Duty of care – what you need to know

So, what exactly is “duty of care”? Most managers and employees are familiar with the term and know that it imposes some sort of obligation on an employer, but what does it actually mean and why should you care?

Duty of care is a general principle that underpins much current practice and legislation around health and safety. Duty of care can apply to many different sorts of relationships, for example, employer–employee, teacher–student and carer–patient. The common theme here is that people in positions of authority have an obligation to provide a safe and healthy environment for those in their care.

What does this mean in practical terms? It means that employers have an obligation to ensure staff members are not exposed to unreasonable hazards. The scope here is pretty broad:

• Providing safe environs and equipment

• Ensuring appropriate instruction and training for employees

• Providing protective clothing and safety equipment as required

• Cooperating with safety representatives to ensure compliance

Do not forget, duty of care is not just about physical safety – it also extends to your employees’ mental health as well. Issues of harassment, bullying or other psychological hazards should be taken just as seriously as physical hazards.

Importantly, the principle of duty of care does not absolve employees from any responsibility. On the contrary, it imposes obligations on staff too, to take reasonable measures to ensure their own safety and that of their colleagues. This means complying with workplace guidelines and instructions, wearing appropriate protective clothing and using safety equipment if it is supplied, and reporting injuries or incidents if they occur.

The Preventing and Responding to Workplace Bullying Draft Code of Practice from Safe Work Australia was due to be approved early this year however, the timeframe is now unclear. The Draft Code describes duty of care in relation to workplace bullying:

1.1 Who has duties in relation to workplace bullying?

Everyone in the workplace has a legal responsibility in relation to preventing bullying.

A person conducting a business or undertaking has the primary duty under the WHS Act to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to health and safety risks arising from the business or undertaking.

The duty includes a requirement to ensure, so far as is reasonably practicable,

• the provision and maintenance of a work environment that is without risk to health and safety

• the provision and maintenance of safe systems of work, and

• the health of workers and the conditions of the workplace are monitored for the purpose of preventing illness or injury.

The WHS Act defines ‘health’ as both physical and psychological health. This means the duty to ensure health and safety extends to ensuring the emotional and mental health of workers.

A person conducting a business or undertaking may be an employer, self-employed, a principal contractor, a person with management or control of a workplace, a designer, manufacturer, supplier, importer or installer.

Officers, such as company directors, must exercise due diligence to ensure the business or undertaking complies with the WHS Act and Regulations. This includes taking reasonable steps to ensure the business or undertaking has and uses appropriate resources and processes to eliminate or minimise risks associated with bullying.

Workers and other persons at the workplace must:

• take reasonable care for their own health and safety,

• take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons, and

• comply, so far as is reasonably practicable, with any reasonable instruction given by the person conducting the business or undertaking.