BEING in the workplace health and safety industry for many years, I’ve found that the vast majority of small to medium enterprises do not properly comply with workplace health and safety regulations, and many don’t understand the scale of the risks they are taking.

That’s why I’ve prepared these tips below, and in the last issue of Safety First (November 2007), as a no-nonsense approach to advising people throughout the country of their responsibilities and the dangers to workplace health and safety issues.

Workplace accidents kill and injure more Australians every year than are harmed on the road and authorities and the courts have become serious about enforcement and penalties.

1. Product Awareness

It has become essential for employers to remain aware of what personal protection products have entered the market.

The recent death of a worker whose box cutter severed his femoral artery was arguably preventable, given the evolution of cutters that make this kind of accident virtually impossible.

For decades, the use of box cutters has been considered a necessary risk, so the employer might not have been aware of safety advances. However, this excuse will hold little water in a court of law.

2. Industrial Homicide

Workplace accidents kill, maim and injure more Australians than roads accidents do – and that data is based only on those job injuries that are reported.

Authorities have become serious about the human and financial costs of these workplace incidents. Already several states have prosecutions in progress that might end up being deemed as Industrial Homicide, with lengthy jail terms and fines as an outcome.

A death at your workplace will directly affect management and directors. ‘It wasn’t my fault’ is not the issue; ‘Did you do enough to prevent it?’ is.

3. How Much Will You Pay?

If there is an accident or emotional issue in your workplace you can take it as a given that it is going to cost you; the question is, how much?

Under Duty of Care provisions, how much you pay will depend on your ability to prove how much you ‘cared’, which is a very grey area under common law.

However, you must now also consider Statute Law which means that you either did something required by the letter of the law or you didn’t.

If you are found guilty under Statute Law, you are automatically guilty under Common Law, which opens the way for a civil suit in a big way.

You might have sought the best workplace health and safety advice, documented your systems, provided effective personal protection equipment and ensured that everyone in your business is clear on workplace practices – but what happens if employees ignore the rules?

Many managers believe that once they have done the obvious yards they are in the clear. But in the eyes of the law it’s not enough. You are also responsible for making sure it happens.

Whenever an accident happens, you are going to pay. The question is how much, and the better you can show how well you have foreseen the possibility of a workplace drama and guarded against it, the less you will pay.

4. Employee Negligence

While ‘employee negligence’ can be a mitigating factor, you can just about forget the legal weight of saying that your employees actively contributed to their accidents, illnesses or emotional disruption.

Say an employee flouted your safety procedures, refused to read and absorb your safety documentation, did not use their company-supplied personal protection equipment, worked while alcohol or drug affected, initiated an office affair that turned sour- - don’t think you’ll be able to blame your employees.

Vicarious liability, under Common Law, states that you, the company director, are responsible for the correct selection of competent staff for the primary purpose of placing no worker at risk.

5. Solo Tradespeople

Solo tradies are responsible for assessment and documentation of their own safety issues, the safety of those working around them, and protection of the environment.

A Job Safety Analysis (JSA) is the latest document of choice. An average solo plumber requires around a dozen pages of close typed documentation setting out Australian standards, codes of practice, relevant legislation, the licensing requirements of any subcontractors and a host of checks, procedures, ‘what ifs’, and remedial actions in the event of a problem. Failure to have this can result in fines, legal penalties and can even void insurance.

He or she should not even think about digging a hole without making a drawing first and having someone licensed to shore it.

6. Overprotected Hearing

Be careful not to ‘overprotect’ staff with hearing protection.

It is no good spending big money on highly effective gear if a worker can’t hear a reversing forklift, an alarm, or a shouted warning.

Personal protection equipment must be tailored to the individual circumstances of the workplace and every workplace is different.

By overcompensating for one danger you can end up creating a substantially bigger threat. You might argue in court that you ‘cared’ enough to get the best—but what counts is that you did not care enough to conduct an adequate threat assessment in the first place.

7 Emotional Welfare

Employers are not only responsible for the physical safety of workers, but also their emotional wellbeing.

Bullying by management personnel, other employees and external parties are out of the question. Demands outside documented job descriptions e.g. compulsory overtime, uncertainty of tenure, vulgarity of language, sexual innuendo and attention and even over-promotion are out.

Employment of a middle-manager who makes staff members’ performance or happiness suffer is regarded as negligent.

If someone’s job description doesn’t include cleaning up after themselves in the kitchen then they cannot be chastised for leaving a mess. ‘Safety’ now includes emotional welfare.

8. Job Descriptions and Inductions

When you hire someone to work for you, whether you are a sole trader or a small to medium enterprise, by law you become responsible for their welfare.

That doesn’t just mean keeping them physically safe and paying acceptable money; it also means keeping them emotionally stable, confident and satisfied. If they become upset at work it is your problem.

Simple example: you hire a young female salesperson who can’t help being very attractive, while you have a basic ‘tradies’ market and she is exposed to a bit of ‘harmless’ sass.

Some employees will enjoy it and play up to the banter while feeling completely safe, while others will find it offensive, demeaning and threatening.

You cannot have your staff regularly upset by anyone, whether in-house or external. And if it happens, you need formal systems in place to deal with it. This is a somewhat hidden side of workplace health and safety and there are several solutions:

• Anticipate and document the process of response and recourse before the event occurs.

• Make it clear what kind of management, customer and worker behaviour is not acceptable to your company or business. If you don’t want your blokes at the pub at Friday lunchtime you will need to be up front about it. If your staff are expected to play a role in keeping the pantry clean this will need to be documented.

• Be as specific as you can with written job descriptions. Think it right through. Just adding, “And other duties as required” is not specific enough.

• Outlaw sexual innuendo; this is potentially serious. No rude jokes or obscene language, risqué emails from anyone, or unwanted attention.

• Be available to intervene and counsel within pre-established guidelines.

• Be aware of gay rights. Neither you, nor anyone else in the workplace can show any hint of discrimination related to sexual orientation, and particularly in ‘blokey’ workplaces, this can be a problem for which you will have to take the rap.

• Check the work history of your potential employees carefully. While it is very reasonable to object to harassment, real or perceived, some people have a record of making mountains out of molehills and even using the system for gain.

• Do not doubt for a moment that some workers with the best of intentions do suffer immensely from bullying, crudeness and uncertainty in the workplace.

Inductions must be done professionally on day one or you are at risk for the entire term of that person’s employment and probably beyond.

Policies, career paths, assessment processes, line of command, fire safety, rights, responsibilities, first aid, complaint procedures and so on must be conveyed and documented and signed off by employees as completely understood.

9. Outdoor Environmental Stresses

Two out of three Australians will develop some form of skin cancer during their lifetime.

If your employees’ roles expose them to the sun, then you must educate them, specify or provide them with suitable clothing and make an effective sun-screen lotion available at work.

You must also use every endeavour to make sure they follow your guidelines. Unfortunately, this is the old ‘you can lead a horse to water’ thing. It can be difficult to make a person take even the most basic steps to protect his or her safety.

In these situations you need a paper trail to protect yourself. This might include posters in the workplace, for example, Cancer Council material and customised reminders, occasional memos, dashboard stickers, even a daily UV index whiteboard, and, if you become aware of non-compliance, individual counselling in writing.

Same in general goes for sunglasses. Your employee might wish to wear favourite personal gear but if it doesn’t meet the right specifications, you will be liable for any resulting eye damage.

Insect repellents are another issue. In areas where insect-borne disease could be contracted (eg Ross River, Dengue) employees must be provided with an adequate supply of suitable repellent. While you can argue that any disease could have been contracted outside working hours, how do you prove it?

Outdoor employees may be subjected to heat stress. This not only has consequences such as long term effect on the kidneys, it can also induce mental confusion with impaired decision making ability (often called sunstroke) which can place machinery operators, including motor vehicle drivers, at considerable risk. Once again, preventative measures include education, easy access to drinking water, and possibly electrolytic beverages.

Make note of the employee that has a few beers each night, drinks coffee and other caffeine drinks next day instead of water, is fatigued at the end of a 12 hour shift and has been subjected to considerable noise. This employee could have the same reactions as a drunken driver due to fatigue and dehydration. Should that person be driving a 150t earthmover?

Just going outside involves risk, and employers are obliged to minimise it.

10. Safety in Franchising

If you are a member of a franchise network, insist on thorough Workplace Health and Safety documentation from the franchisor, and put its systems into practice. In any business as systemised as franchising is, WHS should be an essential element of your operations manual.

Remember, this is also in the franchisor’s best interests, because if you cannot pay massive accident damages yourself, the lawyers will next be knocking on his or her door.

Franchisors who sign up a head office staff member or a franchisee that causes disruption or dissatisfaction to the network are now regarded as negligent.

Franchisors that do not provide franchisees with full documentation, adequate training and perpetual updates regarding Workplace Health and Safety Issues are also considered negligent.

Moreover, any WHS related action taken against a franchisee is very likely to go up the line to the franchisor. Remember, it’s not only about who should pay; it is also about who has the capacity to pay.

* Gary Shearer, MD and founder of SafetyQuip – franchised supplier of workplace safety products and services. For information and franchised business enquiries visit www.safetyquip.com.au, or call 07 5455 3822.