Over the past decade, new and comprehensive legislation has been introduced into every state and territory in Australia aimed at addressing the issue of occupational health and safety in the workplace.
Although there are slight variations between each of the states and territories, all of the legislation has basically the same objectives. These objectives can be summarised as follows:
- To ensure the health, safety and welfare of employees
- To protect other people at the workplace, such as visitors and subcontractors
- To promote a working environment for employees which is adapted to their physical and psychological needs
- To provide a simpler framework for protection of employees, which uses Codes of Practice, Standards and joint consultation to improve workplace health and safety
- To review all associated OH&S legislation so that it may progressively be updated and included in the Occupational Health and Safety Act.
In NSW the main piece of legislation dealing with this matter is called the Occupational Health and Safety Act. This law has recently been strengthened with the introduction of the Occupational Health and Safety Regulations.
The act and the regulations clearly define the responsibilities of all stakeholders within the workplace. They are legally binding on all parties and severe penalties may be imposed for breaches of these regulations.
Employers responsibility
The prime responsibility of the employer is:
- The protection of the health, safety and welfare of employees on a day-to-day basis at work.
Additional responsibilities are:
- To provide safe plant, equipment and systems of work and to make sure that they are maintained properly
- To make sure that substances used in the workplace can be safely used, handled, stored and transported
- To make sure that the workplace has safe means of access and exit
- To provide information, instruction, training and supervision so that employees have the knowledge they need to work in a way that does not endanger health and safety
- To look after the health and safety of visitors
- To provide and maintain a safe and healthy working environment
- To provide information to employees about any plant, equipment or substances used in the workplace. This information could include:
- precautions and conditions for safe use
- potential health and safety problems arising from their use
- the result of any research carried out on substances or plant.
An employer cannot charge an employee any fee for the provision of anything done or provided for OH&S purposes.
A further duty of care relates to the health and safety of persons other than employees at places of work:
- Every employer and self employed person shall ensure that persons not employed by them are not exposed to risks to their health and safety from conduct of his undertaking while they are at his place of work.
Employee rights
Employees have certain rights relative to OH&S legislation:
- To be provided with a safe workplace where their physical and psychological needs are considered
- To have adequate supervision to check that work is being carried out in the proper manner.
- To receive adequate training so that they have the knowledge with which to perform their jobs safely and without risk to health
- To be provided with adequate information so that they have an understanding of the rationale behind work practices and the knowledge on which to base the decisions they make every day.
Employee obligations and responsibilities
Employees also have obligations under the legislation:
- To co-operate with employers in their efforts to comply with OH&S responsibilities
- Not to endanger others by their actions
- Not to interfere with or misuse materials or equipment provided for OH&S
- Not to prevent or hinder the giving of aid to someone who is ill, injured or in danger.
Suppliers of plant, equipment and substances
This section includes plant or substances that are purchased hired or leased. The responsibilities of these persons are:
- To ensure that the plant or substance is safe and without risk to health and safety when used properly
- To carry out necessary research and tests to ensure the safety of the plant or substances and minimise any risks that may occur during its use
- To supply any results of tests relating to the plant or substance
- To provide adequate information on the safe use of the plant or substance.
Occupational health and safety committees
One of the main aims of the NSW Occupational Health and Safety Act is to increase the ability of workers to contribute to the maintenance of a safe workplace.
With this in mind, the OH&S act makes provision for the formation of workplace OH&S committees. These committees are made of representatives, elected by the workers, and representatives nominated by the employer. The chairperson of such a committee can only be an employee's (elected) representative.
The role of these workplace committees is to be proactive in promoting a safe and healthy workplace. These committees have the right to:
- Inspect the workplace in a way determined by the committee
- Obtain details of proposed changes to the workplace that could affect health and safety
- Have access to all information kept by the employer about risks to health and safety or equipment or substances
- Recommend to the employer training and education for particular groups in the workplace
- Inform the committee convenor of any breach of OH&S law.
Workcover NSW
Workcover NSW is the government department whose job is to police and administer the Occupational Health and Safety Act and associated legislation.
Workcover employs inspectors who have specific rights under the OH&S Act, to inspect workplaces and investigate any possible breaches. The inspector's powers are very extensive:
- May apply to an authorised justice for a search warrant if the inspector has reasonable grounds to believe that a provision of the relevant legislation has been or is about to be contravened in or about a premises.
- May enter a workplace with or without notice
(a) Make searches, inspections, examinations and tests and take photographs, video or sound recordings as deemed appropriate
(b) Take for analysis a sample of any substance or thing which in the inspector's opinion may be, contain or be contaminated by, a substance (or a degradation product or substance) prescribed by the regulations.
(b1) Dismantle any plant or thing on the premises for examination, if the inspector believes there are reasonable grounds that the plant or thing has been used in the commission of an offence against the relevant legislation.
(b2) Take any plant or thing on the premises for examination, if the inspector believes there are reasonable grounds that the plant or thing has been used in the commission of an offence against the relevant legislation.
(b3) Keep any plant, substance or thing
(i) that may reasonably be required as evidence in the proceedings for an offence or,
(ii) if not so kept, be used to continue or repeat the offence.
(c) In the case of an inspector who is a medical practitioner, carry out medical examinations with the consent of the person proposed to be examined.
(d) Carry out biological tests in such a manner and in such circumstances as may be prescribed by the regulations.
(e) Require any person in or about the premises to answer questions or otherwise furnish information.
(f) Require the occupier of those premises to provide the inspector with such assistance and facilities as is or are reasonably necessary to enable the inspector to exercise the inspector's functions.
(g) Require the production of and inspect any records in or about those premises.
(h) Take copies of or extracts from any such records.
(i) Exercise all other functions that are conferred by, or are reasonably necessary for the purpose of, the relevant legislation.
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