During the Covid-19 crisis, we are seeing many workers now working from home. Employers must consider the legal responsibilities they owe to their employees in these circumstances
National harmonised work health and safety laws are set out in the Model Work Health and Safety Acts operating in New South Wales, Queensland, South Australia, Tasmania, the ACT and the Northern Territory. For the time being, Victoria and Western Australia operate under State legislation outside of the national harmonisation scheme.
The principles outlined in this information sheet are for guidance only and specific responses and advice will vary depending on the particular facts and circumstances, and whether the State or Territory in which you work has adopted the National Harmonised Work Health and Safety Laws or still operates under State legislation (the WHS Legislation). There are, in addition, a large number of health and safety Codes of Practice as well as the Australian Standards.
For specific advice please contact Blueprint Law on+61 2 9300 3100, or reach us through our website: https://www.blueprintlaw.com.au/.
Generally, obligations around ensuring work health and safety will apply to the following business undertakings ("Undertakings"):
Corporations;
Associations;
Partnerships; and
Sole traders.
This includes charities that employ people.
A person conducting an Undertaking must ensure, as far as reasonably practicable, the health and safety of workers it engages or causes to be engaged, and also workers whose activities are influenced by the person or Undertaking. This represents a very broad class of individuals whose WHS must be ensured.
More specifically, the WHS Legislation requires an Undertaking, so far as it is reasonably practicable, to ensure:
The provision and maintenance of a work environment without risks to health and safety
The provision and maintenance of safe plant and structures
The safe handling, use, and storage of plant, structures and substances
The provision of adequate facilities for the welfare at work of workers in carrying out work for the business or Undertaking
The provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or Undertaking,
That the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
By specific reference to the guiding principles above, the WHS Legislation and the implications of the WHS Legislation, the duties of an Undertaking extend, as far as reasonably practicable, to the health and safety of workers working at home.
Each undertaking must do what is reasonably practicable
The duty is to ensure the health and safety of workers by eliminating risks so far as is reasonably practicable. If it is not reasonably practicable to eliminate risks altogether, the obligation is to minimise those risks as far as reasonably practicable. It is necessary to consider the following factors when weighing up what is reasonably practicable:
The likelihood of the hazard or risk occurring
The degree of harm that might arise from the hazard or risk
What the person knows or ought reasonably to know, about the hazard or risk and ways to eliminate or minimise it
The availability of suitable ways to eliminate or minimise risk
When assessing the risk, the relative cost associated with eliminating or minimising risk, including whether the cost is grossly disproportionate to the risk.
On whom does the responsibility and obligation fall?
The obligations and duties under the WHS Legislation include a positive, proactive and continuing obligation on all:
Company directors;
Alternative directors;
De-facto directors;
Company Secretaries;
General Counsel;
CEOs;
CFOs;
Managing Directors; and
any other “Officer” of the relevant Undertaking.
An “Officer” for the purpose of the WHS Legislation is generally anybody of sufficient position, standing, responsibility or seniority within an Undertaking, or as one of its employees, who is in a position to make or influence a decision around WHS.
The overarching obligation of an Officer is to exercise due diligence
Due diligence includes taking reasonable steps to:
Obtain and maintain personal up-to-date knowledge of WHS matters
Gain a personal understanding of the nature of the operations of the Undertaking and the hazards and risks associated with it
Ensure that an Undertaking has, and uses, appropriate resources and processes to minimise or eliminate risk to health and safety whilst workers are working
Ensure that an Undertaking has appropriate processes for receiving and considering information concerning WHS issues, matters and concerns and to be able to respond to those in a timely manner
Ensure that an Undertaking has, and implements, processes for complying with any duty or obligation of a person or Undertaking
Verify the provision and use of the resources and processes referred to above.
The application of the above means that Officers have a personal obligation, which cannot be delegated, or simply left to someone else – even if the Officer is remote from the day-to-day operations of the Undertaking.
Offences and penalties
For non-compliance with WHS Legislation, there are severe penalties and fines, with up to AUD$600,000 in personal fines for an individual and AUD$3,000,000 for bodies corporate.
Individuals, including Officers, can also face criminal prosecution and imprisonment for serious breaches of WHS duties and obligations.
It is therefore strongly recommended that employers ensure that they have fully assessed their responsibilities under the WHS legislation, especially for staff who are working from remote/home locations. Appropriate steps should be taken to minimise relevant risks and demonstrate compliance with the employer's responsibilities.
If you have any questions or need any assistance or advice on WHS obligations, get in touch with us via our website or give us a call on +61 (2) 9300 3100.