Harmonisation of Workplace Safety Laws
Robin Young, Partner and Nick Read, Solicitor
Important new laws have been enacted to harmonise the different state laws around Australia into a national code and will affect how an organisation should ensure the health and safety of workers and others that might be put at risk by their work.
Changes to the Occupational Health and Safety Act 2000 (NSW) (OHS Act) commenced in June 2011 and a new WorkplaceHealth and Safety Act 2011 has been passed in NSW which will commence on 1 January 2012.
These are some of the changes.
Expanded Coverage
The meaning of "worker" has been redefined and is now not only an employee, but can also include contractors or sub-contractors (employees of both), employees of a labour hire company, outworkers, work experience students or volunteers.
New Primary Duty of Care
The duty of care is now to ensure the health and safety of workers "as far as reasonably practicable". The High Court has held that, in any prosecution of a workplace safety offence, the prosecutor must identify the measures that should have been taken to prevent the incident. The prosecutor now bears an additional burden of proving that the measure that should have been taken was reasonably practicable.
For best practice, organisations should take into account how likely a risk to health and safety is, the degree of harm that could result, what is known about the risk and the ways in which it can be eliminated. The cost associated with risk minimisation can also be considered.
Common sense works best. Working at heights without fall protection, for example, is obvious and elimination of this risk with harnesses, fencing and handrails, are well known prevention measures.
The new officer offence
The liability provision for directors has been removed from the OHS Act, but directors (and high-level management) now have a new positive obligation to exercise due diligence. This means developing (or maintaining) systems with up to date knowledge of health and safety matters and industry risks as well as
directing resources toward compliance.
Consult and cooperate
Businesses must consult with workers under formal processes in the new laws and there are new powers for Health and Safety Representatives. When a number of organisations are working together on the same project they are required to consult and cooperate on safety matters.
Conclusion
The changes in NSW are part of the development of a consistent national approach to occupational health and safety which is intended to increase communication and cooperation to ensure the health and safety of workers and those affected by an organisation’s operation to reduce serious injuries and deaths in Australian workplaces.
We recommend an immediate gap analysis of existing systems and to set about implementing new polices to ensure compliance with the new duties. Existing contracts should also be reviewed to ensure the new consultation requirements are met.
Robin Young
Partner
T: +61 2 9390 8419
E: robin.young@holmanwebb.com.au