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The model work health and safety (WHS) laws require employers, managers, and officers to maintain a safe workplace due to their primary duty of care. Furthermore, your workers also play a role to protect their health and safety and the health and safety of others. For example, you may provide your workers with the necessary protective equipment, training and instructions. However, your workers are responsible for cooperating and complying with your directions when using the equipment to perform their duties. 

Consequently, failing to comply with WHS obligations will expose workers to disciplinary procedures. In addition, while WHS regulators typically focus on investigating and prosecuting employers, managers and officers, the Courts have also convicted workers for a breach of their duties.

This article explains the WHS duties and offences in the workplace and outlines a recent case example in New South Wales.

Who is a Worker?

Firstly, workers include people who carry out work in any capacity for a person conducting a business or undertaking (PCBU), including work as:

  • an employee;
  • a contractor or subcontractor;
  • an employee of a contractor or subcontractor;
  • an employee or a labour-hire company;
  • an apprentice or trainee;
  • a work experience student; or
  • a volunteer.

What Are the Work Health and Safety Duties?

Secondly, the model WHS laws require workers to:

  • take reasonable care of their health and safety;
  • take reasonable care for the health and safety of others who may be affected by their acts or omissions in the workplace;
  • comply with reasonable instructions given by the PCBU; and
  • cooperate with any reasonable WHS policies or procedures that the PCBU has notified to them.

Therefore, you can provide your workers with a WHS policy to outline their workplace obligations and the potential consequences of failing to comply with the policy.

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When Might a Breach Arise?

Your worker commits an offence if they do not comply with their WHS duties.

The model WHS laws include 3 categories of offences. Furthermore, the offences do not require any harm to an individual (whether death, serious injury or illness or otherwise) to occur.

Category

Offence

Maximum penalty

1

(a) the worker has a health and safety duty; 

(b) the worker, without reasonable excuse, engages in conduct that exposes an individual to a risk of death or serious injury or illness; and

(c) the worker is reckless as to the risk of death or serious injury or illness.

$300,000 or 5 years imprisonment or both

2

(a) the worker has a health and safety duty; 

(b) the worker fails to comply with that duty; and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

$150,000

3

(a) the worker has a health and safety duty; and

(b) the worker fails to comply with that duty.

$50,000

Except for Victoria, all Australian states and territories have implemented the model WHS laws. Therefore, the maximum penalties in the state or territory WHS laws may differ from the model WHS laws.

Case Example – SafeWork NSW v Christopher Turner

In May 2020, the District Court of New South Wales convicted Mr Turner for a breach of his WHS duties as a worker.

Overview

Mr Turner was a worker who installed new gas outlets in the operating theatres at Bankstown-Lidcombe Hospital. By way of explanation, the inbuilt medical gas system provided oxygen to newborn babies who required medical oxygen immediately after birth. However, Mr Turner failed to adequately test the outlets for cross-connection and oxygen content before completing the certification forms.

Consequently, one newborn baby was fatally injured, and another newborn infant died due to being administered nitrous oxide from the medical gas system rather than medical oxygen. Subsequently, the hospital conducted an investigation which revealed the incorrect connection and labelling of the gas lines in one of the operating theatres. Finally, the death of the newborn infant was notified to SafeWork NSW.

Court Findings

The Court found that Mr Turner failed to comply with his work health and safety duties and exposed other persons to a risk of suffering serious injury or death due to being administered nitrous oxide instead of oxygen.

However, the Court took into account several mitigating factors, including that Mr Turner:

  • had no previous convictions;
  • was otherwise of good character;
  • was unlikely to re-offend;
  • had shown remorse for the offence;
  • entered a guilty please; and
  • assisted the law enforcement authorities.

As a result, the Court convicted Mr Turner and ordered him to pay a fine of $100,000.

Key Takeaways

In conclusion, workers have duties to comply with your reasonable instructions and WHS policies or procedures. Next, workers also have duties to take reasonable care of their health and safety and the health and safety of others in the workplace. Furthermore, failure to comply with their WHS duties may lead to disciplinary action and penalties.

If you need help with your duties or preparing a WHS policy, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

Who is a ‘worker’?

Workers include people who carry out work in any capacity for a person conducting a business or undertaking (PCBU).

When does a breach of WHS duties arise?

Workers commit an offence if they fail to comply with their work health and safety duties. The offences under the model WHS laws do not require any harm to an individual (whether death, serious injury or illness or otherwise) to occur.

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