Understanding Duty of Care

INTRODUCTION

Many people do not realise that refusing or failing to observe company safety
rules and safety procedures or instructions from their supervisor is, in fact,
breaking the law.

People don’t appreciate that, as an employee, they have certain legal

obligations with regard to their own safety and the safety of other people in
their workplace.

A failure to recognise and meet these legal obligations can result in:
 injury or harm to yourself;
 injury or harm to other people; and
 you being prosecuted.

Occupational safety legislation operates in the same fashion as other aspects

of the law. Ignorance of the law is no defence for committing an offence.

For this reason it is important that you recognise and understand what your
responsibilities are under the Duty of Care.

Today we will discuss:

 the employee’s duties;
 the employer’s duties; and
 the consequences of not meeting your responsibilities.

WHAT IS THE DUTY OF CARE?

Many of you have probably heard the term “Duty of Care” before.

? “What is Duty of Care and what is it designed to

do?”

Hand out sheet 1 - Duty of Care

Duty of Care refers to the legal duties that employees and employers have to
one another to provide and maintain a safe place of work for everyone.

One way of understanding how the duties of employer and employee fit
together is to imagine the Duty of Care to be like a coin.

Henry Walker Eltin 1

Understanding Duty of Care

A coin can only have value when it has two sides. If you take one side away
from the coin, you will no longer have a valuable commodity, just a lump of
metal.

The same is true with the Duty of Care. Achieving a safe place of work
requires both the employer and the employee to meet their respective duties.

For example, an employer is required, under the Duty of Care, to provide

employees with adequate Personal Protective Equipment. Employees are
required, under the Duty of Care, to correctly use and maintain the provided
Personal Protective Equipment.

If both parties meet their duty to one another then the likelihood of accidents
are reduced and the workplace is made safer. However, if either party does
not meet its duty to the other, this cannot be achieved.

As we look at the duties of the employer and the employees in more detail,
you will begin to see how the example of the coin makes sense.

EMPLOYEE’S DUTY OF CARE

As an employee you have a general duty to:

 ensure your own safety and health at work; and
 avoid adversely affecting the safety and health of any other person
through any act or omission.
The term “act” means doing something that puts people at risk.
The term “omission” means by not doing something, you would put people at
risk.
However, as an employee, you have some other more specific duties.

? “What are some examples of the specific duties

employees have with regard to health and safety?”

Hand out sheet 2 - The employee’s duties

You must follow instructions given by the employer for your safety or
the safety of other people. This means:
 obeying company safety rules;
 following safety procedures; and
 following work instructions given by your Supervisor.

Henry Walker Eltin 2

Understanding Duty of Care

You must correctly use personal protective clothing and equipment that
has been provided by the employer. This means:
 wearing the correct type of Personal Protective Equipment for the work
you are doing; and
 wearing the equipment correctly.

You must not misuse or deliberately damage any equipment provided in

the interest of safety and health. This means you must not:
 interfere or tamper with fire fighting equipment;
 interfere or tamper with first aid equipment and facilities;
 obstruct or deface safety signs; or
 remove machinery safety guards without permission.

You must report hazards that you are unable correct yourself. This
means that you should remove or correct any hazards that you identify in the
workplace, providing:
 you know how to safely do so; and
 your own safety is not unnecessarily endangered.

You must report any injury or harm to health. This means that you must:
 report all injuries no matter how minor; and
 report the symptoms of any disease or illness that could be associated
with work.

You must co-operate with your employer to allow them to carry out their
Duty of Care. This means working actively with the employer to improve
workplace safety and health.

EMPLOYER’S DUTY OF CARE

The employer has a general duty to provide a workplace where employees

are not unnecessarily exposed to hazards.

? “What are some examples of the specific duties

employers have with regard to health and safety?”

Hand out sheet 3 - The employer’s duties

Henry Walker Eltin 3

Understanding Duty of Care

Employers must provide and maintain safe workplaces, plant and

systems of work. This means employers must ensure:
 the layout of the workplace is safe;
 the storage and handling of all materials is safe;
 the location and movement of people and mobile equipment can be
carried out safely.

The employer must also provide employees with adequate information,

instructions, training and supervision so they can perform their work
safely. This means the employer must:
 alert employees to hazards by providing warning signs, posters,
booklets and other written materials;
 provide each employee with the relevant task and safety training
required to do their job safely;
 instruct employees on how work and tasks are to be performed safely;
and
 supervise employees to ensure safety and health rules, procedures and
instructions are being followed.

The employer must consult and co-operate with elected safety and
health representatives with regard to safety and health matters in the
workplace. This is aimed at getting employees and employers working
together with the common goal of improving safety and health standards in
the workplace.

The employer must provide employees with adequate Personal

Protective Equipment where certain hazards cannot be totally avoided.
The means the employer must:
 provide the correct type of Personal Protective Equipment for the type
of hazard; and
 train the employees in how to select, wear, and use the Personal
Protective Equipment.

The employer must ensure the safe use of plant and substances in the
workplace. This means the employer must ensure employees are not
exposed to hazards from anything to do with:
 the transportation, storage, handling, use, cleaning, maintenance or
disposal of plant; and
 the transportation, storage, handling, use, cleaning, maintenance or
disposal of substances.

The term “plant” means all machinery, equipment, vehicles, appliances and
tools used to perform work.

Henry Walker Eltin 4

Understanding Duty of Care

The term “substances” means any natural or artificial solid, gas, liquid or
vapour in the workplace.

The employer must report all accidents involving fatal or major injuries
to the relevant State Government Safety Inspector.

CASE STUDY REVIEW AND DISCUSSION

To reinforce your understanding of the Duty of Care we will now look at a brief
case study.

It is important that you read the case study carefully because we will be using
this as an example throughout the remainder of the safety talk.

As you read through the case study, try to remember the various duties of the
employee and the employer and identify which duties have or have not been
met by each person in the case study.

Hand out sheet 4 - The incident

To make it easier to discuss the case study let’s review each one of the
characters in order of appearance.

? “In what way has Bryan Smith failed in his duties

as an employee?”

Hand out sheet 5 - Bryan Smith

Bryan has affected the safety and health of another employee by not cleaning
up the spillage.

Even though Bryan was capable of cleaning up the spillage he chose not do it
because:
 he had cleaned up three similar spillages in the past week; and
 he thought his routine work was more important.

Bryan knew he had a responsibility to do something about the hazard

because he thought to “cover himself” by reporting the hazard to his
Supervisor.

Bryan has not really “covered” himself at all and his failure to clean up the
spillage has contributed to Frances’ accident. Bryan was capable of
correcting the hazard and chose to pass the responsibility on to someone else
- the Supervisor.

Henry Walker Eltin 5

Understanding Duty of Care

Bryan was wrong in doing this and obviously does not fully understand what
his duty is to other employees. It is true that he has a responsibility to report a
hazard to his Supervisor but only if he is unable to correct it himself.

Bryan made no attempt to:

 clean up the spillage; or
 warn others in the area of the hazard.

The message is that if you identify a hazard in the workplace and you are
capable of safely correcting it, then do so immediately. Leaving it for others to
fix or merely telling your Supervisor about it is not meeting your Duty of Care
to others.

? “In what way did the Supervisor fail to meet his

Duty of Care?”

Hand out sheet 6 - The Supervisor

The Supervisor failed to protect the safety and health of another employee.

The Supervisor failed to take appropriate action after a hazard was reported
to him.

Although the Supervisor “got tied up on the telephone”, this is not a valid
reason for his lack of action.

The Supervisor should have arranged for the immediate clean up of the
spillage and could have done this quite easily by instructing Bryan Smith to do
it.

? “In what way has John Mack failed to meet his

Duty of Care as an employee?”

Hand out sheet 7 - John Mack

John Mack has:

 failed to ensure his own safety; and
 failed to ensure the safety and health of another employee.

John’s failure in meeting his Duty of Care was a major contributing factor in
the accident and the injuries sustained by Frances.

Henry Walker Eltin 6

Understanding Duty of Care

Although he was personally unhurt by the accident his unsafe behaviour did
put his own health and safety unnecessarily at risk.

The specific unsafe actions committed by John include:

 driving the forklift too quickly;
 driving the forklift recklessly; and
 moving the forklift while Frances was still in the mancage.

By driving too fast and driving recklessly John has breached company safety
rules and safe operating procedures. In doing so, he failed to follow
instructions issued by the employer. More importantly, if he had driven at the
correct speed he may have been able to stop before reaching the oil spillage.

John also failed to in his Duty of Care by allowing Frances to illegally “ride” in
the mancage of the forklift. A mancage should only be used to raise and
lower personnel and not to carry them.

Although it was Frances who elected to stay in the mancage it was not her
decision to make because John was responsible for ensuring the safe
operation of the forklift. John should have refused to move the forklift until
Frances had exited the mancage.

Meeting your Duty of Care requires you to act and work in a way that does not
put your safety or the safety of others at risk.

It means following company operating procedures and safety rules while

using:
 equipment, machinery and vehicles; and
 warning other people when you see them doing something that is
unsafe.

? “In what way has Frances White failed to meet her

Duty of Care as an employee?”

Hand out sheet 8 - Frances White

Frances White failed to meet her Duty of Care as she failed to ensure her
own health and safety.

Frances should never have stayed in the mancage while the forklift was being
driven to rack G. She should have exited the mancage and walked over to
the rack.

The fact that Frances was thrown from the mancage as it skidded indicates
that she was not wearing any type of fall restraint while working inside the
mancage.

Henry Walker Eltin 7

Understanding Duty of Care

Since she was working from an elevated work platform, Frances should have
been wearing an approved fall arrest harness with a lifeline attached to the
mancage. She has failed in her duty to correctly wear the provided Personal
Protective Equipment.

Meeting your Duty of Care means:

 following company safety rules and procedures;
 not taking shortcuts to save time or effort; and
 correctly wearing and using Personal Protective Equipment when it is
required to safely perform work.

? “In what way has the employer failed to meet his

Duty of Care?”

Hand out sheet 9 - The employer

The employer has:

 failed to provide a safe system of work;
 failed to provide adequate supervision; and
 failed to ensure the safe use of plant.

This was the fourth oil spillage on the warehouse floor from a forklift within a
week. This indicates that there is:
 inadequate maintenance of equipment; and
 inadequate pre-start checks of equipment by operators.

Alas, forklift operators are not being adequately supervised to ensure that
they are carrying out their equipment checks.

This type of hazard occurred many times in a short period of time. This
indicates that the company either does not have an effective hazard reporting
system or that it is not being used properly. The Supervisor failed to take
action when the hazard was reported to him.

The unsafe behaviour of employees, particularly John Mack and Frances

White, demonstrates that employees are not being regularly checked to see if
they are following safety rules and procedures.

The employer has not provided a safe place of work for his employees.

Henry Walker Eltin 8

Understanding Duty of Care

THE CONSEQUENCES

When employees and employers fail to meet their Duty of Care

responsibilities, there is always the likelihood of an accident occurring.

However, there are also legal penalties which can be imposed when an
employee or an employer fails to meet their Duty of Care responsibilities.

Hand out sheet 10 - The consequences

If you fail to meet your duties as an employee you are a liable to be fined.
The amount varies from state to state for example in Western Australia it can
be up to $10,000.

However, if your failure to meet your duties as an employee results in death or

serious harm to another person, you are liable to a fine in Western Australia of
$20,000.

If employers fail to meet their Duty of Care responsibilities in Western

Australia they can be fined up to $100,000.

However, if the failure to meet the duties as an employer results in the death
or serious harm to another person, the employer can be fined in Western
Australia up to $200,000.

Henry Walker Eltin 9

Understanding Duty of Care

SUMMARY

As employees, you have certain legal obligations with regard to their own
safety and the safety of other people in your workplace.

A failure to recognise and meet these legal obligations can result in:
 injury or harm to yourself;
 injury or harm to other people; or
 you being prosecuted.

As an employee you have a general Duty of Care to:

 ensure your own safety and health at work; and
 avoid adversely affecting the safety or health of any other person
through any act or omission.

You can meet this general Duty of Care by:

 following all safety rules, procedures and instructions given by the
company for your safety or the safety of other people;
 correctly using the Personal Protective Equipment and clothing provided
by the company;
 not correctly using or deliberately damaging any equipment provided for
your safety and health;
 reporting any hazards that you are unable to correct yourself;
 reporting any injury, harm or hazard to your health; and
 assisting the company to meet its duties as an employer.

Henry Walker Eltin 10

Understanding Duty of Care

References for the Supervisor

Occupational Safety & Health Act 1984

Sections 19 – 21

Mines Safety & Inspection Act 1994

Sections 9 - 13

Henry Walker Eltin 11

Understanding Duty of Care

Notes

Henry Walker Eltin 12

Understanding Duty of Care

Henry Walker Eltin 13