Uniform OH&S legislation extends duty of care and increases penalties

In brief - National work health and safety (WHS) laws commence on 1 January 2012

The Commonwealth has been working towards harmonising the work health and safety laws (WHS) across Australia for several years. A uniform work health and safety law is now almost upon us.

Harmonised law to assist businesses and improve workplace safety

Currently each state and the Commonwealth has its own separate set of laws relating to work health and safety laws. The unfortunate result is that companies which operate in more than one state are required to comply with a number of different regulatory schemes.

On 24 November 2011 the Senate passed the Work Health and Safety Bill 2011 and the Work Health and Safety (Transitional and Consequential) Bill 2011. All that remains is for each of the states to adopt the model law.

The states have committed to enacting uniform legislation in early 2012, with the exception of Victoria, Western Australia and Tasmania, which have deferred the implementation for up to a further 12 months.

Tough penalties imposed by new laws

The penalties provided for under the WHS are serious. Employers should be aware of the new laws and be ready to comply when they are introduced on 1 January 2012, as even those operating in states which are not introducing the WHS at that point may still face liability under the legislation.

How the OH&S laws in Australia have changed

It is not possible to set out all of the changes that the WHS will bring in the various jurisdictions across Australia. However, some of the most significant changes to the OH&S laws as a result of the WHS are set out below.

• The current state legislation provides that a primary duty of care is owed by employers. The WHS places the duty on a "person conducting a business or undertaking" (known under the WHS as a PCBU). This new definition broadens the duty to place the obligation on entities which may not strictly speaking be an employer.
• The duty of care will expressly be extended beyond employees to "workers", including contractors and sub-contractors, volunteers and labour hire personnel.
• The WHS will also introduce a positive duty to conduct due diligence, which will be applicable to all "officers" of a workplace. These due diligence requirements will place an obligation on officers to ensure their workplace is in compliance with the new legislation.
• Not only will PCBUs have a duty of care in the workplace, but each individual worker will have a duty to ensure their acts or omissions do not negatively impact upon their own, or others', health and safety. This provision will clarify an individual worker's right to discontinue or cease work on the grounds of an unsafe or unhealthy workplace.
• PCBUs will have an additional duty to consult with their workers on health and safety procedures and practices.
• Where an occupational health and safety issue arises in the workplace, new provisions provide that reasonable efforts must be made by all parties to achieve effective resolution of the problem. If no resolution can be achieved, an inspector may be appointed to assist.
• The right of entry provisions applicable to authorised union representatives will be extended so that they may enter workplaces for health and safety purposes. Penalties will apply where a PCBU hinders union representatives from exercising their powers without reasonable excuse.
• Designers will also have a duty of care imposed on them in respect of the operational plants and structures they design or create.
• Any breach of the duty of care provisions under the WHS will be classified as a criminal offence. The civil penalties imposed for serious breaches of other provisions of the WHS may extend to a maximum of $3 million for a corporation and $600,000 for an individual.

Many of the above provisions are analogous to existing provisions in state laws. Previous decisions under those Acts will provide some level of guidance for the operation of the WHS. However, it is expected that the extent of the duties and obligations created by the WHS will be developed over time.

Review your company's workplace health and safety systems

Employers who currently comply with the various health and safety laws across Australia are well on their way to compliance with the new regulatory system.

It is expected that the uniform WHS laws will simplify a company's ability to comply with occupational health and safety laws across Australia. However, the duties created by the WHS are distinct to those under the existing laws.

This means that now is a good time to conduct a review of your company's current workplace health and safety systems to ensure you meet the new requirements.

More consultation and cooperation now required on OH&S

In particular, the introduction of multiple duty holders within a workplace will also bring with it a requirement for those individuals to consult and cooperate on workplace health and safety matters.

This means that particular focus should be given to strengthening internal consultation procedures, ensuring cooperation development and adopting an internal dispute resolution procedure. Due diligence requirements also need to be adhered to in order to comply.

The new legislation will bring with it increased enforcement, penalty and prosecution provisions. Ensuring your business complies with the WHS now will assist in avoiding potential breaches in the future.