By Charlotte Harding
Managing Work Health and Safety (WHS) is a large part of your day to day responsibilities as an employer. It’s essential that you maintain a safe working environment for your employees.
Mismanage your responsibilities under WHS regulations and you could face severe consequences, including fines and imprisonment.
Maximum penalties for a company can include $3 million, and an Officer could face up to 5 years imprisonment and a $600,000 fine. These penalties highlight the importance of maintaining WHS standards within your business and ensuring that people fulfil their duties under the relevant State legislation.
In 2011, Safe Work Australia introduced the “Model laws” which prescribe a single set of WHS laws to be implemented across Australia. These laws are only legally binding when the states and territories separately implement them as their own laws. These laws have now been implemented in most jurisdictions across Australia, however you should refer to your state’s specific legislation when dealing with WHS.
You need to have the correct information and knowledge of WHS laws to ensure you’re fulfilling your obligations. Knowing who owes a duty, what that duty entails, and how to identify and minimise WHS risks is vital.
This article will get you started.
What are your obligations?
To know what your obligations are under the Model WHS Act you first need to know who, in your business, owes a duty of care. A duty of care is owed to any individual that’s involved in the completion of the work for your business, or those who’re affected by the work you’re doing. It’s important to remember that, within a business, more than one individual or entity will owe a duty, and there’re various standards that each duty holder must meet to avoid a breach.
The primary duty of care
The first duty is owed by the company itself. This duty is known as the primary duty and the nature of its obligations are broad. Under a primary duty a company is required, by law, to do whatever is reasonably practicable to ensure the health and safety of their employees or others assisting in the completion of the assigned work.
The first question this raises is ‘what is reasonably practicable?’ The Model Act states that a company must do what is reasonable at the time to ensure the health and safety of individuals within their workplace. It also says that, when deciding what is reasonable, a company must take the following into account:
- The likelihood of the hazard;
- The degree of harm the hazard might cause;
- What the person facing potential harm knows, or should know, in relation to the hazard;
- The availability and sustainability of ways to minimise, or eliminate, the risk; and
- After all the above is considered, how much the solution costs and whether it’s disproportionate to the risk.
The second question is ‘to whom does the company owe a duty of care?’ The main focus of the duty is on employees of the company. However, these duties are also accompanied by a broader duty to protect non-employees within the workplace. This includes independent contractors and their employees, volunteers and the general public. This particular duty involves, so far as is reasonably practicable, protecting people who’re at risk from the work being carried out.
The duty of officers
The next duty is often overlooked by companies, but is important to understand, and that’s the duty of officers. This duty is placed primarily on senior management or individuals in roles that have high levels of influence or control over employees. This could include the CFO, COO or Head of HR. Under this duty, senior management become leaders of workplace health a safety, influencing the company to comply with regulations. As this show of leadership is critical in achieving positive safety outcomes, it’s important for companies to identify high-level employees and inform them of their duty of care.
Relationship Between Recommended Duties of Care:
 Workplace Relations Ministers’ Council, National review into model occupational health and safety laws: second report to the Workplace Relations Ministers’ Council (Second Report), Canberra WRMC, January 2009, 68.
Company’s Responsibilities Under the Primary Duty of Care:
As WHS is such a broad area, it can be difficult for a business to identify all their responsibilities and manage them. Your responsibilities under the primary duty of care can be divided into seven manageable parts.
- The maintenance of a work environment without risks to health and safety – this includes rostering, organisational structure and the physical environment;
- The maintenance of safe plant and structures – meaning the structure in which employees are working is physically sound;
- The maintenance of safe systems of work – having safe protocols and procedures in place for each task undertaken by employees;
- The safe use, handling and storage of plant structures and substances – including any harmful chemicals;
- The need to have adequate facilities for the welfare at work of employees and ensuring employees have access to those facilities – this means adequate spaces in your offices for breaks or meetings;
- Providing adequate information, training, and supervision to employees carrying out work – this includes induction to visitors of the worksite; and
- That the health of the employees and conditions of the workplace are monitored, in order to prevent future illness or injury.
A company must make sure that the above elements are fulfilled, so far as reasonably practicable, to ensure not only the safety of their employees but also non-employees as well.
An officer’s primary duty is to exercise due diligence to ensure that the business is complying with health and safety standards. Ultimately, due diligence is about safety leadership and is something that cannot be delegated. The elements of due diligence can be categorised into five main parts:
- Understanding and monitoring your business’s risk;
- Maintaining adequate WHS procedures and protocols;
- Gaining knowledge about WHS;
- Minimising or mitigating risk within the workplace; and
- Monitoring an employee’s capacity to work.
Understanding Business Risk – Identifying Workplace Hazards:
An officer must have an understanding of the business operations in order to identify potential hazards and risk arising from the businesses undertakings. In order to gain this understanding, we recommend the following steps:
- Regularly inspect the workplace for risks and hazards – asking yourself questions like ‘are there any trip or slip hazards?’
- Consult employees – this can be done through team or one-on-one meetings; and
- Consistent review of available information – this means keeping up to date with new WHS regulations and requirements;
Inspect the Workplace:
Regularly walking around the workplace and observing how employees operate machines or fulfil their duties will help you predict what could go wrong. Look at how equipment is used, what chemicals are around the office and what they are used for and what unsafe work practices exist. Things to look out for include:
- Is the work environment suitable for employees to carry out their duties (for example, is there adequate ventilation, lighting and space for unobstructed movement?)
- How is demanding is the work being performed? It is important to consider the mental, emotional and physical demands of the role.
- How suitable is the equipment used when performing a particular task, and is it maintained appropriately?
- How do employees, managers, supervisors and others interact and how are inappropriate behaviours or conflicts dealt with? (For example, are managers and senior leaders fostering a positive work environment?)
- Are there likely to be many changes in the workplace which may affect your employee’s health and safety?
During inspection hazards are not always obvious. Some hazards can affect an employee’s health over a long period of time or may result in stress. You should not just be looking for things that could physically harm an employee but consider emotional or mental stressors as well. This can include bullying, harassment, a negative work environment or an overworked employee.
As you walk around your workplace, you may find problems that are easily actioned on the spot, for example, cleaning up a spill. However, if you discover something that poses a significant threat to people, it’s important to move those people to a safer environment and attend to the hazard immediately. Once the hazard has been appropriately dealt with and there’s no longer a risk to employees you should follow up on why the situation occurred to identify any additional hazards and prevent reoccurrence in the future.
With the understanding gained from inspecting the workplace, an officer is able to undertake a risk assessment of the business and identify major workplace hazards. This means that the officers can identify high consequence but low probability risks and attempt to mitigate them before an injury occurs. Conducting a risk assessment also allows the business to identify all potential current and future hazards and categorise them from most to least hazardous. Once this has been achieved the business can then create a timeline in which each hazard can be resolved or minimised depending on its severity.
An external audit of your company can also assist in the above process and can outline gaps in your protocols and procedures as well as allowing officers to identify specific business operations or undertakings that are falling short of WHS standards. Audits are also a good tool for senior management as it allows them to participate in safety observations, which promotes the monitoring of safety standards and procedures within the workplace.
We recommend that you use what we like to call the hierarchy of control:
Eliminate the hazards
Substitute the hazard with something safer
Isolate the hazard from people
Reduce the risks through engineering controls
Reduce exposure to the hazard using administrative actions
Use personal protective equipment
Additional Ways to Manage WHS Obligations:
Maintaining Adequate WHS Procedures and Protocols:
It’s also extremely important for a business to establish AND maintain their WHS procedures and protocols. Without adequate protocols, both employers and employees are unable to effectively manage incidences and prevent injuries from occurring. If employee’s have no procedure to follow when undertaking work, the likelihood of injury or harm is significantly increased. Making sure procedures are followed is a large aspect of due diligence and it allows officers to make sure employees are aware of the risks of a particular task, and informs them how to avoid injury or illness associated with that risk. For example, providing training or visual aids of how to properly lift something heavy or how to use a power tool or machine safely.
A good way to draft procedures is to document all the risk associated with a particular task and write another list that outlines the control measures you can take to minimise those risks. If you complete this for each work place hazard, you are fulfilling your duties of due diligence. This will assist officers when training or supervising employees or when responding to incidents within the workplace or changes in WHS regulations.
It’s also important to create a workplace environment where employees feel comfortable reporting potential hazards or actual incidents. Couple this with providing employees with appropriate channels to report hazards and it will help generate a positive culture within the business.
Gaining knowledge about WHS:
Due Diligence requires officers to keep up to date with WHS laws and regulations. This applies to both knowledge about the company’s particular industry and general WHS matters. This means that officer’s will likely need to undertake regular WHS training to keep them well informed of changes in regulation. As the risk of injury within a company can be quite high and officers have this duty, ignorance is not considered a defence in the event of an accident that could have been prevented.
Minimising or mitigating risk within the workplace:
An officer must also be able to provide the appropriate resources to both the company as a whole and its employees. This means employing individuals with adequate safety experience in roles that require high risk work to be performed, and keeping WHS matters in mind while hiring employees. Generally, the more expertise an employee has with WHS, the less likely the risk of injury, and the more likely it is that the employee will identify and report possible hazards in the workplace.
Along with this, officers should also provide employees with in-house training programs or outsourced WHS training and keep employees up to date on any WHS changes that may affect them.
It’s also important to implement a strong induction program for new employees to ensure that they are aware of risks within the business and all the relevant policies and procedures regarding those risks.
Monitoring an employee’s capacity to work:
Assessing an employee’s capacity to work in both a general sense and following an illness or injury is an aspect of due diligence that is often overlooked. It’s important to monitor your employees to make sure they’re capable, both physically and mentally, of performing their assigned tasks. By doing this, officers can easily identify employees that may have a higher risk of injury, which allows them to mitigate the risk or hazard before an incident occurs.
Charlotte Harding is a qualified workplace relations consultant at HR Assured and FCB Group. She has a special interest and expertise in WHS, and has helped many businesses institute best-practice WHS solutions to build safer and legally compliant workplaces.