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Duty of Care


What is duty of care?

The following material has been adapted from http://www.workcover.nsw.gov.au/aboutus/howdoi/Pages/HDIDutyofcare.aspx

Your duty of care is your legal duty to take reasonable care so that others aren't harmed. If you identify a reasonably likely risk of harm, you must take reasonable care in response. It is a concept common to all modern occupational health and safety (OHS) / workplace health and safety (WHS) regimes.

  • There is a general duty of care on employers of the workplace to ensure the health, safety and welfare at work of all employees and others who come on to the workplace.
  • It is the employer’s responsibility to ensure that all reasonably practicable measures have been taken to control risks against all possible injuries arising from the workplace.
  • The employer's duty of care applies to all people in the workplace, including visitors, contractors etc.
  • There is a general obligation on designers, manufacturers and suppliers of plant and substances for use by people at work to ensure that their products are not a risk to health and safety when properly used, and to provide information on the correct use and potential hazards associated with the use of the products in the workplace.
  • There is a general obligation on employees to take care of others and cooperate with employers in matters of health and safety. An employee must also co-operate with the employer or other person so far as is necessary to enable compliance with the relevant OH&S/WHS Act/Regulation.

As employers are in control of the workplace and workplaces can have significant risks to health and safety, employers are required to organise their workplace and their work systems to ensure people at work are not put in harm’s way.

Occupational health and safety

Occupationla health and safety, or OH&S/WHS, is an essential component of the management system in any workplace. Not only is it required by law, it is simply the "right" thing to do to protect the health and safety of people working for you. Based originally on common law "duty of care", and now enshrined in statutory legislation and numerous regulations, it is a legal obligation for employers to provide a healthy and safe work environment.

Australian state and territory OH&S/WHS Acts set out the requirements for creating a safe and healthy working environment while OH&S/WHS regulations explain the duties of particular groups of people in controlling the risks associated with specific hazards. Both Acts and regulations are legally enforceable. (Codes of Practice provide advice on how to meet regulatory requirements and as such, are not legally enforceable, but they can be used in courts as evidence that legal requirements have or have not been met.)

State and territory OH&S/WHS regulations under the relevant OH&S/WHS Acts generally impose duty of care obligations on an employer to:

  • identify foreseeable hazards that may arise in the workplace
  • assess the risks of those hazards
  • eliminate the risks or, if not reasonably practicable to do so, to control the risks
  • monitor and review risk assessments and control measures
  • obtain sufficient information to fulfil legislative requirements
  • provide OH&S/WHS information, instruction & training to employees
  • provide supervision
  • provide for emergencies
  • provide and maintain amenities
  • provide first aid facilities and personnel
  • consult with employees to enable them to contribute to the making of decisions affecting their health, safety and welfare at work.


State and territory OH&S/WHS Acts, Regulations and Codes of Practice can be accessed through:
State and Territory Codes of Practice

Duty of care and occupational diving

Diving is universally recognised as a high hazard and high risk activity — inherently dangerous, and with a disproportionate number of fatalities per person employed compared to the general workplace. However, with the implementation of well developed systems of work, procedures and practices, Australian construction diving is one of the safest in the world.
In the occupational diving industry it is the employer’s responsibility to ensure the employee (diver or supervisor):

  • holds a valid certificate of medical fitness to dive (not required by dive supervisors)
  • holds an approved qualification i.e. ADAS certification or other approved qualification.(An employer should sight the original certificate to eliminate forgery through photocopies.)
  • is competent to safely undertake the proposed work
  • are provided with supervision by a competent person (Applicable to divers only.)

An ADAS certificate is an approved diving or supervision qualification in accordance with the competencies contained in Australian Standards 2815, ensuring a diver or supervisor is competent and safe to work at the time the qualification is awarded. The rigorous quality-controlled nature of ADAS certification offers a high degree of certainty as to a diver or supervisor’s competency and helps employers meet their legislated and common law duty-of-care requirements.

Regulatory authorities are given significant powers of inspection and prosecution, and there is a potential financial impact of breaching your duty of care.

If you have any queries about your duty of care requirements contact your state or territory OH&S inspector.

 


Copyright ADAS 2013