Legal: A safe workplace - it's the law!
Queensland Teachers' Journal, Vol 126 No 5, 30 July 2021, page no.27
Work health and safety (WHS) obligations in the workplace are being enforced in Queensland as never before, and this presents both opportunities and potential pitfalls for teachers and principals.
The Palaszczuk government has made WHS (and enforcing breaches of WHS laws) a priority. Queensland was among the first states to introduce the new criminal charge of industrial manslaughter in 2017, which made it easier to target senior executives for their failures in relation to worker accidents and injuries, and a new independent Office of the Work Health and Safety Prosecutor was established in 2019. The OWHSP have been extremely active and hundreds of prosecutions have commenced.
The strict provisions apply to a state government-controlled workplace in the same way as any other. Put simply, the department has an obligation to provide you with a safe place of work.
This presents opportunities in relation to workplace hazards at schools that have been largely ignored, such as harassing parents; staff bullying, violent students and even sexual harassment. Conversely, teachers, and particularly principals, should be careful not to take on responsibilities that could make them targets for prosecution should something go wrong.
Person conduction a business or undertaking (PCBU)
Under the act, it is the Department of Education that conducts the business or undertaking. As employees, principals and school leaders are engaged in the delivery of education at schools but cannot reasonably be deemed to be conducting that business or undertaking. “Officers” of a PCBU have elevated responsibilities under the act and are more likely to be personally prosecuted for offences. They must exercise due diligence to ensure the PCBU (the department) complies with its duties. “Workers” have a duty to take reasonable care for their own health and safety and to take reasonable care for the health and safety of others.
Officer or worker
Whether principals and senior leaders of individual schools are “officers” of a PCBU has been a matter of some debate. We say the “officers” of the department include the Director-General, directors and other senior executives, and some regional directors. While principals make decisions that affect the whole or a substantial part of their schools, they do not have complete control (in terms of funds allocated or policies and procedures imposed, for example) and should resist any attempts by the department to impose the duties of an officer on them.
Principals as “workers”
Principals and school leaders may be tasked with ensuring relevant WHS policies and procedures are implemented at their schools. The duty under the WHS Act is to comply with any reasonable instruction, so far as a worker is reasonably able. For example, if a principal or school leader was notified of a policy that a school would need additional resources to apply, it would be reasonable to notify the department of this need. If the department does not supply the resources and an accident happens, the request itself may ultimately be sufficient to show that the relevant “worker” has complied with their duty.
Health and safety representatives
Under the WHS Act, workers can be appointed to specific roles for facilitating compliance with a PCBU’s work, health and safety duties. These roles provide the opportunity for further resourcing in schools. The department and relevant “work group” must follow a specific process to appoint a health and safety representive (HSR). They are appointed for three years, are eligible for re-election, and will not be personally liable for anything done in good faith in the role. The department’s obligations include the provision of training, resources, facilities and assistance, as well as allowing an HSR to spend time doing the job and be paid for this time. Obviously, the position of HSR will inevitably create more responsibilities for the relevant person and should not be taken on lightly.
Health and safety committees
Schools can also request the establishment of a health and safety committee (“HSC”). This must be at the request of an HSR or five or more workers at a workplace. The department can also establish an HSC on its own initiative. The primary function is to facilitate cooperation and draw the department into more regular communication about health and safety issues.
Work health and safety officers
In addition to HSRs, the department can appoint a work health and safety officer (WHSO) as a practical measure to ensure compliance. This role can only be held by people with the relevant certificate of authority (e.g. a Certificate IV in Work Health and Safety or another course approved by the regulator). The Queensland Government policy is to appoint HSAs at all schools with 30 or more employees.
Use it or lose it
Workers at schools can record notifiable incidents on MyHR, and we encourage members to do so. An incident is notifiable if it arises out of the conduct of a business or undertaking and results in the death, serious injury or serious illness of a person, or involves a dangerous incident. There is growing recognition that student violence, parent harassment and bullying can cause psychological injuries that can result in devastating consequences. If incidents are reported and a clear pattern of conduct emerges, this increases the department’s responsibility to take reasonably practical action.