OHS / WHS Newsletter – March 2013 – Duty of Care – the Top-Down approach
For all jurisdictions that have adopted the Model WHS Act, Section 19 details the “Primary duty of Care”.
The principal duty holder is a ‘person conducting a business or undertaking’ (PCBU). The PCBU has an absolute duty to take all reasonably practicable steps to ensure the health and safety of workers and other persons impacted by the business or undertaking.
The duties imposed on a PCBU are probably the most significant conceptual change from previous OHS Acts. The change is aimed at ensuring that the WHS Act coverage extends beyond the traditional employer/employee relationship to include new and evolving work arrangements and risks.
The significant reform requires the officers of a PCBU to show leadership with regard to health & safety in order to influence health & safety outcomes and the safety performance of the organisation. Health and safety commitment and leadership from the top levels of the business or undertaking is critical to health and safety outcomes.
The PCBU needs to provide a work environment that is without risk, the provision of appropriate safety resources, provision of safe systems of work, ensuring safe use, handling and storage of plant, structures and substances, provision of adequate facilities for the welfare of workers, provision of information, training, instruction and supervision, and monitoring to ensure prevention of injury and illness.
Officers, including company directors have high level obligations for work health and safety. Officers have a duty to exercise due diligence to make sure that their business or undertaking fulfils its health and safety obligations under the Act. (Section 27- WHS Act). This is a positive duty in that it is allocated to the officer in his or her own right.
A PCBU can show its commitment to actively managing WHS through comprehensive policies and procedures that link directly to the corporate objectives and values whilst complying with legislative requirements.
Policies and procedures should outline WHS responsibilities, the PCBU’s commitment to WHS improvement and include provisions for consultation, cooperation and communication on WHS matters between the PCBU, workers and/ or HSRs.
Managers have a key role in ensuring staff understand policies and procedures and enforcing the standards they set, consistently and fairly. The most important responsibility of managers, and their most valuable contribution to ensuring that the standards set out by policies and procedures are implemented, is to lead by example.
One such policy that links the corporate objectives and values is a ‘Code of Conduct’.
The intent of a Code of Conduct is to provide a framework consistent with the PCBU’s vision, mission and principles to promote ethical day-to-day conduct and decision making. A Code of Conduct cannot cover every possible situation that can arise in a workplace, however it provides general guide.
A Code of Conduct assists with building a positive workplace culture based on the organisation’s core values of collaboration, openness, respect and empowerment. The code is a set of principles that a PCBU defines as necessary for maintaining a safe and ethical work environment.
A Code of Conduct will generally include:
- Introductory message from the PCBU outlining the core values
- Purpose – why do we have a Code
- Scope – Who the Code applies to
- Responsibilities under the Code
- What happens if there is a breach of the Code
- What to do if you are concerned about a breach of the Code
- Protection for people who raise concerns about a breach of the Code
The code would provide details requiring staff to adhere to standards such as:
- Promote a positive work environment
- Work Health and Safety
- Demonstrate honesty and integrity
- Personal and Professional conduct – acting professionally and ethically
- Use official resources lawfully, efficiently and only as authorised
- Maintain the security of confidential and/or sensitive information
- Equal Opportunity
- Acceptance of gifts and benefits
- Conflict of Interest
- Maintain professional relationships with colleagues and clients
Senior management (officers) must model the behaviours of the Code of Conduct if they are to hold the rest of the organisation accountable.
Where a Code of Conduct is in place, there can be no doubts about the standards of ethical and professional conduct that is required of everyone within the PCBU.
Generally the PCBU will require workers to sign a declaration acknowledging they have read and understood the standards of responsibility and ethical conduct outlined in the Code of Conduct.
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