Roundup of the latest WHS developments that will affect your business, from FIA Legal Partner Kingston Reid. These include:
WA Director Jailed for Workplace Fatality
- A small business director has been sentenced to 8 months in prison (plus an additional 18 months suspended sentence) and fined $2,250 after pleading guilty to gross negligence causing a worker’s death.
- This is the longest term of imprisonment issued by a Court for a safety breach in Australia to date.
- His company was also fined $605,000.
- The business had been installing roofing when a roof sheet lifted during strong wind, causing a worker to fall 9 metres and sustain fatal injuries.
- A second worker fell 7 metres and sustained serious injuries.
- The workers weren’t wearing safety harnesses and there were not the required high-risk work licences.
- The director was found to be grossly negligent because he knew there was a risk of a person dying in those circumstances, but the work proceeded anyway.
- This case shows that Courts will issue prison sentences for people not complying with the safety laws where they make or participate in decisions where they know, or should know, there is a foreseeable risk which has not been properly assessed and controlled.
- Everyone on job sites needs to be focused on making sure that they keep themselves and others safe at work.
COVID Vaccination
- What is Happening? The Government roll-out of the COVID-19 vaccinations is underway and many workers and employers alike have questions about how this will affect them in their workplaces.
- What Must Employers Do? The work health and safety laws require employers to eliminate, or if that is not reasonably practicable, minimise the risk of workplace COVID exposure.
- A vaccine may be one way to reduce the risk of viral transmission, but employers should continue to implement other workplace exposure controls where necessary or desirable, including physical distancing and proper cleaning.
- What Does SafeWork Australia say? SafeWork Australia’s position is that is not known if the COVID-19 vaccines will stop a vaccinated person from being infected with the virus and employers should therefore continue to apply other reasonably practicable control measures.
- Is vaccination mandatory? This depends on a range of factors, including whether a public health order requires particular people to be vaccinated. It is mandatory to follow public health orders.
Whether you should ask your workers to be vaccinated as part of a workplace safety management strategy if they are not required to vaccinate under a public health order will depend on the particular circumstances at the time you are undertaking your risk assessment.
Your workers may refuse to be vaccinated, in which case you should seek legal advice on your options and statutory workplace safety responsibilities.
- Can I stop unvaccinated people entering my workplace? WHS laws do not require employers to ask clients and workplace visitors for proof of vaccination before entering a workplace.
You will need to seek advice if you want customers and visitors to be vaccinated as a condition of entry to your premises because there may be good reasons why people can’t be vaccinated and privacy and discrimination issues may apply that curtail your ability to ask people about their vaccination status.
- Can workers refuse to work with unvaccinated coworkers? Workers can refuse to work if they have a reasonable concern about being exposed to health and safety hazard. It follows that whether workers can refuse to work with unvaccinated colleagues (and, by extension, other workplace attendees) will depend on the effectiveness of an employer’s entire COVID control program.
SafeWork says that there is no sufficient evidence about how COVID-19 vaccines impact upon viral transmission and that, therefore, there is no reason why workers who are currently attending workplaces with other people should stop doing so because of the vaccine rollout.
That position may not relate to all workplaces and you should seek advice if you have any questions in relation to it, for example, if you are concerned about workers being (or being exposed to) vulnerable community members.
Digital Digital White Card
- The NSW Government is working to digitise trade licences with the aim of making their use and compliance with the applicable legislation easier for workers and businesses.
- The initial digital general construction induction card is now available via the Service NSW app.
- Card holders will still receive hard copy cards, but can opt to receive digital copies as well.
- In either case, workers must keep their physical cards on them and produce them for inspection if requested, even if their workplace accepts the Digital White Card.
- Digital white cards are handy because they:
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- Enable real-time updates so that workers don’t need to await postal copies of their cards when their details change,
- Work offline and can be viewed whenever you are logged in to the Service NSW app, and
- Are protected by the security features on both your smartphone and the security of the Service NSW app.
NSW Code of Practice: Managing Psychological Hazards at Work
- The Code of Practice: Managing Psychological Hazards at Work has been approved and has now commenced in NSW.
- The Code provides practical guidance on how to better manage psychosocial hazards at work.
- You should remember that in some States and Territories Codes of Practice are admissible in Court which means the Court can regard them as evidence of what is known about a hazards and risks, and the way to control them.
- You should consider the Code as it sets out some of the reasonably practicable steps PCBU’s can take to manage psychological risks.
- Whilst the Code is an approved NSW code only, we expect the other State and Territory safety regulators to expect PCBU’s and employers in their jurisdiction to have regard to the information in the Code.
Free Workplace Safety Courses are Being Offered by SafeWork NSW
- SafeWork NSW is running a free online workshop for construction site supervisors on 30 June 2021 as part of its free safety seminar series.
- The aim is provide an easily accessible resource to help supervisors better manage WHS in the building and construction industry.
- Construction site supervisors have important duties both personally as workers and in implementing their business’ safety management system and could face significant penalties and criminal convictions if they fail to discharge their obligations.
- Attendees may be able to claim continuing professional development points by participating in the seminar and places can be reserved through SafeWork from 18 June.
- Further free courses for site supervisors will occur throughout the year, along with courses on workplace noise and managing manual handling risks.
Erica Elliott
Special Counsel
Kingston Reid
T: +61 2 9169 8409
E: erica.elliott@kingstonreid.com
John Makris
Partner
Kingston Reid
T: +61 2 9169 8407
E: john.makris@kingstonreid.com
