Duty of care: it’s for employees too!

Most people know that an employer has a duty of care to ensure the health and safety of workers while they are at work. But did you know employees also have lawful duty of care responsibilities and obligations?

Under work health and safety laws, everyone in the workplace – including workers – has a work health and safety (WHS) duty.

So what’s the definition of a “worker”? A worker is a person who carries out work for a business or undertaking, including work as an employee or:

• contractor
• subcontractor
• self-employed person
• outworker
• apprentice or trainee
• work experience student
• employee of a labour hire company placed with a ‘host employer’

Obligations of a worker

Under the Work Health and Safety Act, workers must:

• take reasonable care for their own health and safety in the workplace
• take reasonable care for the health and safety of others who may be affected by what the worker does or does not do (otherwise known as “acts or omissions”)
• follow any reasonable health and safety instructions from the employer. For example, using equipment properly, following safe work policies and procedures and attending training.

What does worker duty of care look like?

• asking for help when unsure of how to safely perform work
• following instructions and working safely
• reporting hazards, unsafe situations and injuries to the employer.

Duty of care obligations also extend to other persons at the workplace, such as visitors. Other persons must:

• take reasonable care for their own health and safety
• take reasonable care not to adversely affect other people’s health and safety, and
• comply with reasonable health and safety instructions, as far as they are reasonably able.

For example, a customer in a retail store must not behave violently, or abuse or harass staff.

Does WHS law have any teeth when holding workers personally to account?

Employees often ask whether there are any actual penalties for failure to comply with their obligations under WHS laws. There are 3 categories of offences for failing to comply with a health and safety duty under the WHS Act, depending on the degree of seriousness or liability involved.

Category 1: the highest penalty under the WHS Act (aside from instances involving industrial manslaughter) is for a category 1 offence. These are serious breaches where a duty holder recklessly endangers a person to risk of death or serious injury. Offences involving reckless conduct will be prosecuted in the District Court.

Individual (e.g. a worker): up to $300,000/5 years jail.

Category 2: failure to comply with a health and safety duty or electrical safety duty that exposes a person to risk of death, serious injury or illness. Offences will be prosecuted in the Magistrates Court.

Individual (e.g. a worker): up to $150,000.

Category 3: failure to comply with a health and safety duty or electrical safety duty. Offences will be prosecuted in the Magistrates Court.

Individual (e.g. a worker): up to $50,000.

More information?

Safe Work Australia is a national policy body representing the interests of the Commonwealth, states and territories, as well as workers and employers.

WorkSafe Queensland is the official home of information and services for work health and safety and workers’ compensation in Queensland.

Bare Bones Consulting is your one stop shop for help with HR for your business, including WHS policies and procedures. For the typical small business, you may not need a lot for compliance and, once the right documents are in place, you can rest easy knowing your people are safe…and you’re protected. Why not give us a call or shoot us a message through our “Contact Us” portal. Look forward to hearing from you!