OH&S: EMPLOYEES RESPONSIBLE TOO

In an industry heavily regulated through Occupational Health and Safety and Environmental legislation a business requires the cooperation of all persons involved to keep the business afloat.  Safety policies, management systems and procedures are only as good as the ability of people in the work place to use them.  In the last issue of CMPA News the topic of discussion was the employer’s responsibility to his/her employees.  In this article the duties of the employee will be discussed. 

While the employee plays a key role in businesses safety performance it must be made clear that the key responsibility still remains with the employer.  While this does not waive an employee from being held liable, a truly safe workplace, strong awareness of safety and safety discipline instituted by the employer should remove the elements of risk that give rise to accidents.

As with the employer, an employee can be prosecuted for breaches of the Occupational Health and Safety Act.  While individual fines are not as hefty as the maximum for an employer, the effect on the individual can be just as devastating.  Analysis of prosecutions in 2000 from the Victorian Work Authority shows a variety of different breaches. 

Under the Act an employee “shall not – wilfully place at risk the health and safety of any person at the workplace” – bullying is one such breach of this law.  As an example to the seriousness of bullying allegations, in mid 2000 an employee was fined a total of $8,000 and $1,500 in costs after being convicted for bullying a junior employee under section 25 of the Act.  This could constitute as much as 2-3 months wages for many employees. 

In a different prosecution an employee was fined $1,000 and $4,500 in costs for failing to carry out the instructions of his employer.  The person’s injuries occurred, as the magistrate said, due to the “cavalier manner” exhibited by the accused and said that it was “foolhardy” to interfere with the safety switch.  All this occurred due to failure to replace a damaged 50 cent shear pin required for effective operation of the safety switch. 

Below is section 25 from the OH&S Act – 1985, “Duties of employees”:

“(1) While at work an employee must

(a) Take reasonable care for his or her own health and safety and for the health and safety of anyone else who may be affected by his or her acts or omissions at the workplace; and

(b) co-operate with his or her employer with respect to any action taken by the employer to comply with any requirement imposed by or under this Act.

(2) An employee shall not–

(a) wilfully or recklessly interfere with or misuse anything provided in the interests of health safety or welfare in pursuance of any provision of this Act or the regulations; or

(b) wilfully place at risk the health or safety of any person at the workplace.”

The word “omissions” used in section 25.1.a above means that employees who recognise a safety hazard and choose to ignore the danger, feel that it is not their problem, or feign ignorance could be found guilty of endangering a fellow employee.   Similarly in section 25.1.b an employee can be prosecuted for failure to “co-operate” with the employer’s actions to maintain a safe work place.  Hence an employee who ignores an instruction, does not follow a procedure despite having being trained or takes shortcuts with safety measures implemented by the employer could be prosecuted should an accident occur.

In Section 25.2.a an employee who removes a safety guard without following nominated procedure could be seen as interfering with a device provided for their own health and safety, or the health and safety of others.  How many employees have removed a guard to get to a blockage faster?  What if an accident does occur? 

Section 25.2.b of the act allows prosecution of employees who endanger others through their actions for example, bullying and practical jokes. 

The involvement of all people in the workplace in decision making processes is central to the OH&S Acts objective of preventing work place accidents.  Employees play a critical role in raising OH&S issues within the workplace, the Act allows for this through election of OH&S Reps and establishment of OH&S committees. 

It is impossible for the employer to be everywhere at once.  The employee is the employer’s best resource for revealing OH&S concerns in the work place.  

Developing a cultural awareness of safety and OH&S legislation within your organisation could not only save an employee from serious injury but could prevent an accident from occurring that seriously damages the financial position of your business.

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