable.

In prosecution proceedings the prosecution (not the employer) must prove:

• what steps were practicable in the particular circumstances of the case; and
• that the employer failed to take these steps.

Duties of Occupiers of Workplaces

Section 23 of the Act provides that:

“An occupier of a workplace shall take such measures as are practicable to ensure that the workplace and the means of access to and egress from the workplace are safe and without risks to health.”

This duty is owed not only by employers but also others who may have the management or control of the workplace. It is a broad duty in that it applies in respect of any person who may come onto the workplace.

Once again, it is not an absolute duty; the occupier is only required to take measures that are practicable.

Duties of Designers, Manufacturers, Importers and Suppliers

Section 24 of the Act provides that:

• ensure, so far as is practicable, that the plant is so designed and constructed as to be safe and without risks to health when properly used;
• carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed by paragraph (a); and
• take such action as is necessary to ensure that there will be available in connexion with the use of the plant at the workplace adequate information about the use for which it is designed and has been tested, and about any conditions necessary to ensure that when put to that use it will be safe and without risks to health.

(2) A person who erects or installs any plant for use at a workplace shall ensure, so far as is practicable, that nothing about the way in which it is erected or installed makes it unsafe or a risk to health when properly used.

(3) A person who manufactures, imports or supplies any substance for use at a workplace shall-

• ensure, so far as is practicable, that the substance is safe and without risks to health when properly used;
• carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed by paragraph (a); and
• take such action as is necessary to ensure that there will be available in connexion with the use of the substance at the workplace adequate information about the results of any relevant tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that it will be safe and without risks to health when properly used.

(4) For the purposes of this section, any plant or substance is not to be regarded as properly used where it is used without regard to any relevant information or advice that is available relating to its use.”

Once again, some of the duties are qualified by reference to “practicability”.

It should also be noted that there is some relief for designers, manufacturers etc where safety information or advice relating to the plant or substance was provided but disregarded at the workplace.

Duties of Employees

Section 25 of the Act provides that:

“(1) While at work, an employee must -

• take reasonable care for his or her own health and safety and for the health and safety of anyone else who may be affected by his or her acts or omissions at the workplace; and
• co-operate with his or her employer with respect to any action taken by the employer to comply with any requirement imposed by or under this Act.

(2) An employee shall not–

• wilfully or recklessly interfere or misuse anything provided in the interests of health safety or welfare in pursuance of any provision of this Act or the regulations; or
• wilfully place at risk the health or safety of any person at the workplace.”

Civil Liability

Section 28 of the Act provides that:

“Nothing in this Part shall be construed as-

• conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part;
• conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings; or
• affecting the extent (if any) to which a right of action arises or civil proceedings may be taken with respect to breaches of duties imposed by the regulations.”

This means that civil claims against the offending party for damages (compensation) based on “breach of statutory duty” are specifically barred in relation to the general duties set out in the Act. However, such actions are not barred with respect to breaches of the Regulations as the requirements of the Regulations are more specific and more easily identified.

Discrimination

The Act prohibits discrimination against employees by employers or prospective employers by reason of the employee:

• performing occupational health and safety functions under the Act;
• assisting inspectors; or
• making a complaint in relation to health and safety.

FURTHER INFORMATION

This Information Outline is provided courtesy of McKean & Park Lawyers & Consultants who are experienced in this area of law. They are located at 405 Little Bourke Street MELBOURNE VIC 3000 or call them on (03) 9670 8822 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

McKean & Park was established in 1863 by James McKean and thrives today with 20 professionals specifically in all major areas of practice including Workplace Relations and Anti-Discrimination Law. The firm is proud of the fact that many of its Lawyers are accredited specialists approved by the Law Institute of Victoria. McKean & Park is committed to providing clients with comprehensive and innovative legal services delivered promptly in a professional and cost effective way.