There are major changes facing ALL business as Occupational Health and Safety (OHS) is reformed into Work Health Safety (WHS). The main objective is to provide a balanced and nationally consistent framework to secure the health and safety of workers and workplaces. By the end of 2011 most state OHS laws will be replaced.

In NSW, the new Work Health and Safety Act 2011 (WHS Act) will result in some important changes to the way work health and safety is currently administered in the workplace. The changes don’t just affect some workplaces, they affect every business.

When?

In NSW the new Work Health and Safety Act 2011 will take effect from 1 January 2012.

Some Key Changes:

An employer

is captured under the definition PCBU ‘person conducting a business or undertaking’

Controllers, self Employed etc

Are also PCBU with general duties of care

General duties of Employers      

Will be subject to qualifier ‘reasonably practicable’ and will apply to all PCBUs who are involved in the conduct of work

Employees

Are captured under the definition of worker which is broadly define to include anyone who carries out work in any capacity, including volunteers            

Duty of workers

Workers have an expressed duty to take reasonable care of themselves at work

Duty of others

Others are required to take reasonable care when at a place of work

Duty of Officers

Will change from having an attributed liability to a positive duty of ‘due diligence’ to ensure PCBU complies with duties

Due Diligence

Is specifically defined and includes knowledge of WHS and business risks, allocation of resources, WHS reporting, compliance and verification processes

Consultation

Broadened to include all workers affected and other PCBUs with shared responsibilities

OHS Representatives

Replaced by health and safety representatives (HSR) with increased functions and powers

HSR powers

After completing approved training HSRs will be able to issue PINs and direct unsafe work to cease

Management of risk

Risk assessments are not mandated in the Act but are mandated in the Regulation for certain high risk work (example; working at heights, confined spaces, working with dangerous goods etc)

Union officials

Can apply for WHS entry permit to enter a workplace to advise on WHS or when a breach is suspected

Protection against

Discrimination                 

Enhanced to protect workers and those in commercial arrangements from coercion, inducements or misrepresentation

Onus of proof

Reverse onus is removed with the prosecution having to prove a breach was committed

Penalty Options

Graduated enforcement options to include injunctions, remedial action and enforceable undertakings

Penalties

Maximum penalty for a corporation of $3 million and for an individual $300,000 and up to 5 years imprisonment for the most serious of breaches

• Changes to terminology from "Occupational Health and Safety" to "Work Health and Safety"
• A broadening in the definition of worker including employees, labour hire staff, volunteers, apprentices, work experience, sub-contractors.
• A broadening of person with health and safety duties
• Requirements for all duty holders to consult with others
• Everyone has health and safety responsibilities, being PCBUs (Person Conducting a Business or Undertaking), Officers, Workers and others (visitors at a workplace)
• HSR's can issue Provisional Improvement Notices if they have completed approved training and direct unsafe work to cease
• There will be two permits required for Union Officials to enter a workplace - WHS Permit for WHS issues and Entry Permit for IR issues

‘Due Diligence’

Exercising due diligence includes taking reasonable steps:

• To acquire and keep up-to-date WHS knowledge
• To gain an understanding of the hazards and risks associated with business operations
• To ensure the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks
• To ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information
• To verify the provision and use of the above resources and processes

Captured under the Act includes Plant, Structure, Substance, Designer, Manufacturer, Importer and Supplier.

The three most important policies to have in place include but not limited to;

1. OH&S policy (come 1^st January, 2012 will be WH&S policy)
2. Dispute resolution policy
3. Workplace Bullying policy

Who will be a PCBU?

The primary duty is owned by the operator of the business or undertaking; Examples are:

• Employers, Self-employed, Partners, Franchisees and Franchisor
• Principal Contractors, Sub-Contractors
• Businesses who design, manufacture, import, supply plant, substances and structures used at work
• Businesses who control workplaces, fixtures, fittings, plant at workplaces

Every business should consider the following:

• When was the last time you conducted a safety audit of your workplace?
• When was the last time you reviewed safety policies and procedures for compliance?
• Are your staff trained and aware of safety procedures in their workplace?
• Are you aware of the changes to the regulations?
• Are you aware of the consultation requirements?
• Are you aware of how the reasonably practicable and due diligence tests work?

FIAA can help support your business with the information, advice and tools you need to manage your obligations under the new laws.

For more information contact Monique Penton at mpenton@fiaa.com.au or Dean Brakell at dbrakell@fiaa.com.au or phone the office on 02 4340200.