The Work Health and Safety Act took effect on 1 January
2012 and represents a major overhaul of occupational safety and
health laws in Australia. These are expected to have a particular
impact on mining and construction.
For builders and contractors, whether you are involved in
building houses , large skyscrapers, factories or mining plant and
equipment, and whether you are the head contractor, a subcontractor
or a sole trader providing skilled or unskilled labour, these new
laws will almost certainly affect you.
At their most basic level, the new laws abolish the old
distinctions between employer and employee and replace these with
PCBUs (Persons Conducting a Business or Undertaking) and Workers.
The distinction between employees and independent contractors will
disappear for the purpose of determining the rights and obligations
of PCBUs and workers in a work group (which is the new term for
workplace). This will make a real difference to the rights and
responsibilities of companies and individuals who work together on
large construction projects. Specifically, those who:
work for a head contractor or subcontractor; and
engage other trades, labour or subcontractors to work for
have both rights as Workers and obligations as PCBUs.
Interestingly, even volunteers are now regarded as
"Workers" under the new laws.
These changes are set to affect many aspects of daily business
in the building and construction industry as well as those who
supply contractors and subcontractors with materials and/or labour.
Legal services will be indispensable during the transition phase,
which will involve drafting appropriate clauses in construction and
supply contracts and formulating, implementing and reviewing
compliance and management processes.
In one way, these reforms mirror recent reforms to WA's
building laws. The most obvious similarity is the move in each
field towards professionalisation. Like builders (and other
professionals such as lawyers, doctors, real estate agents, etc.),
those responsible for the health and safety of Workers in work
no longer be authorised to do the job without a practising
certificate (compare builders' registration);
be bound to perform prescribed functions and duties with due
care, skill and diligence; and
be liable to prosecution by professional regulators for
breaching their duties.
This will have obvious knock-on effects in other industries,
such as insurance (consider, for example, the increased need for
professional indemnity insurance).
We expect that the challenge presented by these new laws will be
particularly acute in the building and construction industry.
Safety and health standards in construction are already regarded as
well below the baseline and are expected to worsen as numbers of
experienced builders decline and those of apprentice-level
Professional safety and health executives and the officers and
directors of the companies they work for will have duties of due
diligence under the new laws. This seems to be aligned with broader
trends in the courts towards holding those who run companies
personally accountable for their companies' conduct.
Other proposed laws are expected to be particularly
prescriptive. For example, there are proposed laws governing the
management, assessment and control of risks at various stages in a
mining project, from initial design through all stages of
operation. Amongst others, the reforms impose a duty on
certificated professionals to formulate:
a principal hazard management plan having regard to the
relative probability and impact of each known hazard; and
a principal hazard control plan.
These plans will be subject to mandatory review
The relevant provisions of the Model Work Health and Safety
Regulations, which require these plans to be prepared and
implemented in the States where they have been enacted into
legislation, have yet to become law in WA.
If you are involved at any level in mining or construction, even
if you would be regarded as an independent contractor under the old
laws, you will be affected by the new workplace safety laws and
should come to us for advice about what your rights and obligations
are and how to become compliant.
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.
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