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As we fast approach the festive season, WorkSafe bodies across Australia are issuing warnings for workplaces to be more vigilant with workers safety especially in high-risk workplaces like construction where the demands to “finish the job” can overtake safety procedures.
Prior to 2012, workplace health and safety (WHS) laws were known across Australia as occupational health and safety (OH&S) laws, however in order to make them more consistent, state and territory governments unilaterally agreed in 2012 to develop model laws (WHS Act and Regulations), that could form the base of each state and territories health and safety laws
As it stands across Australia, Comcare administers the Work Health and Safety Act 2011 (WHS Act) and Work Health and Safety Regulations 2011 (WHS Regulations). The current WHS Act and WHS Regulations states that Comcare provide the framework to ensure the health and safety of workers and workplaces by protecting workers and other persons against harm to their health, safety and welfare through the elimination of risks arising from work, in accordance with the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable. Comcare also states the WHS Act and WHS Regulations promote continuous improvement and progressively higher standards of work health and safety.
So what does the WHS Act mean and how is it implemented by businesses across Australia?
Under the current laws a “person who conducts a business or undertaking” (PCBU) must ensure the health and safety of workers engaged by the PCBU while the workers are at work in the business or undertaking, so far as is reasonably practicable. SafeWork Australia says the PCBU is required to manage risks by the following:
- eliminating risks to health and safety so far as is reasonably practicable
- if elimination is not reasonably practicable, minimising the risks so far as is reasonably practicable.
Under the current legislation, the WHS Act imposes other duties on PCBUs and other persons in relation to workers and workplaces, and it provides for consultation, representation and participation to further the objects of the Act, which can include things like workplace arrangements for example working groups, health and safety representatives and health and safety committees.
The WHS Regulations make more detailed provision for topics covered by the WHS Act and includes providing more specific obligations and prohibitions for certain types of work. In some cases, a person can seek an exemption from requirements imposed by the WHS Regulations.
SafeWork Australia has published an online fact sheet, which outlines what is work for the purposes of the model WHS Act and says the following criteria may assist in determining if an activity is work for the purposes of the WHS Act:
- the activity involves physical or mental effort by a person or the application of particular skills for the benefit of another person or for themselves (if self-employed), whether or not for profit or payment;
- activities for which the person or other people will ordinarily be paid by someone is likely to be considered to be work;
- activities that are part of an ongoing process or project may all be work if some of the activities are for remuneration;
- an activity may be more likely to be work where control is exercised over the person carrying out the activity by another person; and
- formal structured or complex arrangements may be more likely to be considered to be work than ad hoc or unorganised activities. The activity may be work even though one or more of the criteria are absent or minor.
They go on to say that work does not include activities of a purely domestic, recreational or social nature. Organisations who also do things other than social, domestic or recreational nature would be PCBUs but would only owe duties in relation to ‘work’ and only so far as is reasonably practicable.
So to make the legal jargon a little simpler to understand and to know if your business falls under the PCBU, WorkSafe Australia has listed a few examples of businesses or undertakings where this applies:
- wholesale business
- manufacturing business or importer that is on-selling the imported goods
- owner-driver of their own transport or courier business
- fast food franchisor and the operator of the fast food outlet (the franchisee)
- self employed person operating their own business
- government department or government agency
- local council
- Partnerships and unincorporated joint ventures. (Where the partnership or joint venture is unincorporated, each partner is a person conducting the business or undertaking of the partnership or joint venture).
- builder (including principal contractors and sub-contractors)
Safework Australia plays a crucial role in all matters relating to WHS and is the lead developer of national policy that improves work health and safety and workers’ compensation arrangements across Australia. It does not regulate or enforce WHS legislation, that’s where Comcare comes in.
However, as a business owner, contractor or sub-contractor, under the current WHS laws which are applicable across all states and territories, the WHS requirements set out in the acts must be met – or be prepared – you may face substantial penalties if you don’t.
AlertForce is a recognised RTO and offers a variety of courses for WHS and OHS officers and staff in Sydney, Brisbane, Melbourne and Perth. Check our website for other states and territories. For more information on courses visit https://alertforce.com.au/ohs-training-courses
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