What should I do now?
Safe Work Australia are continuing to develop further model Codes of Practice and guidance material to support the model laws. Each state and territory work health and safety authority have also developed a range of resources including transitional arrangements to assist their jurisdiction with the transition. These resources will help duty holders to gain an understanding of the WHS laws so they can assess their current practice against changed or new requirements and make changes as necessary.
What are the major changes to WHS?
There are differences from state to territory and we highly recommend you check with your work health and safety authority for detailed information on the changes in your jurisdiction, but we will attempt to outline some of the more significant changes which apply across the board.
- ► There are significant changes to the penalty structure with tougher penalities being imposed under the new laws. The penalties provided for under the WHS are serious and employers should be aware of their new obligations. Serious breaches may extend to a maximum of $3 million for a corporation and up to $600,000 for an individual.
- ► The duties of care are not defined by the nature of employment relationship. This means that the term ‘employer’ currently applied in most occupational health and safety laws is replaced with the term ‘person conducting a business or undertaking’ (PCBU) and ‘employee’ is replaced with a broadly defined term of ‘worker’.
- ► The term ‘worker’ includes employees, volunteers, contractors, sub-contractors, apprentices, work experience students and labour hire personnel.
- ► The term ‘workplace’ in most jurisdictions will be broadened to include any place where a worker goes or is likely to go while at work.
- ► An 'officer' must exercise due diligence to ensure that the PCBU complies with WHS legislation. This duty cannot be delegated. An 'officer' is a senior executive who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking.
- ► Not only will PCBUs have a duty of care in the workplace, but each individual worker will have a duty to ensure their acts or omissions do not negatively impact upon their own, or others', health and safety. This provision will clarify an individual worker's right to discontinue or cease work on the grounds of an unsafe or unhealthy workplace.
- ► A new duty to consult, co-operate and co-ordinate activities with other duty holders has been introduced – this duty aims to address situations where more than one duty holder is responsible for the same work health and safety matter to ensure that duty holders work together to control work health and safety risk.
- ► The right of entry provisions applicable to authorised union representatives will be extended so that they may enter workplaces for health and safety purposes. Penalties will apply where a PCBU hinders union representatives from exercising their powers without reasonable excuse.
What should your business/organisation be doing to implement the changes?
It is expected that a company's ability to comply with occupational health and safety laws across Australia will be simplified. Although there are significant changes to WHS laws, employers who currently comply with the various health and safety laws across Australia will be well on their way to compliance with the new regulatory system. This means that if you haven't already done so, now is a good time to conduct a review of your company's current workplace health and safety systems to ensure your business complies with the WHS laws to avoid a potential breach in the future. Here are some suggested steps for compliance with due diligence:
- ► Acquire and keep up-to-date knowledge of WHS matters;
- ► Audit existing OHS arrangements against requirements of the harmonised scheme;
- ► Identify areas of change – policy, procedure etc.;
- ► Educate managers, workers and others involved with your business as to new requirements;
- ► Implement change in consultation with your workforce;
- ► Ensure corporate governance meets ‘due diligence’ requirements on an ongoing basis; and
- ► Perform a personal audit.