WHS policies and procedures

Policies and procedures form part of a health and safety management system. They are designed to assist workers especially in how to manage their work and follow processes to ensure a safe working environment. Policies and procedures can help to achieve and maintain consistent practices with respect to work health and safety.

If you are seeking to learn more about WHS policies and procedures, the following topics are covered below:

• Importance of policies & procedures
• Developing policies & procedures
• Examples of policies & procedures
• Limitations to policies & procedures
• Failure to implement WHS policies

Importance of policies & procedures

In Australia, most employers and business operators have a primary duty of care under work health and safety laws to ensure, so far as is reasonably practicable, the health and safety of workers and others. Having policies and procedures can help people conducting a business or undertaking (PCBU) to discharge their duty. For example, in Queensland, section 19 of the Work Health and Safety Act 2011 (Qld) relevantly states:

19 Primary duty of care

…

(3) … a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

…

(c) the provision and maintenance of safe systems of work; and

…

Having WHS policies and procedures forms an important part of a safe system of work (a health and safety management system). Implementing policies and procedures links with the duty of workers under work health and safety laws. For example, in Queensland, section 28 of the Work Health and Safety Act relevantly states:

28 Duties of workers

While at work, a worker must—

…

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

So if a business or organisation has policies and procedures in place, workers have specific duties under work health and safety laws to cooperate with them provided they are reasonable. It is important to note that WHS codes of practice may also refer to policies and procedures, signalling regulators will likely view developing and implementing certain policies and procedures as reasonably practicable.

Developing policies & procedures

It is tempting for businesses and organisations to get an off-the-shelf policy or procedure and disseminate it to workers in the workplace. Such an approach risks falling foul of the specific duties imposed by work health and safety laws.

In developing WHS policies and procedures in Australia, businesses and organisations need to be mindful of the obligation to consult with workers under Australia’s Model Work Health and Safety Act. For example, in Queensland, section 47 of the Work Health and Safety Act imposes a duty on persons conducting a business or undertaking to consult with workers. The law also sets out the nature of consultation required and the times there must be consultation.

In developing policies and procedures, consultation can improve potential health and safety outcomes by allowing workers input into potential hazards, risks, and controls. Consultation may also improve commitment by workers to work health and safety objectives, as well as enhance trust and relationships across the workplace.

Examples of policies & procedures

If a person conducting a business or undertaking has duties under work health and safety laws, they are expected to identify hazards and assess risks. There are a number of codes of practice that refer to workplace policies, suggesting regulators expect it is reasonably practicable for businesses and organisations to have appropriate policies in place for certain issues. The following are common workplace policies that have relevance to work health and safety issues:

• Alcohol and Other Drugs Policy
• Anti-Discrimination Policy
• Bullying and Harassment Policy
• Code of Conduct or Behavioural Policy
• Work Health and Safety Policy

Limitations to policies & procedures

Simply having workplace policies or workplace procedures is unlikely to be enough. It is critical to communicate policies and procedures to employees. If a person conducting a business or undertaking does not adequately communicate their workplace policies, train employees as necessary, or enforce them, it may not be found that they have done all that was ‘reasonably practicable’.

In the case of Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13 (a case concerning unlawful discrimination and sexual harassment), it was stated at paragraph [64]:

… Where the employer relies upon workplace policies, it may be necessary to demonstrate not only that the policies were communicated to the relevant employee, but that they were periodically reinforced.

It should be noted that the above statement in an appeal concerning unlawful discrimination and sexual harassment. However, sexual harassment constitutes a psychosocial risk for which there is a relevant WHS Code of Practice. The above statement illustrates the potential limitations in relying on policies and procedures. Instead, businesses should look to implement a more comprehensive health and safety management system.

Failure to implement WHS policies

The failure to implement WHS policies saw two directors sentenced to wholly suspended terms of imprisonment for Category 1 offences in R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113. In that case, no written policies or procedures were implemented by the company before a fatal incident involving a forklift. The company, which was convicted of industralia manslaughter, was fined $3 million. The sentencing judge stated at paragraph [57]:

Mr Hussaini admitted that there were no safety systems in place. Whether the inaction by the defendants was due to expedience for commercial gain or complacency, or both, the moral culpability of each is high. The defendants knew of the potential consequences of the risk, which were catastrophic. Steps to lessen, minimise or remove the risk posed by mobile plant were available. Those steps were neither complex nor overly burdensome…

The failure to develop and implement appropriate WHS policies and procedures may assist a prosecution for offences under the Work Health and Safety Act:

• Industrial manslaughter
• Category 1 offences (WHS)
• Category 2 offences (WHS)
• Category 3 offences (WHS)

Anderson Legal advises on work health and safety issues

This law firm safeguards the interests of its clients by:

• providing advice and guidance
• dealing with workplace incidents
• liaising and negotiating with regulators
• litigating charges in courts and tribunals

Anderson Legal assists businesses and individuals who are seeking a law firm that understands how to make the most of the limited resources they may have to deal with work health and safety law issues. Based in Brisbane, Anderson Legal works with clients across Australia.

This firm uses technology to facilitate communication, decrease costs, and increase the personalised nature of the advice provided. It means more businesses and individuals can access premium legal services when facing legal issues associated with work health and safety laws.

Getting proper support early to help manage work health and safety issues can save time, money, and worry. Moreover, it can help to avoid unnecessary mistakes that can have significant legal consequences for businesses and individuals in navigating such challenges. If you are a business operator or individual in Australia seeking the assistance of an experienced lawyer to help you navigate a work health and safety law issue, Anderson Legal should be your preferred choice for advice and representation.

Call this firm for a confidential, obligation-free telephone consultation

This firm offers a free telephone consultation. The reason is simple – it shouldn’t cost anything for a person to pick up the phone and understand if a particular law firm can help them or not. Anderson Legal takes the time necessary to understand the issues and to determine if this firm is in a position to provide the standard of advice and representation you are entitled to expect.

Work health and safety issues can often pose significant reputational, professional and financial issues. The consequences to businesses and individuals for breaches of work health and safety duties are real.

Some businesses and individuals only properly consider work health and safety law issues when an incident occurs. In the midst of the concerns and uncertainty such issues can generate, it can be critical to get reliable and informed legal advice at an early stage. The positive duties owed under work health and safety laws mean eliminating or mitigating risks should be a continual practice that should not wait for an incident to occur. For that reason, businesses and those managing are always best to get legal advice as soon as possible to better understand how to discharge their work heath and safety duties. As it is with medicine, prevention is better than a cure.

Hiring a lawyer can be easier than you think, and the timing can be important. Quite often, the earlier you engage a lawyer to help you, the more options you will have in dealing with work health and safety challenges.