As employers are in control of the workplace and workplaces are open to having significant risks to health and safety, employers are obligated and or have duties to organise their workplace and their work systems to ensure people at work are not put in harm’s way.
These duties are outlined in Section 29 of the WHS Act 2012 :
A person at a workplace (whether or not the person has another duty under this Part) must: (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.
For the purpose of explaining the primary duty of care, it is understood that the primary responsibility still rests with the employer. This duty of care is widely scoped and can include sole traders, companies, unincorporated associations, partnerships and government departments. A more recognized view of the general term employer is further demonstrated in Section 19 of the new WHS Act as:
A person conducting a business (PCBU) or undertaking must ensure, so far as is reasonably practicable, the health and safety of— (a) workers engaged, or caused to be engaged, by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business undertaking.
Section 18 of the Act also provides the meaning of “reasonably practicable” in ensuring health and safety. This criterion is not bound by the type of problems that may arise within the scope of the duty. However, it does limit the lengths that employers are expected to go in order to guarantee a workplace that is safe and free from health risks (Richards, L 2013). Essentially, what is considered reasonably practical is dependent on the circumstance. It is not however expected that employers go above what is necessary to resolve something that is minor and has the potential to cause minimal injury or illness. The need to be able to control the activities of a business in a suitable manner is essential in relation to the primary duty of care. Section 18 also outlines a common test used in order to help determine what is deemed ‘reasonably practical.’
The primary duty of care as such, requires much attention and goes beyond the idea of general work activities. The decisions made within the workplace for ensuring health and safety, become closely related to the primary duty of care. The importance of decision making is reflected in the case of O’Sullivan v NSW Dept of Education and Training (2003) NSWIR Comm 74 where the NSW Dept was convicted for breach of employer’s duty (Richards, L 2013). A Staff member was left alone with several special needs children, some of which were very violent and as a result she was attacked. The workplace failed to provide adequate staffing to ensure safety of an employer and essentially putting her at risk of violence. Primary duty of care also covers the way in which both physical and financial resources are allocated to best suit the needs of the users. In addition, the organisational culture of the workplace needs to be closely analysed which includes both the acts and omissions of the workplace and the need for senior management to be responsible and ethical. The primary duty of care involves a wide range of obligations that an employer must undertake, such as maintaining a safe system of work, providing information, training and instructions to workers, and monitoring the workplace. (Section 19 Work Health and Safety Act 2012 (SA))
Section 27 in