Work health and safety is an area which requires ongoing
attention and commitment by businesses to ensure, so far as is
reasonably practicable, the health and safety not only of workers
but also non-workers impacted by the operations of the business.
For many small to medium businesses this can be a difficult task,
but as recent events show it is a task which must be given
sufficient priority. The overall message – if you need help,
seek guidance rather than risk waiting too long.
Impatience can be damaging
In a recent decision a company and its director were fined
$61,875 for health and safety breaches relating to safety rails and
the director's "impatience" to get the job done.
The director's company, High Top Roofing Pty Ltd, was
engaged to perform construction work and had arranged to have
safety rails delivered to provide protection for its roof tilers.
However, when the rails weren't delivered on time the director
did not want to delay the works and sent two employees of the
company, one with little experience, onto the roof. Unfortunately
one of the employees fell 3 metres and suffered lacerations and
The director was charged as a worker given that his decision
adversely affected the health and safety of others. Unfortunately
this was a simple matter to avoid - for the sake of not waiting one
employee was injured and the company and director charged.
Not all about the money
With the change to health and safety laws back in 2011,
penalties for breaches increased to a maximum of $3,000,000 for
companies, $600,000 and/or 5 years imprisonment for officers of
companies, partners in a partnership and sole traders and $300,000
and/or 5 years jail for everyone else.
Recently, a first in NSW, an employer and two of its workers
have been charged with Category 1 offences, which may result in the
penalties just discussed above.
The case involved a non-worker suffering fatal injuries when she
was electrocuted in a house next to the Cudal Lime Product Pty Ltd
limestone quarry. Whilst no plea has been entered at this time this
serves as a timely reminder that breaches of WHS laws will be taken
seriously, and not dedicating time and effort to eliminate or
minimise risks can end up costing people their lives, both in terms
of serious injury or death or through a prison sentence.
Sole traders – it's not just companies with many
employees that have health and safety obligations
In a recent NSW case, a sole trader by the name of Gregory Paul
Dunn (trading as That's Slashing and Tipper Hire), pleaded
guilty to breaching WHS laws dealing with plant being without risks
to health and safety.
A casual employee engaged by Mr Dunn suffered fatal injuries
whilst operating a tractor which rolled onsite. The tractor had
been fitted with something called a "roll-over protective
structure" that had previously prevented injury in an earlier
rollover incident. However, this structure was not deployed and was
even partly corroded at the time of the casual employee's
death. As an additional matter, the seatbelt buckle had been
removed prior to the accident because it was not functioning
properly, which would have nullified the effectiveness of the
roll-over protective structure had the latter even been used.
Ultimately Mr Dunn should not have allowed the employee to
operate the tractor until appropriate repairs had been made. This
was obvious given warnings in the manual and also on the tractor
itself. The fine imposed was $160,000 out of a maximum of
Consult, cooperate and coordinate – remember the
In a recent survey conducted by SafeWork Australia, survey
participants have indicated that many small businesses find health
and safety laws complex and onerous to navigate and comply with.
This includes such areas as:
When and how to investigate suspected work health and safety
How much involvement workers should be given as part of dealing
with WHS in the workplace
What to do after an incident
The key take away from the survey is that small business should
seek help sooner rather than later, as there are many steps which
can be taken to unravel WHS laws and provide suitable training,
procedures and documents to allow small (and medium) businesses to
get on with work but in a healthy and safe manner. A little
investment earlier can make large savings going forward, not only
in terms of reducing potential liability for fines and costly
litigation but also with respect to lost time injuries, workers
compensation insurance premiums and overall productivity.
There is no need to be afraid of starting to improve health and
safety in the workplace, as now truly is better than never or
sometime down the track.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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