Under Commonwealth laws, employers have to proactively manage work health and safety laws in their workplace by implementing a Workplace Health and Safety Policy.  The emphasis is on prevention and risk management; you need to identify potential hazards and work to eliminate or mitigate them. You also need to consult with employees about safety risks, keep records of injuries to determine any patterns and monitor whether your control measures are working.

Taking Care and Being Proactive 

According to Safe Work Australia, the tool for understanding this positive duty is “due diligence”.  Safe Work Australia says “this means taking every precaution that is reasonable in the circumstances to protect the health, safety and welfare of all workers and others who could be put at risk from work carried out as part of the business or undertaking”.  They explain this includes:

  • setting up a well-documented system for identifying, reporting, and responding to all actual and potential hazards in the workplace;
  • ensuring safe practices, procedures and controls are in place that are specific to the hazards in your workplace that either meet or exceed the requirements set out in the WHS legislation—including relevant approved Codes of Practice;
  • providing ongoing instruction and training to supervisors, managers and workers;
  • communicating regularly with workers about foreseeable health and safety hazards; and
  • allocating adequate time and resources for health and safety, including health and safety committees.

You must take a Preventive Approach 

As an employer, you have a non-delegable duty of care to your employees to protect their health and safety at work.  In determining what is reasonably practicable you need to weigh up:

  • the likelihood of a hazard or risk occurring (in essence the probability of a person being exposed to harm);
  • the degree of harm that might result if the hazard or risk occurred (in essence 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; and
  • the cost of eliminating or minimising the hazard or risk.

Penalties for Non-Compliance

The tools that are available to the work health and safety regulators include:

  • giving advice on compliance and seeking voluntary compliance;
  • resolving or assisting parties resolve certain work health and safety disputes;
  • issuing a prohibition notice;
  • issuing an improvement notice;
  • seeking an injunction;
  • issuing an infringement notice;
  • accepting an enforceable undertaking;
  • commencing a civil or criminal prosecution;
  • penalties of up to $3m for corporations or $300,000 for individuals;
  • revoking, suspending or cancelling authorisations; and
  • publishing enforcement actions and outcomes.

If you’ve got any questions on your obligations under work health and safety laws, it’s important that you speak with an employment lawyer.

Lachlan McKnight

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