Whilst we are sure you broadly understand your workplace health and safety obligations, often it is not until something goes wrong that you really give them serious thought. By that time, the costs to your business in penalties and time lost can be substantial.
Regularly reviewing the laws and regulations that apply to your business, could help you to avoid an incident or to assist you to better manage an investigation process and any prosecutions that could arise.
In this article, we briefly look at some issues you should be alert to in your business, regarding the Work Health and Safety Act 2011(Qld) (the Act) and the Work Health and Safety Regulations 2011(Qld) (the Regulations).
Who is covered?
The Act discusses PCBU’s when it deals with employer obligations. A PCBU is a person conducting a business or undertaking and broadly includes:
- Sole traders;
- Not for profits;
- Unincorporated association; and
The obligations under the Act also cover all employees, which includes:
- contractors or subcontractors;
- employees of a contractors or subcontractors;
- employees of labour hire companies who have been assigned to work in your business or undertaking;
- apprentices or trainees;
- students gaining work experience; or
and others as prescribed by the Act and its regulations.
The intention of the Act is that all people are given the highest level of health and safety protection from hazards arising from work, so far as is reasonably practicable. Health and safety includes psychological health, meaning that PCBUs must do all that is reasonably practicable to eliminate or control risks that exist in the workplace that could reasonably result in the psychological injury of a worker.
The term ‘reasonably practicable’ means what could reasonably be done at a particular time to ensure health and safety measures were in place.
In determining what is reasonably practicable, there is a requirement to weigh up all relevant matters including:
- the likelihood of a hazard or risk occurring (i.e. the probability of a person being exposed to harm);
- the degree of harm that might result if the hazard or risk occurred (i.e. the potential seriousness of injury or harm);
- what the person concerned knows, or ought to reasonably know, about the hazard or risk and ways of eliminating or minimising it;
- the availability of suitable ways to eliminate or minimise the hazard or risk;
- the cost of eliminating or minimising the hazard or risk.
Cost will not be a key factor in determining what is reasonable for a duty holder to do unless they can show the measures are ‘grossly disproportionate’ to the risk. If the risk is particularly severe, a PCBU will have to demonstrate that costly safety measures are not reasonably practicable due to their expense and that other less costly measures could also effectively minimise the risk.
Obligations in your workplace
PCBUs have a duty of care to their workers and any other people who may be put at risk from work carried out by the business or undertaking. The Act generally requires that PCBUs:
- provide and maintain a work environment that is safe and without risks to health, including when entering and exiting the workplace;
- provide and maintain plant, structures and systems of work that are safe and do not pose health risks (e.g. providing effective guards on machines and regulating the pace and frequency of work);
- ensure the safe use, handling, storage and transport of plant, structures and substances (e.g. toxic chemicals, dusts and fibres);
- provide adequate facilities for the welfare of workers at workplaces under their management and control (e.g. washrooms, lockers and dining areas);
- provide workers with information, instruction, training or supervision needed for them to work safely and without risks to their health;
- monitor the health of their workers and the conditions of the workplace under their management and control to prevent injury or illness;
- maintain any accommodation owned or under their management and control, to ensure the health and safety of workers occupying the premises.
In addition, a PCBU with management or control of a workplace must ensure, so far as is reasonably practicable, that:
- the workplace;
- the means of entering and exiting the workplace; and
- anything arising from the workplace,
do not affect the health and safety of any person.
A self-employed person must also ensure their own health and safety while at work, so far as is reasonably practicable. As an example, if a sub-contractor can see that there is a safety risk or a potential personal injury situation on a work-site, they must take reasonably practicable steps to eliminate the risk, which will likely result in them reporting their concerns to the contractor or refusing to complete work until the hazard is satisfactorily dealt with.
Duty to consult
A PCBU has a duty to consult with workers about matters that directly affect them. This extends to consulting with contractors and their workers, employees of labour hire companies, students on work experience, apprentices and trainees, as well as with the PCBU’s own employees and any volunteer workers, if applicable.
There may be several different duty holders involved in work (e.g. suppliers, contractors and building owners). If more than one person in the workplace has a health and safety duty, they must consult all other people with the same duty. Each duty holder must share information in a timely manner and cooperate to meet health and safety obligations. As an example, if a scaffolder is aware of risks that must be managed in relation to the use of the scaffolding they erect, they have an obligation to alert anyone who will use or be affected by the use of the scaffolding, to ensure they understand the proper use of the equipment and can ask questions or raise concerns about the use of the equipment.
Duty of Officers
It is the duty of an officer of a PCBU to exercise due diligence to ensure the PCBU complies with its health and safety duties and obligations. An officer may be charged with an offence under the WHS Act independently of any breach of duty by the PCBU if they fail to comply with that duty.
Due diligence includes personally taking reasonable steps to:
- acquire and keep current information on work health and safety matters;
- understand the nature and operations of the business or undertaking and associated hazards and risks;
- ensure the PCBU has, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety;
- ensure the PCBU has appropriate processes to receive and consider information about incidents, hazards and risks, and to respond in a timely manner; and
- ensure the PCBU has, and implements, processes for complying with their duties and obligations (e.g. reports notifiable incidents, consults with workers, complies with notices, provides training and instruction and ensures HSRs receive training entitlements).
Duty of workers
While at work, workers are required to take reasonable care for their own health and safety and that of others who may be affected by their actions or omissions. They must also cooperate with any reasonable instruction given by the PCBU and any reasonable policy or procedure of the PCBU to comply with the WHS Act and WHS Regulation.
Duties of other persons at the workplace
Any person at a workplace, including customers and visitors, must take reasonable care of their own health and safety and that of others who may be affected by their actions or omissions. They must also cooperate with any actions taken by the PCBU to comply with the WHS Act and WHS Regulation.
If there is a notifiable incident
When to notify
A PCBU must notify Workplace Health and Safety Queensland as soon as they become aware of a death, or a serious injury or illness that results in:
- immediate hospital treatment as an in-patient
- immediate medical treatment for serious injuries (e.g. amputation, scalping, a spinal injury, loss of a bodily function or a serious laceration, burn, head or eye injury), or
- medical treatment within 48 hours of exposure to a substance.
Who to notify
In addition, PCBUs in the construction industry must alert the Queensland Building and Construction Commission (QBCC) in the fastest way possible when they become aware of a notifiable incident or work carried out at a site that contravenes the Act or the Electrical Safety Act 2002 (Qld). The maximum penalty for not notifying the QBCC is 80 penalty units. This is in addition to a PCBUs obligation to notify WorkSafe Queensland immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. The maximum penalty in that instance is 100 penalty units. At the time of writing this article, a penalty unit is $133.45, but is subject to review in July of each year.
What to do when a notifiable incident occurs
Once a notifiable incident occurs, the PCBU must ensure they preserve the incident site until an inspector arrives at the site or any earlier time that an inspector directs. The maximum penalty for not preserving a work site is 100 penalty points.
After WorkSafe Queensland and QBCC have been notified of an incident, WorkCover should be alerted so they can commence a file for any injured workers. Other family members of the affected worker should also seek professional help from a wrongful death lawyer.
We have included links to:
Codes of Practice
In addition to obligations under the Act and Regulations, codes of practice provide practical guidance on how to meet the standards set out in the Act and the Regulations and can be referred to by an inspector when issuing an improvement or prohibition notice. Codes of practice can also be used as evidence in legal proceedings to provide information on how a hazard or risk can be controlled or managed and to determine what was reasonably practicable in the circumstances discussed, so they are the appropriate tool to use in a workplace to assess risk management for a relevant activity.
PCBUs must either comply with an approved code of practice or manage hazards and risks arising from work in a way that, whilst different to the code, provides a standard of health and safety that is equivalent to or higher than the standard required in the code.
Getting it right is important
Whilst it always has been important to get your business’s safety standards and reporting right, changes to your reporting obligations may have altered from what you understand your obligations to be. To be certain that you are properly complying with your safety obligations, you should consider engaging a safety auditor to review your standards and regularly review the WorkSafe and QBCC websites for changes. We know from experience that well intentioned business owners have been unexpectedly caught out in a safety incident because they had not kept up with changes in the law.
There is no substitute for getting pre-emptive professional advice and engaging a lawyer experienced in safety matters if you do experience a safety incident. Ideally, you will speak with your legal advisors as soon as you have notified the statutory bodies and before you provide any statements or information.
Our team have real world experience in advising employers about workplace safety. If you are concerned that your business could be at risk, do not ignore those concerns. We encourage you to contact us on (07) 3160 0000 or email us at firstname.lastname@example.org.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.