Legal
May/June
2002
It's
the employer's obligation to ensure a safe
workplace
By Tom Williams, Solicitor
Employers usually have well meaning intentions to provide a safe and
healthy workplace. However, the full scope of Occupational Health and
Safety ("O H & S") obligations aren't always fully understood.
O H & S matters are regulated by the Occupational Health and Safety
Act 2000. The Act now incorporates the provisions of the Construction
Safety Act (NSW) 1912 and parts of the Factories, Shops and Industries
Act (NSW) 1962.
The Act relates not only to physical considerations but also covers
mental health and safety. A service station operator needs to consider
employees as well as customers who come onto the site.
The O H & S Act1 places a duty on employers to ensure that persons
not in their employment are not exposed to risks to their health or
safety while they are at their place of work. Clearly, this means that
visitors are entitled to the protection provided by an employer - that
is, the operator of the service station. Independent operators who deliver
petroleum products also have the same entitlement to protection.
Accident Beyond our Control
An employer may defend himself against an employee accident by saying
that he did nothing wrong. This is not always a successful defence as
the Courts have taken the view that an employer has absolute duty, almost
to guarantee no threat to health and safety.
As an example, during an armed hold up at a service station, an employee
and a customer attempt to disarm the armed robber. Injury results when
the gun discharges; they are also bashed. The employer's duty to the
employee is clear enough but the duty to the customer is also clear.
Even if the employer had grills placed over the cashier, it may not
be enough to prevent charges against the employer. The Act requires
that the employer must provide a safe system of work and a safe place
for customers. So, the customer may be able to take action against the
employer for damages.
Future Damages
Nor does a claim for injury arising from the armed hold-up end the matter.
It is possible that post trauma stress may set in. Should this occur
it may be possible for action to be taken against the employer for breach
of the O H & S Act. Such a stress claim may be successful even if
such stress does not manifest itself until some time after the hold-up.
Stress
Stress can arise not only due to an accident but also, for example,
if an employer were to request, or insist, that an employee must work
regular and systematic overtime of two to three hours every day or every
second day.
Claims of stress related to systematic and regular long work days may
not be as remote as it may sound. The same goes for long periods without
appropriate annual leave. An employee who is made to continue working
over two years or more without any leave may have a valid claim. This,
of course, presumes that the stress is medically supported.
Employees have Obligations
The O H & S Act places obligations on the employee to observe sensible
precautions and to follow the employer's directions. If an employee
ignores signs or flyers requesting him or her to act in a certain way
and suffers an injury, then the employer may have a sound defence. However,
the defence will be inadequate if the employer did not take sufficient
steps to alert employees of potential dangers.
It is a fine balance between providing sufficient and reasonable notices
and not doing so. It's important to be alert to all matters of Health
and Safety issues that "could" result in an injury to either
an employee or customer/visitor. You should communicate by way of a
clear notice the existence of any potential danger. Speak with your
employees about it too. Don't take anything for granted.
Conclusions
The O H & S Act is directed to avoiding injury to all persons on
a workplace. A service station is regarded as a workplace because paid
work is performed at such a place.
The operator of the service station is regarded to be the employer
and that person normally has the onus of proving he or she took all
reasonable precaution to observe O H & S regulations. This includes
taking all reasonable steps to prevent things from happening: things
like tripping over obstacles, crowded convenience stores, overwork,
robberies, spillage's, escape of fumes and incorrectly-stored dangerous
substances.
While the employer has principal responsibility for O H & S matters,
employees are expected to co-operate with the employer in upholding
safe practices. Customers and visitors to your workplace are expected
to exercise reasonable precaution for their own health and safety but
are entitled to rely on the employer's protection to ensure a safe workplace.
Finally, whilst "horse-play" between employees is often harmless
and fun, there have been many breaches of O H & S regulations arising
from such behaviour. As an employer you need to monitor conduct at the
workplace.
It is best to communicate every concern you have regarding lack of
safety rather than regret it after an injury has occurred. If unsure,
seek proper advice.
1 Section 8 (2) of the O H & S Act 2000