Duty of care obligations
Historically, young people in the workplace pose a greater risk than those who have been exposed to the workplace for longer periods of time.
Reasons for the increased risk include inexperience within the working environment, lack of attention to procedural details, lower levels of concentration and a desire to ‘prove oneself’, for example by trying to carry or lift heavy loads.
The Western Australia Occupational Safety and Health Act 1984 (the Act) requires employers to ensure that the workplace is safe and free of hazards to employees and others that enter the workplace.
The host company has a duty under the Act and common law to ensure visitor safety; this would include the safety of people on work experience.
Assuming there is no employment relationship with work experience students (see section on insurance obligations), it is highly advisable that as a host company you adopt the same duty of care for the person entering your workplace as you would for your own employees. These would include the following.
Induction
It is highly recommended that the student undergoes your company induction before commencing the work experience.
Supervision
Young people, particularly those who have not been in the workplace before, should be under the constant supervision of someone who is competent to deal with hazards as they occur in the workplace. Do not leave a work experience person to complete work unsupervised, particularly in an industry that has high risk hazards. Do not assume that if you show someone how to do something once that they will then be able to complete that task alone.
Personal protective equipment (PPE)
It is suggested that if the student is coming to your workplace for work experience, that it would be your responsibility to ensure they have and use the appropriate PPE such as (eye protection and steel cap boots) and that the student has been adequately trained in its use.
Contact person
It is important that the student has someone that they can ask questions of during their time at the workplace. Similarly, you as the host should ensure there is effective liaison established between you and the work experience organisers.
Work experience students - obligations under the Fair Work Act 2009 (Cth)
The definition of vocational placement is relevant to the meanings of employee (as defined in clause 15) and national system employee (as defined in clause 13).
“Vocational placement” means a placement that is:
- undertaken with an employer for which a person is not entitled to be paid any remuneration; and
- undertaken as a requirement of an education or training course; and
- authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.
The definition of employee in the Fair Work Act 2009 excludes persons on a vocational placement. National System Employers therefore cannot host a work experience student unless they are undertaking a vocational placement as per the definition and are not receiving remuneration for their services.
Insurance obligations
Employers and those considering making work experience arrangements need to consider whether it is necessary to take out insurance to cover the proposed work experience placement.
In Western Australia there are clear legal obligations on employers, and to a lesser extent on others within the workplace, in relation to occupational safety and health and workers’ compensation.
Engaging work experience placements can expose an employer to the risk of claims for workplace injuries and prosecution for breaches of occupational safety and health legislation if the work experience participant is injured or involved in a near miss incident.
Employers need to be aware of their responsibilities in relation to safety in the workplace, and their duty of care to visitors in the workplace. They also need to have systems in place for the management of injuries and workers’ compensation claims from employees and other “workers”.
Workers’ compensation coverage is required for any person who could be considered a “worker” for the purposes of the Act. This would include all direct employees, all persons engaged to carry out work under a contract for service (i.e. independent contractor) and any person who is the employee of a contractor in particular circumstances. The term “worker” also includes apprentices.
Employers must have adequate insurance coverage for workers’ compensation or can face a penalty for breaching the Workers’ Compensation & Injury Management Act 1981.
Work experience placements and the Workers’ Compensation & Injury Management Act
To determine whether the specific arrangement proposed for work experience requires workers’ compensation coverage, details of the arrangement should be discussed with an insurance broker or insurer direct. Written confirmation from the broker or insurer as to whether coverage is required should be kept with the work experience documentation and actioned as appropriate.
The specific arrangements between the employer and the work experience participant must be examined to determine whether there is an “employment relationship”. If there is any remuneration being paid or provided to the work experience participant in exchange for their efforts during the placement then this could make the relationship one which would be subject to the Act. In that case, the work experience participant could potentially claim to be a “worker” and have access to workers’ compensation under the employer’s policy.
If a work experience participant does not receive any remuneration as payment for performing work with the employer, and in the circumstances of the particular arrangement no workers’ compensation coverage is considered necessary, other insurance may cover any risk to the employer. This can include public liability coverage associated with the business building, business operations or other personal injury coverage for visitors to the workplace.
There may also be insurance required in relation to professional indemnity issues, should the work experience participant expose the business to a claim from a client, or other types of insurance associated with the nature of the business or the type of work the participant undertakes.
Employers should discuss their contractual arrangements with their insurance broker or insurer to obtain advice regarding the types of policies which will cover any identified risks. Employer representative bodies, such as the Chamber of Commerce and Industry of WA, can also provide assistance and information to member employers about workers’ compensation and occupational safety.
For further information please contact CCI’s Employee Relations Advice Centre on (08) 9365 7660 or email [email protected].
