In brief - Directors and officers may be exposed to liability if the PCBU fails to conduct a risk assessment of its FIFO workers 

Energy and resources projects in remote locations often have workers attending the site on a Fly In Fly Out (FIFO) basis. The mine site remoteness and continuous weeks at site expose workers to considerably more risk. Recent reports have indicated an increased reporting of mental health issues and suicide. 
 
Mental health is a growing community issue that often continues into the workplace. A broken arm, contained in plaster, is an obvious work health risk that would either stop the worker's attendance at site or place the worker on restricted duties. A mental health issue is not that obvious. 
 
The rosters that FIFO workers undertake can vary from site to site. Where some workers are required to remain on site for a number of weeks, it has been reported that this length of time has led to health and wellbeing issues or has escalated an existing mental health condition. 

PCBU responsibilities include assessing hazards and risks to mining workers

The work health and safety mining laws around Australia require those persons conducting a business or undertaking (PCBU) to carry out a risk assessment to ensure that practicable steps have been taken in ensuring the health and safety of all workers undertaking work as part of the business. 
 
A PCBU must have fatigue management, fitness for work, and health and wellbeing policies and procedures that are relevant for the particular worksite that have been promulgated through the site consultation process. Some mining sites also require a health management control plan. 
 
A risk assessment must be undertaken, addressing the above policies, to assess the capacity of the FIFO workers relevant to the site location, isolation, transport method and travel times. 
 
The risk assessment process must consider the hazards and risks relevant to the site and take reasonably practicable steps to either eliminate or minimise the risk that the workers face. 

Directors' and officers' liability and the PCBU's duties

The work health and safety (WHS) laws in Australia place a positive duty upon directors and officers to ensure that the PCBU is meeting its duties as set out in the WHS laws.
 
The obligation upon each officer and director is to exercise due diligence which requires taking the following six steps:
  1. acquire and keep up to date knowledge of WHS matters, and,
  2. gain an understanding of the nature of the operations of the business and of the hazards and risks associated with the operations, and, 
  3. ensure that the PCBU has and uses both his or her resources and processes to eliminate or minimise the risks to health and safety, and, 
  4. ensure that the PCBU has appropriate resources to process and consider information regarding incidents, hazards and risks, and,
  5. ensure that the PCBU has and implements processes to comply with any duty, for example reporting incidents, consultation, training of workers, and
  6. verify the provision and use of the resources and processes referred to in steps 3 to 5 above.
However, determining whether the PCBU has appropriately identified the relevant risks at the workplace is an ongoing issue. An experienced employment and safety lawyer can assist you to drill down into the business to conduct a short assessment of the application of safety at your worksite. 
 
Assessing the implementation of safety systems at the work site is a positive step in avoiding significant business interruption events.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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