Managing Work Health and Safety (WHS) is a large aspect of an employer’s day to day responsibilities. Ensuring that WHS standards are met and that you are maintaining a safe working environment for your employees is essential.
Mismanagement of WHS and your responsibilities associated with WHS regulations can lead to numerous consequences including penalties and even potential imprisonment. The Model Work Health and Safety Act (Model Act) outlines three types of offences with a different penalty correlating to each. As the Model Act places obligations on both the company and Officers of the company, which will be further explained below, both parties are liable for WHS breaches.
The maximum penalty for a company is currently $3 million and an Officer could face up to 5 years imprisonment and a $600,000 fine. These penalties reflect the importance of maintaining WHS standards within your business and ensuring that individuals are fulfilling their duties under the Model Act or relevant State legislation.
It is important that employers have the correct information and knowledge of WHS regulations and laws in order to ensure businesses are fulfilling their requirements. Knowing who owes a duty, what that duty entails and how to minimise WHS risks is extremely important for every business.
Who owes a duty of care?
The Model Act aims to prevent individuals in a workplace from being harmed or injured whilst undertaking their work. The law achieves this by placing companies, PCBU’s and Officers under a strict duty of care. This duty of care is owed to any individual that is involved in the completion of the work or task or those who are affected by the work being undertaken. It is important to remember that within a business, more than one individual or entity will owe a duty, and there are various standards that each duty holder must reach in order to avoid a breach. A company’s ability to identify who owes these duties will significantly decrease their risk of a breach, which can incur extreme penalties, both financially and criminally.
The first duty is owed by the company itself. This duty is known as the primary duty and the nature of its obligations are quite broad. In this case, a company is required by law, to do whatever is reasonably practical to ensure the health and safety of their employees or individuals assisting in the completion of the assigned work. The first question is what is reasonably practical? The Model Act adopts the approach taken in most state laws, and provides 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 in 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, what the cost of the solution is and whether it is disproportionate to the risk.
The second important question to ask is who does the company owe a duty of care to? The main focus of the duty is directed towards employees of the company. However, these duties are also accompanied by a broader duty to also protect non-employees within the workplace. This includes contractors and their employees or the general public. This particular duty involves ensuring, so far as reasonable practicable, the protections of people put at risk from the work carried out.
The next duty is often overlooked by companies, but it is extremely important to identity, and that is the duty of officers. The introduction of this duty is relatively new to the traditional WHS framework, but is arguably one of the most important aspects to understand and implement. This duty was implemented to promote health and safety within the workplace and stimulate change towards a safer working environment. The duty is placed primarily on senior management or individuals in roles that exhibit high levels of influence over employees. Under this duty senior management become leaders of workplace health a safety, promoting the company to comply with regulations. As this show of leadership is critical in achieving positive safety outcomes, it is important for companies to identify employees at a senior level and inform them of their duty of care.
Companies responsibilities under the primary duty of care:
As WHS is such a broad topic, it can be difficult for businesses to identify all their responsibilities and effectively manage them. Your responsibilities under the primary duty of care can be divided into seven manageable parts.
- The provision and maintenance of a work environment without risks to health and safety – this includes rostering, organisational structure and the physical environment;
- The provision and maintenance of safe plants and structures – meaning the structure in which employees are working is physically sound;
- The provision and 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;
- The need to have adequate facilities for the welfare at work of workers and ensuring employees have access to those facilities;
- Providing adequate and necessary information, training, instruction or supervision to employees carrying out work – this includes instruction or induction to visitors of the worksite; and
- That the health of the workers and conditions of the workplace are monitored, in order to prevent illness or injury.
A company or PCBU 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 your businesses risk;
- Maintaining adequate WHS procedures and protocols;
- Gaining knowledge about WHS;
- Minimising or mitigating risk within the workplace; and
- Monitoring workers capacity to work.
Each of the above categories have duties within them which need to be undertaken by an officer.
Understanding Business Risk:
An Officer must have an understanding of the business operations in order to identify potential hazards and risk arising from the businesses undertakings. With this understanding, 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 audit of the company can also assist in the above process and can outline gaps in the company’s protocols and procedures. This allows Officers to identify specific business operations or undertakings that are falling short of the WHS standards. Audits are also a good tool for senior management as it allows executives and Officer’s to participate in safety observations, which promotes the monitoring of safety standards and procedures within the workplace.
Maintaining Adequate WHS Procedures and Protocols:
It is extremely important for a business to establish AND maintain their procedures and protocols, especially those concerning WHS. 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, it allows Officers to make sure workers are aware of the risks of a particular task and informs them how to avoid injury or illness associated with that risk.
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 officer’s when training or supervising workers or when responding to incidents within the workplace or changes in WHS regulations.
It is also important to create a workplace environment where workers feel comfortable reporting potential hazards or incidences that have occurred. Coupled with this, providing workers with appropriate channels to report hazards is extremely important and will assist in generating 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 Officers 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 defense in the event of an accident that could have been prevented.
Minimising or mitigating risk within the workplace:
An Officer must be able to provide the appropriate resources to both the company as a whole and its workers. This means employing individuals with adequate safety experience in roles that require high risk work to be performed, and keeping WHS matters in mind whilst hiring employees. Generally, the more expertise an employee has about WHS, the less likely the risk of injury is.
Along with this, officers should also provide workers with adequate WHS information and training. This can include in-house training programs or outsourcing WHS training and keeping workers up-to-date on any WHS changes that may affect them. It is also important to implement a strong induction program for new workers to ensure that they are aware of risks within the business and all the relevant policies and procedures regarding those risks. This, along with the above points, will assist officers to minimise the risk of harm within the workplace and maintain the standard of care required of them.
Monitoring workers capacity to work:
Assessing a workers capacity to work in both a general sense and following an illness or injury is often an aspect of due diligence that is overlooked. It is extremely important to monitor your workers to make sure that they are capable, both physically and mentally, of performing the tasks or jobs they are assigned. By doing this, Officers are able to easily identify workers that may have a higher risk of injury, which allows them to mitigate the risk before an incident occurs.
In the event that a worker has injured themselves or is absent from work due to an illness, it is the duty of the Officer and the company to provide any assistance to the worker in terms of their return to work. This can include a flexible working arrangement, facilitating lighter duties or looking at an alternative role. As the duty is to do what you reasonably can in the circumstance, with this in mind, in the event that the employer cannot reasonably accommodate the workers return, the employer must undertake a capacity review of the employee. This review assesses whether a worker is able to fulfill the inherent requirements of their role, and entails liaising with their doctors or specialists regarding their current and future medical position and the likelihood of recovery. This can be a lengthy process, but is a vital one that must be closely monitored. If the outcome of the review results in the worker being unable to fulfill their role, then their employment will come to an end due to incapacity. It is important to undertake this review rather than keeping the employee on the books when they are effectively unable to work. This is a common issue within workplaces and is something that we would urge you to avoid.