BSB41407 Certificate IV Occupational Health Safety BSBOHS408A: Compliance. 1. The difference OHS Act, OHS Regulation COP (code practice) legal requirements workplace . 2. Sources relevant legislation. 3.
The Managing Director
Advance Waste Company
Difference between the OHS Act, the OHS Regulation and COP and legal requirements
The occupational health and safety act was passed by parliament to secure and promote health, welfare and safety of employees while at work. It also protects employees from health and safety risks in the workplace. The act provides a legislative framework allowing for standards of occupational health & safety to be set to take into account the new technology and work practices that can be used. OHS regulation is the law which must be followed by employers, workers, insurers, and manufacturers which must be met both under the legislation and regulations. They provide the general requirements of the legislation but are more in-depth. The code of practice is a general guide which advices on how the occupational health and safety standards are met but is not actually a law. They are developed by employers in consultation with OHS experts, employees, government agencies and special interest groups. Legal requirements are the standards, limits or permits that are set to allow businesses to operate while preventing occupational risks.
Sources of relevant legislation
There are three main sources of occupational health and safety legislation. The first is common law duty of care. According to the common law duty of care, the employer has a responsibility to adhere to reasonable standards of care in the operations. This involves prevention of any risks that may arise as a result of negligence. The second source is criminal law. OHS law states that there is a legal relationship between of employer and employee. This has made OHS law to become a criminal law which is set in a social context. The last source of OHS legislation is the OHS legislation that each Australian state and territory has.
Relevant OHS legislation
In the Advanced Waste Company scenario, according to OHS law, machines operated by workers should be made as safe as possible to minimize hazards. This includes lockout-tagout procedures and roll over protection systems. This means that the machines should be designed to prevent the occurrence of occupational accidents. In the 2010 accident, the garbage track compactor should have the roll over protection system to prevent accidents as a result of overturning or rollover of the machine. In the 2008 accident, the compactor blade switch should have been properly maintained to ensure it operates as it is supposed to. This machine should have also had the lockout-tagout safety measure that would have allowed the 38-year-old man to clear the garbage from the truck without any accident by locking the power from the machine till when he was done.
Legal responsibilities of the employer
The employer has the duty of care in the workplace. This means that the employer needs to provide and maintain systems of work that are safe for the employees. This includes making arrangements for ensuring the safe use, storage, handling and transport of equipment and other hazardous substances in the workplace. The employer also has the responsibility to provide all necessary safety information to the employees. They do this by providing instructions to employees, holding training activities and regular monitoring and supervision to ensure compliance. The employer also has the duty to consult with their employees in designing the code of practice to ensure compliance with the current OHS legislation. In general, the employer has the duty to secure the health, welfare and safety of the workers by implementing a code of practice that ensures compliance with OHS law and regulation Standards Australia International, 2004()
How enforcement is administered and what penalties apply under the relevant legislation
OHS obligations are enforced through several activities such as letters of statutory obligation, warning letters, improvement notices, prohibition notices, court injunctions, declarations of contravention and monetary penalties, remedial orders, civil and criminal court proceedings and enforceable undertakings. The OHS penalties differ between the various states and territories in Australia just as the laws and regulations differ. However, the penalties range from $200,000 or 20 years imprisonment for the responsible individual such as the manager or employer to $1,000,000 for the company itself. These fines are constantly being reviewed upwards in order to promote workplace safety and prevent occurrence of occupational accidents Bluff, Gunningham, & Johnstone, 2004(; Editors, 2009)
Determination of negligence as determined at statutory and common law
Under civil law, if the person who was injured can prove that the employer was negligent leading to the injury. Therefore, the determination of negligence must involve the proof of damages to the injured person and must prove that had the employer exercised their legal responsibility, the accident would not have occurred. The injured person must prove that the employer had a duty of care to prevent the accident. He or she must also prove that the employer breached their duty leading to the accident. They must show a direct cause or factual causation meaning that they must prove that the acts or omissions of the employer led to the loss or damage that was obtained by them. The employer also needs to prove that there is a pecuniary injury in order to prove negligence.
Identification of OHS non-compliances
OHS non-compliance includes the company having poor design of the workplace which allows for occupational hazards and risk. Inadequate systems of information, instruction, supervision and training are also OHS non-compliances since the company is required by law to provide information to their employees regarding OHS practices in the workplace. Inadequate maintenance of plant equipment, improper storage and handling of hazardous substances are also OHS non-compliances. Having poor consultative practices meaning that the company does not consult industry experts to ensure proper workplace design and prevention of occupational risk and hazards are also OHS non-compliance. Workplace hazards that have not been identified and controlled are also OHS non-compliances.
Monitoring of compliance involves regular collection and analysis of information on the compliance status of the community regarding OHS laws and regulations. Monitoring is important to ensure the timely detection and correction of OHS violations, to provide evidence to support the enforcement actions taken against the company and to evaluate the progress of the company in achieving compliance with OHS laws and regulations. There are four major sources of compliance information which include inspections run by OHS inspectors, self-monitoring, self-recordkeeping and self-reporting of workplace activities, employee complaints and suggestions and lastly OHS consultants. The company needs to conduct routine inspections of their facilities to ensure compliance with OHS laws. This will form an essential part of OHS monitoring for compliance Gordon & Quinlan, 2008()
Who employees should consult if they are unsure about compliance issues
The company should setup an occupational health and safety department which will be primarily responsible for ensuring compliance with OHS laws and regulations as well as the set COP. The department will also be responsible for answering any questions which the employees may have regarding their practice under the OHS laws and regulations and it is this department which will be in charge of training employees and providing them with up-to-date information on OHS practices that need to be upheld. The employees should feel free to report any non-compliance to the OHS department without fear of reprisal. This will create good faith in the employees allowing them to collaborate towards the safety of their workplace. The employees may also consult their supervisors in the situation where they are unsure about issues with compliance. The supervisors when unsure will consult with the OHS department and will act as middle-men to the communication between the employees and the OHS department Emmett, 1997()
Training needs under current OHS legislation relevant to this situation
Employees need to be trained on the safety measures that prevent such occupational accidents from happening again. This includes training employees on the lockout-tagout safety measure as well as the rollover protection system. Employees should also be trained on other safety measures such as wearing personal protecting equipment such as gloves, helmets, gumboots, etc. while within the workplace. This reduces the risks of occupational accidents. The training programs should be designed to do much more than ensure compliance to OHS laws and regulations. They should also increase employee awareness of OHS issues that allows them to participate in OHS outcomes in the workplace. The training should be conducted by the OHS department in collaboration with the various supervisors and management team members.
Internal and external reporting requirements required by law
Advance Waste Company needs to set guidelines for the definition of reportable incidents which are any injuries or accidents that occur within the workplace as well as work-related illnesses suffered by employees. These should be reported internally to their immediate supervisors who have a responsibility to file a report in the OHS department. The supervisor's first course of action is to try to provide first…