On 1 January 2012 the National Workplace Health and Safety legislation commences. This will see the harmonisation of nine primary Federal, State and Territory Health and Safety Acts into the one Workplace Safety Act.
Any not-for-profit (NFP) entity, whose activities cross more than one state or territory border, will now be able to implement one nationally consistent Health and Safety system, policy and procedure. This will allow you to streamline your policies and procedures to ensure that the officers and employees not only meet their statutory obligations, but that they ensure the NFP meets its statutory obligations.
One important and welcomed change for those in New South Wales and Queensland is the removal of the absolute liability for workplace safety to a nationalised standard of doing what is “reasonably able to be done in relation to ensuring health and safety”.
The health and safety duty
Adopting the Queensland Health and Safety Act terminology, the National legislation will place the primary duty of workplace health and safety on those persons conducting a business or undertaking (PCBU). The concept of a PCBU is intended to cover not only employers, but also principals and host employers. The duty is to, so far as is reasonably practicable, ensure the health and safety of:
“Reasonably practicable” means taking into account and weighing up all the relevant matters including:
what the person concerned knows or ought to reasonably know about the hazard or risk, and the ways of eliminating or minimising the risk;
The details of your duty will be contained in Regulations, which have just been subject to public comment and review. Once the Regulations are released in final format, we will have a greater understanding of how they will affect your business.
Any Volunteers Association will not be considered to be a PCBU and, therefore, not have a duty under the National legislation if it does not employ any person.
Compliance and penalties
The harmonisation of the safety laws will see the simplification of offences reduced to three categories. Where a safety duty has been breached by a PCBU or officer of a PCBU, the penalty will reflect the degree of recklessness of the duty holder and the seriousness of the risk or exposure to a hazard. Penalties are substantially higher than under the previous legislation, with a maximum of $3 million or 5 years imprisonment or both for reckless conduct. Officers of PCBU can be charged and fined regardless of whether any charge or prosecution has been taken against the PCBU. Unions continue to aggressively lobby for company directors and executives to be awarded custodial sentences in cases of breaches leading to serious injuries or death. This pressure is unlikely to dissipate in the immediate future.
Additionally, there are penalties for failure to notify of incidents and failure to obtain authorisations (certifications and licences).
We expect courts to significantly increase penalties under the new legislation. Some practitioners believe that smaller states such as Queensland and South Australia may find the fine regime at least doubling from existing levels.
Officers of PCBUs that hold a duty under the Nationalised legislation must also exercise due diligence to ensure the PCBU’s compliance with its obligations. While not defined due diligence, the officer will be required to take reasonable steps to:
The legislation has also introduced a National prohibition against discriminatory conduct, which is consistent with the general protection and adverse action provisions under the Fair Work Act 2009.
A person must not discriminate against a worker or prospective worker, by:
Such discriminatory conduct must be for a prohibited reason to be illegal under the Nationalised Act, and this includes because the worker or prospective worker (in the case of the last point):
A worker includes independent contractors and prospective employees.
Breach of this provision can result in a company being liable for a penalty of up to $500,000 and possible claims for compensation or reinstatement.
Health and Safety Representatives
One area where you may find a significant increase in the presence of unions or their representatives in the workplace is through the employee elected Health and Safety Representative (HSR). This person will have the power to be involved in safety planning and compliance, attending interviews with workers and direct workers to cease unsafe work.
Right of entry
A workplace health and safety permit holder retains the right to enter a workplace to enquire into suspected contraventions of the health and safety legislation without notice, but otherwise on 24 hours notice where the workplace health and safety officer seeks to hold discussions with relevant workers. Any entry permit that the workplace health and safety officer is required to obtain may still be governed by the Fair Work Act.
Worker and other persons duty
The term ‘worker’ is broadly defined and includes employees, contractors, subcontractors, employees of contractors and subcontractors, labour hire and volunteers. A worker and other persons must take reasonable care for their own health and safety and reasonable care that their acts do not adversely affect the health and safety of others.
What you should do now
We recommend that all NFPs consider appointing a specialist OHS person or department to drive education, compliance and data management. It is important that your procedures and policies are reviewed and updated in readiness for the 1 January 2012 commencement date. All officers also need to attend training to ensure they have knowledge and tools to understand their individual obligations to the business, workers and other persons.
How can Mills Oakley assist you?
If you do not have a dedicated workplace health and safety person or team, consider us providing you with:
We can tailor a package or training to suit your needs, your business and your budget.