All Australian OHS Acts have specific duties of care for persons who undertake activities that affect on OHS. These duties (sometimes referred to as ‘upstream duties’) apply variously to designers, manufacturers, importers and suppliers of plant, substances and buildings or structures used in the course of work.
Some OHS Acts have established one set of duties that apply to all activities.191 Others have addressed each activity separately. The Maxwell Review recommended that a separate section be dedicated to each duty holder for the sake of clarity.192
There are also variations in the OHS Acts in relation to whether the duties of care apply to plant, substances, buildings and structures. For example, the New South Wales Act has a duty for design but only in respect of plant and substances; whereas most other OHS Acts have a duty for design of plant and structures but not substances.
Table 5 below illustrates the variation in applying the duties across jurisdictions.
The duties for activities in relation to plant and substances that will be used at a workplace are expressed through a general duty to ensure items are safe and without risks to health, followed by more specific duties which usually require duty holders to:
carry out or arrange, testing and examination necessary to ensure plant and substances are safe when used properly193; and
provide adequate information with the plant or substance and on request.
