Employers are required to ensure the work health and safety of workers while at work. Not only is work health and safety within the workplace a legal requirement for employers, but workplace injuries can have a significant impact on a business and severe consequences for all workplace participants. Significant workplace injuries can have a lasting negative effect on the business through reduced productivity, lost clients, low staff morale, traumatised staff and the associated reputational costs.
Australian statistics show that between 2003 and 2015 there were 3,207 work-related fatalities and 107,355 serious claims lodged by employees for work-related injuries or disease in the 2014 to 2015 financial years. Astonishingly, 129 Australian workers have been killed at work since 1 January to 16 October 2017. In terms of cost, in 2012-2013 work- related injury and disease cost the Australian economy in the vicinity of $61.8 billion.
Legislation and Regulators
As part of the national harmonisation of work health and safety legislation, the Commonwealth and a majority of the states and territories agreed to amend their legislation so that each jurisdiction was consistent (with minor variations) under a national model. On 1 January 2012, the model Work Health and Safety Act 2011 (Cth) (“WH&S Act”) was introduced.
Prior to the harmonisation of the work health and safety legislation, SafeWork Australia was established to assist the Commonwealth, State and Territory governments to improve WHS and compensation benefits for injured workers. Each State and Territory now has their own SafeWork bodies.
What are your obligations as a business owner?
The WH&S Act imposes various duties on persons in the workplace, including any person conducting a business or undertaking as well as directors and officers, workers and other individuals who visit the workplace.
There are number of key obligations of which your business should be aware, including:
- the provision and maintenance of a work environment without risks to health and safety;
- the provision and maintenance of safe plant and structures;
- the provision and maintenance of safe systems of work;
- the safe use, handling, and storage of plant, structures and substances;
- the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities;
- the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
- that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
These obligations extend to all workers within your business including employees, trainees, apprentices or work experience students, outworkers, contractors or sub-contractors, employees of a contractor or sub-contractor, as well as employees of a labour hire company and volunteers.
Both the employer and individuals may be personally prosecuted for failure to adhere to WHS obligations and charges may include manslaughter, in circumstances of a fatality, under criminal legislation. The penalties involved for breaches of the WH&S Act are significant. For example: the offence of reckless conduct can incur a $300,000 penalty for an individual, $600,000 for an individual who was conducting a business or an officer of a person conducting a business and $3,000,000 for a corporation. Individuals may also face 5 years imprisonment.
What to do if your worker is injured?
If there is a serious injury or illness within the workplace there are specific obligations the person carrying on the business or undertaking must fulfil. These are as follows:
- Provide immediate first aid (where appropriate) and seek medical treatment (if required).
- If the injury or illness was the result of a ‘notifiable incident’ you must contact Safe Work NSW immediately. A notifiable incident is a death, serious injury or illness, or dangerous incident.
- If the incident involves a death or injury resulting in hospitilisation, you must notify the police.
- Contact the next of kin of the injured or ill worker.
- Secure the area and do not touch or move any items.
- Obtain witness details and offer witnesses and workers counselling.
- Obtain legal advice to ensure you are appropriately represented when the Police or Safe Work attend the premises.
- Notify the insurer within 48 hours. The following information will likely be asked:
- Worker’s name, address, telephone number and date of birth;
- Name and address of the workplace;
- Name of treating doctor and contact telephone number or name of the hospital;
- Date and description of the injury and details of how it happened; and
- Name and contact details of the person making the notification and their relationship with the worker or employer.
It is advisable to seek ongoing legal advice as soon as possible. This will assist in protecting your business interests and in obtaining witness statements in the event of a prosecution.
Case Examples
On 10 February 2015, a worker suffered serious head injuries when he fell down a flight of stairs, without adequate edge protection, at a construction site. After a SafeWork NSW Investigation the Defendant, Karimbla Constructions Services (NSW) Pty Ltd, was charged with breach the WH&S Act. On 31 March 2017, the defendant was convicted by the District Court and fined $135,000
On 6 August 2014, a 17 year old work experience student suffered amputation of the tips of two fingers when using a brake press machine. After a SafeWork NSW investigation, the Defendant, Thermal Electric Elements Pty Ltd, was charged with breaching the WH&S Act. On 24 March 2017, the Defendant was convicted by the District Court and fined $250,000.
Additional Considerations
It is also highly advisable that businesses have policies and procedures in place dealing with work health and safety issues and with which all employees and workers are familiar. The failure to ensure workers are properly trained and a lack of appropriate policies and procedures will guarantee that the business has not taken all reasonable steps to ensure the safety of workers. In addition, it is an opportune time to remind employers to log and review “near miss” incidents. It is extremely important for businesses to proactively review “near misses” in order to improve safety procedures and ensure they do not eventuate into actual incidents, particularly when they could have been prevented. It is always better to be safe than sorry when it comes to the safety of your workforce.
Finally, the most lasting impact of a serious workplace incident is the fact that you as the person responsible, may have to live with the knowledge that someone did not come home from work, or suffered significant life changing injuries, as a result of your failure to ensure their safety at work. Do not let that person be you.
If you wish to further discuss the steps that can be taken in relation to your work health and safety obligations or have an employment matter for which you require assistance, please do not hesitate to contact us for specialist advice.
This alert is not intended to constitute, and should not be treated as, legal advice.