Understand the new model Work Health and Safety Acts

Occupational Health and Safety laws are about to undergo their biggest overhaul in a generation with the introduction of a nationally harmonised legislation this year.

The new model Work Health and Safety Acts (WHS) came into effect 1 January 2012 (with the exception of Victoria and Western Australian who are likely to defer implementation until later in 2012). It is crucial that the engineering industry recognise the changes that will be made and start reviewing practices and documentation now.

Current state and territory OHS laws will be replaced by national laws based on a model Work Health and Safety Act.

Currently, there are eight jurisdictions with different sets of laws, so the most obvious advantage is the consistency of laws and a more streamlined approach to the way OHS is regulated in Australia.

Codes of Practice will also be provided which are practical guides to achieving the standards of WHS. The code will 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.

Here are the basic facts about the new model WHS:

  • there are new roles and responsibilities for employers
  • new wording and definition changes will be implemented under the new WHS. Worker replaces the term employee and PCBU (person conducting a business or undertaking) replaces the term employer
  • there are critical changes under the new act with regards to consultation
  • changes to union rights of entry
  • there is protection from discrimination, coercion and misrepresentation under the new WHS
  • new penalties for breaches of the WHS
  • new roles and responsibilities for HSRs under the new WHS.

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

A PBCU must also:

  • manage or control a workplace
  • control the fixtures and fittings within a plant or a workplace
  • design, manufacture, import or supply plant substances or structures
  • construct or commission plant or structures for a workplace.

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

By definition, 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 considered an officer.

For anyone that falls under this category, the key requirements include 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

To prepare for the new laws, business owners should identify the 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.

I also suggest that businesses:

  • review organisational structure to determine where responsibility for WHS lies
  • review policies, procedures and consultation processes to ensure that not only are they compliant, but that terminology used is consistent with the new act
  • 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
  • review contracts with relevant third parties such as suppliers of plant equipment or labour to address and to clarify respective obligations
  • ensure your directors and senior managers (officers) have sufficient oversight over safety matters to meet their due diligence obligations
  • review your consultation arrangements to determine:
    – if you are consulting with all required parties, again coming back to the expanded definition of workers
    – establish whether you need to elect HSRs for identified workgroups, or if existing alternative arrangements are practicable
  • review your procedures to ensure that you protect against engaging in discriminatory conduct against a worker who raises an OHS issue
  • review the new regulations and codes of practice to determine what changes will need to be made to your safety systems
  • if you are unsure of anything I strongly recommend seeking legal advice to avoid non compliance.

Patricia Ryan is the practice manager of EI Legal.