Employment & Safety Briefing – Can employees, contractors and others be charged by WorkSafe Tasmania?

Yes!

It is well known that employers, referred to as Persons Conducting a Business or Undertaking (or PCBU) are required to keep workers safe and healthy while they are at work. This includes ensuring that there are safe systems of work, that plant and equipment are properly maintained, and that workers are trained and supervised.

However, it is less widely known that everyone in the workplace has work health and safety duties, and everyone can be fined for breaching their duties.

In this briefing, we look at what the Work Health & Safety Act (WHS Act) says about workers’ duties, and what employers can do to make sure everyone understands their obligations. At the end of the day everyone in the workplace is responsible for the health and safety of everyone else.

Recap – what does the WHS Act say?

Under the WHS Act, while at work everyone including workers and visitors must:

• look after their own health and safety;
• be careful not to harm others with what they do, or don’t do;
• follow safety instructions as best they reasonably can.

Workers also need to cooperate with any reasonable health and safety policy or procedure set by their employer.

Under the WHS Act, if a worker (or anyone else at the workplace) does not follow their safety obligations they could face large fines, and in extreme cases even jail time.

If someone at work is reckless and puts others in danger of getting seriously hurt or dying, they could be fined as much as $300,000 or sent to prison for up to five years. This is known as a Category 1 offence. A Category 2 offence is when someone exposes another to a risk of serious injury or death, and it can result in a fine of up to $150,000. Lastly, a Category 3 offence is for not complying with safety duties, even if no one is put at risk of serious injury, and can lead to a fine of up to $50,000 for workers and others.

Real life example – excavator operator fined after causing serious injury

Recently, an excavator operator in Tasmania was found guilty of a Category 2 offence, showing that the Regulators will take action against workers and Tasmanian Courts will impose significant fines against individuals.

In this case, the worker did not set up an exclusion zone prior to starting work in a trench. He swung the excavator bucket and accidently struck and pinned another worker against the trench wall, seriously injuring them.

Although the driver said he wasn’t guilty, the court disagreed. The court determined that the worker had seriously neglected safety rules. There were clear steps that could have been taken to keep everyone safe, but they weren’t followed. Because of this, the worker was convicted and had to pay a fine of $55,000.

What should employers do?

There are straightforward steps that employers should take:

• Understand the nature of the business and assess the risks: It might seem like an obvious thing to say, but an employer must know what the business actually does in order to understand the hazards and risks that might arise in the course of employees’ work.
• Implement any strategies under applicable WorkSafe Tasmania Approved Codes of Practice. The Codes of Practice set out the minimum requirements and are approved by WorkSafe Tasmania. Crucially, the Codes of Practice are admissible in court proceedings as evidence of what is “reasonably practicable” to manage risks to health and safety. A list of approved Codes of Practice can be found by clicking here.
• Develop and enforce appropriate policies and procedures, and ensure staff are trained and educated to be able to perform their work safely. This includes providing workers with information at induction, as well as throughout their employment and as their work changes. These policies should be relied on and consistently enforced.
• Encourage and empower workers to actively report any hazards, near misses and incidents. Workplaces with a strong culture of reporting hazards and near misses have fewer workplace incidents.
• Review your systems, procedures, policies and reports periodically to check they are still current and operating as you intended.

Next steps

Remember, safety also forms a critical part of an employee’s obligations to the employer under their contract of employment. Employees who don’t comply with their safety obligations can face disciplinary action up to and including termination of employment.