New WHS Legislation

Free WHS Compliance Evaluation!

Please use the "Contact Us!" box on the left to send us your details.  We will be in touch to arrange your free evaluation.  If you wish to contact us straight away to arrange a time for your evaluation, please contact Phil on 0411 855 798.

In the meantime, below is some information to help you comply with the new Act:


 


Your Obligations under the WHS Act. 

This information is provided courtesy of Portner Press.  

This document provides a brief overview of your organisations obligations under the WHS Act applicable in NSW, Queensland and Victoria as of the 1st January, 2012.

The Work Health and Safety Act (WHS Act) became law throughout Australia on 1 January, 2012. The primary purpose of the WHS Act is to protect persons from work related harm.

 

The duties imposed under the WHS Act on your organisation, its officers and its workers are non-transferrable duties, they cannot be delegated to another person.

In addition to this, a person can have more than one duty, eg an officer and a worker.

Your WHS Duties are at three (3) levels:

  • An officer’s positive duty of due diligence.
  • A person conducting a business or undertaking’s (PCBU) primary duty of care.
  • A workers obligation of reasonable care and compliance.

Duties of Officers;

The definition of an officer in the WHS Act is:

  • The director or secretary of a corporation; or
  • A person who makes or participates in making decisions that affect the whole, or a substantial part of the company; or
  • A person who has the capacity to significantly affect the company’s financial standing, in accordance with those instructions or wishes the directors of the company are accustomed to act.

An officer does not include a partner in a partnership, or an elected member of a local authority acting in their capacity.

The officers in your business/organisation include;

  • Directors;
  • The CEO or Managing Director;
  • Any other senior manager who controls or has substantial control over the business.

An OHS Manager would not be considered to be an Officer under the Act.

Important Note: Officers have a duty to exercise due diligence to ensure that their employer, the PCBU (refer to definition of PCBU) will comply with its primary duties and obligations under the WHS Act. This is a positive obligation imposed on each and every officer.

Officers must constantly be mindful of their duty to ensure the PCBU’s compliance with its primary duty of care.

Definition: Due Diligence refers to taking reasonable steps to:

  • Keep up to date knowledge of the WHS matters that concern the PCBU;
  • Gain an understanding of the nature of the operations of the PCBU abd of the hazards and risk associated with the PCBU’s operations
  • Ensure that the PCBU has available and uses appropriate resources and processes to eliminate or minimise any risk to health and safety from work carried out as part of their operations;
  • Ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
  • Ensure that the PCBU has, and implements, processes for complying with any of its duties or obligations under the WHS Act, and
  • Verify the provision and use of the resources and processes referred to above.

Once again refer to the information regarding PCBU’s

 

What do Officers need to do?

For an officer in a PCBU to carry out their due diligence, they must;

  • Fully understand how the business operates;
  • Be aware of the common risks that exist within the business, in particular the higher risk hazards;
  • Understand the level of risk associated with each hazard;
  • Know what the appropriate controls for those hazards are: and
  • Ensure the appropriate resources are allocated to eliminate or minimise the risk of those hazards from causing work related harm.

Officers must ensure that the PCBU complies with its duty. This means that the safety management systems used by the PCBU enable all persons in the workplace to be safe from work related harm, have integrity and are effective in preventing work related harm.

Another Important Note;-this positive duty of due diligence requires the offices to adopt a method of management that ensures that people are protected from work related harm through;

  • The identification of hazards;
  • Risk management;
  • Resource allocation; and
  • System development

This new governance responsibility will ultimately provide a reporting structure throughout the business, confidence to the officers of the PCBU that all relevant steps to ensure safety are being carried out and evidence that the PCBU, so far as reasonably practicable, is protecting persons from work-related harm.

Another Important Note:

Positive due diligence is a new concept in safety throughout Australia. It creates new legal responsibilities and a new compliance structure.

What does reasonably practicable mean?

Definition of Reasonably Practicable

Reasonably practicable, in relation to a duty to ensure the health and safety refers to what is reasonably able to be done when ensuring health and safety, taking into account and weighing all the relevant matters including:

  • The likelihood of the risk or hazard concerned occurring;
  • The degree of harm that may result from the hazard or risk;
  • What the person concerned knows or ought reasonably to know about:
    • The hazard or risk
    • Ways of eliminating or minimising the risk
  • The availability and suitability of ways to eliminate or minimise the risk; and
  • After assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

 

What is a PCBU?

Definition: Person Conducting an Undertaking or Business (PCBU)

A PCBU is a person, corporation or unincorporated association who conducts a business or undertaking, whether or not the business or undertaking is conducted for profit or gain. The business or undertaking can be conducted by one person alone or with others ie in partnerships each partner is a PCBU.

A PCBU does include a volunteer organisation that employs people to carry out work, but if no person is an employee, then the volunteer organisation is not a PCBU.

A PCBU does not include a person working solely as a worker or as an officer of the PCBU or an elected member of a local authority.

What is the primary duty of care for PCBUs?

A PCBU primary care of duty is to ensure as far as reasonably practicable, that workers are not exposed to the risk of work related harm.

Another important note:

This duty extends to ensuring other persons (non workers health and safety are not put at risk from work carried out by them or whilst they are at the workplace.

How does a PCBU manage risk?

The primary duty of care requires the PCBU to eliminate risk to health and safety, as far as reasonably practicable. And in the case that it is not reasonably practicable to eliminate risk to health and safety, to minimise those risks so far as reasonably practicable.

In determining whether you as a PCBU are taking appropriate steps to eliminate risks to health and safety or to minimise those risks so far as reasonably practicable you must;

  • Have a system (which includes appropriately staffed people) that;
    • Identifies hazards within your workplace;
    • Determines the degree of harm that may result from the hazard;
    • Determines the likelihood and the risk of the hazard occurring;

 

  • Remain up to date with the nature of hazards in your workplace, ie have detailed knowledge about the hazards and risks in your business, and use current methods to identify and eliminate or minimise those hazards and risks;
  • Have a governance process in place;
  • Allocate sufficient resources to eliminate or minimise a hazard or risk that has been identified ; and
  • Ensure there is a system in place that determines, following the identification of hazards and risks and the allocation of resources, that appropriate controls have been put into place to prevent work related harm.

Another important note;

You are not expected to eliminate every hazard or risk from your workplace. However if there is a reasonable step that you should take to remove or control the risk to health and safety, you are obliged to take the steps necessary. This will be the case unless such a step involves a cost that is grossly disproportionate to the risk.

8 other duties of care of PCBU’s

The PCBU has several other duties of care: These are to ensure, so far as reasonably is practicable:

  1. The provision and maintenance of a work environment without risks to health and safety.
  2. The provision and maintenance of safe plant and structures.
  3. The provision and maintenance of safe systems of work.
  4. The safe use, handling and storage of plant, structures and substances.
  5. The provision of adequate facilities for the welfare of workers carrying out work for the PCBU, this includes ensuring access to these facilities.
  6. The provision of any information, training, instruction or supervision that is necessary to protect all persons from risk to their health and safety arising from work carried out as part of the conduct of the PCBU.
  7. That the health of your workers and the conditions of your workplace are monitored for the purpose of preventing illness or injury of your workers arising from the conduct of the PCBU.
  8. If the worker occupies accommodation that is owned by or under management of the PCBU, and is necessary for the workers engagement, then the PCBU must maintain the premises so the worker occupying the premises is not exposed to risk to health and safety.

What are shared duties?

The WHS Act creates duties where there is concurrent liability. That is when two or more parties are independently liable for the same incident or workplace.

However the WHS Act also recognises that when there is more than one PCBU operating in one workplace, responsibilities will be allocated accordingly.

Shared duties arise in relation to the principal contractual relationships that exist on building sites and other construction areas.

If one PCBU has management or control of a workplace, in whole or in part, that PCBU must so far as is reasonably practicable, ensure that entering and exiting the workplace and anything arising from that workplace are without risk to health and safety of any person.

 

Specific PCBUs also have other duties

These include:

  • Design of plant, substance or structures;
  • The manufacture of plant, substance or structures;
  • The importation of plant, substance or structures;
  • The supply of plant, substance or structures;
  • The installation, construction or commissioning of plant or structures.

Another important note: It is not enough that the plant, substance or structure is safe in its current capacity. The relevant PCBU must ascertain any future expected use (and ensure that use is safe), and make appropriate enquiries and investigations to demonstrate that such use is safe.

What is a worker?

Another important note: the definition of a worker has been significantly broadened under the WHS Act. The change in definition was designed to increase the number of people who would have an obligation and be protected under the WHS Act.

Definition : Worker

A worker is a person who carries out work in any capacity for a PCBU, including as:

  • An employee
  • A contractor or sub-contractor
  • An employee of a contractor or sub-contractor
  • An employee of a labour hire company who has been assigned the work in a PCBU;
  • An outworker
  • An apprentice or trainee
  • A student gaining work experience; and
  • A volunteer

Another Important Note; A worker can also be a PCBU if the person is an individual who carries out work in that business or undertaking, eg a sole business operator working through an ABN.

Obligations of Workers

They must:

  • Take reasonable care for their own health and safety;
  • Take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons.
  • Comply as far as reasonably able with the lawful and reasonable instruction given by the PCBU.
  • Comply with the lawful  and reasonable policy and procedure of the PCBU relating to health and safety.

Another important note: the duty of workers under the WHS Act is critical for carrying out of the new governance process. If the officers of a PCBU require a safety management system to be implemented, enforced and reported against, then it is necessary that each worker down the chain of command within the PCBU complies with the governance processes that exist to;

  • Identify the safety conduct that is required;
  • Specify how that safety conduct is to be carried out; and
  • Define the system which records, measures and assesses that safety conduct and stipulates, through policy, procedure and supervisor direction, how each worker will conduct themselves safely.

 

THE NEW GOVERNANCE STRUCTURE

Your business’s new OHS obligations for officers and PCBUs require a PCBU to have a reporting system that not only creates good safety management within the business, but also requires reporting against it to satisfy the officers that the PCBU is safe.

Officers are required to ensure there is a safety management system that eliminates or minimises the risk of work-related harm, but also requires a reporting structure that validates that the system is working.

 

WHS Act triangle of Responsibility:

 

Under the WHS Act responsibility is structured in a triangular model.

 

 

 

 

 

At the top of the triangle, the officers must ensure there is a safety management system that eliminates or minimises the risk of work related harm.

The PCBU must ensure that all reasonably practicable steps have been taken to eliminates or minimises the risk of work related harm to workers or others.

The workers obligations are not only to take reasonable care to avoid the risk of harm to themselves and others, but importantly to comply with reasonable and lawful directions around work health and safety.

Once the workers have complied with that duty, the PCBU must report back to the officers, to demonstrate that the safety management system:

  • Is intact;
  • Has integrity; and
  • Reasonably satisfies the officers that all reasonably practicable steps have been taken to eliminate or minimise the risk of work related harm to workers and others.

What are the requirements of the PCBU?

The WHS Act requires all levels of a PCBU to be able to:

  • Identify hazards
  • Assess the risks of the hazards
  • Consider appropriate controls; and
  • Deliver the controls to make the workplace safe.

Caution: There is a clear emphasis under the WHS Act to require each layer of the chain of command within a PCBU to have greater capability.

Definition: Capability-means skill, knowledge and competence.

 

The Old OHS Reporting System:

 

In the past businesses have utilised OHS Managers to:

  • Identify the rules of safety within their business
  • Train people in the rules of safety in their business
  • To ensure people are complying safely; and
  • To provide the reporting function to the senior executive members of an organisation and the board.

Board

CEO/MD

Operations         OHS Manager

Supervisor

Employees

 

Caution: It is no longer the case that a General Manager, a supervisor or an employee can say that it is “somebody else’s job”

Under the WHS Act, there is a significant growth in documentation and bureaucracy around physically recording each step of the safety process. The higher obligations that rest on each member of the chain of the command are significant and different to those that existed under the prior OHS legislation. These obligations are to:

  • Understand the business;
  • Identify hazards;
  • Assess the risks;
  • develop controls; and
  • Apply resources.

Diagram: The new role of the OHS Manager

Another important note:

This shift means that the OHS manager moves away from supplying safety skills, knowledge, processes, checking compliance and reporting, and moves towards being the source of skill and knowledge that members of the chain of command seek (ie build capability) and who solicits the relevant information from all levels from the chain of command to assist in developing an appropriate reporting structure.

Board

 

CEO/MD

 

Operations                 OHS Manager

Supervisor

 

Employee.

 

What capabilities are required?

Another important note: The people in your company have the capability to fulfil their new OHS obligations.

The requirement of governance capability is a fundamental change in the WHS Act because it moves apart from all past legislation.

Another important note: Although the obligation to understand the business, identify hazards, assess risks, implement controls, allocate risks and carry out the safety management system are obligations that now exist at all levels of the chain of command-it does not mean these obligations are the same.

At an officer level, the obligation is to understand high level risks and what gaps there may be in the delivery of safety against the safety management system and plan. Officers must have the capacity to find out from their OHS Manager:

  • Where the gaps are;
  • Why there are gaps; and
  • What resources are needed to fill those gaps and therefore that the safety management systems within the PCBU is intact and has integrity.

As you travel down the chain of command from operations managers to supervisors, the hands-on knowledge of safety increases.

 

At supervisor/employee level, it is essential that they are able to identify:

  • What hazards are associated with the work they undertake;
  • What the likelihood is that those hazards will create work-related harm;
  • How severe that is likely to be;
  • What immediate control can be introduced to ensure that the workplace is safe immediately to avoid the risk of harm; and
  • What the workplace processes are that will allow the risk to be elevated up the chain of command to permit resources to be used to eliminate or minimise that risk of work related harm occurring.

The board of a PCBU must have the capability to:

  • Have a safety management system that works;
  • Know it is working; and
  • Know that each level of the PCBU chain of command is implementing the safety steps required under the safety management system.

The duty to provide a safe system of work

As previously noted, there is primary duty on a PCBU to provide and maintain a safe system of work. That system is commonly called an OHS Management System (OHSMS).

Definition: An OHSMS is a set of plans, actions and procedures to systematically manage health and safety in the workplace.

Step-by-step: How to develop an OHSMS.

Step 1: Describe your organisations OHS structure

How will you address OHS in your business? Set out who is accountable for all health and safety related issues in your business.

Determine who will be responsible for:

  • Managing compliance with OHS duties;
  • Developing relevant policies;
  • Disseminating information;
  • Establishing and maintaining consultation processes with employees; and
  • Planning and conducting OHS training.

Step 2: Consultation

Set up a system to consult about OHS matters with employees.

Step 3: Policies and programs

Develop appropriate occupational health and safety policies and programs.

Step 4: Hazard Identification and Risk Management

Work out how risks and hazards will be identified ( conduct hazard identification on a regular basis), and how safe work procedures will be determined.

What tests and inspections are carried out and by whom.

Step 5. Training

Establish a training program including inductions for new employees and ongoing training for current employees.

Very important note:

Training is essential for the creation and maintenance of a safety culture in your business.

However....

Training is not enough. You must be able to demonstrate that workers have been trained and are competent in those areas.

Step 6: Documents and records

Ensure that all policies, procedures, reviews, checks, inspections and audits are documented.

All records should also be stored in a way that permits easy retrieval.

Step 7: Review and Audit

Ensure that the policies, procedures and practices are implemented consistently throughout the business, and are reviewed regularly to ensure they remain up to date and relevant.

Step 8: Reporting

Develop a method of reporting that looks at the actual safety performance of the PCBU, and demonstrates that it is, at every level, auctioning its safety management system.

When can an OHSMS fail?

OHSMSs regularly fail. The main reasons are:

  • Inadequate or inconsistent support from managers and supervisors;
  • Too much focus on filling in paperwork and not enough on the important task of identifying and eliminating risks and maintaining safe systems of work;
  • Inadequate consultation within the business, with the result that employees lack the communication or knowledge to make it work;
  • The policies and procedures are too generic and not tailored to the needs of the organisation; and inadequate or inaccurate reporting.

How will you be penalised for breaching your duties?

The maximum penalties are set out in three categories.

 

Corporation

Officers

Workers

Category 1-Reckless Conduct

$3,000,000

$600,000 or 5 years’ imprisonment

$300,000 or 5 years imprisonment

Category 2-breach of primary duty

$1,500,000

$300,000

$100,000

Category 3-breach of regulatory duty

$500,000

$100,000

$50,000

 

Defintion: Reckless conduct-a person engages in reckless conduct if they, without reasonable excuse, engage in conduct that exposes an individual under their duty of care to the risk of death or serious injury or illness.

Monday the 24th. Copyright 2012 PKP & Associates | 9 Tuggerawong Rd Tuggerawong NSW 2259 | Ph. 0411 855 798
Copyright 2012

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