You may be aware that substantial changes are being made to the current Occupational Health and Safety laws. The changes are an attempt to create ‘harmonisation’ across 
individual States and Territories that have historically had their own OH&S legislation. A uniform approach to the new laws has been agreed to by all States, which will bring about a greater level of certainty and reduced costs to businesses.
For workers, this will mean the same rights, entitlements and protection across Australia regardless of their place of work. For businesses that operate across State and Territory borders, it will mean being subject to the same laws in each jurisdiction, creating a more streamlined and less complex OH&S process.
The model laws include the new Work Health and Safety Act (WHS Act) and the Work Health and Safety Regulations (WHS Regulations). They will be supported by national Codes of Practice. All jurisdictions had committed to enacting the model Act by January 2012, however at this stage only ACT, NSW and QLD have passed the legislation. WA and VIC have requested an extension of time (to 2013), but now is still a great time to review your current OH&S practices and begin aligning them to the new system.
Some key changes are set out below:
1. The new notion of a ‘PCBU’
A PCBU is a “Person Conducting a Business or Undertaking” and will replace the term “employer” in the context of these matters. This is because the WHS Act now extends beyond traditional employer / employee relationships to include new and evolving work arrangements and risks.
The PCBU is the principal duty holder for a business.
2. The new definition of “worker”
A person is a worker if they carry out work in any capacity for a PCBU, including work as:
- an employee;
- a contractor or subcontractor;
- an employee of a contractor or subcontractor;
- an employee of a labour hire company who has been assigned to work in the business or undertaking;
- an outworker;
- an apprentice or trainee;
- a student gaining work experience; or
- a volunteer.
3. An increased “duty to consult”
A PCBU must consult with workers when:
- identifying hazards presenting risks;
- making decisions about eliminating or minimising risks;
- making decisions about the adequacy of facilities for the welfare of workers;
- proposing changes that may affect the health or safety of workers; or
- setting procedures for resolving health and safety issues;
An intention of the Act is to ensure engagement and leadership in WHS management. This has led to harsher penalties in relation to officer liability. An “officer” is a senior executive who makes, or participates in making, decisions that affect the whole or a substantial part of a business or undertaking (Section 9, Corporations Act (Cth)). Officers will be required to exercise “due diligence” to ensure that their business complies with its safety obligations. This means that officers may be liable for breaches of safety without an incident/accident even occurring, with penalties potentially including fines and imprisonment.
Some further general tips to help you in preparing for the transition:
- Consider the impact the new legislation may have on your current policies and procedures (eg. consultation arrangements, training, etc).
- Undertake a gap analysis of your current health and safety system to determine what changes are required to achieve compliance.
- Understand the necessary revisions to your current policies and procedures
- Consider who in your organisation may be considered an “officer” and ensure each has a clear understanding on their responsibilities under the model Act.
- Develop a more robust consultation process, given the expanded application of the duty to consult. Make sure that you include all relevant workers.
- Consult with your workers about what is happening and any changes that will need to be made in readiness for the new legislation.
- Implement changes and train workers in any new policies.
- Monitor key developments in the jurisdictions where your business operates, and introduce them as required.
