The new Work
Health and Safety (WHS) laws replaced the Occupational Health and Safety (OHS)
laws in NSW on 1 January 2012.
These new laws will provide greater consistency, certainty and clarity across
Australia making it easier to understand your workplace health and safety
duties. Businesses and volunteer organisations that operate over several states
will now be able to initiate nationwide safety policies and procedures without
needing to take into account the differences in legislation from state to state
or territory that used to prevail under the old system.
As a general
rule, if you are complying with the old OH&S laws you are well on the way
to complying with the new WHS laws.
What are transitional arrangements?
Don’t panic
about having everything in place right now! To assist business, industry and
the community, transitional arrangements have been implemented. For example, existing OHS committees will
become WHS committees and these committees will have 12 months to ensure their
membership aligns with the new legislation.
Transitional arrangements have been
put in place in NSW and other states to support businesses, industry and
workers move to the new system of work health and safety laws.
In summary these provide for:
- Recognition of existing information, records or other documentation
that is substantially the same as work health and safety (WHS)
requirements
- Transitional periods of 12-18 months where there is a change in
training requirements;
- Only requiring retraining or reassessment if the requirements are
substantially different
- Transitional periods of 6-12 months (in most cases 12 months) where
a duty or requirement is new; and
- Up to 24 months for some new obligations where industry might have
difficulty in complying for reasons beyond their control
So what is new?
1.
If you are an employer, sole trader,
association, partnership, corporation or volunteer organisation with paid
workers, you will be classed as a person conducting a business or undertaking
(PCBU). PCBU will therefore replace the current term employer.
2.
If
you are an employee, volunteer, labour hire staff, apprentice, work experience
student, trainee, outworker, sub-contractor or contractor, working for a PCBU
you will be classed as a worker.
Worker will replace
the current term employee. Note however that a contractor for example can
be both a PCBU and a Worker at the same time meaning that they will carry both
responsibilities defined below.
3.
If
you are a supplier, designer, manufacturer, importer, or manager or controller
of a workplace, you will have specific duties in addition to those as a PCBU.
4.
Health
and safety representatives (HSRs) will replace current OHS representatives and
play a key role in the consultation
process.
5.
PCBU
consultation with workers is an important element of the new legislation as is
consultation between PCBUs in the case of more than one PCBU.
6.
It
is a legal requirement to provide notification of serious workplace accidents
and incidents as well as responsibility to preserve the site where the incident
occurred
7.
If
you work in – or even just visit – a workplace, you will have WHS rights and duties.
Responsibility of Directors and Officers
Officers, including company
directors, are individuals who have high level obligations for work health and
safety and are defined as anyone who
makes decisions, or participates in making decisions.
These obligations are important as health and safety commitment and leadership
from the top levels of the business or undertaking is critical to health and
safety outcomes.
Therefore, officers must ensure the person conducting a business or undertaking
has arrangements in place to comply with its legal obligations.
It is an officers duty to exercise “due diligence” to ensure their business or
undertaking fulfils its health and safety obligations under the Work Health
and Safety Act 2012.
The essential elements of “due diligence” for an officer are interrelated and
cumulative in nature. These elements require an officer:
·
to acquire
and keep up to date knowledge of work health and safety matters. Ignorance is
not an excuse.
·
to gain an
understanding of the operations of the business and the hazards and risks
involved
·
to ensure
appropriate resources and processes are provided to enable hazards to be
identified and risks to be eliminated or minimised
·
to ensure
information regarding incidents, hazards and risks is received and the
information is responded to in a timely way
·
to ensure
the PCBU has, and implements, processes for complying with any legal duty or
obligation
·
to ensure
processes are verified, monitored and reviewed.
Though not exhaustive, these
elements form part of a unified system for ensuring organisational compliance.
So in other words the management team within an organisation have definitive
responsibility to ensure the health and safety of their workers (new term
replacing employee).
Responsibilities of Workers
While at work, workers have
responsibility to take reasonable care for their own health and safety, and take
reasonable care that their acts or omissions do not adversely affect the health
and safety of other persons. It is also their responsibility to comply, so far
as is reasonably, with any reasonable instruction that is given by the person
conducting the business so that they are in compliance with their legal
responsibility as an Officer. Workers therefore must co-operate with any
reasonable WHS policy or procedure of the person conducting the business.
The Health and Safety Representative
The
employees (workers) of a business have a right to elect a Health and Safety
representative who will be their advocate on all things relating to workplace health
and safety. It is not mandatory to have
a HSR but if one or more workers request the appointment, then the PCBU must
comply and fines apply if they do not. Formal election processes apply to
validate their appointment with the typical term being 3 years. HSR’s who have
undertaken the proscribed training may make investigate a health or safety
complaint as well as making various recommendations.
Notifiable Incidents
It is the
responsibility of the PCBU to notify WorkCover of any serious incident that may
have incurred in the work environment. Serious is defined as any incident that
requires hospitalisation as an inpatient.
How does the Consultation Process Work?
The ACT
requires that the PCBU consult with their Workers regarding the Health and
Safety of the workplace. For larger firms it may be worth while establishing
work groups around various geographic locations or functional categories with a
HSR appointed to each group. Workers may also make a request for the appointment
of a Health and Safety Committee. For
small businesses however, which WorkCover NSW defines as a business with less
than 20 staff (different from Fair Work which defines less than 15) you may
determine what are called “Other Agreed Arrangements” where proper consultation
between the PCBU and Workers is achieved.