Trade unions are lobbying for a national reform to workplace safety laws, to make it more stringent, following the death of a teenage apprentice in a scaffolding collapse in NSW on 1 April 2019. The tragic incident is a stark reminder of the responsibilities employers have to make sure they provide a safe workplace.
“Everyone should come home safe from work, but every week four people are killed in their workplace in Australia” (Mr Liam O’Brien, Assistant Secretary of the Australian Council of Trade Unions (ACTU) – as at February 2019).
Snapshot of the Tragedy
In early April 2019, SafeWork NSW inspectors attended a Macquarie Park worksite following reports that two workers were trapped under collapsed scaffolding. As a result of the scaffolding collapse, an 18-year-old worker died and a 40-year-old worker was air-lifted to hospital in a serious condition.
The cause of the collapse (at the date of writing this article) is not known yet, but the incident has sparked calls for stronger workplace safety laws.
As at 21 March 2019, there have been 30 Australian workers killed at work in 2019.
Duty of Care
Employers have a responsibility for the health and safety of workers in their workplace. This is the employer’s primary duty of care, as set out in the Work Health and Safety Act 2011 (NSW) (WHS Legislation).
Some practical examples of meeting your duty of care include:
- complying with all legal requirements for health and safety;
- implementing health and safety procedures and policies;
- providing health and safety training to workers; and
- investigating hazard reports and eliminating unsafe situations.
Liability of Employers
The WHS Legislation stipulates penalties for health and safety breaches through fines, payment of compensation and other remedies such as a prohibition notice or even potential prosecution.
(a) For a category 1 offence, which is reckless conduct by the employer that leads to a risk of death or serious injury, without reasonable excuse, the maximum penalty for an organisation is $3,000,000, and for an officer is $600,000 and/or 5 years’ imprisonment.
(b) For a category 2 offence, which is conduct by the employer that is not reckless but leads to a risk of death or serious injury or illness, the maximum penalty for an organisation is $1,500,000 and for an officer is $300,000.
(c) For a category 3 offence, which is a breach of one of the general duties placed on the employer under the WHS Legislation, the maximum penalty for an organisation is $500,000 and for an officer is $100,000.
Unions are lobbying for harsher penalties to be introduced nationally, to further deter employers from breaching their health and safety obligations to workers. Mr O’Brien of the ACTU has said, “This should not be happening in Australia in 2019. We need to change the rules, governments need to listen to the people and bring in industrial manslaughter laws now.”
SafeWork NSW have launched a planned blitz targeting scaffolding safety on building worksites. A total of 1,258 breach notices were issued by SafeWork NSW last year in 2018, with over 100 of those breach notices being for breaches of scaffold safety, resulting in $265,000 worth of on-the-spot fines. SafeWork NSW Inspectors, as a result of the recent tragedy, will no doubt continue to request access to worksites across NSW to ensure that employers are complying with creating and maintaining a safe workplace for workers.
Take Away Message
It is a timely reminder for employers to ensure they have an up-to-date and compliant health and safety policy in place, with sufficient training being provided to workers.
If your business requires a review of its health and safety policies and procedures, or you would like tailored advice regarding your business’ needs, please contact Grant Butterfield or Simon Kumar on 02 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.