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Health and safety legislation are designed to decrease the risk of accidents and fatalities in the workplace. When employees fail to follow these regulations, it is often due to the failure of the employer to provide a safe working environment or proper training.
The Workplace Health and Safety (WHS) legislation does not cover penalties for employees who do not comply with safety regulations. In most cases involving a safety violation, the employer takes responsibility. However, there are exceptions, such as acts of gross misconduct.
Most people do not fully understand the potential consequences if an employee does not comply with health and safety regulations. The following information should help clear up any confusion.
Why Do Breaches Happen?
Most breaches are the result of a lack of training or inadequate safety measures in the workplace. Compliance is the employer’s responsibility. The employer must ensure that employees have the necessary skills, knowledge, and resources for dealing with potential hazards and risks.
According to section 25 of the Work Health and Safety Act, employees must take reasonable care for their own safety and, of course, the safety of others. They must also cooperate with the employer to comply with any requirements of the OHS Act.
Section 21 of the WHS Act details the duties of employers. Employers must maintain a safe work environment that is without health risks, as far as reasonably practicable. This typically requires the employer to:
- Provide access to safe machinery and tools
- Ensure that employees can handle and transport materials without health risks
- Provide access to adequate facilities, such as washrooms and first aid
- Provide access to training and safety information so that they can work safely
To ensure that they comply with safety regulations, employers are also required to monitor the health of the employees and the conditions of the workplace. Employers must also allow employees to select a health and safety representative (HSR). The HSR has the right to issue a prohibition notice when they detect safety violations.
When employers fail to uphold their duties, employees are more likely to breach health and safety regulations. For example, if an employee does not have the right training or equipment for removing asbestos, they are more likely to violate safety regulations related to asbestos removal.
In most situations, the employer is the one that may face consequences of non-compliance with health and safety. However, if an employee intentionally fails to comply with regulations despite having adequate equipment and training, the employer has the right to follow dismissal procedures.
What Are the Categories of Offences?
The Workplace Health and Safety (WHS) Act created four categories of offences for breaches of the work health and safety legislation:
- Industrial manslaughter
- Category 1
- Category 2
- Category 3
Industrial manslaughter is the highest category of offence. It occurs when the negligence of the employer or senior officers results in the death of a worker. The maximum penalty for an individual is 20 years imprisonment. The maximum penalty for a corporate body is $10 million.
A Category 1 offence is a serious breach involving reckless behaviour that creates the risk of death or serious injury. Penalties for Category 1 offences include fines up to $3 million for corporate bodies, $600,000 for PCBUs, and $300,000 for individuals. PCBUs, senior officers, and individuals may also face up to five years imprisonment.
A Category 2 offence is defined as the failure of an individual to comply with their health and safety duties resulting in the risk of death or serious injury. PCBUs may face fines up to $300,000 and employees may receive fines up to $150,000.
A Category 3 offence is the failure to comply with a safety duty when the violation does not create the risk of death or serious injury. Individuals may face fines up to $50,000, PCBUs may be fined up to $100,000, and corporate bodies may be fined up to $500,000. However, minor offences may simply result in spot fines with smaller penalties.
Along with the penalties listed, the Court may also order the employer to follow a “Health and Safety Undertaking.” The enforceable undertaking may last for up to two years and requires the employer to avoid any further safety breaches.
What Is the Right Course of Action?
When an employee fails to comply with safety legislation or codes of practice, the employer should begin an investigation into the violation. If the investigation determines that the violation was due to a breach on the employer’s part, the employer should take corrective disciplinary action to prevent the safety breach from reoccurring.
If the internal investigation finds that the employee is at fault, the employer typically issues a written warning or a provisional improvement notice (PIN). Employees must be given the chance to correct their behaviour, as with dealing with an employee that is frequently late.
Multiple warnings may result in the dismissal of the employee. After giving the employee a chance to correct their behaviour, the employer may choose to dismiss the employee to prevent any further breaches of health regulations. However, maintaining a record of warnings for past violations is necessary when dismissing an employee, as they may file a claim of unfair dismissal with the Fair Work Commission (FWC).
How Can Courses Help?
Training courses can help employers reduce the occurrence of breaches of health and safety at work. When employees understand the correct procedures for dealing with various hazards and risks, they are less likely to violate safety regulations.
In Australia, employees may receive industry-standard training through registered training organisations (RTOs), such as AlertForce. Completing a training program provides employees with the skills and knowledge needed for maintaining safe work conditions.
AlertForce offers training courses for every industry. Asbestos awareness, fatigue management, confined space, working at heights, and white card training are just a few of the available courses.
In the end, employers are ultimately responsible for the safety of their workers and work sites. Every employee should receive access to the necessary equipment and training to manage health and safety hazards.
When a serious breach occurs, the employer may face consequences, including monetary penalties. This creates an incentive for employers to comply with all applicable health and safety laws.
It is up to the employer to determine whether the employee should be dismissed for non-compliance. However, if the employee brazenly commits gross misconduct, such as fighting or stealing, immediate dismissal is often the recommended course of action.
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