On 1 January 2012, Australia came one step closer to having uniform workplace health and safety laws. The model Work Health and Safety Act, regulations and codes of practice commenced in the Commonwealth and most states and territories on the scheduled 1 January 2012 'go live' date.
While the new laws have not yet been enacted in Tasmania, South Australia, Victoria and Western Australia, it is anticipated that South Australia will not be too far behind – (it has deferred debate on the proposed new legislation until February/March this year) while Victoria and Western Australia are expected to commit in the next 12 months. Tasmania has also amended its proposed legislation, which is yet to be finalised, to have a commencement date of 1 January 2013.
Therefore, it is essential for all organisations across Australia to keep abreast of the new workplace health and safety laws and to implement initiatives to ensure compliance with them.
Brief recap: what is OHS harmonisation?
'OHS harmonisation' is the scheme by which all states and territories are to enact model work health and safety legislation, regulations and codes of practice (with or without some modification) to ensure that the main principles, obligations and procedures for workplace health and safety are consistent across all Australian jurisdictions.
So far, five out of the nine Australian jurisdictions have enacted the Work Health and Safety Act, and Work Health and Safety Regulations and various model codes of practice, with a number more model codes expected to be finalised and introduced in the first half of this year. However, while the majority of jurisdictions have embraced OHS harmonisation, there are remnants of the old laws from each state and territory that have been preserved by jurisdiction specific transitional arrangements and, there is also a phasing in period for a number of regulations under the Work Health and Safety Regulations.
Also, while OHS harmonisation has introduced (and will continue to introduce) a number of new or modified codes of practice, including a controversial code of practice on workplace bullying, organisations should be aware that many existing codes of practice will continue to operate in the various state and territories.
Key changes to OHS law
In the jurisdictions that adopt the model legislation, the key changes to occupational health and safety law include:
- The primary duty of care to ensure health and safety (so far as is reasonably practicable) is assigned to a 'person conducting a business or undertaking' (PCBU), not just an employer, and will include a self employed person, partnerships and unincorporated associations.
- Duties are owed to all 'workers' that the PCBU engages, or causes to be engaged, or whose activities are influenced or directed by the PCBU while the worker is at work. The definition of 'worker' is broad and in addition to employees and contractors, it can include a person performing work with whom the PCBU does not have a direct contractual relationship. For example, subcontractors and volunteers.
- The introduction of the positive obligation on 'officers' of organisations to exercise 'due diligence' to ensure that the PCBU for which they are responsible complies with its safety obligations. Importantly, 'officers' will include any person who is a director, company secretary, trustee, administrator or liquidator of a PCBU, and may also include most members of an executive management team of a PCBU depending on their role and ability to make or influence the making of decisions affecting the PCBU.
- Specific duties are assigned to designers of plant, substances and structures.
- A broader obligation to consult with workers and to consult, cooperate and coordinate with other duty holders in respect of health and safety matters.
- Greater protection for workers against discrimination based on their workplace health and safety role or actions.
- Conferring unions with the right to enter workplaces for OHS purposes. This is a significant change for Commonwealth employers that previously were not subject to union right of entry provisions under the Commonwealth work health and safety legislation.
- Substantially higher penalties for duty of care breaches by the PCBU, officers and workers, including potential imprisonment for individuals.
- Greater sentencing options, including remedial orders, adverse publicity orders, training orders, injunctions and work health and safety project orders.
- Increased scope for non-employees to be members of designated work groups and to be health and safety representatives or be represented by health and safety representatives.
- A change to the obligation to ensure the regulator is notified of a 'notifiable incident'. A PCBU will be required to immediately notify the regulator of an incident, in which death, serious injury or a dangerous event has occurred and will no longer have a specified timeframe to make the notification.
What does this mean for your organisation?
Organisations operating in the states and territories in which the Work Health and Safety Act has commenced operation should undertake a review of what they have done so far to ensure compliance with the new laws, and consider what more may need to be done to achieve compliance having particular regard to:
- determining who is an 'officer' and reviewing or implementing governance processes to assist 'officers' to fulfil their obligations of due diligence;
- updating policies and procedures to reflect the new terminology and to ensure that safety procedures reflect any new or modified regulations and requirements of model codes of practice;
- reviewing and implementing procedures for consultation with employees, contractors, volunteers and other 'workers' and consultation with duty holders that are at least in line with the procedures outlined in the Work Health and Safety Consultation, Cooperation and Coordination Model Code of Practice, as adopted in each jurisdiction;
- appropriate training and communications to relevant stakeholders within the organisation, including employees and managers, on the changes to the legislation and how it impacts the way the organisation deals with safety; and
- reviewing contractor management systems to ensure that how the organisation addresses the issue of safety with contractors and subcontractors reflects the expanded obligations the organisation has to ensure the health and safety of all 'workers'.
For organisations operating in Victoria, Western Australia, Tasmania and South Australia, it is equally important to commence, or continue with, initiatives to ensure compliance with the new health and safety laws, even if there is to be a delay with the introduction of the new laws in those jurisdictions. This is to ensure that when the time comes, organisations are in the best position to comply.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.