The Work Health and Safety Act 2020 (WHS Act) has significantly increased the consequences of non-compliance by workers, including the imposition of terms of imprisonment, with employees being encouraged to properly understand their duties in the workplace.
WHS Total Solutions Managing Director Philip Cleverly said the primary duties of a worker had not substantively changed from the previous Occupational Safety and Health Act duties, but there was bigger emphasis on a person conducting a business or undertaking (PCBU) to engage, consult, cooperate and coordinate more with their workers.
“PCBUs will need to ensure that workers are supported, consulted and engaged with, as reasonably practicable, to effect these changes and to meet their relevant primary duties of care,” he said.
“These duties extend to all workers engaged by the company such as contractors, labour hire personnel, consultants, customers, visitors, volunteers and people undergoing work experience.”
What are the duties and responsibilities of a worker under the WHS Act?
Jackson McDonald Partner Greg Smith said a worker’s duty under the WHS Act was to take reasonable care for both themselves and others around them.
“Under the WHS Act, a worker has to take reasonable care for their own health and safety, and reasonable care to not adversely affect the health and safety of other people.”
“This includes complying with reasonable instructions they are given and cooperating with the relevant PCBU – usually their employer – as well as complying with any workplace policies and procedures that apply to health and safety.”
Mr Cleverly said it was crucial workers ensured they fully understood their duty of care obligations under the WHS Act.
“Work health and safety can only be implemented successfully and effectively if all interested parties, including the PCBU, workers and others, are all working in close partnership to actively comply with the requirements,” he said.
Complying with the WHS Act
Mr Smith said for workers to comply with their obligations under the WHS Act, it did not have to be a complicated process.
“In simple terms, workers need to comply with the instructions they have been given about health and safety, including any policies, procedures, training or other information,” he said.
Mr Cleverly said workers should communicate and engage with their employer and PCBU around all workplace work health and safety matters.
“All workers can assist in achieving a high standard of work health and safety compliance in partnership with the PCBU,” he said.
“They should follow safe work procedures, policies and instructions, avoid being reckless in their duties, not intentionally misuse or interfere with substances or processes related to their work.
“Workers should ensure they look after their personal health and safety, ensure they consider their actions and how it can affect the health and safety of others, as well as notify their employer of the possibility or existence of any hazard, risk or health and safety concern relating to them, their task or the workplace and always cooperate with their employer as permissible by law to facilitate the success of WHS.”
Ramifications of non-compliance
Mr Cleverly said fines and penalties had significantly increased for breaches and offences under the WHS Act for workers and were categorised into Industrial Manslaughter, Category 1, Category 2 and Category 3.
“Industrial manslaughter is where the person has a work health and safety duty, breaches that duty knowing that the conduct is likely to cause the death of or serious harm to an individual, acts in disregard of that likelihood and the conduct causes the death of an individual,” Mr Cleverly said.
“The individual penalty for company officers is up to 20 years imprisonment and a $5 million fine, while a PCBU faces a $10 million fine.”
Mr Cleverly said a Category 1 offence was when a person had a work health and safety duty and failed to comply with the duty, which caused the death of an individual.
“An individual who is a PCBU or a company officer faces up to five years imprisonment and a $680,000 fine, while other individuals will be penalised by up to five years imprisonment and a $340,000 fine,” he said.
“The body corporate will have to pay a fine of $3.5 million.
“Category 2 is when an individual has a work health and safety duty, fails to comply with the duty and the failure exposes an individual to a risk of death or injury or harm.
“A person who is a PCBU or a company officer must pay a $350,000 fine, with other individuals paying a $170,000 fine and the organisation paying a $1.8 million fine.”
About Category 3, Mr Cleverly said simply failing to comply with the work, health and safety duty would incur a $120,000 fine for PCBUs and a $55,000 fine for other individuals.
“Failing to comply will also see the company paying a $570,000 fine,” he said.
Who to go to in the workplace
Mr Smith said every organisation will differ in relation to who workers could go to for advice and guidance on the WHS Act.
“In most organisations, workers are directed to go to their immediate supervisors if they have any questions about health and safety but, in reality, in most cases, this means getting instructions from a supervisor about how to perform the work safely,” he said.
“Some organisations will also have a health and safety representative appointed under the WHS Act, who maybe be able to provide information, but this is not there are primary function as well.
“Legally the PCBU is responsible to provide adequate information, training, instruction or supervision to the workers.”
Other articles in the series:
Changing the face of health and safety in Western Australia
WHS Act 2020 - Key terms and definitions
What is a 'person conducting a business or undertaking?
How to prepare for the WHS Act 2020
Mental Health and the WHS Act 2020
Where to from here?
The Managing Workplace Inquiries and Investigations course provides systematic processes for organisations to properly respond to, and minimise workplace incidents.