Does the new legislation have just a bit of new jargon for me to learn or are there real and significant changes? How might things have changed for my business under the new legislation and am I more or less liable than I was under the old. In fact, who is really responsible for my health and the health and safety and everyone else at work.
For a lot of people the shock is that most people are now ‘workers’. No more soft touches like ‘employee’, ‘staff’ under this legislation. Of course, in actuality people at work still fall under these definitions, these terms still exist in language and we may use them in our own organisations. At work we are workers unless we qualify as an ‘officer’ as defined the Commonwealth Corporations Act 2001 (which by the way is 800 pages – long the biggest in the world – by comparison, Sweden’s is only 200 pages). So who is an ‘officer’, well, anyone who may influence the governance of an organisation. So, hands on the purse strings or making decisions about how and where the organisations resources may be spent, you are it! And you must demonstrate positive due diligence. Really, it makes sense. Why should the vital role of health and safety of everyone in a workplace be treated differently to, say, the management of financial risks. It assists in linking health and safety to productivity. It is not an add on but an integral part of good governance. Most particularly in the business is operating in a more hostile environment. For example, construction and mining.
The WHS Act (S27) clearly defines what officers are expected to do in order to exercise due diligence. So, if I tick the boxes and am an officer, under the new legislation, I must take reasonable steps to:
- acquire and keep up-to-date knowledge of work health and safety matters;
- gain an understanding of the nature of the operations of the business or undertaking and of the hazards and risks associated with those operations;
- ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking;
- ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
- ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and
- verify the provision and use of these resources and processes.
And here is the punch line. IGNORANCE IS NO DEFENCE. You cannot say ‘I didn’t know the gun was loaded’. Read the points 1-6 above again. You may allocate the work to another (a worker!) but not the responsibility. And you must VERIFY VERIFY….
This does not let workers off the hook. Under the legislation worker must take reasonable care of themselves and others in a workplace. Noticing hazards and risks and reporting them up the line is essential if officers are to have the knowledge and information they require to adequately allocate resources to the management of health and safety.
The meeting was held in Melbourne to discuss workplace health and safety issues with Workplace Relations minister Bill Shorten MP, representatives from Safe Work Australia and; the Department of Employment, Education and Workplace Relations. Also included were a diverse group of representatives from various not-for-profit organisations.
An important revelation from the meeting is the plan to establish a group to oversee measures to cut red tape of working with volunteers. The plan is to have a group comprised of representatives from the not-for-profit sector, Volunteering Australia, Safe Work Australia, legal experts and various other industry representatives.
To add to these outcomes, the table of representatives discussed and agreed on various matters pertaining to volunteers, such as;
- Safety is of equal importance for volunteers as any other individual since everyone has a right to return home safe.
- A volunteer’s duty has gone relatively unchanged when comparing it to what it was prior to the OHS Harmonisation laws.
- The penalties that would be used for extreme actions are based on already established state laws that existed prior to harmonisation.
- Ongoing efforts to provide increased clarity of the harmonised law’s limited practical consequences for grassroots volunteers are most welcome.
Shorten stated that the Government encourages people to volunteer and support each other’s community. He alleges that the Government will provide “even more clear information and guidance to volunteers who play such an important role in [everyone’s] communities”
An employment lawyer has warned that managers at the forefront could potentially be at risk of prosecution for Work Health and Safety (WHS) breaches if the OHS Harmonisation laws commence on January 1, 2012.
The OHS Harmonisation laws will comprise of broader meanings of ‘officer’ responsible for workplace safety. Harsher penalties will apply if an officer fails to comply.
Lisa Berton, a partner for Kem Strang, stated that as a result of the new WHS laws; employers will have to recognize an ‘officer’ within an organization, and make compliance a top priority. Berton, warned that the broader definition of an ‘officer’ potentially means that more employees could be held responsible for workplace safety.
Kemp Strang also recommended that businesses identify who the officers are before training is provided to accountable people under the legislation.
The OHS Harmonisation laws include new definitions of due diligence. This means that officers will have to have updated knowledge of WHS matters, understand dangers and risks of the business and minimise or eradicate them, as well as having a proper system in which information can be received and permit a timely response to incidents.
Berton warned that officers must avoid complacency in ensuring that all due diligence requirements are complied with.
Penalties for breaching officer’s duty can result in a fine of $600,000 and/or five years incarceration.
ComOps, a business solutions company, have published a press release regarding the expectations of business owners over the Work Health and Safety Act or OHS Harmonisation laws. The survey indicated that Australian managers are strongly convinced that the OHS harmonisation would positively impact operational sustainability and the organization at large. 87 percent of all managers believe the OHS Harmonisation laws would be a positive influence on business;, 68 percent of participants have indicated that the OHS harmonisation would finally achieve a true harmonisation of the WHS laws governing Australia. Three-fifths of the participants have also expressed support for the personal liability provisions.
Propose of Harmonisation
The OHS Harmonisation was developed in order to lower the potential for risks while at the same time increase accountability and visibility into workplace safety practices within businesses. A key aspect to the laws is to put into effect a legislation that would improve the quality of; transparency, communication, and reporting for each business. Business owners, executives and other managers will find their job obligations to be more concise, yet clearly defined.
The survey also provided information indicating that almost three-quarters of those surveyed, believed that creating the right culture in the business is of most importance. 68 percent of participants have already prepared their practices and systems well in time for the new legislation to commence.
However, 18 percent of participants stated their need for half a year or a whole year in order to achieve the necessary requirements under the OHS Harmonisation laws.
The survey was conducted at the Safety Show Sydney 2011 with the involvement of 218 professionals.More than a quarter of the participants represented organisations that employee over 1000 workers.
The Opposition for the Northern Territory claims that the NT WorkSafe is not properly equipped to police occupational health and safety legislation to meet a national agreement.The Opposition stated that the OHS Harmonisation had not yet been agreed by South Australia, WA, Victoria, or Tasmania, yet the Territory was rushing to meet the January, 2012 deadline.Shadow A.G John Elferink is concerned about unions granted ability of entry and civil prosecutions that could occur under the OHS Harmonisation laws. He stated that the laws do not protect the right to silence
However, he says that the organisation, WorkSafe, is not prepared for the job.Elferick stated on record his concern over the abilities of the Northern Territory’s WorkSafe because, as he stated, the organisation is in a “state of decay”. Thus he is not confident in their abilities to effectively police the legislation.Business spokesperson for the Opposition, Dave Tollner, stated that NT WorkSafe does not have any concern for the well-being of business owners.
He believes that NT WorkSafe is “contaminated with union members in the NT. Tollner expressed his disappointment that NT WorkSafe is not entirely focused on workplace safety, rather, they are focused on providing a good spot for “washed-out” union officials
The Treasurer stated that anti-union criticism of OHS laws were wrong in the past, and the Liberals oppose the OHS Harmonisation laws because they have an aversion to unions.