Principals are not OH&S employers

Are principals employers under OH&S? No, writes JOAN LEMAIRE.

A number of principals have raised concerns that they may be prosecuted under the Occupational Health and Safety (OH&S) Act as an employer. The Department of Education and Training, in the Occupational Health, Safety and Injury Management - A guide for Principals and Managers states under Section 50: "For practical purposes, therefore, a reference to 'employer' means a reference to a principal or manager. Both the Department and the principal or manager may be prosecuted."

Federation advised members this was incorrect and also raised the matter with WorkCover in relation to the OH&S Act 2000. WorkCover general manager Ms McKenzie responded in the following terms:

"The sections of the Occupational Health and Safety Act that deal with employer duties and with the responsibility of persons concerned in the management of corporations have been essentially the same since 1983 and continue as such in the Occupational Health and Safety Act 2000. The significant change for Crown employers in the Occupational Health and Safety Act 2000 has been the strengthening of provisions so as to identify each "responsible agency" for the purpose of enforcement.

"It is clear that where the employer is a corporation or the Crown, the practical implementation of the duties will be through the actions of natural persons. In both the private and public sectors this will occur via delegation to a range of management levels.

"I would emphasise that delegation, including delegation pursuant to s49 of the Interpretation Act 1987, does not displace the statutory duty on the employer.[our emphasis]

"Delegation may however lead to additional persons being liable for failure to comply. These are the persons who are directors and persons concerned in the management of corporations. At this time there is no equivalent provision for management employees where the employer is not a corporation. This is the case for numerous 'responsible agencies' of the Crown. It would therefore not be possible for WorkCover NSW to prosecute individuals in that situation." [our emphasis]

The maximum penalty for an employer as a corporation who is found guilty of failing to ensure the health, safety and welfare at work of employees is 5,000 penalty units where they have not previously offended, and 7,500 where they have. Each penalty unit currently is $1,100.

Individual employees may also be prosecuted if they are found guilty of breaching Section 20 of the new Act and Section 19 of the 1983 legislation.

The duties of employees under this section are described as:

"1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work.
"2) An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person.
Maximum penalty:
a) in the case of a previous offender - 45 penalty units, or
b) in any other case - 30 penalty units."

WorkCover also has a range of strategies to ensure compliance which includes: issuing of improvement notices which require a particular hazard to be rectified in a specified timeframe; prohibition notices which require the cessation of work in particular areas or with certain machines until the situation is made safe; and penalty notices or on-the-spot fines may also be issued where there is non-compliance with the OH&S Act or Regulations.

In the majority of cases these notices are issued against the DET.

Joan Lemaire is an Industrial Officer.

For further information

April 2001 contents