Where is your business in the WHS Life Cycle?

In June this year there was the first prosecution of an officer under the new harmonised work health and safety (WHS) laws. WorkSafe ACT is prosecuting a Site Project Manager (as well as his employer Kenoss Contractors Pty Ltd) in relation to a fatality at one of Kenoss’ construction sites (Kenoss Case). It is a timely reminder of the potential for individuals to be exposed to significant fines as well as criminal sanctions under the model laws. 

It is crucial for employers and individual officers take steps to ensure their obligations are met and reduce exposure to prosecution in the unfortunate event of a safety incident occurring.

In the current regulatory environment, employers, whether they are large, medium or small, and senior managers alike, cannot simply “set and forget” their WHS obligations. Employers and officers must take regular positive steps to ensure that they meet their legislative obligations and ensure their workplace is safe.

Pre-Incident

While an incident free workplace is highly desirable it does not mean that decision makers can become complacent. As highlighted by the Kenoss Case, WHS obligations extend personally to “officers” of business as well as to employers. For this reason, it is essential that all employers identify who the officers of their business are and ensure they are aware of their obligations.

Officers include those members of a business:

• Who make (or participate in making) decisions that affect the whole or substantial part of the business; or
• Who can significantly affect the business’ financial standing.

For small businesses, it may be the business owner and senior managers. In the Kenoss Case, WorkSafe ACT alleges that officers include the Site Project Manager.

The key duty of officers is to ensure that proper health and safety “due diligence” is undertaken.

Employers can check whether they have proper due diligence systems in place by conducting workplace audits, gap analysis and taking professional advice. This verification process shouldn’t be limited to the business’ employees but its whole workforce including employees, contractors, volunteers, etc. Due diligence processes should be properly documented and recorded to ensure compliance with this obligation so it can be produced if ever required.

However, it’s not only officers who need to have an awareness of WHS obligations, processes and procedures. Do your HR managers know what to say when a WHS inspector attends your business? Does your receptionist know how to deal with union representatives seeking to enter the workplace for WHS reasons?

It is essential that the gatekeepers to your business are up to speed on these issues. Having simple and clear workflows in place that describe the steps to be taken and ensuring all relevant employees are properly trained in WHS matters are just a few of the actions employers can take to ensure their business is protected.

When an incident occurs

If an incident were to occur, how confident are you that your people on the ground would be able to respond to it properly? Who should they call if there is a serious injury or a fatality? If you have a workforce spanning both NSW and Victoria for example, are you aware of the nuances regarding the protections against self incrimination in each State?

The effectiveness of your business’ response to an incident and the exposure that arises to your business and workers may come down to the training your workers have received and how effectively you have consulted with contractors on site on response protocols. Employers can also protect their businesses by ensuring they have well established and publicised procedures, the right people on call to manage difficult situations, and an integrated WHS management system. A comprehensive record keeping system could make a huge difference in managing your response to workplace incidents, ensuring the best practical outcomes for workers and defending any consequential legal claims.

Post Incident

When a worker is injured at work and they do not return to work within three months, there is a significantly high probability that they never will. And with around 99% of all workers compensation claims made being accepted by insurers, a business’ post incident response can be crucial in terms of managing the costs to the business from injured workers, legal claims, and importantly, to ensure the best outcome for injured workers.

Managing the return to work process properly and keeping in regular contact with injured workers and their treating practitioner should be a priority. Getting injured workers back into the workforce in some capacity early on will lessen the likelihood of lengthy and expensive breaks from work, which can have a negative effect on employee morale.

Avoiding prosecution for beaches of WHS obligations is critical as the penalties can have serious ramifications for an employer’s business. WHS prosecutions can lead to fines of up to $3 million for a business and $600,000 for an officer (coupled with negative press, poor outcomes for workers, and legal and Court costs).

Action Plan :

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