By Elisha Radwanowski, B Com (HRM & IR)
Three years on from the introduction of the Work Health and Safety Act in most of Australia several recent cases have tested the application of personal fines for managers with ‘substantial control of workplace practices’ in the area of safety. This weeks HR Highlight will explore the outcomes and implications for manager, owners and financial controllers.
Model WHS Laws
The Model Work Health and Safety Laws have been adopted across most of Australia for over three years now. The WHS Laws were characterised by a more strictly defined level of accountability for managers and those able to exercise substantial levels of control over the business, including owners, directors and financial controllers. This accountability extended past the liability of the business into personal responsibility and the capacity for individuals to be fined for failing to meet personal duties under the Act.
According to ACT Work Safety Commissioner Mark McCabe, the fact that some companies went into liquidation, or “phoenixed”, when a court matter was “hanging over their heads” was one of a number of reasons the officer provisions were added to the WHS Act.
The provisions for personal fines have recently been tested at court and have found to be valid.
While the number of fines handed down to individuals remains low there are several cases that have engaged not just related businesses as third party PCBUs, but also the managers of those businesses as being personally liable for safety outcomes.
What this means for all businesses is that the safety imperative is not just a business concern it is a personal one, all ‘officers’ of a business that have substantive control over outcomes at a workplace have a responsibility to demonstrate due diligence in ensuring workers safety.
This extends past the businesses own employees to all workers that the manager has control over. In the context of a construction site, where multiple businesses interact this relationship and duty is even more obvious. The worker may be employed by another business, but if you as the manager are directing or overseeing their work or the workplace then you are personally liable for their safety, as well as your business being responsible and liable.
Managers should be active in consulting with workers and connected businesses to ensure that risks are well understood, communicated and managed, and then active monitoring and reporting should be undertaken to ensure that controls are actively utilised. Safety is a personal responsibility of the manager, and set and forget is not an option – there is a positive duty to exercise due diligence.
Here to Help
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HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of ACAPMA Workplace Relations Professionals it’s free for members. ACAPMA membership is affordable at only $770 per year for a single site, which represents great value with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Learn more about ACAPMA membership here.