Farm safety and your legal requirements – addressing risk to help the bottom line

Author: | Date: 13 Nov 2014

Penny Brooke, Piper Alderman

Take home messages

  • Understand the rights, obligations and duties under the WHS Act, Regulations and Codes of Practice
  • Review current WHS policies, procedures and risk management strategies and measures
  • Develop and introduce adequate WHS policies and procedures
  • Review WHS policies and procedures on a regular basis
  • If in doubt, get legal advice

National harmonisation

National uniformity of WHS legislative framework compromised of:

>     a model WHS Act

>     model WHS regulations and codes of practice

>     a nationally consistent approach to compliance and enforcement policy

WHS Act and Regulations commenced in South Australia on 1 January 2013

Duties and standards of care

  • Persons conducting a business or undertaking – reasonably practicable
  • Officers – due diligence
  • Workers – reasonable care
  • Others – reasonable care

What is a PCUB

  • Employer’ replaced by person conducting a business or undertaking (PCBU)
  • A PCBU conducts a business or undertaking alone or with others

>     Can operate for profit or not-for-profit

>     Can be a corporation, an association, partners in a partnership or sole trader

Who is an officer?

Officer’ of a corporation means:

>     (a)  a director or secretary of the corporation; or

>     (b)  a person:

–      (i)  who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

–      (ii)  who has the capacity to affect significantly the corporation's financial standing; or

–      (iii)  in accordance with whose instructions or wishes the directors of the corporation are accustomed to act)

Who is a worker?

A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

>     an employee

>     a contractor or subcontractor

>     an employee of a contractor or subcontractor

>     an employee of a labour hire company

>     an apprentice or trainee

>     a student gaining work experience

>     a volunteer

Duties

  • All duties are non-delegable
  • A person can have more than one duty if they fall into more than one class of duty holder
  • More than one person can owe the same duty

>     if more than one person holds the same duty then each person is responsible for discharging that duty to the extent that it is within their capacity or control; and

>     they must consult, cooperate and coordinate their activities with the other duty holders

Does not require that the duty holder is an employer or that the workers in question are employees

Designed to capture a broad range of work relationships and business structures including:

>     contractors, subcontractors and their employees

>     members of the public

>     volunteers

PCBU – duty of care

Must ensure, so far as is reasonably practicable:

>     the health and safety of:

–      workers engaged, or caused to be engaged by the person; and

–      workers whose activities in carrying out work are influenced or directed by the person,

            while the workers are at work in the business or undertaking.

>     that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

Definition of ‘reasonably practicable’

Means what is reasonably able to be done in relation to health and safety taking into account:

>     the likelihood of the hazard or risk occurring

>     the degree of harm that might result

>     whether the person knows or ought reasonably to have known about the risk and ways to eliminate/minimise

>     the availability and sustainability of ways to eliminate/minimise 

>     the cost associated and whether grossly disproportionate to the risk

Officer – duty of care

If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

Definition of ‘due diligence’

Must take reasonable steps:

>     to acquire and keep up to date knowledge of WHS matters

>     to gain an understanding of the operations and the associated risks and hazards

>     to ensure use of appropriate resources and processes to identify risks and then minimise or eliminate those risks

>     to ensure that there are appropriate processes for receiving and considering information about risks, hazards and incidents and responding in a timely manner

>     to ensure that there are processes for complying with the duties and obligations under the Act

Duties of worker

  • Take reasonable care for his or her own health and safety
  • Take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons
  • Comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with the Act
  • Co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers

Other people at the workplace

  • Includes visitors, family members, members of the public and others authorised to enter premises.
  • Duties

>     take reasonable care for his or her own health and safety

>     take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons

>     comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with the Act

Regulations and Codes of Practice

  • The Act provides the framework but the Codes and Regulations are more important on a day to day level:

>     General regulations that apply to all workplaces

>     Industry/work specific

Codes of Practice

  • First Aid in the Workplace
  • Hazardous Manual Tasks
  • How to Manage Work Health and Safety Risks
  • How to Manage and Control Asbestos in the Workplace
  • How to Safely Remove Asbestos
  • Labelling of Workplace Hazardous Chemicals
  • Managing Noise and Preventing Hearing Loss at Work
  • Managing the Risks of Plant in the Workplace
  • Managing Risks of Hazardous Chemicals in the Workplace
  • Managing Electrical Risks in the Workplace
  • Managing the Work Environment and Facilities
  • Preparation of Safety Data Sheets for Hazardous Chemicals
  • Work Health and Safety Consultation Cooperation and Coordination

Not ‘mandatory’ but ignore at your peril

  • Can form the basis of an improvement or a prohibition notice
  • Can be used as evidence about what is known about a risk (what is foreseeable) and known ways of dealing with it (what is reasonably practicable)
  • Need documentary evidence of compliance

Penalties

Categories based on degree of culpability and risk/degree of harm

>     Three main categories of offences with the highest category attracting a maximum penalty of $3 million.

>     No provision for different penalties for second or subsequent offences.

Table 1  : Tables of penalty

Category

Description

Maximum Penalty

Category 1

Reckless conduct-

 

Has failed to comply with duty and by that failure has exposed a person to risk of death or serious injury or illness; and

The person is reckless as to the risk

 

>     Corporation -  maximum penalty of $3 million

>      Sole trader/ partner/ officer – maximum penalty of $600,000 and/or up to 5 years imprisonment

>      Workers and other persons – maximum penalty of $300,000 and/or 5 years imprisonment

Category 2

Failure to comply with a health and safety duty; and

By that failure exposes individual to a risk of death or serious injury or illness.

 

>     Corporation - maximum penalty $1.5 million

>      Sole trader/ partner/ officer – maximum penalty of $300,000

>      Workers and other persons – maximum penalty of $150,000

 

Category 3

Failure to comply with a health and safety duty

 

>     Corporation - maximum penalty $500,000

>      Sole trader/ partner/ officer – maximum penalty of $100,000

>      Workers and other persons – maximum penalty of $50,000

 

Incident management

  • A PCBU has a duty to notify SafeWork SA immediately after becoming aware that a notifiable incident has occurred
  • Notifiable incidents means:

>     the death of a person

>     a serious injury or illness of a person

>     a dangerous incident

Definition of serious injury or illness of a person

Means an injury or illness requiring the person to have—

(a) immediate treatment as an in-patient in a hospital; or

(b) immediate treatment for—

(i) the amputation of any part of his or her body; or

(ii) a serious head injury; or

(iii) a serious eye injury; or

(iv) a serious burn; or

(v) the separation of his or her skin from an underlying tissue (such as degloving or scalping); or

(vi) a spinal injury; or

(vii) the loss of a bodily function; or

(viii) serious lacerations; or

(c) medical treatment within 48 hours of exposure to a substance.

Dangerous incident

Means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person's health or safety emanating from an immediate or imminent exposure to—

(a) an uncontrolled escape, spillage or leakage of a substance; or

(b) an uncontrolled implosion, explosion or fire; or

(c) an uncontrolled escape of gas or steam; or

(d) an uncontrolled escape of a pressurised substance; or

(e) electric shock; or

(f) the fall or release from a height of any plant, substance or thing; or

(g) the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations; or

(h) the collapse or partial collapse of a structure; or

(i) the collapse or failure of an excavation or of any shoring supporting an excavation; or

(j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or

(k) the interruption of the main system of ventilation in an underground excavation or tunnel.

Next steps

Understand the rights, obligations and duties under the WHS Act, Regulations and Codes of Practice

Review current WHS policies, procedures and risk management strategies and measures

Develop and introduce adequate WHS policies and procedures

Review WHS policies and procedures on a regular basis

If in doubt, get legal advice

Useful references

  • WHS Act and Regulations

Codes of practice

>     SafeWork SA – http://www.safework.sa.gov.au

>     SafeWork Australia - http://www.safeworkaustralia.gov.au

Contact details

Penny Brooke

Senior Associate | Piper Alderman

08 8205 3441

08 8205 3300

pbrooke@piperalderman.com.au

www.piperalderman.com.au