Health and Safety in the Workplace

It's not a catchy title, perhaps, but it is a subject that should be very close to the heart of any employer, especially since the latest round of legislation on the subject which came into effect last year.

Since the 'Model Work Health and Safety Bill' was introduced last June, it has already been formally adopted by the Commonwealth, the Territories, New South Wales and Queensland, and the other states will no doubt follow suit before long.

At 216 pages long, the new Bill is a significant re-appraisal of what it means to be an employer, or an employee, and the responsibilities each has within the workplace. That word, too, has been re-defined, and basically covers anywhere in which work is carried out for a business and includes anywhere that the worker is, or is likely to be, whilst doing that work. So that includes, for example, an office, or an on-site location, or a vehicle of any sort, and extends to the waters “... and any installation on land, on the bed of any waters or floating on any waters.”

So that's pretty much anywhere that the worker can legitimately be whilst working. And all the relevant legal duties and obligations – and penalties – will apply to all those 'workplaces'.

Another concept introduced by the Bill is the function of an “officer”. An officer is a person who, by virtue of their position in the business, or because of their job description, has particular responsibility for particular duties, whether solely or shared with others.

The Bill says that these duties cannot be transferred or delegated, that the responsibility for implementing, or failing to implement, these duties is personal to the duty-holder/s, and that failures by the duty-holders can lead to criminal penalties. These penalties can work their way up the chain of command. So, for example, if an accident happens because Jim, the safety officer on site, wasn't seeing that the rules were being observed, then Jim will be responsible in law.

However, if Jim were under instruction from his line manager to get the job done quicker to save money, (“Jim, I don't care what it takes, get the job done today otherwise you needn't come in tomorrow”) then the line manager could also be held legally responsible – as could his Managing Director, or HR Department, perhaps, if they are similarly pressuring the line manager.

Incidentally, the Bill covers all types of workers – salaried, contract, part-time, voluntary, students, sub-contractors – all of them.

Before the new legislation, we had the concept of 'attributed liability'. This means that, if a worker suffers an injury (for example) then the liability could, in some cases be attributed to the firm or company for which he was working. Not any more.

Now, anyone who is classified as an 'officer', and we'll come to who that is in a minute, has personal liability even if the business itself is not part of any claim or litigation. Basically, more people are now legally responsible for health and safety in the workplace, more people have a legal duty to ensure a safe workplace (or, at least, as safe as can reasonably be provided, bearing in mind that anyone involved in certain sectors could be seen to be involved in a dangerous workplace, just by nature of the industry) and businesses must now take on the idea of a safety culture within their operations.

So, who is an 'officer'? That is defined under the Corporations Act 2001 and basically means a:

secretary or director of a corporation;

or anyone who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation;

or anyone who has the capacity to affect significantly the corporation's financial standing;

or in accordance with whose instructions or wishes the directors of the corporation are accustomed to act.

There are slightly different provisions for non-corporate structures, but you get the idea. The third of these is a tricky one, as this could be extended to anyone who writes a blog, or tweets, which is adverse to the company. Such a person could then be liable as an officer of the company if a workplace safety issue comes to the fore.

Officers must talk to other duty-holders, to discuss relevant health and safety issues, they must co-operate with each other to produce workable solutions to issues that arise and they must have a coherent strategy in place to deal with any problems that crop up. These issues relate to the whole of the workplace, and don't forget that, these days, this will include the internet, which sadly has been the scene for online bullying and other abuses.

Above all, officers must exercise due diligence. This is defined in the regulations as the process whereby reasonable steps are taken to understand and identify what is risky or hazardous within your business operation, do the best that can reasonably be done to mitigate or eliminate these hazards and risks, and to develop systems to ensure compliance with the regulations.

So, if you haven't yet got to grips with the new provisions, then you really should do so now – before an incident occurs and you are on the receiving end of a claim. We at Skye Recruitment would suggest to you the following course of action:

Nominate or identify the officers of your business;

Ensure that they know the extent of their obligations, the need to exercise due diligence, and the need to ensure compliance with the new regulations;

Set up training, and repeat the training periodically, to assist the officers in carrying out their obligations;

Create some form of monitoring and reporting process;

Include the new regulations in your training for all staff.

Safe Work Australia has a lot of useful information on its website, so perhaps that's a good first point of call for help.

Finally, although this sounds like a lot of work, which it probably is, the fact is that the regulations will affect everyone who works, or who owns a business, and if we can 'bite the bullet' and set up the right systems now, this will save a lot of time and, perhaps, money for us all in the future.