INSIGHT

Health and safety duties aren't just owed to workers

By Virginia Dore
Employment & Safety

Duty owed to a broad range of people 3 min read

After an investigation by the federal Work Health and Safety regulator, Comcare, the Department of Home Affairs (DHA) and healthcare provider International Health and Medical Services (IHMS) have been charged with breaching WHS laws following the suicide of a detainee at the Villawood immigration detention facility in March 2019.

This is another reminder to employers that health and safety duties are owed to a broad range of people, and that appropriate systems, policies and processes must be in place.

Key takeaways

  • Following an investigation by Comcare in relation to an incident in March 2019 where a detainee at Villawood immigration detention centre took his own life, DHA and IHMS have been charged by the Commonwealth Director of Public Prosecutions with offences under the Work Health and Safety Act 2011 (Cth) (the WHS Act).
  • It is alleged that DHA and IHMS failed to provide a safe system of work at the detention facility (as part of their health and safety duties).
  • Comcare's media release states that those health and safety duties extend to detainees, so it is likely that DHA and IHMS are alleged to have breached their duty to ensure, so far as is reasonably practicable, that the health and safety of 'other persons' (ie not just workers) is not put at risk.
  • It is also alleged that DHA and IHMS failed to provide necessary training, information and supervision to mental health staff in relation to their care for the detainee.
  • Each charge is a Category 2 offence under the WHS Act – an offence under this category (which is at the intermediate level of the three categories specified in the WHS Act, with varying elements and maximum penalties) is committed if:
    • the person has a 'health and safety duty' (a defined term under the WHS Act);
    • the person fails to comply with that duty; and
    • the failure exposes an individual to a risk of death or serious illness or injury.
  • Each offence, if proved, carries a maximum penalty of $1.5 million.
  • According to a statement from DHA, it 'intends to vigorously defend the charges'. The matter is listed for mention in Downing Centre Local Court on April 27.

The proceeding is yet another reminder to all employers that health and safety duties (of the employer and of relevant officers) are owed, not only to workers but to a broad range of people with whom the employer interacts, and that appropriate systems, policies and processes must be in place to adequately comply with them.