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16 November, 2015 | Carolyn Ranson
The Act establishes three tiers of offences with more enforcement options and tougher penalties:
Minor breaches and acts and omissions involving straightforward issues of fact (not including qualifying phrases such as “reasonably practicable”) will be regulated using infringement notices with ‘on the spot’ fines.
The primary duty-holder under the new Act is a Person Conducting a Business or Undertaking (“PCBU”) – generally the company or the employer organisation, which must ensure the health and safety (“H&S”) of its workers and also those who could be put at risk by that work.
The definition of PCBU includes modern working arrangements such as joint ventures, contractors, and franchise arrangements. Specific exclusions to the definition of PCBU include volunteer associations (so your sports clubs are safe, or not!), home occupiers who engage people solely to do residential work, and officers of a PCBU.
Where there are multiple PCBUs on a site and overlapping duties, for example on construction sites, PCBUs must discharge their responsibilities to the extent that they have the ability to control the matter. They must also consult, cooperate and coordinate their activities with the other PCBUs. This is the new “horizontal consultation” obligation and failure to consult is an offence under the Act, which may result in a fine of up to $20,000 for an individual or $100,000 for any other person.
PCBUs in high risk industries (categorisation yet to be finalised) will have to establish a formal risk management process, which would include hazard identification, developing the risk mitigation strategy with input from workers and representatives, putting in place workplace procedures or providing personal protective equipment and regularly reviewing controls to ensure that they remain effective. Smith and Partners can provide you further assistance with this.
The definition of “officer” is now designed to capture directors and very senior managers only. In smaller businesses it might just be one person. Professionals who “merely advise or make recommendations” are not officers.
Officers have a positive duty of due diligence that requires them to “take all reasonable steps” to ensure that the PCBU is fulfilling its legal obligations in relation to health and safety. Officers must exercise the care, diligence and skill that a reasonable officer would in the same circumstances.
Directors will be required to:
The Act does not shift liability from the company to its officers as the main duty of care will sit with the PCBU. However, officers will be subject to the same penalties as PCBUs under the new Act. Note, an officer may be convicted of an offence whether or not the PCBU has been convicted.
The current standard of “all practicable steps” will be replaced with a new “reasonably practicable” standard in relation to ensuring health and safety, considering all relevant factors in relation to the hazard or risk such as the likelihood of it occurring, degree of harm that might result, level of knowledge, availability and suitability of ways to eliminate or minimise the risk (including a final consideration whether the cost associated with this is “grossly disproportionate” to the risk).
Each case will be determined on its facts and the experts at Smith and Partners can advise you on the practical application of this standard.
The definition of workplace is a place where work is being carried out, for example on a power pole, or is “customarily” carried out, for example in a workshop, for a business or undertaking. It has been changed to reflect that fact that some areas are not a workplace all the time.
There has been some clarification in the case of farms in relation to farm buildings and structures and the areas immediately surrounding them, meaning there is usually no duty to recreational users coming onto farm land.
PCBUs employing more than 20 people, and all businesses with moderate to high risk of injury, must provide H&S representatives and/or H&S committees if requested to do so by the workforce.
To follow are a number of regulations dealing with matters such as asbestos, engagement, worker participation and representation (which according to WorkSafe will be available shortly for public consultation), general risk and workplace management, and Major Hazard Facilities. Regulations will specify details in relation to the criteria for electing an H&S representative, training required, term of office (three years), termination procedures, and the process for determining the configuration of work groups.
H&S committees must be at least half composed of workers not nominated by the PCBU, and the committees must meet at least every three months, or at any reasonable time requested by at least half of the committee members.
All “high risk” industries, regardless of the number of employees, must elect H&S representatives. “High risk” industries will be defined in regulations and will include any industry where there is a:
Smaller businesses with fewer than 20 workers in low risk industries do not have to appoint an H&S representative, however, the PCBU must notify its workers if it seeks to rely on this exclusion.
Things to review:
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