Business Essay Example
BUSINESS LAW 6
Employers’ Duty of Care in South Australia
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The employer holds duty of care towards the employee while at work place or in other place provided he or she is acting in scope of his or her duties as an employee. According to Section 19 ONSW Act, 1986 of South Australia “An employer shall, in respect of each employee employed or engaged by the employer, ensure so far as reasonably practicable that the employee is, while at work, safe from injury and risks of health.”
In the case of Jane, there are certain legal issues that can be looked at. These include: whether Jane at the time of the accident was working within the scope of her duties as an employer? Whether there was a comprehensive accident and compensation policy applicable and whether the employer had any reasonably practical measures in place to eradicate or minimize the event of such an accident? (Markos verses Dinko Tuna Farmers Ltd (2007).
Part 1: Employers’ Responsibilities
The employer’s responsibilities under South Australian Legislation are established in Section 19 of the Occupational Health, Safety and Welfare (OHSW) Act, 1986. This Act provides that the employer has a responsibility to ensure the health, safety and welfare of each employee. In order to attain this, the employer must provide information, training and supervision and safe work environment. Although the employer’s duty of care is wide ranging in its scope, the duty is qualified by the ‘concept of reasonably practicable of duty of care. A duty of care only arises in respect of positive acts which cause injury (Selway 1997).
On the other hand, the employer would have taken all the practical measures available to prevent an accident or harm on the employee. Under such circumstances, the employer will not be held liable for any harm suffered by the employee. However, the employer must prove reasonable with no doubt that such measures were taken and that the harm occurred in the even of an employee failing to use those measures (CCH Australia et al 2007). This relates to the defense of reasonably practicable where they must be taken or proved to have been taken. Section 22 of OHSW Act provides that, “an employer or self-employed must ensure, so far as is reasonably practicable, that any person….is safe from injury and risk of health.”
Reasonable practical measures that Jane’s employer would have had in place were such as providing Jane with gloves to protect her hands. However, as provided in the facts of the case of Jane such measures were not in place in. Court decision in regards to employer’s failure to apply reasonable practical measures is well illustrated in the case of Chugg verses Pacific Dunlop (1990). This related to a fatal accident at Pacific Dunlop’s Foots-cray factory where a fourth year apprentice was killed while working on a machine. The machine had a hopper intake door and a discharge door. Electrical modifications had been made to the machine with a view to ensuring that the hopper door would automatically close and remain closed when the discharge door was open. When the machine was being used for production, a conveyor belt limited, but did not completely bar, access to the hopper door.
When the accident occurred the machine was not in use and the conveyor belt has been pushed aside, leaving the hopper door unguarded. The worker who dies was supposed to alter the pneumatic system of the machine so as to permit the hopper door to operate manually. However, the machine was not to work on its own but with support from the control panel. The deceased worker had a chance to go to the machine and was injured to death on the closing of the hopper door. Following this, Pacific Dunlop was convicted in relation to the charge under the regulations. Further, the court provided that: the phrase “reasonably practicable” means something narrower than “physically possible”; what is “reasonably practicable” is to be judges on the basis of what was known at the relevant time and to determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against cost, time and trouble necessary to avert that risk.
Part 2: Employer’s Policy on Occupational Health, Safety and Welfare
According to Section 20 of OHSW Act an employer is required to prepare and maintain “policies relating to occupational health, safety and welfare” as well as “a written statement” which sets out the plans, practices and procedures at the workplace for protecting the health, safety and the welfare of the employees. Although there is lack of an explicit way of this, the OHS legislation establishes certain responsibilities which are intended to encourage employers to be more responsible and employ self-regulation. According to Tooma (2008 p101) in Drake Personnel Ltd verses Work-Cover Authority (SA) 1999 claims that “an employer cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that person working at their work place are not exposed to health and safety risk.”
In Drake Personnel Ltd verses Work-Cover Authority (SA) 1999 a process worker who had been hired out work at a client’s factory, sustained crush injuries to her right hand whilst operating a machine which was inadequately guarded. Drake had provided the employee with training before commencing work and had conducted a risk assessment on the machine which the employee was supposed to operate and found it suitably guarder. However, on the day of the accident, the employee was required to operate a different machine to that inspected but no one informed Drake of this. However, it was ruled out that the employer (Drake) has a positive obligation, to directly supervise and monitor the work of the employee to ensure a safe working environment and that employees are not presented with health and safety risks.
Generally, all people owe a duty of care to other people not to injure another as a result of his or her negligent acts or omissions. The employer owes a duty of care to each employee. One aspect of duty of care is to ensure that the healthy, safety and welfare of employees is safeguarded. If the employer breaches duty of care, he or she is liable prosecution. Jane’s employer had no reasonably practicability measures in place to safeguard the health, safety and welfare of the employees. Accordingly, Jane’s employer should be held liable for prosecution.
CCH Australian Limited, OHS Industry and Legal Authorities 2007, Australian Master OHS and
Environment Guide, 2nd Ed, CCH Australia Limited.
>http://www.safework.sa.gov.au/show_page.jsp?id=5892<, Available at Codes of Practice
Duty of Care <http://www.workcover.nsw.gov.au/healthsafety/Pages/Dutyofcare.aspx>
, Available atOccupational Health and Safety Welfare Act
, Available at, Regulations
Selway, B 1997, The Constitution of South Australia, Federation Press.
South Australia, Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, Available at <http://www.legislation.sa.gov.au/LZ/C/A/LAW%20REFORM%20%28CONTRIBUTORY%20NEGLIGENCE%20AND%20APPORTIONMENT%20OF%20LIABILITY%29%20ACT%202001/2005.09.30_%282001.08.16%29/2001.41.PDF>
Tooma, M 2008, Safety, Security, Health and Environment Law, Federation Press, 2008
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