The following is for general public information and does not constitute legal advice. This introductory guide is designed to assist business owners, managerial staff and members of the public to this area of law.
Eric Navea was formerly a Principal Solicitor attached to the SafeWork NSW Legal team in Sydney. He was involved in some of the most serious and complex WHS Prosecutions in NSW.
Keeping people safe at work is not only the right thing to do — it is a legal requirement in New South Wales. The Work Health and Safety Act 2011 (NSW) (WHS Act) sets out clear obligations for businesses and individuals to manage workplace risks and protect workers, customers, and the public.
If you run a business, manage staff, or hold a leadership role, understanding the WHS Act is essential to protecting both your people and your organisation. It applies to businesses BIG and small.
What Is the WHS Act 2011 NSW?
The WHS Act is the main law governing workplace health and safety in NSW. It applies to almost every type of business and workplace, from construction sites and transport operations to offices, retail stores, and professional services. Similar legislation operates in other Australian States and Territories.
The WHS Act imposes an overarching legal duty on businesses (its officers and personnel with control or management roles) to ensure, so far as reasonably practicable, the health and safety of workers, customers, members of the general public who interact with your business (even if only briefly). This is often referred to as the Primary duty of Care.
The WHS Act also makes it an offence punishable by law if your business has not taken steps to Eliminate or minimise reasonably foreseeable risks to safety. Serious financial penalties, other court snactions and even imprisonment can be imposed upon a finding of guilt for such an offence.
What happens if my business or I am investigated for a breach of the primary duty of care?
In NSW, allegations of offences against the WHS Act are investigated and prosecuted by Safe Work NSW. Prosecutions for offences against the WHS Act are now commenced in the Industrial Court of NSW. WHS Prosecutions are heard and determined by a Judge of the Industrial Court alone. Litigation in the Courts is often complex and lengthy. Where prosecution has commenced, Defendants could engage in negotiations with the Prosecutor that can appropriately narrow the scope of a defendant’s liability.
Not every SafeWork investigation results in a prosecution. SafeWork NSW is empowered to issue improvement notices or prohibition orders which are designed to give a business an opportunity to rectify issues identified in an investigation. In cases where a prosecution is commenced, defendants may offer to enter into an enforceable undertaking with SafeWork NSW.
Early consultation with a lawyer which in-depth knowlege of such investigations is important. Investigations often involve officers serving compelling notices to provide information and documents. Businesses must comply under pain of prosecution and penalty. Knowing the implications of your responses is important.
How can make sure I am compliant with the WHS Act?
The starting point is to consider the reasonably foreseeable safety risks to your employees and people visiting you business premises. You must find strategies to eliminate those risks entirely. If the risk cannot be eliminated you must minimise the risk. It is always best to document your risk assessment and your strategies of elimination and minimisation and set routine reviews.
There is no small business exemption from this legal obligation. Even self-employed persons must ensure their own health and safety. However, the obligation is to take only reasonably practicable steps. For example, If cost of a safety measure is grossly disproportional to the likelihood of the risk manifesting that would not be reasonably practicable and you could not be liable for an offence if you did not implement that particular measure.
A business should consult with SafeWork NSW or their industry association for any Codes of Practice that have already identified the risks and provide best practice strategies that could be applied.
Case Study:
John’s owns and operates a gym with wall-climbing facilities which he makes available to members of the public who are members of his gym. John has small team of five employees but only two are directly involved with the wall-climbing facilities.
There is an obvious risk that a employee or member of John’s Gym would could become deceased or seriously injuried from a fall from height.
Questions John might ask in a risk assessment might include:
- -- Does the business have the right equipment to eliminate or minimise the risk of falls from height?
- -- Does the business have procedure that ensures the routine inspection of equipment used to prevent falls from height?
- -- Has the business provided training to all its employees?
- -- If a fall does happen does the Business have the right equipment and training for employees to ensure first aid is delivered as soon as practical?
Key Takeaways
- -- Most businesses in NSW (whether large or small) have an overarching duty to ensure, as far as resonably practicable, the health and safety of its workers, customers and general public who interact with the business.
- -- The duty requires elimination or minimisation of risks. The mere failure to do so is an offence prosecuted by SafeWork NSW. A failure that results in serious injury or death can result in significant financial penalties and in rare cases imprisonment.
- -- WHS Prosecutions is complex and lengthy litigation. Early consultation with a lawyer with in-depth knowledge and experience in these matters is important.
