Australia: Work Health Safety Updates – Small to medium businesses most at risk

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 fractures.

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 $300,000.

Consult, cooperate and coordinate – remember the basics

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 incidents/breaches
  • How much involvement workers should be given as part of dealing with WHS in the workplace
  • Training
  • 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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