Yes. Engaging in reckless behaviour which put others’ safety at risk was a breach of their duty to do their work without endangering their own or anyone else’s health or safety. If the accident led to a prosecution, one or both forklift drivers may have been found guilty and fined.
This topic should provide you with the ability to:
Plan work in accordance with provisions of OHS legislation and standards
Identify and address hazards and report risk, incidents and injuries in line with organisation policies and procedures
Undertake OHS housekeeping in work area and update own knowledge of OHS issues
Manage own levels of stress and fatigue to ensure ability to work safely
Section 1.1 Plan work in accordance with relevant provisions of OHS legislation, standards, codes of practice / compliance codes and guidance material
Occupational health and safety and the law
Occupational health and safety (OHS) laws in New South Wales consist mainly of:
a number of Acts of Parliament, and
regulations made under those Acts.
The Occupational Health and Safety Act 2000
The main piece of health and safety legislation in NSW is the Occupational Health and Safety Act 2000. This sets out the basic requirements that employers, employees and other must follow.
The central requirement of this Act is the employer’s ‘duty of care’, that is, the duty to ensure the health, safety and welfare at work of all their employees and other people at the workplace, including clients, visitors and volunteers. There are a high number of volunteers working in the community services and it is important to note that employers have a ‘duty of care’ for volunteers as well as employees.
This means that employers, in consultation with workers, have to do everything they reasonably can to identify all the hazards to health and safety that could arise from their work operations. They then have to assess these hazards and decide which ones have the potential to put people’s health or safety at risk, and they have to control the risks so that no one is hurt by the work they do. They must exercise due diligence in carrying out this process. Put simply, due diligence means taking care. In the workplace, it means that employers must:
take every precaution reasonable in the circumstances to protect the health, safety and welfare of all workers
be able to prove to a court, if need be, that they were conscientious in implementing the processes to manage the risk to workers.
This process of finding hazards, checking them out and fixing potential health and safety problems is known as risk management. It has to cover all the work activities involved in the operation of the business or organisation. Most modern OHS legislation is based on the employer’s responsibility to manage health and safety risks.
Activity 1.1
A home-delivery pizza shop requires staff to deliver pizzas within ten minutes of the customer placing the order, or the customer gets the pizza for free. On the way to a customer’s place with a “mushroom, anchovies, pineapple and the lot” special order and only a minute to go, the delivery girl misjudges a right hand turn and causes another motorist to swerve off the road to avoid her, hitting a tree and getting a whiplash injury.
1. Is the pizza-shop owner in danger of being prosecuted?
Responsibilities of employers and employees
Employers’ responsibilities
Under the NSW Occupational Health and Safety Act 2000, employers must ensure the health, safety and welfare at work of all their employees, and any other people whose health or safety may be affected by the employer’s undertaking. This is known as the general 'duty of care'. To meet this duty of care, employers must:
ensure that systems of work and the working environment are safe and without risks to health
ensure that plant (machinery or equipment) or substances used by employees are safe and without risks to health when properly used
provide such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety
ensure that premises (and means of access and exit) are safe and without risks to health.
Employers in New South Wales must do these things in consultation with their workers. Workers have rights which correspond to each of these things. For example, workers have the right to receive enough information, instruction, training and supervision to enable them to do their job safely.
Under the Occupational Health and Safety Regulation 2001, which fleshes out some of the requirements of the Act, employers must implement a risk management process in order to eliminate or control all risks to the health and safety of their employees and others such as contractors, visitors, or others present at the workplace.
Volunteers
In community services, ‘Organisations are not legally responsible for the safety and health of volunteers once they move off the premises to work in the community and client homes unless they are accompanying an employee.’ (WorkCover NSW (2004) The Community Services safety pack: a guide to occupational health & safety. Gosford, WorkCover NSW, p.13).
WorkCover suggest that all volunteers attend induction training and are given training in OHS procedures. They further suggest that if volunteers will not do training that they not be engaged as volunteers.
Employees’ duties
Employees also have duties under the legislation. They must:
do their work without endangering their own or anyone else’s health or safety
not interfere with or misuse anything provided in the interests of health and safety
co-operate with the employer’s efforts to control risks.
To properly fulfil these responsibilities, workers would need, for example, to comply with the company’s rules and follow their procedures, as well as reporting any hazards to their supervisor. Workers should also be involved in the process of checking out hazards, assessing them and controlling risks.
Supervisors and managers should also be involved in risk management, according to the scope of their responsibilities. They should try to solve health and safety problems which are reported to them.
Activity 1.2: Employees’ responsibilities
After hours, when the boss was not present and a few warehouse workers were just finishing off the last few tasks before ending their shift, one forklift truck driver invited another to race him back to the office. The two forklifts went speeding round a corner and one of them hit a visitor who was knocked over and hit his head, receiving a serious head injury.
1. Would either of the forklift drivers be guilty of a breach of their duties under the Occupational Health and Safety Act?
Responsibilities of others
Responsibilities of self-employed people
Self-employed people have responsibilities under the law which are very similar to those of employers and employees. That is, they must do their work without endangering their own or anyone else’s health or safety.
Responsibilities of designers, manufacturers and suppliers
Other people also have responsibilities under OHS legislation. For example, designers, manufacturers and suppliers of machinery, equipment, chemicals and other substances must ensure that these things are safe to use, and don’t involve health risks, when they are properly used.
Responsibilities of controllers of premises
Controllers of premises also have responsibilities under the law. The Regulation sets out risk management requirements for controllers of work premises (who may not be the employers of the people working there). They must identify any hazards arising from the premises that could harm someone when the premises are being used as a workplace.
Key hazards that must be considered include the condition and layout of the premises, the presence of confined spaces and the potential for falls. If a hazard is identified, controllers of work premises must assess the risks, and control the risks to the fullest extent possible, if it is not reasonably practical to eliminate them. The Regulation also identifies mandatory controls that an owner must put in place for falls, electricity and asbestos.
Risk management
What is risk management?
An employer has an obligation to identify and assess foreseeable hazards. If it is not reasonably practicable to eliminate the risk, the employer must take steps to control the risk.
Risk management is covered in detail in Chapter 2 of the Occupational Health and Safety Regulation 2001. Other chapters also refer to obligations of risk management as they apply to specific hazards, activities or places of work.
Risk management involves assessing the harm of those hazards. It is the process of:
Identifying any foreseeable hazard—anything in the workplace that has potential to harm anyone at the workplace, eg moving parts in machinery, toxic chemicals, manual handling tasks.
Assessing the risk from the hazard—finding out how significant the risk is, for example, will it cause a serious injury, illness or death and how likely is this to occur?
Eliminating the hazard or if this is not possible, controlling the risk from the hazard—implementing strategies to eliminate or control the hazard, for example, design equipment differently, add machine guards, use safer chemicals, providing lifting devices to minimise manual handling or use personal protective equipment.
Note: Risk management is more commonly referred to simply as risk control but the possible elimination of the hazard(s) must be considered before risk control is undertaken.
Consultation
Health and safety law in New South Wales spells out a requirement that employers must consult employees about a range of matters to do with health and safety at work, including the matter of how the employer complies with their obligation to control health and safety risks. These requirements are contained in the:
Occupational Health and Safety Act 2000, Part 2, Division 2, Duty to Consult – Sections 13 to 19
Occupational Health and Safety Regulation 2001, Chapter 3, Clauses 21-32.
First aid
The law requires suitable arrangements to be made for the provision of first aid at work. The information on first aid is found in Clause 20 of the Occupational Health and Safety Regulation 2001. The Regulation requires employers at each place of work, to provide first aid facilities and (where more than 25 people are employed) trained first aid personnel. WorkCover NSW have produced a booklet: First aid in the workplace (2001)
Note: A Register of Injuries is required under the Workplace Injury Management and Workers Compensation Act 1998 and the register of the provision of first aid may be incorporated into that register.
Emergency planning
Employers need to establish plans and procedures to cope with fire and other emergencies. Emergencies can result from events such as leaks or spills, fire or explosions, mechanical failures or other incidents.
Legislation which deals with this is contained in the Occupational Health and Safety Regulation 2001:
clause 17: Employer to provide for emergencies
clause 62: Fire and explosion – particular risk control measures.
Other sources of compliance
In addition to the legislation mentioned above, codes of practice and Australian Standards may also contain requirements that apply in many cases.
Codes of practice give practical guidance on ways in which the standards of health and safety required by the law can be met. Australian Standards are documents setting out technical matters such as design specifications or the proper use of equipment. Australian Standards do not have the force of law unless they are adopted (‘called up’) in the legislation.
An index of national standards codes of practice and related guidance notes can be found at the Safe Work Australia, the national occupational health and safety body.
To find out, for example, which codes of apply to a particular type of work or what guidance material is available, these websites would be the first place to look. Many of these resources are available on-line, and those which are not can be ordered as hard copy publications from the organisations which produce them. Many resources are free, and provide excellent information about legal requirements, health and safety problems in different industries and occupations, and how to solve those problems.
Information about Australian Standards can be found on Standards Australia’s website at http://www.standards.com.au/ Go to Searching the catalogue.
