Core OH&S Obligations in NSW (2023)

The Occupational Health & Safety Act 2000 (NSW) (OH&S Act) and Occupational Health & Safety Regulation 2001 (NSW) (OH&S Regulation) have been in force since 1 September 2001. The Act and Regulation introduced stringent new requirements and obligations in order to secure and promote the health, safety and welfare of people at work. These obligations are imposed on people and companies in a number of different capacities, such as employers or controllers or owners of premises.

Many building owners, property developers and commercial enterprises (principals) continue to assume that OH&S obligations can be avoided through the appointment of a competent building or site manager, contractor, or by divesting responsibilities to tenants. The contracts with these parties frequently seek to limit or extinguish the liability of a principal by passing responsibility for OH&S obligations to the manager, contractor or tenant. However, the intention of the NSW Government in introducing its OH&S legislation, and the manner in which it is being interpreted and enforced, indicate that a principal will still retain some liability, regardless of how explicit contractual provisions may be in divesting obligations to another party. Delegation of many responsibilities is possible, but overall responsibility will be retained by the principal.

The OH&S Obligations

Employer's Obligations

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The OH&S Act imposes a general duty on employers to ensure the health, safety and welfare of employees at work. This duty includes ensuring the safety of premises and equipment, ensuring the safety of work systems and the working environment, and providing information, training and supervision to employees. However, the duty also applies to third parties at a workplace. For example, employers must ensure that couriers are not exposed to risks to their health and safety when delivering to their business.

The OH&S Regulation contains explicit requirements that must be obeyed by employers in order to fulfil their duty under the OH&S Act. These requirements impose obligations on employers to:

  • identify foreseeable hazards that may arise from the conduct of the employer's work;

  • assess the risks of those hazards and to eliminate those risks or, if not reasonably practicable to do so, to control the risks;

  • comply with risk control obligations for certain activities, eg fall prevention measures, lift safety and electricity precautions; and

  • introduce procedures for workplace consultation and training.

Procedures that employers can adopt to fulfil these obligations include implementing appropriate OH&S management plans, establishing employee consultation committees, providing appropriate OH&S training for employees, and assessing, eliminating or controlling workplace risks. The duty on an employer is recognised as a non-delegable duty and cannot be renounced or delegated.1

Controller's obligations

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The OH&S Act imposes a general duty on a 'person who has control of premises' used by people as a place of work to ensure that the premises are safe and without risks to health.

'Control' refers to the ability of a person to compel or direct corrective action to secure safety. A 'person who has control of premises' includes:

  • a person who has only limited control of the premises (in which case the duty applies only to the matters over which the person has control); and

  • a person who has, under any contract or lease, an obligation to maintain or repair the premises (in which case the duty applies only to the matters covered by the contract or lease).

Contractual provisions will indicate the extent of control exercised by a principal versus another party. Courts are concerned with the scope of legal ability to exercise control, not the control that could be exercised in practice. Contractual provisions that indicate a principal's power to exercise control might include a right to provide directions to a contractor regarding workplace safety, a right of a building owner to approve or audit a building manager's safety procedures and safety management plans, a right of the landlord to enter premises to conduct maintenance, and a right to terminate a building manager's contract for breach of OH&S obligations.

A common assumption of building owners and property developers is that the appointment of building managers or contractors responsible for an entire development, or the passing of OH&S responsibilities to tenants in a lease, exempts the owner/developer from having to comply with OH&S obligations, or from liability for the breach of OH&S law by the building manager, contractor or tenant. But this is rarely the case. A building owner will, for example, retain liability for common areas, lifts and the provision of safe ventilation, these being areas over which they are almost certainly capable of exercising control through a contract with the building manager. Passing responsibility for OH&S obligations will also certainly be ineffective where the principal is aware that the contractor, manager or tenant is operating in a manner contrary to the OH&S obligations. Further, an owner or developer may retain liability because duties under the OH&S Act are increasingly being considered as non-delegable.2 This occurs particularly where a contractor is found to have inappropriate or insufficient experience, where there is an inherent risk of damage to persons or property, or where some other special vulnerability between the contractor or tenant and principal exists.

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Given this ongoing liability, principals should ensure that their contracts with third parties, such as building managers, provide the principal with sufficient power to discharge their OH&S obligations, by ensuring that best practice in relation to OH&S is implemented and that adequate management and compliance systems are in place. Active steps should be taken by the principal to review building managers' performance in relation to workplace health and safety, including regular reviews of safety management plans. Appropriate inspection and maintenance procedures should be adopted, including periodic site checks of the common areas. The contract should require that building owners be provided with regular reports on OH&S compliance and monitoring reports of ventilation systems or atmospheric quality. Principals and owners are also responsible to stop any activities, or facilitate improvements to systems or repairs to plant where there is a potential for a breach of OH&S law.

Construction sites – owner obligations

The OH&S Regulation imposes particular obligations on owners in relation to construction work in a workplace where:

  • the cost of work exceeds $250,000; or

  • the work is high-risk construction work and the cost of the work does not exceed $250,000; or

  • the work is demolition work or asbestos removal for which a licence is required (regardless of the cost of the work).

In these circumstances, the workplace owner must appoint a principal contractor and must authorise the principal contractor to exercise such authority of the owner as is necessary to enable them to discharge the responsibilities imposed on a principal contractor under the OH&S Regulation. Only owners are capable of appointing a principal contractor under the OH&S Regulation and, if the owner does not properly appoint and authorise a principal contractor, the owner will be deemed to be the principal contractor for the construction work and will be subject to the extensive OH&S obligations imposed on principal contractors.

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Building owners and property developers who divest almost all control and project management to another party particularly must be aware of these OH&S obligations. As owners of workplaces, they must ensure that they are made aware of any construction work that is to be undertaken at the workplace and, if the OH&S Regulation applies, ensure that a principal contractor is appointed. As with controllers of premises, buildings or sites, owners should ensure that sufficient powers are incorporated in the contract with the principal contractor to enforce OH&S compliance, and should continue to monitor and review the OH&S compliance of the principal contractor.

Summary

The OH&S legislation is clearly intended to impose obligations for safe workplaces across a wide range of people. Although building owners, property developers and commercial enterprises can engage a third party to carry out some of their obligations, overall responsibility will remain with the principal. The opportunities for principals to avoid liability for the acts and omissions of their managers, contractors or tenants are severely limited because the non-delegable nature of many OH&S duties.

References

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1 See Kondis v State Transport Authority (1984) 154 CLR 672 at 680.
2 WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277 (4 February 2000) at para 212; McMillan Britton and Kell Pty Limited v Leslie Mervyn Blake [1999] NSWIRComm 80 (10 March 1999).

FAQs

What are the obligations of an employer in terms of OHS? ›

Duty of care

the work environment, systems of work, machinery and equipment are safe and properly maintained. information, training, instruction and supervision are provided. adequate workplace facilities are available for workers. any accommodation you provide to your workers is safe.

What are 2 OH&S responsibilities of an employer? ›

(without in any way limiting part 1) the employer must:
  • provide and maintain (so far as reasonably practicable) safe plant (machinery, tools) and systems of work.
  • ensure that (so far as reasonably practicable) the use, handling, storage & transport of plant and substances (chemicals) is safe & without risks to health.

What are your health and safety obligations as a worker in an Australian Organisation? ›

provide safe ways of working. ensure safe use, handling and storage of machinery, structures and substances. provide and maintain adequate facilities. provide any information, training, instruction or supervision needed for safety.

What is the most important responsibility of an employer in relation to OHS? ›

An employer's main responsibility is to make sure that the workplace is safe and that anyone working in or visiting the workplace is not exposed to hazards or harmed by the work.

What 3 obligations must employers provide for workplace safety? ›

provide a safe work environment. ensure safe use, handling and storage of machinery, structures and substances. make sure your facilities are well-maintained and at an acceptable standard. give your workers any information, training, instruction or supervision needed for safety.

What are the basic obligations of an employer? ›

Employers must give their employees a place to work and make sure they have access to it. They must give them the tools, equipment and other things they need to do their work. Employers must pay their employees the salary and benefits they agreed to, including vacation, paid holidays and other types of holidays.

What are 5 employer responsibilities in the workplace? ›

Your employer's duty of care in practice

prevent risks to health. make sure that plant and machinery is safe to use. make sure safe working practices are set up and followed. make sure that all materials are handled, stored and used safely.

What are 4 responsibilities of employees regarding workplace health and safety? ›

Your responsibilities

to take reasonable care of your own health and safety. if possible to avoid wearing jewellery or loose clothing if operating machinery. if you have long hair, or wear a headscarf, make sure it's tucked out of the way as it could get caught in machinery.

What are the 5 areas of employer responsibility? ›

Know your employer responsibilities
  • Act in good faith and treat employees fairly.
  • Pay employees on time.
  • Deduct the correct amounts.
  • Get leave and federal holidays right.
  • Health and safety responsibilities of employers.
  • Protect the privacy of your employees.

What is one obligation Safe work Australia has to you in your workplace? ›

We work to achieve healthier, safer and more productive workplaces through improvements to work health and safety ( WHS ) and workers' compensation arrangements. As a national policy body, we don't regulate WHS laws or administer workers' compensation arrangements.

What are the 3 main duties of the employee? ›

In a nutshell, your employees are responsible for:
  • Taking reasonable care of their own health and safety.
  • Co-operating with you (their employer) and following instructions.
  • Not putting others in danger.
  • Report any hazards, illnesses or injuries.
3 May 2019

Who has the most responsibility for health and safety in workplace? ›

Who is responsible for health and safety in the workplace? The employer. However, that responsibility includes a number of specific responsibilities. But ensuring the employer lives up to their responsibility takes work.

What are three 3 reasons we need to adhere to work health and safety legislation? ›

Here are three reasons why having effective procedures in place to comply with the WHS Act is essential for your workplace:
  • Avoid preventable costs from health and safety hazards. ...
  • Demonstrate good business practice and reduce legal problems. ...
  • Failure to comply would lead to damaging your company's reputation.

What are 7 of the employer's responsibilities under OSHA? ›

provide training required by OSHA standards. keep records of injuries and illnesses. provide medical exams when required by OSHA standards and provide workers access to their exposure and medical records. not discriminate against workers who exercise their rights under OSHA (Section 11(c))

What are the 4 responsibilities of a worker? ›

Protect your own health and safety

keep your work area free of hazards. make sure your employer has provided you with induction, training and instructions so you feel safe doing the work being asked of you. follow all reasonable (safe) directions by your supervisor.

What are the 3 basic employment rights for a worker? ›

The three basic rights of workers include rights concerning pay, hours and discrimination. Workers are entitled to these rights through the law and may declare their employer if they do not respect these rights.

What are the 5 rights of employees? ›

To start with, every employee has the right :
  • Not to be unfairly dismissed.
  • To be treated with dignity and respect.
  • To be paid the agreed wage on the agreed date and at the agreed time.
  • To be provided with appropriate resources and equipment to enable him/her to do the job.
  • To have safe working conditions.

What 3 duties of the health and safety Act must employees follow? ›

Main duties
  • Take reasonable care of their own Health & Safety.
  • Take reasonable care of someone else's Health & Safety.
  • Use safety provisions correctly.
  • Co-operate.

What are 4 things a employee must do to keep themselves and others safe? ›

To help keep the workplace safe, employees must:
  • Follow health and safety instruction. All employees should follow any health and safety instructions and training they receive. ...
  • Attend health and safety training. ...
  • Adhere to safety procedures. ...
  • Report any hazards or failings in safety procedures. ...
  • Be proactive.

What are five employer health and safety responsibilities? ›

General health and safety responsibilities of employers
  • Ensure the health, safety and welfare of employees.
  • Put in place safe systems of work.
  • Provide a safe working environment.
  • Use safe plant and equipment.
  • Safe use of articles and substances.
17 Aug 2022

What are 3 worker responsibilities covered under OSHA? ›

Keep accurate records of work-related injuries and illnesses. Perform tests in the workplace, such as air sampling, required by some OSHA standards. Provide hearing exams or other medical tests required by OSHA standards.

What are the 3 P's of safety? ›

The 3 P's model encompasses an evidence‐based approach to preparation, protection and prevention, for safety of patients and healthcare staff.

What are the 4 C's in health and safety? ›

The 4 C's - Competence, Control, Co-operation and Communication are a useful aid to getting organised.

What are the five core safety areas? ›

5 Core Elements of Successful Safety Programs
  • SAFETY CULTURE. ...
  • EMPLOYEE TRAINING AND EMPOWERMENT. ...
  • HAZARD IDENTIFICATION AND CONTROL SYSTEMS. ...
  • FOCUS ON COMPLIANCE. ...
  • CONTINUOUS IMPROVEMENT. ...
  • LEADERSHIP AND ORGANIZATIONAL BUY-IN. ...
  • THE SAFETY MANAGER ROLE. ...
  • What is a safety manager's job role?
17 Dec 2018

What are 2 responsibilities you have as an employee? ›

As a worker, it is your responsibility to:

Follow all lawful employer safety and health rules and regulations, and wear or use required protective equipment while working. Report hazardous conditions to the employer. Report any job-related injury or illness to the employer, and seek treatment promptly.

What is one of the most important duties of an employer in relation to the OHS Act 85 of 1993? ›

The Occupational Health and Safety Act, 1993, requires the employer to bring about and maintain, as far as reasonably practicable, a work environment that is safe and without risk to the health of the workers.

What must be the most important responsibilities of the employer towards their employees? ›

Know your employer responsibilities
  • Act in good faith and treat employees fairly. Allow employees to raise concerns and respond to them immediately. ...
  • Pay employees on time. ...
  • Deduct the correct amounts. ...
  • Get leave and public holidays right. ...
  • Health and safety responsibilities of employers. ...
  • Protect the privacy of your employees.

What are the 3 main objectives of Ohs? ›

The aim of the OHS Act is to provide for the safety and health of persons at work and in connection with the use of plant and machinery. It further provides for the protection of people other than people at work from hazards arising out of or in connection with the activities from people at work.

What are the 5 main objectives of the occupational health and safety procedures? ›

Aims and functions of occupational health services
  • Job placement. ...
  • Safety training. ...
  • Supervision of high-risk groups. ...
  • Control of recognized hazards. ...
  • Identification of unrecognized hazards. ...
  • Treatment. ...
  • General health education and surveillance.

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