Frequently asked questions

Are there any special considerations that need to be taken into account by school and institute staff?

There are no provisions in the Legislation that apply only to the Department.

However the court has indicated that employers such as the Department of Education and Training and TAFE NSW could be considered to have an additional responsibility in that they set the standard that young people will carry into their working lives. It is therefore important for workplace managers to be familiar with safety policies and procedures and to ensure that they are complied with in the workplace. These responsibilities are particularly important with respect to ensuring that students are made aware of relevant safety requirements and that they conduct themselves accordingly in schools and institutes.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

Can I be required to pay a penalty for breaches to OHS legislation?

There are various penalties associated with the OHS Act and its Regulations. For individuals found guilty of an offence the maximum is 500 penalty units and two years in gaol. A penalty unit is an amount of money that can be altered from time to time by the government. Currently, one penalty unit is $110.

Source: Occupational Health and safety Act 2000 No.40, Part 2, Division 1, 12, (c) and (d).

Occupational Health, Safety, & Injury Management. A Guide for the Principal or Manager. Department of Education and Training, 2000. Chapter 3.2, page 9.

Do authorised employee representatives have any powers under the Legislation?

Yes. Authorised union representatives may enter work premises for the purpose of investigating a suspected breach of the Legislation. An authorised union representative is an officer or employee of the union who holds an authority issued by the Industrial Registrar under section 299 of the Industrial Relations Act. They may be required to produce the authority by the occupier of the premises.

They have the power to -

make searches and inspections, including taking photographs, videos and audio recordings;
require the occupier to provide such assistance and facilities as are reasonably necessary for the officer to exercise his or her functions.
require the production of and inspect any records at the premises that directly affect or deal with the occupational health and safety of employees working at that premises, including taking copies;
exercise other functions that are reasonably necessary for the purposes of the Legislation.

Unlike inspectors, they do not have the power to insist upon answers to questions or interviews with individuals nor are they empowered to take samples of material for analysis.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

Do employees have duties under the Legislation?

Yes. All employees must take reasonable care for the health and safety of persons who may be affected by their acts or omissions at work. Employees must also cooperate with their employer to enable compliance with any requirement imposed on the employer or any other person under the Legislation. This may involve either conducting or assisting in the conduct of a risk assessment. "Any other person" can mean, for example, contractors and their employees. Employees may be liable under the Legislation for failure to comply with their obligations.

It is very important that staff cooperate and follow directions and policy in relation to safety matters. For example, employees must not intentionally or recklessly interfere with or misuse things provided for health, safety and welfare, such as protective equipment. Failure to comply with relevant policy or procedures is a serious issue and may result in departmental disciplinary action.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to theDepartment's intranet.

Do my obligations under the Privacy Act have any impact on my obligations under the Legislation?

A question sometimes arises with respect to providing classroom teachers with doctor's reports and other private information concerning a student with challenging behaviour. If information in the report is relevant to a risk to safety then it must be conveyed to the teacher. The teacher must treat the information confidentially. Refer to Legal Issues Bulletin No. 28 "Collection, Use and Disclosure of Information about Students with a History of Violence" Advice can be sought in individual cases from Legal Services.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

Do workplace managers have any obligations under the Legislation?

Departmental workplace managers have obligations commensurate with their general level of responsibility within the organisation - i.e. they will have a higher level of responsibility for occupational health and safety than subordinate staff.

Courts have recognised that a discrepancy can exist between an employer's OH&S policies and implementation at the workplace. Management must be vigilant to ensure that what is put in place by way of policy is actually discharged by those who have day to day responsibilities in the workplace.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

The Legislation has a provision relating to "controllers" of work premises (section 10). Who is regarded as the controller of work premises?

For the purposes of section 10, the Department and TAFE NSW are considered the controllers of work premises and plant or substances used at those premises, not individual workplace managers. However workplace managers will have responsibilities to help ensure that the Department and TAFE meet their obligations.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

What are the duties of employers in terms of the Occupational Health and Safety ("OH&S") Act 2000 and the Occupational Health and Safety ("OH&S") Regulation, 2001 ("the Legislation")

'Employers' means both the Department of Education and Training and TAFE NSW and they have a number of duties arising from the provisions of the Legislation.

They have a duty to employees

Employers must ensure the health, safety and welfare of their employees when at work by:

maintaining those places of work under their control in a safe condition and ensuring safe entrances and exits;
making arrangements for ensuring the safe use, handling, storage and transport of plant and substances;
providing and maintaining systems of work, and working environments, that are safe and without risks to health;
providing information, instruction, training and supervision necessary to ensure the health and safety at work of employees;
providing adequate facilities for the welfare of employees.

They have a duty to non-employees

Employers must also ensure that non-employees are not exposed to risks to health and safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. Non-employees include students and visitors to school and TAFE NSW premises.

They have a duty to consult with employees

Employers must consult their employees so that they have an opportunity to contribute to making decisions which affect their occupational heath, safety and welfare. Consultation requires -

the sharing of relevant information about health and safety with employees,
the opportunity for employees to express their views and contribute in a timely way to the resolution of health and safety issues of work, and
valuing employee's views and taking them into account.

Consultation does not necessarily mean that the requests of employees will always be implemented.

A step-by step guide on OH&S consultation arrangements can be located on the Department's Occupational Health and Safety website.

It is an offence if an employer fails to consult with employees on occupational heath and safety matters.

They have a duty to identify hazards and manage risks

Employers are required to be pro-active in identifying and assessing any hazards at the workplace. Employers are also obliged to manage any risks arising by taking action to assess and eliminate those risks. Alternatively, if it is not reasonably practicable to eliminate identified risks, the employer is obliged to take appropriate action to control them. Employers are required to exercise this duty in respect of employees and non-employees who are at the place of work. Failure to identify hazards and manage workplace risks is an offence under the Legislation and may incur penalties.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to theDepartment's intranet.

What are the obligations of controllers of premises, plant and substances?

The Department, for example, has an obligation to ensure that any premises made available to other persons as a work place, by lease, licence or other contract, are safe and without risk to health when properly used. The same applies to plant and substances. For example, this obligation applies where a school's facilities are used by an evening college or coaching school.

Although they have a responsibility to help ensure that any facilities leased are safe and compliant with the Legislation, individual workplace managers are not subject to personal liability under the section for failing to fulfil their obligations.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

What can happen if the Legislation is breached?

If a breach of the Legislation is found, an inspector can -

Issue an Improvement Notice requiring the breach to be remedied within the period specified in the notice (usually at least 7 days). Fines can be imposed for failure to comply with an Improvement Notice.
Where there is an immediate risk to safety, issue a Prohibition Notice requiring the person who has control over the activity that is of concern to cease carrying on the activity until the problems are remedied. Fines can be imposed for failure to comply with a Prohibition Notice.
Issue a Penalty Notice imposing a fine. This is usually in respect of minor infringements. A person issued with a Penalty Notice may, instead of paying the fine, choose to have the matter dealt with by a court. If this action is contemplated, principals and institute managers should contact the Legal Services Directorate on 9561 8538 for advice.
Recommend prosecution. A prosecution involves the commencement of court proceedings and a hearing at which witnesses may be called to give evidence. The decision to prosecute is made by WorkCover after the consideration of legal advice.

An Improvement Notice or Prohibition Notice may detail measures to be taken to remedy the matter causing concern or otherwise comply with the notice. If a school, institute or other department workplace site is served with such a notice, the issuing inspector should be contacted if there is any doubt about what is required to comply with the notice.

Notices issued on the Department can be served on schools or institutes, as well as area, regional or state offices. Copies of notices issued to any department workplace must be faxed to the Occupational Health and Safety Directorate on 9266 8933 and to relevant Regional OH&S Liaison Managers.

Further information on the procedures to be followed when served with a Workcover notice is contained in Memorandum DN/03/00343 "WorkCover Notices: Schools, TAFE Campuses and DDT Offices".

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

Why, as a teacher, do I have to take responsibility for the health and safety of students in my class?

Common law requires that people behave in a responsible manner towards others. In various circumstances people owe a duty of care to other persons. Teachers are required to exercise this duty of care to each other, students and all other persons with whom they come into contact during the course of activities at work.

Employees have a statutory obligation to take care of others at their place of work and to cooperate with their employer.

Source: Occupational Health, Safety, & Injury Management. A Guide for the Principal or Manager. Department of Education and Training, 2000. Chapter 3.1, page 1. Chapter 3.2, page 5.

Who should provide me with relevant personal protective equipment (PPE)such as dust masks, gloves and eye protection?

The employer must provide relevant personal protective equipment - failure to do so can attract an on the spot fine. Additionally it is an offence for an employer to require staff to purchase there own PPE; refer OHS Act section 22. When a risk assessment identifies that the wearing of PPE is necessary to protect them from a hazard, the employer must supply and ensure staff and others exposed to the hazard wear their supplied PPE. There have been cases where employees have been fined for not wearing the supplied PPE.

If it is not reasonably practicable for an employer to eliminate a risk, then the risk must be controlled. If this requires personal protective equipment then the employer (DET) must provide each person who is at risk with personal protective equipment.

Source: Occupational Health and Safety Regulation 2001, Chapter 2, Clause 15.

Why, as a teacher, do I have to ensure the safety of my facilities and those who use them?

Whilst it is the responsibility of an employer (in this case the DET) to ensure the health, safety and welfare at work of all employees, any person (in this case, the teacher) who has control of premises and control of any plant and substances used by people at work must ensure that those premises, plant and substances are safe and without risk to health.

The Act states that "... 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.

Source: Occupational Health and Safety Act 2000 No. 40, Part 2, Division 1, 8, (1) and Occupational Health and Safety Act 2000 No. 40, Part 2, Division 1, 10, (1) and (2) and Part 2, Division 3, 20.

Occupational Health, Safety, & Injury Management. A Guide for the Principal or Manager. Department of Education and Training, 2000, chapter 3.1, page 1. Chapter 3.2, page 5.