by Anna Richards
The main legislation which governs what duties employers owe and what duties contractors and employees owe in relation to workplace safety is set out in the Work Health and Safety Act 2011 (Commonwealth) (referred to as “the Act” in this article).
Purpose of the Act
One of the main purposes of the Act is obviously to eliminate as far as possible, and otherwise to minimise as far as possible, risks to anyone who is present at a workplace.
Definition of “Workplace”
What exactly is the definition of a “workplace” you might ask. The definition is wide ranging and refers to virtually any place where work is carried out for a business and includes any place where a worker goes or is likely to be whilst at work. It even includes a vehicle, vessel, aircraft or other mobile structure, amongst other things.
The point of outlining this rather vast definition of “workplace” is due to the fact that security services can cross into virtually any location on this earth, as opposed to a number of other industries where the workplace is often confined to an office. This very broad application of the meaning of “workplace” means that security industry personnel are exposed to far wider duties in so far as their duties will require them to contemplate all of the different workplace locations that might be relevant to their business.
For instance, if you were to employ security guards to assist in a waterfront dispute, then the workplace may be a wharf or dock or even a ship – it could be as far reaching as your personnel decide to venture in the execution of their duties, providing they have not gone against your instructions.
Definition of a “Worker”
One of the classes of people to which certain duties of care are owed are “workers”. Who is a “worker”? The Act once again defines “workers” very broadly. The definition includes an employee, a contractor or subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company who has been assigned to work in the business, an outworker, an apprentice or trainee, even a student gaining work experience and a volunteer, amongst others.
What is a Duty of Care?
Duty of care refers to the duties a person owes another person and which, if breached, may expose the person who owes the duty to certain repercussions, such as being fined, being found guilty of an offence and/or being liable to pay for compensation for any loss or damage suffered by the person to whom the duty was owed.
What are the Main Duties of Care?
Definition Of The Duty To Manage Risks
There is a general duty of care imposed on persons to ensure health and safety. The Act states that a duty imposed on a person to ensure health and safety requires the person:
1. to eliminate risks to health and safety, so far as is reasonably practicable; and
2. if it is not practicable to eliminate those risks, to minimise those risks so far as reasonably practicable.
Definition of Reasonably Practicable
It is common and reasonable for people to ask what does “reasonably practicable” mean. The Act defines it as what was reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including the following:
The relevant matters
the likelihood of the hazard or the risk concerned occurring;
the degree of harm that might result from the hazard or risk;
what the person concerned knows, or ought reasonably to know, about:
3.1 the hazard of the risk; and
3.2 ways of eliminating the risk or minimising the risk; and
the availability and suitability of ways to eliminate or minimise the risk; and
after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
So, what does all of this mean for you? It means that you are required to assess what risks workers and others may be exposed to at a workplace and to take reasonable steps to prevent them occurring, as far as is reasonably possible.
If you don’t have enough knowledge of the areas concerned which may pose such risks, then you should engage a person or body to provide an assessment of the risks and any strategies for managing them.
As an example, if you required security personnel to ensure that unauthorised people do not enter a building, you would clearly not be required to provide those security staff with an armoured vehicle to travel to and from work! Obviously, the cost of doing so would be prohibitive in view of the small risk of them being shot at! The test is one of ‘reasonableness’.
To assist in warding off any claims that you might have breached this duty, you should make enquiries of those people with knowledge (conduct due diligence) in your specific area of concern (if you are not an expert). Further, you should keep hard copy records of any research you have undertaken. You should also record in writing your justification for your belief that any training and or equipment you have provided to your personnel is adequate to eliminate or at least minimise any risk to their safety and health or the safety and health of others.
Primary Duty of Care
The primary duty of care is that a person conducting a business must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged, by the person and workers whose activities in carrying out work, are influenced or directed by the person while the workers are at work in the business. (Say that three times quickly.)
Also, the person must extend this duty to other persons. What does this mean? Put simply, it means that if you have employed or contracted a worker to work at a workplace, then you must take care to not expose anyone else who might be present at that workplace (even if he or she is not a “worker”) to any such risk to his or her safety or health.
For instance, if you engage contractors to provide security services to a bank, then you must take steps to train and equip the contractor to minimise or eliminate him or his actions (for instance, directing others) from harming the safety and health of anyone present at the bank. An example might be where a security officer is required to carry a firearm but his employer has failed to provide adequate, or any, training. That security then discharges a firearm into a crowd in order to stop an intruder but ends up injuring an occupant of the bank.
This duty goes even beyond what is outlined above. It also requires a person conducting a business to do the following:
- provide and maintain a work environment without risks to health and safety;
- provide and maintain safe plant and equipment;
- provide and maintain safe systems of work;
- ensure the safe use, handling and storage of plant, structures and substances;
- provide adequate facilities for the welfare at work of workers in carrying out work for the business, including ensuring access to such facilities;
- provide any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the business; and
- ensure that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury to workers arising from the conduct of the business.
In essence, this means that those people engaging others must consider the risks; take action to minimise or eliminate those risks; and constantly review the situation. In these days of fast evolving technology, it is imperative to continue to review whether you are providing a safe workplace. To protect yourself, you should keep hard copy records of all steps that you take to do so as well as copies of all manuals, policies, means of education and strategies that you employ to minimise or eradicate such risks, including the times and dates that you have done so. These pieces of evidence can obviously be used to assist you with establishing that you did in fact discharge your duty of care.
Duties Owed by Workers
Luckily, it is not all a one-way street. Workers also have to take care in any action that they take whilst being engaged in work for a business.
The Act requires that whilst at work, a worker must:
- take reasonable care for his or her own health and safety; and
- take reasonable care that his or her acts or omissions (failing to do something) do not adversely affect the health and safety of other persons; and
- comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business to allow the person to comply with the Act; and
- co-operate with any reasonable policy or procedure of the person conducting the business relating to health and safety at the workplace that has been notified to workers.
In summary, everyone is required to take care. The best course of action is “overkill” in so far as it is better to be seen as having overdone the creation of procedures and policies and providing equipment that minimises or eliminates risks to health and safety. However, it is often prohibitive from a cost position to do so. The next best step is to take action that you believe, within your reasonable capabilities, discharges your duties taking into account the factors referred to under the sub heading “The relevant matters” under the heading “The definition of reasonably practicable” in this article. You should also keep very clear and legible hard copy records of all the ways in which you have discharged your duties including keeping all manuals, policies as well as any covering emails or letters under which they were sent to workers. Further, you should keep written or hard copy notes of any discussions that you have had with workers on issues relating to health and safety, including the dates that the notes were taken and full details of who else was present as a witness at the time that you provided the information. All of these pieces of evidence will help to establish whether or not you discharged your duty of care in regard to health and safety.
Anna Richards is the Legal Director and principal lawyer from Victorian Legal Solutions Pty Ltd and practices in the areas of Commercial law including Commercial litigation and other areas. Anna Richards and Victorian Legal Solutions can be contacted on (03) 9872 4381 or 0419 229 142.
Whilst every effort has been taken to ensure its accuracy, the information contained in this article is intended to be used as a general guide only and should not be interpreted to take as being specific advice, legal or otherwise. The reader should seek professional advice from a suitably qualified practitioner before relying upon any of the information contained herein. This article and the opinions contained in it represent the opinions of the author and do not necessarily represent the views or opinions of Interactive Media Solutions Pty Ltd or any advertiser or other contributor to Security Solutions Magazine.