Contemporary Australian Occupational Health and Safety (OH&S) law is a constantly changing phenomenon. The nature of the Australian workforce, especially the implications and duties placed on employers, requires constant consideration and awareness so as not to reduce the health and safety standard in the workplace. The primary focus of this essay is to distinguish the key differences between the duties of employers under the common law, the OH&S Act (section 8) and the model OH&S Act (clause 19). In doing so it can be deciphered what realm is best fitted to the needs of the modern workplace and what is needed to synergise the various Australian jurisdictions to harmonisation.
II KEY DIFFERENCES IN THE DUTIES OF EMPLOYERS UNDER COMMON LAW, THE 2000 ACT AND MODEL ACT
‘Under the common law, the duty upon an employer to preserve the safety of his employees arises out of the existence of a master and servant relationship. Once such a relationship is established, a common law duty arises on the part of the master to take the appropriate care to see that his servant does not suffer injury in the course of his employment with his master's undertaking (NSW Fresh Food)’. Where a worker suffers injury through the negligence of his employer a common law action in negligence may be initiated against the employer. ‘Whether or not the employer has been negligent is a matter for a court to determine, the proper test being whether the employer has acted as a reasonable man would act’.
In an action in negligence alleging an unsafe system the plaintiff must prove that the risk of injury was reasonably foreseeable. “Risk of injury is foreseeable, so long as it is not far-fetched or fanciful, notwithstanding that it is more probable than not that it will not occur”: (Cth v Introvigne).
Thus, ‘the common law duty of care is of course not strict, but a duty to take reasonable care’. The duties particularised in section 8(1) (and clause...