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New Work Health and Safety laws: will your business comply? (Nov-2011)

New Work Health and Safety laws: will your business comply? (Nov-2011)

The new model Work Health and Safety Act is due to take effect next January for most Australian states.L&MHspoke to EI Legal practice manager, Patricia Ryan, about how the changes will affect the logistics and materials handing industries.

Currently, there are eight jurisdictions with different sets of laws concerning workplace safety. In January 2012, the various occupational health and safety (OH&S) laws will be replaced by national laws, based on a model Work Health and Safety Act (WHS). The exceptions are Victoria and Western Australia, who are likely to defer implementation until later in 2012.

Essentially, the model WHS Act hopes to provide greater consistency and a more streamlined approach to the way OH&S is regulated in Australia.

"At the moment there is a consultation period to put together a model set of Codes of Practice that would be Australia wide. Some of these would be particularly relevant to logistics and particularly materials handling, such as the handling of heavy or hazardous goods, where relevant," EI Legal's Patricia Ryan said.

Harmonisation of Work Health and Safety laws
The proposed changes will be reflected through:
- the WHS Act, which sets out legal obligations,
- WHS regulations, which provides detail on how sections of the Act should be implemented, and
- Codes of Practice - practical guides for business and workers to achieve the required standard of work health and safety.

The new WHS will provide:
- new roles and responsibilities for employers
- new wording and definition changes
- critical changes regarding consultation
- changes to union rights of entry
- protection from discrimination, coercion and misrepresentation
- new penalties for breaches of the WHS
- new roles and responsibilities for health and safety representatives HSRs

Changes to the duty of care
"Currently the primary duty of care across existing legislation rests with employers, but under the new act there are definition changes, so that 'employer' would now be replaced with a term called 'PCBU' - a person conducting a business or undertaking," Ryan said.

This new definition can include a much broader range of people. "The duty of care that used to rest with employers is now extended to PCBUs. That will not only be employers, but other parties as well such as host employers and contractors, who don't directly employ the main contractor's employees."

Under the changes, everyone involved in the work flow would have an obligation to consult every other party involved in that operation.

The test of consultation is what is reasonably practicable. For example, a business would not necessarily have to have a health and safety committee. However, then there are specific provisions that require the business to have a health and safety committee if five or more workers requested this, or if a health and safety representative requested this.

Due diligence
A due diligence obligation on officers of PCBUs will also be implemented.

"Officers have the same definition as an officer in the Corporations Act. To simplify that, they are essentially senior management with decision making responsibilities. Officers now have a positive duty of care to exercise due diligence to make sure that the workplace is safe," Ryan explained.

This includes extra training, and the need to have a sound awareness of what is going on in the workplace where health and safety are concerned.

"The PCBU is not necessarily going to be the person in charge of implementation of work health and safety, but they have to be aware of what that person is doing. Officers could be Board members for example, so the Board would need to be aware of what steps were in place around work health and safety. They would also require a fairly thorough knowledge of what was going on," Ryan said.

Right of union entry

Currently, most jurisdictions already have some union right of entry in the existing laws. However, for South Australia and Tasmania these union rights will be new.

"The new provisions will allow a union member with an entry permit to come onto a workplace without notice where they expect a contravention of work health and safety laws, or with 24 hours notice if they want to come on to consult or advise," Ryan said.

These provisions will now be standard across Australia.

Tougher penalties

The penalties have also changed with three categories of breaches being introduced.

Category one - 'serious injury or death through reckless behaviour' - is, of course, the most concerning and most expensive. The maximum for a corporation is $3 million, and the maximum for an individual would be $300,000, as well as up to five years imprisonment.

Category two is 'serious harm through failure to comply with a duty of care', and category three would be all other offences.

"In some cases those penalties have doubled and more," Ryan observed.

Definition changes
"There are a couple of other definition changes. The familiar term 'employee' has been replaced by 'worker'," Ryan said.

This definition covers volunteers, for example, and sub-contractors.

"There is also an extension of 'others', which would generally be visitors to a site. For the first time, those people also have obligations to take care for their own health and safety when they come onto a site, and to follow the instructions of the PCBU - whoever the owner or occupier of the site is," Ryan said.

Health and safety representatives

Many businesses are interested in the health and safety representative. "They have some additional powers once they have been trained," Ryan noted.

Source: Safe to Work

By: Angela Welsh

In all jurisdictions health and safety representatives can issue a can issue improvement notices. They can also direct workers to case work if they believe the work is unsafe.

In addition, work health and safety representatives will have protection against discrimination. "This puts the onus on the employer or the PCBU, so they have to show that they didn't discriminate."

WHS changes: how to prepare
"From an industry point of view we talk about three steps to getting ready," Ryan said. "One step is to get informed about the new legislation, the regulations, and the codes of practice.

"Secondly, review what you already have, to highlight the changes between what you're now doing and what you might need to do.

"The third step is training - so, making sure everyone knows what the new changes are and how they are going to be implemented."

About the interviewee:
Patricia Ryan, practice manager and solicitor at EI Legal, has 30 years' experience in private practice and in-house roles, including her work in health and safety consultation. EI Legal consults on workplace relations and employment law matters.