WORKPLACE SAFETY - How much is enough?

By Kylie Wessling

Key Points: If you fail to ‘ensure’ the safety of workers (in fact all persons), you are in breach of the Occupational Health & Safety Law. Therefore any injury, illness or fatality at your workplace is evidence that you have failed to meet your Obligations.

To what extent penalties are incurred depends upon what you do have in place. You must be able to provide irrefutable evidence of the following:-

» Training, instruction & supervision
» Hazard identification, assessment and control (using hierarchy of control)
» Safe places of work
» Safe systems of work
» Safe plant and equipment
» Safe storage and use of hazardous substances
» Provision of Personal Protective Equipment (PPE) - that fits well, is in good working order and training and instruction in its use provided
» Consultation, Monitoring and Review

If you don’t, the Company will likely be found negligent and prosecuted, fined and Directors may even be jailed in the event of an injury, illness or fatality at your workplace. 

In addition, personal liability also applies. Proprietors, Directors, Persons in Control, Managers, Supervisors and even Volunteers could be personally prosecuted, fined and jailed as well.

OHS Laws apply to all workplaces, even if there are no direct employees other than the owner (self-employed, contractors etc).

Maximum Penalties

Depending on the facts of the case, the maximum penalties can be up to $1M fine and 3 year Jail term.

If you can’t pay the fine, you will do time.

Other penalties may include:

» Improvement notices
» Prohibition to operate notices
» Seizure of plant and equipment
» Enforceable undertakings

You cannot buy Insurance for OHS!

How can you guard against OHS Liability?

You cannot buy an Insurance Policy to protect you from OHS Obligations (a 'Statutory' breach).

OHS compliance is not about Public Liability or WorkCover. These are 'Common Law' matters.

Double Whammy! You may owe concurrent liabilities.

A failure to discharge your OHS Obligation to ensure safety is a Statutory breach that can be brought upon you, in a Court of Law in addition to Public Liability and WorkCover claims.

You can no longer hide behind a corporate structure, nor ‘contract out’ your Obligations.

Owners, Directors and even Managers and Supervisors, that are deemed to have control over workplace safety, can be found negligent and held personally liable as well.

It’s a hard pill to swallow but it isn’t going to go away. OHS Law has been in place in most States of Australia for 20 years or more and yet businesses exist that have very little or nothing in place and Owners and Managers remain uninformed of their Legal Obligations.

National harmonisation of the Workplace Safety Legislation is well underway driven by Minister for Employment and Workplace Relations and Deputy Prime Minister, Julia Gillard, with a draft Act and Regulations now out for comment (September 2009).

What are you doing about risk management of your business?

Financial Risk Management is well recognised as a necessary part of day to day business, so why not Occupational Risk Management, which clearly protects life, prevents injury, illness and the obvious negative flow-on effects that non action in this area can have on your business.

What is the cost of compliance Vs non-compliance?

» Compliance requires assessment and planning, implementation, maintenance and review. It can take time. There may be a period of adjustment to change in work methods and materials in some instances. A safety culture must be adopted. It may require budgeting and capital purchases and ongoing costs to maintain plant, equipment and items used for workplace safety. You may require the assistance of external consultants as you do for other areas of your business; however you should save money each year on outgoings such as Public Liability Insurance and WorkCover Premiums. It requires meticulous documentation.

» Non compliance can cost you a person’s life, health and wellbeing; can cause grief to many parties and have ongoing unknown legal and investigative costs attached. It can cause Prohibition notices to be imposed, seizure of plant and machinery, lost time, loss of productivity and severe business interruption, increased Insurance and WorkCover premiums, decreased worker morale and poor reputation, fines, jail, or enforceable undertakings, requiring large capital expenditure and time.

It’s like Superannuation, PAYG, GST, WorkCover … it costs money to comply but you must do it.

Can you afford not to have OHS well in place?

Just Do it

Budget for Safety, claim back the cost, save on insurance premiums, improve safety performance and business systems, efficiencies and value, avoid costly claims and heartache.

Use a Risk Management Consultant who specialises in OHS Law, to assist to develop an action plan for implementation to get you started on the right track.  Get the right information and the right steps to take.

Summary

Do something now to protect your business, your workers and yourself and ensure what you do is ‘everything you can’ do.

Otherwise be prepared to say goodbye to your family, your pets, your home and other assets and … don’t forget to take your toothbrush to court!

Need some assistance with OHS implementation?  Call us for an obligation free review.

Want to discuss further? Contact Kylie Wessling on Freecall 1800 225 272 or email kylie@worklaw.com.au

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