1. Department of Consumer and Employment Protection Resources Safety 1 Please read this before using presentation This presentation is based on content presented at the Exploration Safety Roadshow held in November 2008 It is made available for non-commercial use (e.g. toolbox meetings) subject to the condition that the PowerPoint file is not altered without permission from Resources Safety Supporting resources, such as brochures and posters, are available from Resources Safety For resources, information or clarification, please contact: ResourcesSafety@docep.wa.gov.au or visit www.docep.wa.gov.au/ResourcesSafety

2. Toolbox presentation: Duty of care applied to mineral exploration

3. Department of Consumer and Employment Protection Resources Safety What is the duty of care? How did the concept develop? To whom does it apply and how?

4. Department of Consumer and Employment Protection Resources Safety Duty of care Foundation of all other duties and responsibilities under Act and regulations Based on common law duty of employers ‘Master and servant’ Common law tort obligations on ‘master’ in relation to safety of ‘servant’ Arose in middle of 19th century End of paternalistic relationship between master and servant during the industrial revolution

5. Department of Consumer and Employment Protection Resources Safety Duty of care continued Initially, weight of common law fell heavily on side of master ‘Assumption of risk’ A worker who knew of a risk but continued his work was held to have absolved his employer of all responsibility for any resulting injury ‘Common employment’ An employer was relieved of vicarious liability for the negligence of a fellow employee

6. Department of Consumer and Employment Protection Resources Safety Duty of care continued Courts recognised inequality of bargaining ability between employer and employee Economic compulsion No realistic alternative between acceptance of conditions of work offered by an employer and starvation or equally hazardous employment elsewhere

7. Department of Consumer and Employment Protection Resources Safety Duty of care continued Largely under influence of legislation, such as Employers’ Liability Act 1880, courts began to adjust legal theory to meet dictates of changing public opinion Employer’s responsibility is today a well-established principle under common law

8. Department of Consumer and Employment Protection Resources Safety Duty of care continued Employer is not only liable for the casual negligence of his employees Employer has an overriding managerial responsibility to safeguard employees from unreasonable risks in regard to the fundamental conditions of employment the safety of plant, premises and system of work

9. Department of Consumer and Employment Protection Resources Safety Duty of care continued Standard demanded is high and, over many years, has become ever more stringent It is not a principle of the current common law that an employer must guarantee the safety of its employees under every conceivable circumstance What the law requires is that reasonable steps are taken to guard employees from foreseeable harm

10. Department of Consumer and Employment Protection Resources Safety Duty of care – MSI Act Statutory provisions analogous to common law duty of care: safe place of work safe system of work competent staff adequate supervision Duty applies not only to direct employees, but also to contractors and others engaged to work under other arrangements (e.g. labour hire) and visitors and casual entrants to a mine (e.g. users of access roads)

11. Department of Consumer and Employment Protection Resources Safety Duty of care – MSI Act continued Employee’s duty Statutory provisions: to take reasonable care for his/her own health and safety (and those of others) to follow instructions issued by the employer to report hazards and accidents to use the protective equipment that is provided

12. Department of Consumer and Employment Protection Resources Safety Duty of care – MSI Act continued Safety at work is a shared responsibility Underpinned by employees’ duties under the Act Employer has control over many factors in safety, but not all The Act is not ‘all one way’

13. Department of Consumer and Employment Protection Resources Safety The Robens Approach Statutory provisions requiring formal consultation with employees (and their representatives) on health and safety in the workplace

14. Department of Consumer and Employment Protection Resources Safety ‘Reasonable’ care Statutory standard implies common law standard: employer must take to reasonable limits the possible precautions against foreseeable consequences what is reasonable in a particular case depends on the circumstances of that case

15. Department of Consumer and Employment Protection Resources Safety Duties of employer An employer must, so far as is practicable, provide and maintain at a mine (exploration site) a working environment in which that employer's employees are not exposed to hazards

16. Department of Consumer and Employment Protection Resources Safety Duties of employer continued Duties imposed on an employer who is the principal employer at a mine (exploration site) are not taken to be carried out only by appointment of a manager for the mine (exploration site)

17. Department of Consumer and Employment Protection Resources Safety Any duty imposed on an employer who is not the principal employer at the mine (exploration site) applies only in relation to matters over which the employer who is not the principal employer has control, or but for an agreement between the two employers would have had control Duties of employer continued

18. Department of Consumer and Employment Protection Resources Safety Duties of employer continued Foreseeability

19. Department of Consumer and Employment Protection Resources Safety Duties of employer continued Foreseeability Practicability

20. Department of Consumer and Employment Protection Resources Safety Duties of employer continued Foreseeability Practicability Employer-employee relationship

21. Department of Consumer and Employment Protection Resources Safety Duties of employer continued Foreseeability Practicability Employer-employee relationship Working environment

22. Department of Consumer and Employment Protection Resources Safety Duties of employer continued Overriding general duty: An employer must provide and maintain (at a mine or exploration site) workplaces, plant, and systems of work of a kind such that, so far as is practicable, the employer’s employees are not exposed to hazards Particular ways in which the general duty must be fulfilled

23. Department of Consumer and Employment Protection Resources Safety Duties of employer continued An employer must provide such information, instructions and training to and supervision of employees as is necessary to enable them to perform their work (at a mine or exploration site) in such manner that they are not exposed to hazards

24. Department of Consumer and Employment Protection Resources Safety Duties of employer continued An employer must consult and cooperate with safety and health representatives, if any, and other employees at the mine or exploration site where the employees work, regarding occupational safety and health at the mine

25. Department of Consumer and Employment Protection Resources Safety An employer must, where it is not practicable to avoid the presence of hazards at the mine or exploration site, provide employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against these hazards, without any cost to the employees Duties of employer continued

26. Department of Consumer and Employment Protection Resources Safety An employer must make arrangements for ensuring, so far as is practicable, that use, cleaning, maintenance, transportation and disposal of plant; and use, handling, processing, storage, transportation and disposal of substances at the mine or exploration site is carried out in such a manner that the employer’s employees are not exposed to hazards. Duties of employer continued

27. Department of Consumer and Employment Protection Resources Safety Duties of employer – contractor For the purposes of determining responsibility, legislation looks at situation where, in the course of mining operations (including exploration operations) carried on by a person (commonly called ‘the principal’), that principal engages another person (commonly called ‘the contractor’) to carry out work for the principal

28. Department of Consumer and Employment Protection Resources Safety Principal and contractor relationships

29. Department of Consumer and Employment Protection Resources Safety Duties of employer – contractor continued Principal is deemed (in relation to matters over which the principal has control or, but for an agreement between the principal and the contractor to the contrary, would have had control) to be the employer of: the contractor any person employed or engaged by the contractor to carry out or to assist in carrying out the work and persons mentioned above are deemed, in relation to those matters, to be employees of the principal

30. Department of Consumer and Employment Protection Resources Safety Duties of employer – contractor continued Nothing in the legislation derogates from: duties of the principal to the contractor duties of the contractor to persons employed or engaged by the contractor in relation to its own employees and its subcontractors, the contractor is an ‘employer’ with all the duties of an employer

31. Department of Consumer and Employment Protection Resources Safety Labour hire Sometimes a misunderstanding that engaging a worker through labour hire agent involves fewer safety and health obligations However, both agent and client have same general duties of care as those applicable to an employer in areas that each has the capacity to control Under contract labour arrangements where labour hire organisation provides workers to work at a mine, client is deemed to be employer in matters over which it has control

32. Department of Consumer and Employment Protection Resources Safety Labour hire continued Both client and agent in charge of the labour hire organisation are required to provide and maintain a working environment (e.g. at a drill site) where employees are not exposed to hazards Includes providing and maintaining safe workplaces, plant and systems of work at mine sites, as well as information, instructions, training and supervision so employees can work without being exposed to hazards Necessary personal protective clothing and equipment must be provided at no cost to labour hire workers – provision of such clothing and equipment is issue that needs to be agreed upon by agent and client before work commences

33. Department of Consumer and Employment Protection Resources Safety Camp accommodation Because of distance involved and amount of time that would otherwise be spent travelling to and from work, exploration employers may provide their workers with somewhere to live in area where operations are being carried on, often in the form of an accommodation camp, which may be semi-permanent or of a short-term, transient nature While employees have a duty of care to ensure their own safety and health at the premises provided, employer must maintain premises so occupants are not exposed to hazards

34. Department of Consumer and Employment Protection Resources Safety Camp accommodation continued This obligation under the Act applies in relation to premises where: residence is owned or controlled by the employer residence is outside the metropolitan area or a gazetted townsite, and workers must live there because no other accommodation is reasonably available in the area Obligation does not apply where there is tenancy agreement or lease arrangement – Residential Tenancies Act 1987 usually applies, and expectations regarding safe premises are similar

35. Department of Consumer and Employment Protection Resources Safety Camp accommodation – employer’s obligations Employers providing residential accommodation need to ensure that: buildings and structures (including transportable buildings) are appropriately designed (e.g. cyclone conditions), in good repair and separated from noise, heat, dirt and atmospheric contaminants electrical outlets are safe to use and protected by residual current devices where necessary precautions are in place to prevent fires, and fire alarms and portable fire extinguishers are provided and regularly maintained people can enter and exit safely, particularly in an emergency there is an emergency evacuation plan in place and residents are familiar with it there are adequate facilities for showering, hand washing and laundering, along with an adequate number of toilets

36. Department of Consumer and Employment Protection Resources Safety Camp accommodation – employer’s obligations continued water is available at a location separate from the toilet area cooking and refrigeration facilities are adequate and safe to use hygienic areas are provided for preparing and eating meals the buildings are regularly cleaned beds and other furniture and fittings are structurally sound and well maintained occupants are protected from extremes of heat and cold there is adequate ventilation and lighting