The general duties of care in the Occupational Safety and Health Act 1984 are based on principles built up under common law. Because of this similarity, it is important not to confuse common law and statute law (Rogers 2002). In statute law, the requirements are written down in the legislation, which is considered by Parliament. Common law is built up over time through decisions made by the courts.
The courts have determined the common law duty to mean that all employers must take reasonable care for the safety of their employees (Spink 2000). This assumes that control of working conditions rests largely with the employer, and consequently responsibility for occupational safety and health also rests largely with the employer.
Similarities and Dissimilarities In Law
Sometimes this common law duty is expressed in categories such as safe work practices (eg use of appropriate hand tools for the task), safe place of work (eg equipment is well laid out and lighting is suitable for the task) or safe system of work (eg tagging procedures exist for maintenance of equipment), but the overriding general duty always remains (Rogers 2002).
In common law, an employee may claim damages through a civil court for injuries arising from an employer's failure to take reasonable care. These are commonly called 'negligence claims'. The courts recognise that the actions of an employee may contribute to an injury and may reduce the size of a damages payout for 'contributory negligence' (Kelly 1997).
Under common law, there must be some damage to a person or property before action can be taken. Under the Occupational Safety and Health Act 1984 there is no need for an injury to occur before enforcement action can be taken to have an unsafe situation fixed. The focus is on prevention of such unsafe situations, because the duties are enforceable.
In addition to the requirements under the Act there are specific responsibilities outlined in the regulations for various parties in the workplace including joint responsibilities.
A range of penalties applies where the provisions of the Act are not complied with. (Spink 2000) Fines under the Act Under the Act, the courts may impose fines or a prison term if the offence involves gross negligence, for breaches of the legislation, but there are no payouts for negligence to injured parties.
The preventive strategies outlined in a code of practice are not necessarily the only acceptable ways of achieving the required standard to which the code refers. It is acceptable to use an alternative that achieves the same level of safety.
Because codes of practice are recommended by the Commission for Occupational Safety and Health (the Commission), they include policies and practices jointly developed by Government, employers and unions (Kelly 1997). Codes of practice are developed with the general duties in mind and, in most cases; compliance with a code of practice would achieve compliance with general duty provisions in the Act, in relation to the subject matter of the code. Like regulations, codes of practice deal with particular ...