Business Franchise Australia and New Zealand
WORK HEALTH AND SAFETY OBLIGATIONS: TIPS FOR FRANCHISORS
The nature of work is changing, and government, courts and regulators are taking an interest in compliance with those involved in non-traditional employment practices, including the franchising industry.
In light of this, franchisors must remain proactive when managing work health and safety to ensure the safety of their workers and to minimise legal liability.
The model Work Health and Safety Act 2011 (WHS Act) imposes a duty on ‘Persons Conducting a Business or Undertaking’ (PCBU) to ensure the health and safety of workers and other relevant persons so far as is reasonably practicable. Most franchisors will be a PCBU. This duty is non-delegable and as such, franchisors cannot delegate this legal duty to their franchisees or contractors. ‘Officers’ of a PCBU also hold individual and specific duties in their personal capacity to exercise due diligence to ensure safety.
This article discusses effective and practical steps that franchisors can take to manage legal risk and avoid (sometimes significant) penalties and enforcement action.
Consult with franchisees
The WHS Act imposes a strict duty on PCBUs to consult with others who hold a safety duty over the same matter. This will include franchisees. What is needed is a systematic approach to ensure regular consultation with franchisees to enable issues to be identified and addressed in a timely manner. Franchisors should be aware of WHS risks arising from obligations they impose on franchisees (i.e. is PPE mandated, is standard plant and equipment safe, are Safe Work Procedures developers by the Franchisor or Franchise, are lessons learned shared between multiple franchises?). In this context, franchisors should ensure that adequate mechanisms are in place to facilitate these discussions.
By scheduling time to consult with franchisees, activities between franchisors and franchisees can be practically coordinated to ensure effective management of risks to health and safety. For example, franchisors might discuss setting aside an annual budget per franchise to tackle WHS issues – potentially via a cloud-based health and safety system as referred to below.
Review
Franchisors should review: delineation of responsibility for work health and safety is clearly defined and reviewed;
processes to ensure that they are effective in identifying and managing risks; and
solution. For example, franchisors may consider introducing a ‘safety levy’ within all agreements to supplement the annual budget for management of risks and safety.
Subscribe
A simple way for franchisors and their ‘officers’ to develop their understanding of work health and safety matters is to subscribe to relevant email alerts, many of which are available for free online such as the alerts provided by Safe Work Australia.
Consider contacting providers of cloud-based health and safety management software
Cloud-based health and safety management systems have been specifically created to enable businesses to collect, manage and review work health and safety data. Franchisors should consider contacting providers of this software to identify ways in which the risks relevant to their business can be minimised through implementation of these systems and how they can help create a culture of safety.
Introduce a ‘Safety Corner’
In future communications sent to franchisees, consider introducing a regular health and safety related article or section to start the conversation. This simple step will strengthen the safety culture within the franchise structure and serve as an ongoing reminder of the need to be vigilant when it comes to work health and safety.
Keep a diary
Documentary evidence of ongoing improvement when managing health and safety is crucial. Make a note of each action you take to create a safer system of work should you need it at a later date.
Seek advice
Both franchisors and franchisees are likely PCBUs under the WHS Act, and as such will share a duty to ensure the health and safety of workers and relevant other persons. However, each franchisor will have varying levels of control over franchisees and face unique risks. Officers of the franchisor should seek independent legal advice to confirm the level and nature of the shared responsibility for health and safety and what actions are required for practical compliance with this duty.
This publication covers legal and technical issues in a general way. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
Scarlet Reid works closely with her clients to protect their vital workplace interests. As a former senior prosecutor with a work, health & safety regulator, she has particular expertise in regulatory compliance and defending regulatory prosecutions and is recognised as a leading safety lawyer.
Scarlet frequently assists her clients with investigations, inquiries and litigation related to workplace misconduct, including allegations of fraud, corruption and discrimination and represents clients in a myriad of Federal and State courts and tribunals.
For more information please contact Scarlet Reid at:
02 8241 5688 sreid@mccullough.com.au