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?
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
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:
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.
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