Even Local Government can be fined for WHS breaches

Work Health and Safety Laws in the Public Sector

With recent legal updates to Work, Health and Safety (WHS) laws, employers in all sectors are reminded of their duty to promote a safe workplace for employees, contractors and volunteers.

Safe Work laws apply equally to public and private sectors.

The case of SafeWork NSW v Camden Council, heard in the NSW District Court in December 2021, emphasises the importance of compliance for WHS laws in local councils.

This case concerned the death and injury of volunteers at ‘The Men’s Shed’, which was under the control of the Camden Local Council. The Men’s Shed is a volunteer organisation located in Camden Bicentennial Equestrian Park, where volunteers assist with maintenance work for Camden Council. In 2018, two volunteers were working laying water pipes without the supervision of any Council employees — one was struck with a pipe and died, and the other sustained grazes on his hand and elbow. The Council pled guilty for failing to comply with their health and safety duty under the Work Health and Safety Act 2011 (NSW).

Three years prior, the Council had commissioned an independent risk assessment of The Men’s Shed, which raised multiple safety issues for volunteers. A year later, the Council’s internal team audited the location and advised against the use of volunteers in some operations. Despite this, during the 2018 waterworks project, there was no one who ensured WHS requirements were followed, nor was a risk assessment conducted.

The court found the Council failed to take reasonably practicable measures to ensure the health and safety of workers.

The Council sustained a penalty of $1 million.

A timely reminder

This case is a timely reminder for local councils and other organisations in the government sector to ensure they are taking reasonably practicable steps to protect the health and safety of not only employees, but also contractors, volunteers and anyone else to whom they owe a duty.

Section 19(3) of the WHS Act outlines some specific measures that a person conducting a business or an undertaking, such as employers in local government, are required to take. This includes the provision and maintenance of a work environment without health and safety risks, safe plant and structures and safe systems of work, the provision of adequate welfare facilities for workers and necessary supervision, and the monitoring of the health and condition of all workers and the workplace.

If organisations do not comply with their duty of care to workers, they may be liable for a Category 1, Category 2 or Category 3 offence. The Category 1 offence is the most serious, and involves engagement in conduct that is grossly negligent and reckless to the risk of death or serious injury. Category 2, in contrast, does not involve negligent conduct, but mere failure to comply with a health and safety duty that exposes an individual to the risk of death or serious injury. Category 3 is the only category that does not require exposure to the risk of death or serious injury – simply a failure to comply with safe work duties. Notably, Category 1 and 2 offences do not require death to eventuate, just the exposure of an individual to its risk.

Prosecuting government bodies can be contentious

Under WHS laws, proceedings should be instituted against a person conducting business if it is in the public interest to do so. This becomes contentious when the person conducting business is the public service, as taxpayers bear the cost of the prosecution of public authorities. However, this is often outweighed by the public interest in Government authorities abiding by the law.

As a result, civil proceedings between public authorities will often use court as a last resort, first turning to alternate dispute resolution at the senior officer level, and then referring the conflict to the Premier or Chief Minister. They may then approve the institution of proceedings where they take the view that there are “compelling circumstances”, such as the need to create precedent in unique incidents.

Duties of government bodies

Nevertheless, there is a real and pressing likelihood that public authorities can be pursued for breaching WHS laws. Given that public authorities, such as local councils, owe a duty of care to many workers, it is imperative they implement regular checks and balances to ensure they are taking reasonable steps to fulfill their obligations by creating a safe work environment and preventing deaths, and physical and emotional worker injuries.

GRC Solutions Resources

GRC Solutions offers off-the-shelf and bespoke online WHS compliance training modules, written by experts and always updated to align with current changes in law and practice. View them here.

Resources for Local Government

We have a number of packages of training, curated to address the particular needs of the Local Government Sector in Australia – have a look at out Local Government Page here.