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Health & Safety Law Update

July 26, 2016

This is a lengthy update as there's much to cover – however, the update only highlights key features of the new regime.

The Health and Safety at Work Act (HSWA) came into force on 4th April 2016. There are also various regulations. Everyone carrying on a business or undertaking (PCBUs) is under an obligation to comply with the Act.

Some have said that the new law is too complex and too burdensome for most businesses, and there's probably some truth to this.

The HSWA imposes duties on:

  • PCBUs (persons carrying on a business or undertaking);
  • officers of PCBUs;
  • workers;
  • others at workplaces e.g. visitors (including persons making deliveries).

The focus is on:

  • taking reasonably practical steps to manage risks to the health and safety of any persons in the workplace (including contractors and visitors as well as employees)
  • by identifying hazards and risks and taking reasonably practical steps to eliminate or minimise the risks.

‘Reasonable practicability’ balances the likelihood of a risk occurring, against the time, trouble and cost that would be necessary to avert that risk. It takes into account all relevant matters including the potential degree of harm, knowledge as to existence of the risk, and the available control measures.

THE PRIMARY DUTY IS ON PCBUs

The primary duty is owed by PCBUs – they have to identify hazards and risks and take reasonably practical steps to eliminate or minimise the risks.

The concept of a PCBU is broad – for example, a PCBU will include:

  • a self employed person;
  • a landlord, property manager, and a business tenant;
  • a franchisor and a franchisee;
  • persons who manage or control work places;
  • persons who design manufacture import supply install construct or commission plant.

At its core, a PCBU must:

  • provide a safe work environment,
  • provide safe equipment, and
  • have suitable procedures in place.

The legislation would reach beyond day to day work. For example, employers would need to consider H&S issues in relation to work functions, whether on or off premises.

WHERE THERE ARE SEVERAL PCBUs

There may be a number of PCBUs involved e.g. in relation to a construction site, principals, contractors and subcontractors, suppliers of equipment like scaffolding, architects and engineers will all be PCBUs.

Each of them must discharge their duties to the extent to which they have the ability to influence and control the matter. This will involve a duty to consult and co-operate with other PCBUs (where a PCBU has a degree of control and influence in relation to a situation that may give risk to a H&S risk). Failure to consult is an offence.

OFFICERS’ RESPONSIBILITIES – DUE DILIGENCE

The Act requires ‘officers’ of a PCBU to assume a due diligence duty, to ensure that the PCBU complies with its obligations.

An officer includes:

  • directors;
  • anyone occupying a role that is comparable to a director;
  • partners;
  • a general partner in a limited partnership;
  • anyone who exercises significant influence over the management of the business or undertaking.

The officer’s duty of due diligence (to ensure that the PCBU complies with its obligations) requires them to exercise the care, diligence and skill that a reasonable officer would exercise in the same circumstances, taking into account:

  • the nature of the business or undertaking,
  • the position of the officer, and
  • the nature of the responsibilities undertaken by the officer.

An officer’s duty to manage risk is limited to doing what is within their ability to control or influence.

Sleeping officers beware. Each officer must:

  • have up-to-date knowledge of health and safety matters,
  • understand the risks and hazards associated with the business (need to know about the business at ground floor level), and
  • ensure the PCBU has (and uses) appropriate resources/processes to comply with their duties, which include responding, in a timely way, to information regarding incidents, hazards and risks and to take reasonably practical steps to identify eliminate or minimise the risks.

An officer's duty can't be delegated - they must take responsibility to be knowledgeable and involved in H&S matters.

Prosecutions can be brought against officers, with substantial penalties available to be imposed by the court.

WORKERS

Workers are individuals who carry out work for the PCBU including employees, contractors and sub-contractors, apprentices, trainees and even volunteers in some cases.

Essentially, their duties are to:

  • take reasonable care to ensure the health and safety of themselves and others in the workplace.
  • follow instructions from the PCBU.
  • cooperate with health and safety policies and procedures of the PCBU.

They have the right to refuse to refuse to undertake unsafe or dangerous work.

WORKER ENGAGEMENT

All PCBUs, regardless of size, must have practices that provide 'reasonable opportunities' for workers to participate effectively in improving work health and safety in the organisation (worker participation). The objective is that all workers can have a say on matters that will affect their health and safety.

A PCBU will need to consult with their workers when identifying hazards in the workplace, making decisions about how to eliminate or minimise those hazards, developing procedures for anything to do with health and safety, and making decisions about facilities for worker welfare.

The HSWA sets out two overarching PCBU duties for involving workers in work health and safety. The PCBU must:

  • engage, so far as is reasonably practicable, with workers who work for its business or undertaking and are directly affected, or likely to be directly affected, by a health and safety matter of the PCBU, and
  • have effective practices (worker participation practices) that allow workers who work for its business or undertaking to have an opportunity to participate in improving work health and safety on an ongoing basis.

The HSWA doesn’t specify what types of worker participation practices PCBUs must have. Different types of practices will suit different workplaces and the important thing is that workers can be involved in an effective way. What is 'reasonable' in terms of participation opportunities provided will vary depending on the circumstances of the particular PCBU and the HSWA lists relevant matters to be taken into account.

Health and Safety Representatives

A PCBU may decide that one or more health and safety representatives (HSRs) should be elected to represent the workers. If the PCBU doesn’t initiate this, HSRs will be required if:

  • the PCBU is in a high risk sector, or
  • where a worker requests a HSR unless the PCBU has fewer than 20 workers and is in a low risk sector (note that the PCBU must advise its workers if it seeks to rely on that exemption).

HSRs will have significant responsibility and power. For example, if a HSR reasonably believes that a person is contravening or likely to contravene the HSWA, they can issue a provisional improvement notice (PIN) requiring the person to remedy the contravention or to take action to prevent a likely contravention.

Health and Safety Committees

Health and Safety Committees (HSCs) bring together workers (including HSRs) and management to assist in the development and review of health and safety policies and procedures for the workplace.

The default position is that a PCBU may establish a HSC, or the establishment of a HSC may be requested by 5 or more workers or by a HSR. A PCBU must, within 2 months of receiving a request to establish a HSC, decide whether to establish one. However, a HSC needn’t be established if workers are already "participating effectively in improving health and safety" or if the workplace has fewer than 20 employees and is not in a high risk industry.

Work Groups

PCBUs must group workers in a way that effectively enables the workers’ health and safety interests to be represented, by workers being represented and having access to their representatives. So, work groups are groupings of workers within a workplace that are used to determine which workers are represented by one or more HSRs. Members of a work group elect their HSRs.

It’s up to a PCBU to decide how work groups will be organised and the Health and Safety at Work (Worker Engagement, Participation, and Representation) Regulations 2016 set out the proposed factors the PCBU must consider when organising work groups. Workers in a work group are likely to have some factors in common, such as their place of work or the type of work they do. For example, organising work groups by shift (in a factory or manufacturing context) or by function (in a construction or forestry context) would be an option for some PCBUs.

ENFORCEMENT
Part 4 sets out a number of enforcement notices that may be issued, sit alongside the possibility of infringement proceedings. Penalties can be significant – the largest is $3m.


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