Summary – Under new WHS laws company
officers have new obligations to workers including volunteers, with
greatly increased penalties for non-compliance.
Why do I need to know about the new national WHS laws
Volunteers such as canteen assistants, parent volunteers, P
& F volunteers and event support personnel now fall within the
definition of worker, in the same way employees are captured by
that definition. The obligations of an employer or other Person
Conducting a Business or Undertaking (PCBU) has therefore increased
significantly and so too have the penalties for non-compliance.
The legislative changes
On 1 January 2012 national legislation titled the Work Health and Safety Act 2011 (WHS
Act) took effect in several states and territories
including New South Wales, with further states and territories
expected to follow. Some of the key differences with the new
The reverse onus approach has been abolished, which previously
required a defendant to prove the exercise of their obligations
rather than a plaintiff having to prove the defendant's breach
of those obligations.
Mandatory 'risk assessments' have been removed, however
they are likely to remain one of the most useful tools to ensure
the safety of workers.
The exclusion of 'Volunteer Association' has been
defined in such a restrictive manner that the exception will not be
available to most organisations who would consider themselves, at
first glance, to fall within that exclusion.
Maximum penalties have increased to $3M and up to five years
imprisonment and apply to officers within organisations who may not
have needed to discharge obligations under the previous
Types of duties owed to workers including volunteers
A PCBU has the primary obligation to ensure the overall health
and safety of workers.
In relation to the workplace, obligations
include provision of a safe work environment, safe plant and
structures and safe work systems including use, handling and
storage practices for equipment and other substances.
In relation to the worker, obligations include
adequate provision of welfare facilities such as rest and lunch
areas; information; training; instruction; supervision; and safe
entry, passage way and egress from the workplace.
In relation to the employer or other PCBU,
obligations include to monitor work conditions and the health of
workers as well as establishing and maintaining continued
consultation about safety matters with workers and other relevant
How to discharge those duties
The WHS Act provides that steps must be taken which are
'reasonably practicable' and matters relevant to those
the likelihood of the hazard or risk occurring; the potential
degree of harm from any such occurrence; knowledge regarding the
hazard or risk and the steps that could be taken to reduce or
eliminate that risk; and the availability, suitability and cost of
steps to reduce or eliminate that risk.
A popular misconception
Courts have regularly held that cost will not be the key factor
in determining the reasonable steps to be taken unless the cost is
grossly disproportionate to the risk. An expensive remedy to an
unlikely event can still be required to properly discharge the
legislative duties, particularly where the injury may be
catastrophic in nature.
If your educational institution includes a level of volunteer
involvement or assistance, whether it be from parents, students,
past employees, family members etc. it would be important to become
more familiar with the changes to WHS laws referred to in this
article and set out more fully in the legislation.
Knowledge of these changing obligations will help your
organisation to ensure that appropriate steps are being taken to
firstly protect your workers and secondly to protect your legal
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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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