Australia: Consult over safety or pay the price - the Model Work Health and Safety Bill

Workplace Health and Safety Update (Australia)
Last Updated: 9 June 2012
Article by Simon Billing and Anna Hedgcock

Five jurisdictions have now implemented, or are in the process of implementing, the Model Work Health and Safety Bill (MWHS Bill) that reflects the outcome of the National Harmonisation of Workplace Health and Safety (WHS) laws. Western Australia and Victoria are left as the only remaining jurisdictions not to have implemented the reforms. (Note that Queensland is yet to enact the new laws in relation to mines and also 'non-Commonwealth license holders' in WA and Victoria and persons working for them are covered by the new Commonwealth WHS laws until such time as these states enact the new laws).

These new WHS laws impose a potentially onerous duty on duty holders to consult, cooperate and coordinate with each other person who holds a duty in relation to the same matter. Given the large number of duty holders in many situations with duties imposed on them under these new WHS laws, such a provision will in many instances be difficult for businesses to comply with, but it nonetheless will be necessary to show that all 'reasonably practicable' steps have been taken to consult.

Who are duty holders?
Sections 19 to 26 of the WHS laws set out the various duties imposed upon 'Persons Conducting a Business or Undertaking' (PCBU) (defined in s 5). Section 19 contains the primary duty of a PCBU to ensure, as far as reasonably practicable, the health and safety of all of its workers. Sections 20 to 26 contain more specific duties imposed on persons who conduct businesses or undertakings related to the control or management of a workplace or equipment, and also upon those who design, manufacture, import, supply or install any plant, substances or structures. Section 27 requires each officer of such a business to exercise due diligence to ensure the business complies with its duties, while s 28 imposes a general duty on workers (employees and contractors) to take reasonable care at the workplace.

What are the requirements of the duty to consult?
Section 46 requires that if there is more than one duty holder in relation to a particular matter, then each of those persons has a further duty to, so far as is 'reasonably practicable', consult, cooperate and coordinate activities with each other. A failure to do so results in a fine of up to $20,000 for an individual or up to $100,000 for a corporation. In light of the number of people who may potentially hold such duties, the level of consultation required would potentially be extensive.

By way of a practical example, consider that a piece of machinery on a worksite faults, and during its repair a worker is seriously injured or killed. The people who would potentially have had a duty in relation to the operation of that piece of machinery may include the machine's designer, manufacturer, importer, supplier and installer, as well as anyone who has serviced the machine, the person that controls the workplace, the ultimate employer and even the workers themselves. If all of these people are different, the magnitude of consultation required, and the implementation of such consultation prior to the repair work being undertaken, may be enormous. Failure to do so may give rise to liability both for the failure to consult about the matter and for any resultant failure to indentify the hazard causing the serious harm or death and the breach of the primary duty to ensure the health and safety of the worker that this might give rise to.

What does reasonably practicable mean?
The duty to consult with other duty holders is limited to what is 'reasonably practicable'. What this term means in this context will determine the extent of the duty. The Explanatory Memorandum to the MWHS Bill states that the phrase in this context has its ordinary meaning, and so it is not a defined term. However, general principles as to the phrase's ordinary meaning can be distilled from case law. The phrase has been interpreted to be mean narrower than 'physically possible' or 'feasible', and can be discerned by an assessment of what was known at the relevant time, and that it will be necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

How do you comply?
What will be necessary to satisfy this duty to consult will very much depend on the factual circumstances of each employer, its operations and the particular matter. Businesses need to be aware of the potentially onerous obligations such a duty will impose. In practice, where a particular matter involves numerous duty holders (such as designer, manufacturer, installer, repairer and employer), satisfaction of the duty may prove to be difficult and will need to be a formal part of the planning process before any hazardous work is undertaken.

If you would like to discuss this, or any other aspect of the new laws, please contact Simon Billing.

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