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General Duty of Care

Reforms to the Occupational Safety and Health Act 1984 clarify existing general duties and create new ones.

Contents

General duty of care and you

  1. What is the general duty of care?
  2. How have the general duties changed?
  3. Who has a general duty?

Summary of the general duties

  1. General duties of employers towards employees
  2. Duties to report notifiable injuries and diseases
  3. Duties of employees
  4. Who else has the duty of an employer or employee?
  5. Contractors and people who engage contractors (principals)
  6. Labour hire arrangements
  7. Other labour arrangements
  8. Duties of self-employed persons and further general duties of employers
  9. Duties placed on certain bodies corporate
  10. Duties of people with control of  a workplace or  the access to or egress from  the workplace
  11. Duties of designers, manufacturers, importers, suppliers, erectors, etc
  12. Duties of employers to maintain safe premises
  13. Need more information

This information is from the Commission for Occupational Safety and Health guidance note General Duty of Care in Western Australian Workplaces.

General duty of care and you

1.  What is the general duty of care?

“General duty of care” and “general duties” describe duties that the Act places upon people to ensure their own safety at work and that of others who are at the workplace or who might be injured by the work. These general duties are aimed at preventing anyone being killed, injured or contracting an illness because of work or activities at a workplace, including using plant or equipment.

2.  How have the general duties changed?

The amendments to the Act were designed to close gaps and clarify some of the existing general duties. The amendments do not change the nature of the general duties. Most importantly, the amendments make clear that the general duty obligations extend beyond the traditional employer-employee relationship to take into account the new types of work relationships such as labour hire.

3.  Who has a general duty?

  • Employers
  • Employees
  • Self-employed people
  • Principals (people who engage contractors in the course of their trade or business)
  • Contractors and persons engaged or employed by the contractor
  • People who have control of workplaces or the access to or egress from a workplace
  • Designers, manufacturers, importers or suppliers of plant or substances to be used at a workplace
  • Erectors or installers of plant for use at a workplace
  • Designers or constructors of buildings or structures for use at a workplace
  • Agents who are in the business of hiring out workers (labour hire organisations) and their clients (host employers)
  • Workers who are hired out to a host employer by a labour hire company
  • People who are in a working relationship that mirrors a contract of employment but is not a contract of employment
  • Corporate bodies that engage workers under one of the labour relationships covered by the Act
    Government of Western Australia
  • People employed by the Government of Western Australia.

The Act imposes general duties on employees, self-employed persons, contractors, workers in labour hire arrangements and workers in some other arrangements which requires them to take reasonable care of their own safety.

All others have a duty that applies so far as is practicable. Practicability is determined by considering:

  • the severity and likelihood of any potential harm to a person (to whom the duty is owed);
  • the state of knowledge about the harm, the risk of it occurring, and the means of removing or reducing the risk; and
  • the availability, suitability and cost of the means of addressing it.

Summary of the general duties

1.  General duties of employers towards employees [Section 19]

An employer is a person who engages a worker under a contract of employment, apprenticeship or
traineeship scheme under the Industrial Training Act 1975.

The employer’s duty applies to other working relationships where the Act specifically says so (See: Who else has the duties of an employer or an employee?).

Employers must, as far as practicable, provide and maintain a working environment where employees are not exposed to hazards. This includes, but is not limited to, requirements to:

  • provide and maintain workplaces, plant and systems of work that do not expose employees to
    hazards;
  • provide information, instruction, training and supervision so employees can perform their work safely;
  • consult and cooperate with safety and health representatives, if any, and other employees, regarding occupational safety and health at the workplace;
  • provide adequate protective clothing and equipment, where it is not practicable to avoid the presence of hazards at the workplace; and
  • ensure safe use, cleaning, maintenance, transportation and disposal of substances and plant used in the workplace.

2.  Duties to report notifiable injuries and diseases [Section 23I]

An employer or self-employed person must report certain cases of work-related injury or disease to the WorkSafe Western Australia Commissioner. This includes a requirement for employers to report all injuries incurred at a workplace resulting in the death of an employee.

Other notifiable injuries and diseases to employees are listed in the regulations (Regulation 2.4 and 2.5).

This duty also applies to some other working relationships where the Act specifically says so (See: Who else has the duties of an employer or an employee?).

The above provisions also apply where the injury or disease is incurred at residential premises to which section 23G applies (See: Duties of employers to maintain safe premises).

The Act also allows regulations to be written to require employers and self employed persons to report certain injuries incurred to non-employees in connection with the business. No such regulations have yet been written.

3.  Duties of employees [Section 20]

An employee is a person who works under a contract of employment, apprenticeship or traineeship scheme under the Industrial Training Act 1975.

The employee’s duty also applies to workers in some other working relationships where the Act specifically says so (See: Who else has the duties of an employer or an employee?).

Employees are required to take reasonable care for their own safety and health at work and to avoid harming the safety and health of other people through any act or omission at work.

Employees must comply as far as they reasonably can with instructions given by their employer in the
interests of safety or health. They must also cooperate with their employer when the employer carries out his or her duties under the Act.

Employees must report to their employer work-related injuries and any hazards at the workplace that they cannot correct themselves. Employees must use personal protective equipment as properly instructed, and not damage or misuse any equipment provided in the interests of safety and health.

4.  Who else has the duties of an employer or an employee?

Many workers are engaged under arrangements that fall outside the traditional employment relationship. These alternative arrangements include work undertaken by contractors and workers in labour hire arrangements.

Sections 23D, 23E and 23F of the Act capture these alternative working relationships and ensure that the general duties of care of the employer, under section 19, and of the employee, under section 20, apply to the relevant people in the working relationship.

The duty to report a notifiable injury or disease to the Commissioner (section 23I) also applies to the person with the employer’s duty in such relationships.

These relationships are discussed in more detail below.

5.  Contractors and people who engage contractors (principals) [Section 23D]

These duties apply where, in the course of trade or business, a person (called a principal) engages a
contractor to carry out work.

In such cases the principal has the responsibilities of an employer (under sections 19, 23G and 23I of
the Act) towards the contractor and any employees of the contractor (or other persons engaged by the
contractor). This applies as if the contractor and his or her employees were employees of the principal. However, the principal’s duty applies only in relation to matters over which the principal has control or the capacity to have control.

For example, a principal on a building site, who engages an electrical contractor to work at height would have a duty to protect the contractor from the hazard of falling from that height. The principal would have to implement appropriate systems and ensure installation of the necessary structures to ensure that adequate fall protection was in place. These are clearly matters over which the principal has the capacity to exercise control. However, in relation to the aspects of the electrical work for which the principal has no expertise, the principal would not have the capacity to control the way in which the work is done.

The concept of applying the general duties of care to the principal/contractor relationship is not new.

The principal/contractor relationship is the only alternative working relationship where the employer’s
duty under section 23G of the Act applies (See: Duties of employers to maintain safe premises). Where a principal provides a contractor or contractor’s employees with residential accommodation, the principal has a duty to ensure that the premises are safe. This duty applies only in limited circumstances.

Contractors having their own employees retain the duties of employers towards those employees. The duties of the Act overlap in these circumstances. Both the contractor and the principal have duties to the contractor’s employees.

Contractors and contractors’ employees (or people engaged by a contractor) working for a principal have the duties of an employee under section 20 in relation to the work for the principal.

Note: A contractor may have both the duties of an employer (in relation to his or her own employees)
and the duties of an employee (in relation to the work for the principal).

6.  Labour hire arrangements [Section 23F]

Provisions dealing specifically with labour hire arrangements were introduced on 1 January 2005.

Labour hire refers to arrangements when a host organisation or person (the client), in the course of trade or business, engages workers from an organisation which specialises in providing labour (the labour hire agency or agent). The arrangement is characterised by:

an agreement for remuneration between the client and the agent regarding supply of a worker;
an agreement (which may be a contract of employment) between the agent and the worker; and
the lack of a contract of employment between the client and the worker.
An agent is a person who carries on a business which provides workers (who can be employees or
contractors) to carry out work for clients of the person. This includes a group training organisation under the Industrial Relations Act 1979. Workers are usually employed and paid by a labour hire agency or agent which requires them to perform their tasks or functions for a client, usually under that client’s direction.

Both the agent and the client have the same general duties of care as those applicable to an employer under section 19 of the Act. These general duties extend to those matters over which each has the capacity to have control. The duty under section 23I to report certain injury or disease  occurrences also applies to both the agent and the client.

A worker in a labour hire arrangement has the same general duties of care as those applicable to an
employee under section 20 of the Act.

See WorkSafe’s bulletin on Labour hire industry and duty of care for further information.

7.  Other labour arrangements [Section 23E]

The Act contains provisions designed to capture any alternative working relationship where the work
is directed and controlled by a person, similar to a contract of employment, but where a contract of
employment does not exist. The provisions are limited to arrangements that are not covered by section 23D (principal/contractor arrangements) or section 23F (labour hire arrangements).

An example of the type of person to whom this applies might be a skipper of a boat who has a share fishing agreement with the crew of the boat (and the crew are not employees, contractors or labour hire workers) yet the skipper can instruct the crew about what work to do and how the work is done.

A person who pays workers to carry out work in these sort of circumstances has the employer’s  general duty of care under sections 19 in relation to matters over which the person can have control. The duty under section 23I to report certain injury or disease occurrences also applies.

Workers in this sort of relationship have the duties of an employee under section 20 of the Act.

8. Duties of self-employed persons and further general duties of employers [Section 21]

A self-employed person must take reasonable care to ensure his or her own safety and health at work.

An employer or a self employed person must, as far as practicable, ensure that the safety or health of another person (not being the employer’s employee) is not adversely affected by the work (of the self employed person, the employer or the employer’s employee).

The duty provides protection to customers, visitors, passers-by and anyone else whose safety or health might be adversely affected by the work.

An example where this applies is where an employer or self employed person erected scaffolding near a public walkway. The employer or self employed person would have a duty to the users of the walkway to ensure, as far as is practicable, their safety was not affected by the work. Some matters that might be considered in this instance are: providing safe passage past the scaffold; clear signage; hand rails; and overhead protection from falling debris.

9.  Duties placed on certain bodies corporate [Section 21B]

While section 21 of the Act provides protection to people such as customers, visitors and passers-by,
sometimes a business is operated by a body corporate that is not an employer. Section 21 does not apply to such bodies. To ensure that this gap is closed, section 21B came into effect on 1 January 2005.

Section 21B applies to a body corporate (that is not an employee) that, in the course of trade or business, engages labour under one of the alternative labour arrangements covered in the Act, ie principal/contractor arrangements (section 23D), labour arrangements that mirror a contract of employment (section 23E), and labour hire arrangements (section 23F). If the body corporate is not covered by one of these three sections, then section 21B does not apply.

Where covered by this section, the body corporate must, as far as practicable, ensure that the safety or health of a person is not adversely affected by the work of the body corporate or a person carrying out work under the direction of the body corporate.

This duty provides protection to customers, visitors, passers-by and anyone else whose safety or health might be adversely affected by the work.

10.  Duties of people with control of a workplace or the access to or egress from the workplace [Section 22]

A person who has control of:

  • a workplace where people other than his or her own employees work; or
  • the means of access to or egress from a workplace

must take the measures that are practicable to ensure that the workplace or the means of access to or egress from the workplace are safe.

The duty only applies if the person has control of the workplace in connection with a trade, business or undertaking of theirs.

Owners, lessors and others who control any part of a workplace are bound by this duty. This includes people with a contract or lease which gives them responsibility for maintenance or repair of a workplace, including the means of access to and egress from the workplace. However, people are only responsible for matters under their control.

If a person is an employee or worker who has a duty under section 20, they cannot also have a duty as a person in control of workplace.

11.  Duties of designers, manufacturers, importers, suppliers, erectors, etc [Section 23]

People who design, manufacture, import or supply plant for use at workplaces must, as far as practicable, ensure that the design and construction of the plant is safe for people to install, maintain or use it properly.

Plant must be tested and information supplied about its safe use.

People who erect or install plant for use at a workplace must ensure that the plant is erected or installed so that people who properly use it are not exposed to a hazard.

Manufacturers importers or suppliers of substances for use at a workplace (such as chemicals) must, as far as practicable, provide toxicological data relevant to the safe handling, use, storage, transportation and disposal of the substance. This information must be provided when the substance is supplied, then whenever requested.

A person who designs or constructs a building or structure (including a temporary structure) for use at a workplace must ensure, as far as practicable, that the design and construction do not expose people who construct, maintain, repair, service or use the building or structure to hazards.

12.  Duties of employers to maintain safe premises [Section 23G]

The Act includes new provisions requiring an employer to, as far as practicable, ensure that residential premises provided in connection with work are safe for the employee. The duty applies only where the following three conditions apply:

there is no alternative accommodation available;
the accommodation is outside a city or town; and
there is no written agreement containing terms that might reasonably be expected to apply to the letting of residential premises (such as a lease).
See WorkSafe’s bulletin on Employer provided accommodation and duty of care for further information.

13.  Need more information?

For more information and/or assistance please contact the WorkSafe Call Centre. 1300 307 877.

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