Understanding OH&S compliance laws

Ray Schaffer* unscrambles the latest OH&S risk assessment omeletter.

MANUFACTURERS who believe they have established a reasonably complete OH&S Risk Management system in their premisesand who have no ambition to benchmark their SMS (Safety Management System) with the compliance requirements of AS 4801:2001 often pose the question; does their system meet substantially all of the key OH&S laws’ conformance requirements including those of the regulatory authority?

In order to assist this rare breed, set out below are some key, yet often overlooked, compliance requirements against which the reader might care to benchmark their OH&S system.

The whole of the OH&S law’s compliance regime in NSW is predicated on the principle of risk management. In fact the OH&S laws in NSW define a number of additional statutory compliance requirements beyond the obvious that are all too often overlooked. It is important to note here, that all of these additional issues are not optional, but instead they are mandatory yet still remain largely overlooked.

We begin this exploration of what these additional compliance requirements are:

First up the requirement of the identification of all “foreseeable” hazards (see Regulation 9 NSW OH&S Regulations 2007).

The whole foundation of the law in NSW requires that the owner of the business, who surely knows his business better than any regulatory authority inspector, must record with some precision what exactly it is that the employer must identify apropos OH&S issues and hold formal written records so that these can be produced upon request by a regulatory authority inspector.

Such a list is also evidence of due diligence since it evidences the employers’ knowledge of all of the potential OH&S issues on site, and even beyond.

This aforementioned statutory requirement is all too often given, only lip service. The frequent bleat being, “Yes, I know what these are; they are all up here,”- followed by a finger pointing to the employers’ head.

This is simply not good enough. They must be identified and formally written down. Anything less, may be evidence of your negligence.

*Regulation 10 (NSW OH&S Regulations) explains the “assessment” requirement — in regard to the foreseeable hazards identified.

The first step in the risk management paradigm is to conduct risk assessments which are critically important recordsof “due diligence” exercised on the partof the employer.

The methodology in the preparationof these documents is set down in NSW Workcover Risk Assessment Guide which lists with examples, the steps to be undertaken in the preparation of RAs.To be able to stand up in a Court of Law, your RA will need to conform, in substantial part, to these compliance requirements.

The NSW OH&S Regulations 2007 have undergone an update. They still retain the approach however and methodology of the 2001 original. That is, they continue to follow the process of commencing with identifying hazards, and then require these to be assessed and then controlled.

The new Victorian OH&S regulations 2007 appear on its first reading to have entirely dropped the second requirement namely, performing risk assessments.

However, Worksafe offer the following guidance; “…conducting risk assessments is unnecessary —where the risk is well known and the solution is obvious”.

However the Authority insists they should still continue to be performed when available knowledge about a hazard/ risk is limited or knowledge of the harm that may flow from the risk is insufficient; all potential consequences have not been identified; and a number of hazards/ risks are to be found in a single process or plant and available knowledge of how these may impact on each other or may together make the consequences more severe, is not readily apparent.

Frankly speaking, the introduction by the regulatory authority of such a wholly subjective interpretation is a seriously retrograde step in Victorian legislation that has long lead the field in OH&S Law in Australia. It is to be regretted. Omission in the new legislation only adds to an unnecessary ambiguity and uncertainty.

*Regulation 11 (NSW OHS Regulations) requires elimination or control of the hazards, duly identified and assessed. But the conformance requirements under the Law do not end there.

Also to be taken in to consideration is the concept of the- hierarchy of controls. In terms of which, the Regulatory Authority requires the employer to consider in the event of —“elimination” not being possible, then in diminishing order of preference a list of alternatives.

Do not overlook this aspect. You may find yourself in front of an Industrial Magistrate explaining why you believed — administrative controls were adequate.

*Regulation 12 (NSW OH&S Regulations) requires employers to review the risk assessments made — under certain conditions. The controls identified and employed may need changing from time to time. Work place changes may make the controls previously identified inadequate. Even, frankly wrong. Thus, despite having performed a R.A. and properly recorded same, the employer may still be guilty of negligence — which may be “recorded” in the risk assessment document itself. Beware of this potential for self-incrimination.

*Regulation 13 (NSW OH&S Regulations) lays down the employer’s duty to provide Induction Training to all employees. Not as simple an item as this, at first, appears.

For example, employers who send workers off in company motor cars often do not stop to consider the hazards created by the unsafe use of mobile phones in the car.

Review your Induction Manual which may have been drafted some years prior and check whether it really is, up to date, covers a whole host of new OH&S issues and includes compliance of, for example the new Privacy Law requirements; issues relating to the employment of “young workers” (Defined as a worker between the ages of 16 — 25) and at the other end of the spectrum “older workers.”

*Induction Training has another much overlooked side to the same coin: Skills and Competencies.

To ensure operators are properly instructed in all of the foreseeable hazards – the assessments and controls they are likely to face on the job – they must also be given the necessary skills and competency training to perform the talk safely, especially the young workers.

“Records” of these “skills and competencies” of each individual worker must be made and updated periodically. This is the true measure of the employers “due diligence” efficiency.

Do you really know what training each operator needs? If, you have not recorded what their current skills and competencies are?

* Regulation 14 touches on perhaps one of the least understood of the conformance/requirements — namely, adequate supervision.

This is well illustrated by the following classic example. The employer has had explained to him the all important consequence of minimising his potential negligence with apprentices, especially regarding “supervision”- on a task.

“Sure,” he responds. “I show them how to perform the task, let them do it a few times in front of me then I leave them to it. I just haven’t got the time to nurse them all day long. Any way, what do I pay them for?”

The above example is not “adequate supervision” under Regulation14 which begs the question, just what is “adequate?” This is set down in the Victorian Worksafe website under the heading — Supervision. This is a useful standard to bear in mind.

“Effective supervision” means, closely monitoring employees work practices and conditions, correcting any unsafe work habits and being available for questions. Note in particular Mr Employer; anything less is evidence of your negligence and will ground an action for a criminal prosecution in the event of a serious accident, and injury to an employee — especially a “young worker.”

See further, the information developed by the Queensland Regulatory Authority under the heading; “What is adequate supervision?” Refer www.deir.qld.gov.au.

*Regulation 15 requires the provision of information and training. The information dissemination element is especially important in regard to the ever growing body of chemicals used in many processes and which may cause a wide variety of negative health impacts on employees — from minor dermatitis to severe respiratory illnesses and cancer.

For most employers the problem is how to provide information to the employees? In the case of chemicals, this will always be in the form of the MSDS (which employers are obliged in Law, to obtain and to make available to employees.

Other than chemicals and MSDS’s- probably the best form of information that can be developed by the diligent employer is that arising from an in-house risk assessment.

Finally, consider your training program in the light of your developed—skills and competencies list.

Risk assessments embody the benefit of having been developed as required by law under the consultation obligation (refer Chapter 3 in the NSW OH&S regulations), by employees actually involved in performing the task. It is far and away the best form of information dissemination method, namely, actual hands-on involvement in the creation of the information which usually leads to the worker really understanding the risks and their control.

If you have ticked ‘done’ for all of the above, you have done well.

*Ray Schaffer is the principal consultant with R M H Schaffer & Co health, safety and environment consultants;02 9878 0613.Visit www.environmentdiy.com.au pose a question and receive an answerat no cost.