10 things you need to know about the new work health and safety laws
Part 14 of 14 - Workplace Health & Safety Update
Authors: Robin Young, Partner & Nick Read, Solicitor
July 2012
The final edition of the Workplace Health and Safety Update summarises the key parts of the Work Health and Safety Act 2011 (the WHS Act). The WHS Act came into force on 1 January 2012.
1. The broadening of types of entities that have work health and safety obligations. The laws not only apply to employers, but
to persons conducting a business or undertaking, or PCBUs.
2. The extended definition of worker. As well as owing work health and safety duties to their employees, PCBUs owe duties to
contractors, employees of contractors, outworkers, apprentices and trainees, students gaining work experience and volunteers.
3. The new primary duty of care is now qualified by the term “reasonably practicable.” A PCBU must ensure, so far as reasonably
practicable, the health and safety of workers engaged by it and workers whose activities in carrying out work are influenced or
directed by it. A PCBU must also, so far as is reasonably practicable, ensure the safety of other persons that might be put at
risk from work carried out by it.
4. The end of reverse onus. In prosecutions for breaches of the WHS act, it is now up to the regulator to prove all elements of the
offence, including identifying with precision the control measure that should have been implemented to prevent an incident from
occurring as well as demonstrating why the identified control measure was reasonably practicable to implement.
5. The new offence for company officers. Under the WHS act, company officers must exercise due diligence to ensure that their
business complies with its obligations under the WHS Act. Every company officer should familiarise themselves with their new
obligations and the requirements of due diligence.
6. The types of workplace incidents that require notification to the regulator and the penalties that may be imposed in the event of a
failure to notify. Often it is unclear when an incident is of the type that requires notification. We strongly recommend legal
advice is sought before any notification. Seeking early legal advice may also mean that legal professional privilege may be
claimed over any documents created during an incident investigation
7. The new consultation requirements. The new laws emphasise the importance of engaging workers in work health and safety
issues. If your business has not already done so, you should review your consultation systems and ensure compliance with
the WHS Act and the Model Code of Practice. Importantly, where there are multiple PCBUs working together (for example, on
a construction site) there is a new obligation for the PCBUs to consult, cooperate and coordinate with each other on safety
issues.
8. The prohibition of discriminatory treatment of workers who raised safety concerns. In essence, the provisions protects workers
from any discriminatory action (such as termination of employment or non-renewal of a contract) where they raise a legitimate
complaint or concern in relation to safety.
9. The necessity of PCBUs to keep up to date with Codes of Practice applicable to their operations. Every business should keep
track of the different codes that apply to their operations and ensure systems of work provide for an equivalent or higher level of
protection than the codes.
10. The alternative to prosecution and a nasty fine – enforceable undertakings. Traditionally enforcement of serious breach of safety
laws has involved prosecution and fines. The WHS Act provides for an alternative to prosecution by enabling PCBUs in breach
of the laws to enter into an agreement with the regulator to undertake a safety project in exchange for the regulator’s
agreement not to prosecute the PCBU.
In edition 12 we covered what type of volunteer entities are PCBUs within the meaning of the WHS Act.
In edition 13 we looked at the obligations of strata title body corporates.
Failure to comply with work health and safety laws can be very costly. Breaches of the WHS Act that involve injuries or fatalities attract significant penalties. In the circumstances, it is important for businesses to develop and maintain compliant safety systems, which include steps for verifying that workers are working in accordance with safe systems.
Holman Webb are able to review work health and safety systems to ensure compliance with the WHS Act. We are also able to assist managing investigations into potential breaches of the laws and/or defending prosecutions.
For more information please contact Robin Young, Partner, Rachael Sutton, Partner or Nick Read, Solicitor.
Robin Young
Partner
T: +61 2 9390 8419
E: robin.young@holmanwebb.com.au
Rachael Sutton
Partner
T: +61 2 9390 8422
E: rachael.sutton@holmanwebb.com.au
Nick Read
Solicitor
T: +61 2 9390 8420
E: nick.read@holmanwebb.com.au