Human Consequences are the Ultimate WHS Penalty

Weekly WHS Article 25th May 2023

Work Health and Safety compliance is not, for most businesses, “penalty-driven” in reality. [1] The vast majority of businesses in Australia genuinely recognize and appreciate the need for cooperation, consultation, and representation, between management and workers to not only get the work done but ensure that the work environment is free from hazards and risks, so far as is reasonably practicable. [2] [3]

The introduction of the Model WHS Laws in 2011 has really helped improve safety conditions and attitudes across the Australian workforce as a whole. Within the last 10 years especially, many businesses have shown their commitment by requiring their suppliers and vendors to demonstrate their commitment to their own work health and safety as conditions of doing business. ISO 45001:2018 (Occupational Health and Safety Management System) accreditation is a recognized and respected demonstration of that commitment.

Nevertheless, the WHS Act introduces a tiered penalty system for breaches of WHS law and these penalties are aimed at the Person Conducting a Business or Undertaking and Officers of the PCBU for the major offenses, as they have the overarching responsibility to have and operate a robust WHS management system, provide a safe and healthy workplace, and protect staff from physical and mental health hazards and risks.

It is not always that the PCBU (the business) or officers (directors of the business) get fined. In recent times there have been some instances of workers facing penalties for wilfully noncomplying with WHS requirements, despite the best efforts of a PCBU to ensure they do. Workers have WHS duties too and are accountable for their responsibilities and actions.

At the end of the day, no amount of money can ever replace a life lost due to an accident at a workplace. The consequences of serious WHS breaches are human consequences, above all else. This is the ultimate penalty.

It is easy to simply shine the light in the eyes of “the PCBU” in all of this, and it is true that the PCBU has ultimate responsibilities. But, in fact, WHS laws could be said to be built around four foundational principles:

a) there are duty holders

b) duty holders have defined duties which are mandatory.

c) duty holders can be in more than one class of duty holder and therefore can have multiple duties,

d) duties are non-delegable and cannot be transferred or contracted out.

If all duty holders do their part as “reasonably practicable” then it follows that the WHS management system in the workplace will work to protect all staff, as well as all visitors and sub-contractors from outside that need to be at the workplace (see ref 3).

Monetary WHS penalties may be seen as a threat by some businesses, but they are not the main driving force for persons wanting to “do the right thing.” That drive is Human Nature. It is inherent in our species. Most people want to live in harmony, help others where possible, and get on with their own lives. It is not hard to work together cooperatively and positively where the conditions permit and encourage a well-run workplace where management takes health and safety seriously.

References:

Ref 1. Sections 30-34 WHS Act, Penalties & Offences

Ref 2. SafeWork NSW: Work Representation and Participation Guide

Ref 3. Section 18 WHS Act, Reasonably Practicable

25th May 2023

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