Recently, our team at Morgan + English have noticed an increase in new matters related to Work Health & Safety (‘WHS’) competency testing. Considering that trend, we have produced this article to educate employers on their requirements in this area and the consequences when these requirements are not met. Ensuring you understand and comply with these requirements is a vital part of your legal duties as an employer.
What you need to know?
One of the legal duties of an employer is to eliminate or minimise risks to health and safety so far as is reasonably practicable. There will be a heightened risk of injury or death if your employees are not competent in the operation of any vehicles, machinery, or equipment that your workplace may involve. Competency testing helps minimise this risk by assessing whether your employees have a minimum standard of competence that will allow them to operate vehicles, machinery, or equipment safely. Courts have stated previously that competency testing is a reasonably practicable means by which employers can minimise risks to health and safety.
Competence is assessed holistically, considering all factors an employee may encounter. Employees who are not competent must undergo proper training, including obtaining all necessary licenses and certifications. However, licensing alone is a minimum requirement and does not replace other necessary training that may be required. Supervision, while sometimes appropriate, cannot compensate for a lack of employee competency.
Until competence has been assessed, employees should refrain from operating vehicles or equipment. WHS regulators, such as WorkSafe NSW, have an overwhelming expectation that competency testing is carried out by an employer before any of its employees operate vehicles, equipment, or machinery. Prosecutions have been brought against individuals and workplaces where competency testing has been inadequate or entirely absent.
Likewise, courts have held that operator competence is an important safeguard in minimising workplace risk. Where competency testing has not taken place, it is difficult for the employer to demonstrate it has done everything possible to minimise risk. In one such case,[1]the Supreme Court of South Australia ordered a fine of $3M against an employer that had not performed adequate competency testing.
Conclusion
Maintaining a comprehensive and consistent system of competency testing is an important way of minimising risk in your workplace. It is also essential for ensuring you remain compliant with your legal obligations as an employer. A failure to do so can result in prosecutions and penalties being brought against both you and your workplace.
If you are an employer who is concerned about competency testing in your business and would like to evaluate your options, please do not hesitate to contact Daniel at daniel@morganenglish.com.au.
[1] Cleanaway Operations Pty Ltd v Philip Hanel [2022] SASC 52
