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The Law

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The Law

1. Duty of Care
In the workplace there are various laws governing the relationship between employees and employers. Many of these laws, including those related to OHS, have developed from common law principles.

Duty of care is a common law principle that dates back to the master-servant relationship. It requires each person to take reasonable care to avoid foreseeable harm to others and applies when there is some relationship of control between the parties, for example master-servant, employer-employee, manufacturer-consumer and teacher-student.

2. NSW Occupational Health and Safety Act 2000 Part 2, Division 1
Employers must ensure the health, safety and welfare of their employees when at work by:

  • maintaining places of work under their control in a safe condition, and ensuring safe entrances and exits;
  • making arrangements for ensuring the safe use, handling, storage and transport of plant and substances;
  • providing and maintaining systems of work, and working environments, that are safe and without risks to health;
  • providing the information, instruction, training and supervision necessary to ensure the health and safety of employees;
  • providing adequate facilities for the welfare of employees.

3. Employer's Duty to Consult
Employers must consult with employees about OHS matters, so that employees can contribute to decisions affecting their health, safety and welfare.

The OHS Act provides for occupational health and safety representatives to be elected when requested by an employee. OHS Committees can be established in workplaces of 20 or more where the majority of employees request it. Other consultation arrangement can be agreed to between the employer and employees.

4. Unlawful Dismissal
The OHS Act makes it unlawful to dismiss or victimise and employee for being an occupational health and safety representative, committee member, or for performing his or her duties under the Act. It is also unlawful to dismiss or victimise an employee for making a complaint about a health and safety matter.

5. Employer to provide instruction, training and information
An employer must ensure that each new employee receives induction training that covers the following:

  • Arrangements at the place of work for the management of occupational health and safety including arrangements for reporting hazards to management,
  • Health and safety procedures at the place of work relevant to the employee, including the use and maintenance of risk control measures,
  • How employees can access any health and safety information that the employer is required by OHS Regulation to make available to employees,
  • Any other matter that the OHS regulation specifies should be the subject of induction training and that is relevant to the place of work concerned having regard to the competence, experience and age of the new employee.

6. Employer to identify hazards

  • An employer must eliminate any reasonably foreseeable risk to the health or safety of:
    • Any employee of the employer, or
    • Any other person legally at the employer's place of work, or both that arises from the conduct of the employer's undertaking.
  • If it is not reasonably practicable to eliminate the risk, the employer must control the risk.

7. Means of Controlling Risk

  • For the purposes of OHS Regulation, an employer has an obligation to control a risk to health or safety (in any case in which the elimination of the risk is not reasonably practicable) and has an obligation to take the following measures (in the order specified) to minimise the risk to the lowest level reasonably practicable:
    • firstly, substituting the hazard giving rise to the risk with a hazard that gives rise to a lesser risk,
    • secondly, isolating the hazard from the person put at risk,
    • thirdly, minimising the risk by engineering means,
    • fourthly, minimising the risk by administrative means (for example, by adopting safe working practices or providing appropriate training, instruction or information),
    • fifthly, using personal protective equipment.

8. NSW Occupational Health and Safety Regulation 2000 Part 2 Division 1 - Definitions

means an individual who works under a contract of employment or apprenticeship.

Employer means a person under contracts of employment or apprenticeship.

Occupier of premises includes:

  • A person who, for the time being, has (or appears to have) the charge, management or control of the premises, or
  • A person who, for the time being, is in charge (or appears to be in charge) of any operation being conducted on the premises.

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