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The national harmonised Work Health and Safety (WHS) Act 2011 requires a person conducting a business or undertaking (PCBU) to ensure the health and safety of workers it engages – or whose work it influences or directs.
The following summary prepared by employer body the Australian Industry Group looks at seven key elements of the Act.
Duty of care
A person conducting a business or undertaking (PCBU) must ensure the health and safety of all persons at its business, including visitors, are not put at risk by the activities of the business.
This “duty of care” specifically includes looking at the work environment; work systems; plant and structures used; substances used, handled or stored; as well as providing adequate information, instruction, training and supervision for work to be carried out safely. Access to facilities for the welfare of workers is also required.
“Ensuring health and safety” is defined as eliminating risks so far as is reasonably practicable, or if that is not possible, minimising the risks.
“Reasonably practicable” is defined as what could reasonably be done at the time to ensure health and safety, taking into account:
• The likelihood of the hazard or risk occurring and the degree of harm it could cause;
• What the business knows or ought to know about the hazard or risk and the available and suitable ways of eliminating or minimising it; and
• After assessing the above, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Specific obligations relating to risks or industries are detailed in the WHS regulations and employers must comply with them.
Codes of practice provide practical guidance on compliance. Employers should follow a code of practice unless they can show an alternative way of meeting their obligations that is at least as safe. This allows some flexibility but deviating from a code is not something you should do lightly or without good advice.
There is a specific code of practice setting out a systematic approach to managing risks. The regulations and that code both refer to the “hierarchy of controls” as part of that systematic approach.
The hierarchy is eliminate the risk so far as is reasonably practicable; if it is not reasonably practicable to eliminate the risk, minimize the risk so far as is reasonably practicable by doing one or more of the following: substitution, isolation and engineering controls.; if a risk then remains, minimise the remaining risk so far as is reasonably practicable by implementing administrative controls (eg, safe work instructions, supervision, signage and training); and if a risk then remains, minimize the remaining risk so far as is reasonable practicable by ensuring the provision and use of suitable personal protective equipment (PPE).
If you control a workplace that is used by others, say by renting out a factory space, you have some WHS duties as well, set out in section 20 of the WHS Act.
Meaning of workers
Because so much work is now done in businesses by people who are not direct employees, WHS defines worker very broadly to include employees; contractors; sub-contractors; employees of contractors or sub-contractors; outworkers; employees of labour hire companies; and volunteers.
Clearly those workers who are direct employees may well work for another business, which would also be a PCBU with the same duty to protect its workers. How you should interact with those other PCBUs to jointly look after those workers, and how responsibility is apportioned between you and the other PCBU is set out in the next section, Obligation to consult … with other duty holders.
Workers and other persons at a workplace, such as visitors, also have duties under the WHS law. These duties do not in any way take away from the PCBU’s responsibilities covered in Duty of care. The worker duties are very similar to duties under current law.
Businesses should make sure their workers understand the nature of these duties and should not tolerate material breaches of them without taking the matter up with the worker in an appropriate way consistent with workplace relations laws. They are an important part of the behaviour that makes workplaces safe.
Obligations to consult, cooperate and coordinate with other duty holders
WHS laws clearly identifies that more than one person can have the same duty.
For example, a labour hire company and a host of employers both hold the duty to ensure the health and safety of a labour hire worker placed with the host employer.
Both are PCBUs with the same duty towards the labour hire worker. The following principle (in section 16 of the Act) outlines how these duties interact: If more than one person has a duty for the same matter, each person:
• Retains responsibility for their own duty;
• Must discharge that duty to the extent that they have the capacity to influence or control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
In order to support this concept, section 46 of the Act requires duty holders to consult, cooperate and coordinate, so far as is reasonably practicable, with all other persons who have a duty in relation to that matter. So the labour hire company and the host each has a duty to consult with each other, cooperate and coordinate their efforts to keep this worker safe.
A business that has a duty to consult, cooperate and coordinate with another business over the safety of a worker must do so until it runs up against the actual limits of its influence or control. It will be very dangerous for a business to argue that it didn’t try to consult, or did so only superficially because it assumed it had no influence or control.
Obligations to consult with workers
The overarching worker consultation obligation is outlined in section 47 of the WHS Act. A PCBU must, so far as is reasonable practicable, consult with workers who carry out work for the PCBU and are, or are likely to be, directly affected by health and safety matter.
Consultation is required whenever the PCBU is identifying risks and how to control them; making decisions about the adequacy of facilities; proposing changes that may affect health and safety; or making decisions about procedures that relate to health and safety (section 49).
Section 48 of the Act requires relevant information about the matter must be shared with workers; and workers must be given the opportunity to express their views and raise work health and safety issues; and contribute to the decision-making process. If the workers consulted are represented by a health and safety representative, that person must be involved in the consultation.
Consultation extends to all workers whose health and safety may be affected by your actions or decisions, including contractors and labour hire employees.
Upstream duty holders
The WHS Act and regulations establish obligations on businesses who design plant or structures (section 22), manufacture plant, substances or structures (section 23), import plant, substances or structures (section 24), supply plant, substances or structures (section 25), and install, construct or commission plant or structures (section 26).
These upstream duty holders have obligations to eliminate and minimise the risks, so far as is reasonably practicable, associated with their plant, substances or structures; and to provide the necessary information to enable them to be used safely. The obligations relating to the design of and also the health and safety of those constructing them.
In relation to supplying plant, the obligations extend to those who sell second hand plant. Upstream duties have been established to focus on eliminating or minimising risks at their source. It is much easier to deal with a health and safety issue during the design phase than to try and retrofit a solution once the plant, substance or structure is in use in the workplace.
Right of entry
Legislation in most states and territories has, for many years, included a right for union officials who hold appropriate permits to enter a workplace to inquire into a suspected breach of safety law.
In a few states, these same people have also had a right to enter the workplace to consult or advise workers or to assist a health and safety representative.
The WHS laws establish a right to enter for both purposes. Other provisions in the Act and Regulations establish other circumstances where a union may become involved in the workplace.
When the rights of entry powers are being exercised, the union must comply with any WHS or other legislated requirement that applies to the workplace if requested by the PCBU or person with management of the workplace; and must not delay, hinder or obstruct any person or disrupt work at the workplace. The business cannot refuse or unduly delay a permit holder entitled to enter the workplace.
WHS makes it clear that where duties are held by an organisation (such as a company), there is an obligation on the officers of the organisation to exercise due diligence to ensure that the organisation complies with those duties (section 27).
In other words, those who make decisions about how a company is run have their own individual obligation to contribute to it being run in compliance with the safety laws.
AlertForce offers OHS harmonisation courses for industry. For more details go to https://alertforce.com.au/ohs-training-courses/ohs-harmonisation-course.
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