In brief – Broader primary duty of care, tougher
penalties, increased consultation
On 1 January 2012, new work health and safety laws commenced
operation in a number of jurisdictions, including NSW, as part of
the push towards national harmonisation of OH&S legislation.
Victoria, Tasmania, WA and SA have deferred implementation of the
legislation until next year.
Broader primary duty on a "person conducting a business or
The WHS Act places the primary duty of care to take all
reasonably practical steps for health and safety on a "person
conducting a business or undertaking" (PCBU) instead of an
employer. A "person" can include a company or a
The WHS Act adopts a broader definition of "worker"
instead of "employee". A worker is defined as a person
who "carries out work in any capacity" for a PCBU. This
expressly includes employees, contractors, subcontractors,
employees of a contractor or subcontractor, volunteers, labour hire
companies, outworkers, apprentices and work experience
Under the new Act, some people may be both a PCBU and a worker.
For example, if Joe is a plumbing contractor with his own plumbing
business, then by definition Joe is a PCBU. However, when Joe is
hired by a construction company to do the plumbing for a
residential development, he will also be a worker for that
Visitors to the workplace, like customers or family members of
workers, will now be considered responsible to some extent for
their own safety, since the new Act requires that they take
reasonable care and comply with reasonable instruction.
Positive duties of due diligence on "all officers" of
If you are an "officer" of a company (i.e. a director
or manager), the WHS Act obligates you to exercise "due
diligence" at all times. If you are an officer, you have a
legal obligation under the WHS Act to keep informed and up to date
about health and safety matters, ensure the corporation uses
appropriate resources to minimise or eliminate OH&S risks and
act immediately or in a timely manner on any OH&S risks or
incidents that are brought to your attention, by reporting
notifiable incidents and consulting with workers.
As an officer of the corporation, you may be liable for failing
to exercise the required due diligence, even if the corporation
itself is complying with its obligations and there has been no
incident or accident in the workplace.
Tougher penalties and jurisdictional changes
The maximum penalty for serious breaches involving recklessness
and exposure to death, serious illness or injury extends to $3
million for a body corporate and $600,000 for an individual. By
comparison, the old legislation carried a maximum fine of $1.65
million for a body corporate and $165,000 for an individual.
Prosecutions under the WHS Act can be brought in the Local
Court, District Court or Supreme Court. The Act grants courts an
expanded range of sentencing options, including enforceable
undertakings, remedial orders, adverse publicity orders,
injunctions, compensation orders and community service orders, in
addition to penalties.
Increased consultation and expanded union powers
Under the WHS Act, small business owners (as PCBUs) have a legal
duty to consult with workers on all work health and safety matters.
To comply, you could:
arrange for workers to elect a health and safety representative
to represent them on health and safety issues, such as preparing
emergency or evacuation plans
form a health and safety committee to develop and review
build on existing informal arrangements (eg talk about it over
The new Act expands union powers to investigate workplace safety
incidents and consult with employees about work health and safety
matters. Penalties apply if a PCBU hinders union representatives
from exercising their powers without reasonable excuse.
Rebate for small businesses
The NSW government is offering a rebate of up to $500 to small
business owners who purchase and install safety equipment to
address a safety problem in their workplace. It is available from 1
March 2012 to businesses or sole traders with up to 20 full time
The rebate can be used to assist small businesses with the
purchase and installation of safety equipment that addresses slips,
trips and falls, manual handling, hazardous noise, injuries from
moving objects, chemicals and dangerous goods.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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