By James Mattson
Source: Bartier Perry
On 1 January 2012 the Work Health and Safety Act 2011 (WHS
Act) commences operation replacing the existing NSW
Occupational Health and Safety Act 2000 (OHS
2000). For NSW employers, the changes are significant.
However, on 7 June 2011, the Occupational Health and Safety Amendment
Act 2011 amended a number of provisions in OHS 2000 to fast-track some
of the reforms, such as the duty of due diligence.
The major changes in the WHS Act for NSW employers include:
a broader focus than "employer" and "employee" to cover all
"persons conducting a business or undertaking" to secure the safety
of all "workers";
"workers" is broadly defined to include employees, contractors and
the absolute duty to guarantee safety is modified to include the
concept of reasonable practicability;
a positive duty on "officers" to exercise due diligence;
broader consultation obligations, including a duty to "consult,
co-operate and co-ordinate" with other duty holders; and
significantly increased penalties for a contravention of the WHS
For NSW employers there is a welcome shift from the previous absolute duty
to ensure safety to a duty to ensure safety so far as is reasonably
practicable with the onus being on the prosecutor to prove all material
However, the new regime requires a proactive, smarter and considered
approach to safety. Safety is dealt with more holistically and, as a
result, obligations can be more encompassing.
The primary duty
Section 19(1) of the WHS Act provides that persons conducting a business or
undertaking must, so far as is reasonably practicable, ensure the health
and safety of workers at work in the business.
Ensuring safety "so far as is reasonably practicable" may operate in a
number of ways:
The obligation is "heightened" and greater than the common
law duty to take reasonable care.
The first step will be to eliminate risks before any lesser control
standard can be adopted.
What is "reasonably practicable" depends largely on a
consideration of whether the time, trouble and expense of the steps
to eliminate or reduce the risk aregrossly
disproportionate to the nature of the risk involved.
WorkCover bears the onus of proof in any charge. It must prove, to
the criminal standard, that the business failed to ensure, so far
as is reasonably practicable, the health, safety and welfare of the
It is likely that once simple and relatively inexpensive measures
which could have been taken at the time to avoid the accident are
identified, the prosecutor's onus will be discharged.
Section 27(1) of WHS Act requires an officer of the person conducting the
business or undertaking to exercise due diligence to ensure that the person
conducting the business complies with its duty or obligation.
An "officer" includes directors and the secretary of a corporation as well
as persons who make, or participate in the making of decisions that affect
the business, or a substantial part of the business.
The duty to exercise due diligence is positive. Being passive or
disinterested can be a contravention; due diligence requires officers to be
proactive about safety and have an ongoing demonstrable interest in safety
Due diligence is usefully defined in section 27(5) of the WHS Act as:
… "due diligence" includes taking reasonable steps:
(a) to acquire and keep up-to-date knowledge of work health and safety
(b) to gain an understanding of the nature of the operations of the
business … and generally of the hazards and risks associated with those
(c) to ensure that the person conducting the business … has available
for use, and uses, appropriate resources and processes to eliminate or
minimise risks to health and safety from work carried out …, and
(d) to ensure that the person conducting the business … has appropriate
processes for receiving and considering information regarding incidents,
hazards and risks and responding in a timely way to that information,
(e) to ensure that the person conducting the business … has, and
implements, processes for complying with any duty or obligation of the
person … under this Act, and
(f) to verify the provision and use of the resources and processes
referred to in paragraphs (c)-(e).
Businesses and their officers should understand the new laws, the duties
and obligations and take active steps to ensure compliance with the new
obligations, including exercising due diligence.
Bartier Perry can conduct tailored seminars for businesses and its officers
on the new laws, as well as undertake a review of systems and practices
against the due diligence obligation. Please contact us to discuss this
This publication is intended as a source of information only.
No reader should act on any matter without first obtaining professional