New WHS legislation – is your business ready?

Safety sign

Occupational Health and Safety (OHS) laws are undergoing their biggest overhaul in a generation with the introduction of nationally harmonised legislation in 2012. Here’s what you need to do to get your business ready.

The new model Work Health and Safety Acts (WHS) came into effect on 1 January 2012 (with the exception of Victoria and Western Australia who are likely to defer implementation until later this year.) It is crucial that organisations recognise the changes that will be made and start reviewing all practices and documentation such as contracts, policies and procedures now.

Essentially, what this all means is that each of the current state and territory OHS laws will be replaced by national laws based on a model WHS Act. Previously, there were eight jurisdictions with different sets of laws, so the most obvious advantage is consistency of laws across Australia and a more streamlined approach to the way OHS is regulated here.

The changes are reflected through:

  • the WHS Act, which sets out legal obligations
  • WHS regulations, which provide detail on how certain sections of the Act should be implemented
  • Codes of Practice, which are practical guides for businesses and workers to achieve the necessary standard of work health and safety.

Codes of Practice provide detailed information on particular areas of the Act or regulations, and may outline activities, actions, technical requirements, responsibilities and responses to events or conditions within a workplace to assist organisations ensure they are upholding their responsibilities and obligations under the Act.

Basic facts about the new model WHS:

  • there are new roles and responsibilities for employers
  • there are new wording and definition changes under the new WHS
  • there are critical changes under the new Act in regards to consultation
  • there are changes to union rights of entry
  • there is protection from discrimination, coercion and  misrepresentation under the new WHS which is new to some states
  • there will be new penalties for breaches of the WHS
  • new roles and responsibilities will be created for health and safety representatives (HSRs)under the new WHS.

What is changing for workers?

The traditional relationship between the employer and employee under the current OHS Act is broadened to cover the range of differing employment relationships.

The new WHS Act applies the overriding principle that workers and other persons should, so far as is reasonably practical, be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work.

New wording and definition changes under the new WHS

The term employer will be replaced with the acronym PCBU. A PCBU is a person conducting a business or undertaking alone or with others. A PCBU can be a corporation, an association, a partnership or sole trader.

The duty of a PCBU is to take all reasonably practicable steps to ensure the health and safety of workers whose activities in carrying out work are influenced or directed by the PCBU.

The concept of reasonable practicality, in particular with risk mitigation is of upmost importance. The model regulations ensure PCBUs eliminate, as far as is practicable, all risk to the safety of workers. The logic being, there is no better way to ensure the health and safety of workers than to eliminate risk entirely. This is of course not always possible, but elimination should always be considered as the first course of action, and then ruled out if not practicable.

Worker replaces the term employee. This is anyone who carries out work for a PCBU and includes an employee, a contractor or sub contractor, an employee of a contractor or sub contractor, an employee of a labour hire company, apprentice or trainee, student on work experience, outworker and volunteer.

A worker has the duty to take care for his/her own safety, the safety of others, comply with any reasonable instruction from the PCBU, so far as reasonably able and cooperate with all reasonable policies and procedures of the PCBU.

An officer is a person who makes decisions or participates in making decisions that affect the whole or a substantial part of a business. A person responsible only for implementing, not making decisions will not be an officer.

Directors and officers were previously liable for OHS offences committed by the corporation. Under the new legislation, this provision has been replaced with a positive duty on officers to exercise due diligence to ensure that the PCBU complies with its duties under the model legislation.

For anyone that falls under this category of officer the key requirements are that they must:

  • acquire and keep up-to-date knowledge on OHS matters within the business undertaking
  • gain an understanding of the nature of the business and the risks and hazards that occur within that business unit
  • ensure appropriate resources and processes are available to people working in this business unit to eliminate or minimise risk
  • ensure the business unit has appropriate processes in place for receiving and reviewing information about incidents, hazards and risks that apply in a timely way
  • ensure that the business unit has all necessary resources to comply with their duties under the new Act
  • put in place a mechanism to verify that the resources and processes put in place are working.

10 tips for small business owners to comply

1. Identify changes between the existing OHS Act and the model WHS Act to understand what needs to change, and what can stay the same in order to achieve compliance.

2. Review organisational structure to determine where responsibility for WHS lies.

3. Review policies, procedures and consultation processes to ensure that not only are they compliant, but that terminology used is consistent with the new Act.

4. Identify the stakeholders within your organisation. For example, workers, which again must go back to the expanded definition, officers and those responsible for the implementation of safety initiatives.

5. Review contracts with relevant third parties such as suppliers of plant equipment or labour to address and to clarify respective obligations.

6. Review your consultation arrangements to determine:

- If you are consulting with all required parties, again coming back to the expanded definition of workers

-  And to establish whether you need to elect health and safety representatives (HSRs) for identified workgroups, or if existing alternative arrangements are practicable.

7. Review your procedures to ensure that you protect against engaging in discriminatory conduct against a worker who raises a health and safety issue.

8. Review the new regulations and codes of practice to determine what changes will need to be made to your safety systems.

9. Check for transitional arrangements in your state or territory. Transition will cover such things training requirements for health and safety representatives.

10. If you are unsure of anything seek legal advice to avoid non-compliance.

­­–Patricia Ryan is the practice manager of EI Legal and a solicitor with more than 30 years’ experience.

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