Singing in tune? OH&S harmonisation in Australia

On 1 January 2012, the occupational health and safety laws in each Australian state and territory will be reformed to ‘harmonise’ occupational health and safety principles, obligations and procedures across Australia. This was achieved through the adoption of the Model Work Health and Safety (WHS) Act (model act) by the states and territories.

Currently, South Australia, Queensland and New South Wales have all passed legislation to bring this change into effect. Western Australia has indicated that it will adopt the majority of the model act (albeit not in its entirety) while the remaining states, territories and the Commonwealth are expected to introduce their legislation before the end of the year.

Although the model act draws on existing workplace health and safety laws, it changes the manner in which businesses, their employees and workplace representatives interact to protect and promote health and safety in the workplace.

The degree to which these changes will be felt by businesses will largely be determined by the location of operations and manner in which work practices need to be modified in order to be compliant with the new regime. Accordingly, harmonisation with the model act will require different degrees of change from each state and territory.

In many cases, this will mean that businesses, and persons involved in the businesses, will have more onerous obligations in the provision of workplace health and safety than under previous legislative regimes.This article discusses a number of the key changes associated with the harmonisation process relevant to businesses, in particular focusing on duties of relevant parties, consultation requirements and workplace entry by permit holders under the model act.

DUTY HOLDERS  Persons conducting a business or undertaking

• A person conducting a business or undertaking (PCBU) will have the primary duty of care under the model act to ensure, so far as is reasonably practicable, the health and safety of:workers it engages or causes to be engaged; and
• workers whose activities in carrying out work are influenced or directed by the business or undertaking, while the workers are at work in the business or undertaking.

Under the model act, the term ‘worker’ is taken to mean a person who carries out work in any capacity for the PCBU including a contractor, subcontractor, labour hire worker and volunteer. The expansive definition of worker will mean that businesses will owe a duty to a larger category of individuals.

A PCBU will also be required, so far as reasonably practicable, to ensure that the health and safety of other persons is not put at risk as a result of work carried out as part of the conduct of their business or undertaking, such as customers, suppliers and members of the public.

Officers

Under the model act, officers have a positive duty to exercise ‘due diligence’ to ensure that a PCBU complies with any duty or obligation. An officer is broadly defined and is likely to include senior managers of an organisation. Due diligence is defined as including taking reasonable steps to:

• acquire and keep up-to-date knowledge of workplace health and safety matters;
• understand the operations being carried out by the PCBU they are employed by, and the hazards and risks associated with the operations;
• ensure that the PCBU has, and uses, appropriate resources and processes to eliminate or minimise health and safety risks arising from work being done;
• ensure that the PCBU has appropriate processes in place to receive and respond promptly to information regarding incidents, hazards and risks; and
• ensure that the PCBU has, and uses, processes for complying with duties or obligations under the model act.

If officers fail to exercise due diligence they may be liable for penalties and/or imprisonment irrespective of whether there has been an injury or incident at the workplace.

Workers

Workers will owe a duty to take reasonable care for their own health and safety while at work and to comply with any reasonable instruction, policy or procedure concerning workplace health and safety. Workers are also required to take reasonable care so that their acts or omissions do not adversely affect the health and safety of other persons at the workplace.

Other persons at the workplace

Similarly, other persons at the workplace will have a duty to take reasonable care for their own health and safety, and to take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of others. These individuals will also be required, as far as they reasonably can, to comply with a reasonable instruction given by the PCBU to ensure compliance with the model act.

CONSULTATION

Under the model act, a PCBU will be required to consult with their workers who may be directly affected by matters relating to workplace health or safety. Consultation will need to be commensurate with the significance of the issue raised, urgency of the required change and availability of affected workers and their representatives.

Practically this means that PCBUs  will need to:

• share relevant information about workplace health or safety matters with their workers;
• provide a reasonable opportunity for workers to express views and raise issues;
• consider workers’ views in relation to workplace health or safety matters;
• advise workers of relevant outcomes in a timely matter; and
• ensure they involve any relevant health and safety representatives in this process.

HEALTH AND SAFETY REPRESENTATIVE

The model act makes provision for the appointment of Health and Safety Representatives (HSR).

In essence HSRs will represent the interests of particular workgroups and, upon agreement between relevant parties, operate across multiple businesses or undertakings.

Under the model act, HSRs will have the power to undertake various forms of action including, but not limited to, directing work to cease in circumstances where work poses an immediate threat to a person, issuing provisional improvement notices, monitoring PCBU compliance with the new legislation and investigating complaints from workers about health and safety matters.

Workers in a work group will have the power to determine how an election of a HSR is to be conducted, as long as it complies with the regulations, and can choose to be assisted by a union if the majority so determine. Importantly, a PCBU must provide reasonable resources, facilities and assistance to enable the elections to be conducted.

HEALTH AND SAFETY COMMITTEE  

PCBUs must establish a health and safety committee if requested to do so by a HSR or five or more workers, or if required to do so under a regulation.

The Health and Safety Committee can assist in facilitating co-operation between the PCBU and the relevant workers in instigating, developing and carrying out measures designed to ensure workplace health and safety, assisting to develop relevant standards, rules and procedures for the workplace and any other functions agreed between the PCBU and the committee or as prescribed under the regulations.

Importantly the PCBU must allow health and safety committee members to attend committee meetings (held at least once every three months) and pay them for their attendance. The PCBU must allow the committee access to information relating to hazards at the workplace and the health and safety of the workers at the workplace. This does not include personal or medical information unless the person consents.

UNION RIGHTS

Under the model act, an office holder or an employee of a union (WHS entry permit holder) can enter a workplace in order to enquire about a suspected contravention of the new legislation that relates to a relevant worker and to consult in relation to health and safety matters with a relevant worker.

When entering a relevant workplace to investigate a suspected contravention, WHS entry permit holders can:

• inspect anything relevant to the suspected contravention including work systems, plant, substances and structures;
• consult with relevant workers or the relevant PCBU about the suspected contravention;
• require the relevant PCBU to allow the WHS entry permit holder to inspect and make copies of any document that is directly relevant to the suspected contravention that is kept at the workplace or accessible from a computer at the workplace, other than an employee record; or
• warn any person of a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard that the WHS entry permit holder reasonably believes that person is exposed to.

A WHS entry permit holder cannot enter a workplace unless he or she also holds an entry permit under the Fair Work Act 2009 (Cth) or is authorised to enter a workplace under another state workplace law.

Under the model act, unions will no longer have the power to prosecute for breach of an occupational health and safety law, with the regulator performing this function. Controversially, New South Wales has retained the right of unions to prosecute breaches of the act.

GETTING READY

Businesses need to ensure that by 1 January 2012:

• new workplace health and safety systems and processes are in place that comply with the new legislation; and
• all duty holders are aware of their responsibilities under the new legislation and the powers that can be exercised in respect of their workplaces.

For more detailed information about how this may impact on your business please contact Belinda Winter or Luke Keane of the workplace relations team at Cooper Grace Ward Lawyers on (07) 3231 2498.