Posts: Work Health and Safety

In her usual entertaining and informative style, our Managing Director and Principal, Athena Koelmeyer, will guide employers through the tangled web of legislative obligations they face when dealing with an ill or injured employee.

In a recent decision of the NSW District Court, a sole trader has been convicted and fined $100,000 for breaching his health and safety duty under the Work Health and Safety Act 2011 (Cth), which resulted in workers being exposed to a risk of death or serious injury.

On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.

Earlier this month, SafeWork NSW announced a three-year work health and safety strategy focusing on psychological health and safety.

Under work health and safety legislation, persons conducting a business or undertaking have duties to ensure, so far as reasonably practicable the health and safety of workers in the workplace. It is also accepted that workplace bullying is a risk to health and safety of workers which needs to be managed as any other health and safety risk.

Work from home arrangements have become the “new normal” across many workplaces since the COVID-19 pandemic.

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks arise from psychosocial hazards including conflict or poor workplace relationships.

Differences in opinion, dysfunctional relationships and disagreements between employees may occur from time to time in the workplace. Generally, these instances of workplace conflict do not amount to bullying behaviour, which is defined as repeated, unreasonable behaviour causing a risk to health and safety.

During the COVID-19 pandemic in Australia, many Government issued public health orders mandated that persons who had contracted and / or were exposed to COVID-19 were to self-isolate for a period of time.

When setting a penalty for breaches of work health and safety obligations, the Courts will look at the need for specific deterrence against the offender and also the need for general deterrence for employers and the particular industry.

Persons conducting a business or undertaking (PCBUs) have a range of positive duties and obligations to ensure the health and safety of workers under the model work health and safety laws in Australia.

Enjoying the company of your colleagues is something most people hope to find in the workplace. It can make work much more enjoyable and lead to lasting friendships. However, fun in the workplace can cross a line when it takes the form of dangerous skylarking or roughhousing.

Workplace fatalities are tragic and devastating events. In order to reflect the seriousness of these incidents, some jurisdictions across Australia have amended their work health and safety laws to establish the offence of industrial manslaughter, where the negligent conduct by a person conducting a business or undertaking or officers causes the death of a worker.

The commencement of a disciplinary process against an employee is not an insignificant matter. It serves to notify an employee that their employer has serious concerns about their employment; whether that is the standard of the employee’s performance, their conduct or their behaviour.

Employers' duty of care for employees, duty of care and contributory negligence, workers compensation and working from home, multiple roles and overtime, general protections and reason for adverse action.

A NSW scaffolding business has been convicted and fined after it pleaded guilty to an offence under the Work Health and Safety Act 2011 (NSW) (WHS Act) (SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442).

There have been a number of prosecutions this year that have resulted in workplace bullies being found to have breached their duties under State and Territory work health and safety legislation

Australians love sport – whether that is playing, watching on television, hosting match-day barbecues or attending live sporting events. Understandably, sport ignites a significant degree of passion and excitement for everyone involved, including spectators.

Employee conduct and codes of conduct, employers’ liability and employee out-of-hours conduct, employer in breach of privacy laws, redundancies and suitable alternative employment, workplace bullying and disciplinary action

In the lead up to our webinar titled “Hold the Line! – Restraints & Employment Contracts” on 28 August 2019, we wanted to share some of the main discussion points and prominent cases on the topic of restraints of trade.

Work health and safety legislation aims to provide protections for workers and other persons by eliminating or minimising risks to health and safety.

Racial abuse from fans and/or members certainly falls foul of discrimination laws and can lead to significant questions being asked of clubs and organisations about what steps they took or could have reasonably taken to prevent players from being subject to such behaviour.

The model Work Health and Safety Act (Model Act) imposes a duty on officers to exercise due diligence to ensure that the person conducting a business or undertaking (PCBU) complies with safety duties.

In response to an application to stop bullying, the Fair Work Commission (FWC) has the power to make any orders it thinks necessary to prevent workplace bullying from continuing.

According to the Fair Work Commission’s (FWC’s) most recent annual report, unfair dismissal applications are by far the most common type of application lodged with the FWC.

Under workers compensation legislation, the “reasonable action” defence is one often relied upon by insurers against claims of work-related psychological injury.

The matter involved a history or unacceptable conduct by an employee that resulted in the termination of his employment.

A recent decision from the District Court of New South Wales has highlighted the importance of a host employer’s duty of care to any labour-hire worker it engages where the work directions and conditions are within the host employer’s knowledge and control.

Conviction under work health and safety legalisation can result in significant fines and/or imprisonment.

A workplace incident involving a worker struck by a forklift has demonstrated the importance of having documented systems of work and induction processes in place that are accessible for all workers.

Casual Employment, Supply Chain, Contracts, Gig Economy, Restraints of Trade, Enterprise Agreements, Work Health & Safety.

Under workers compensation legislation, an employer will only be liable for an injury if that injury arises out of or in the course of the worker’s employment.

We all have different hobbies, activities or interests we want to share with our friends and colleagues. However, not all interests are appropriate for the workplace.

Pets are widely understood to have the effect of improving an individual’s mood and reducing levels of stress and anxiety, sentiments that are invaluable in a workplace.

The tragic death of a 19 year old college football player in the USA serves as a reminder to sporting organisations at all levels about the duty of care owed to their players.

Under the Fair Work Act, employees are entitled to take protected industrial action in circumstances where they are bargaining for a new enterprise agreement.

The NSW District Court convicted a person conducting a business or undertaking (PCBU) of failing to comply with a health and safety duty after a worker died following a fall from a ladder

In yet another decision resulting from a tragic workplace safety incident, an employer has been fined $375,000 after one of its workers was fatally crushed by a turf harvester.

One of the fundamental principles of the employment relationship is the work-wages bargain – an employer pays an employee wages in exchange for work performed.

One of the National Rugby League’s (NRL’s) leading referees to retire at the end of the 2018 season has (again) prompted discussion about the obligations of employers when managing mental health in the workplace.

Small businesses have a litany of rules, regulations and red tape they are required to comply with, including registration and tax compliance, employee minimum entitlements, fair trading, work health and safety and privacy obligations.

ACT Court of Appeal has dismissed an appeal by Coles Supermarkets and confirmed an earlier decision in which a Coles employee was awarded more than $1 million in damages.

Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes.

Disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present.

Employers should be mindful that employees have a responsibility for health and safety within the workplace and are entitled to (and should be encouraged to) raise health and safety matters.

Codes set out the minimum standards to meet work health and safety requirements and are admissible in WHS prosecutions. Guides and Australian Standards will also be relevant safety material that employers should consider when creating safety documentation.

Employees who are experiencing fatigue pose a work health safety risk to themselves and to others in the workplace.

The rate of men growing their beards is increasing all thanks to the current hipster trend. Beards may be non-controversial in some working environment and not permitted in others. When confronted with a growing trend towards facial hair, employers requiring a clean shaven look may be challenged as to the reasonableness (or otherwise) of their appearance requirements for employees.

Last year the Essendon Football Club was charged with breaches of the Victorian Occupational Health and Safety Act 2004 in relation to the Club’s controversial supplements program by WorkSafe Victoria.

As the weather heats up across Australia, employers may be thinking about the possible adverse effects of heat on employees. While the Fair Work Act 2009 does not specifically address the question of working in heat, some Modern Awards and Enterprise Agreements do.

Commissioner Peter Hampton of the Fair Work Commission (FWC) has provided some clarity as to whether a volunteer can apply for a stop bullying order in his decision in the matter of Gaylene May McDonald [2016] FWC 300 (McDonald Case).

During the recruitment process, employers want to present their best side to prospective employees in order to entice top talent to join them. Employers can potentially expose themselves to litigation for representations made or made on their behalf that are misleading and deceptive and later relied upon by prospective employees in the recruitment process.

Every year, employers expend time and money planning, developing and implementing learning and development programs for the year ahead. Indeed, the development of a corporate training calendar is one of the most important human resource functions in any organisation.

Under work health and safety legislation, persons conducting a business or undertaking (PCBU) have a “primary duty of care” to ensure (so far as is reasonably practicable) the health and safety of workers and others in the workplace. What is “reasonably practicable” will involve a risk management approach where hazards or risks are identified, assessed and then controlled. A control measure for risks that cannot be eliminated may include implementing a safe work method statement (SWMS) for the performance of the work.

Just like other risks to health and safety in the workplace, a person conducting a business and undertaking (PCBU) must take steps to eliminate or minimise the risk of bullying.

It’s true that many safety breaches in the workplace are the result of momentary lapses in judgement, however employees who are recklessly indifferent to their health and safety obligations will not always be saved by arguing this point.

It’s been said many times before, but we simply can’t understate the importance of employers enforcing health and safety policies and procedures in the workplace, including incident management procedures. These policies and procedures can save lives and limbs and allow employers to investigate incidents to prevent future occurrences.

In our last instalment of our three part blog series we will focus on the most extreme form of enforcement under the Model Work Health and Safety Act, prosecutions.

In part one of our three part series we discussed improvement and prohibition notices under the Model Work Health and Safety Act. In this second part we will focus on enforceable (or WHS) undertakings.

Under the Model Work Health and Safety Act (WHS Act), the work health and safety regulator in each State and Territory is responsible for compliance and enforcement of the WHS Act. Some of the ways the regulator seeks to secure compliance includes prosecution, improvement, prohibition and penalty notices and enforceable undertakings. In this blog, we will focus on improvement and prohibition notices.

Organisations have obligations to ensure the health and safety of their employees. One way for organisations to manage the risks is by making use of pre-employment medicals (PEMs).

The implementation and delivery of a work health and safety (WHS) induction program is an important part of the development of a positive workplace health and safety culture for an organisation.

You have spent time, money and resources to hire the best candidate for the job and you cannot wait for them to get into their role. Before they start, your new worker needs to be trained, especially in workplace health and safety (WHS).

Employers should not underestimate the importance of investing in workplace health and safety, including training for employees as well as ensuring that new hires or those promoted are qualified to perform the tasks of their new role.

Mobile phone use during work hours can cause an unwanted distraction. Other times, the use of mobile phones may be restricted due to safety reasons.

A site operator has been ordered to share the damages bill with a negligent worker and subcontractor employer after the ACT Supreme Court found that the site operator’s safety rules and practices were deficient.

The media has extensively reported on the tragic events at Dreamworld. Whilst this event was shocking, it serves as a reminder that everyone within a business has a role to play when it comes to complying with work health and safety (WHS) laws.

In June this year, a Victorian textiles company was fined $7,000 for breaching work health and safety laws when a subcontractor truck driver was floored by a 185kg bale of wool. In an appeal of that decision earlier this month, the County Court of Victoria increased the penalty to $50,000 when the Office of Public Prosecutions successfully argued that the $7,000 fine was inadequate.

Since the tragic events of October this year, Queensland theme park Dreamworld has come under intense scrutiny from the public, the media and a range of investigative bodies. The park gates have remained closed to guests over recent weeks while investigations and audits of the park’s facilities and processes have been conducted.