Work Health & Safety Laws

On 1 January 2012 the Work Health & Safety Act 2011 (‘WHS Act‘) came into force replacing Occupational Health & Safety laws in New South Wales and moving us towards harmonisation of work health and safety laws across Australia.

Every person conducting a business or undertaking (PCBU – the new term that includes employers and businesses) has a positive duty to ensure the ongoing management of work health and safety matters is done effectively.

Employers & Businesses

A PCBU (Person Conducting a Business or Undertaking) has the primary duty to ensure, so far as is reasonably practicable, that workers and other persons at a workplace are not exposed to health and safety risks.

Officers & Directors

Officers under the WHS Act are individuals who have high level obligations for work health and safety. Officers include company directors, business owners as well as any person who can make, or participate in making, decisions that affect the whole, or a substantial part, of the business of a corporation.

It is an Officer’s duty to exercise due diligence to ensure their business or undertaking fulfills its health and safety obligations under the WHS Act.

Therefore, Officers must ensure the person conducting a business or undertaking (PCBU) have arrangements in place to comply with its legal obligations.

With increasing responsibility on Officers and penalties including jail terms and severe fines (for which individual Officers can be liable), the ongoing operation of your business and its future are at stake when facing an investigation or prosecution.

Duty of Due Diligence

Section 27(5) of the WHS Act specifically states that an Officer’s duty to exercise due diligence includes taking reasonable steps to:

• acquire and keep up-to-date knowledge of work health and safety matters
• gain an understanding of the operations of the business and the hazards and risks involved
• ensure appropriate resources and processes are provided to enable hazards to be identified and risks to be eliminated or minimised
• ensure information regarding incidents, hazards and risks is received and the information is responded to in a timely way
• ensure the PCBU has, and implements, processes for complying with any legal duty or obligation
• ensure processes are verified, monitored and reviewed.

Breaches of Work Health & Safety Laws can result in serious fines or even imprisonment. 

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Compliance

Complying with the WHS Act requires Officers and PCBU’s to be proactive. In most cases this involves seeking out information, obtaining legal advice as necessary and engaging a Safety Consultant and/or employing a trained safety officer to:

• audit workplace activies, equipment and sites and consult with employees to identify foreseeable hazards and risks
• identify and evaluate measures for eliminating, reducing or managing hazards and risks
• record the above matters and measures in detail for compliance purposes, future reference and reporting
• prepare and implement relevant WHS policies and procedures
• implement systems and procedures for recording, responding to and managing incidents and hazards as they occur
• carry out periodic inspections and audits of workplace activities, equipment and sites.

WHS Incident & Hazard Management Systems

Achieving a high standard of due diligence requires persistent examination and care to ensure that the resources and systems of the PCBU are adequate to comply with all its WHS obligations.

The adoption and use of an effective WHS Incident & Hazard Management System in the exercise of an Officer’s duty of due diligence is essential.

A good WHS Incident & Hazard Mangement System should:

• ensure that relevant policies, procedures, standards, codes of practice and even instructional videos are readily available to managers and workers,
• ensure that information in relation to risks and hazards and measures for eliminating or managing risks is accessible when necessary, including remotely on site via the internet,
• allow simultaneous reporting of incidents and risk and triggered notification of appropriate level managers, safety offices and Officers,
• track past inspections and audits of workplace activities, equipment and sites as well as the ongoing management of identified risks and hazards,
• allow managers, PCBU’s and Officers to track and retrieve information relating to workers’ qualifications, training and suitability for particular tasks or operations,
• enable PCBU’s and Officers to generate timely and meaningful reports relating to workplace incidents, injuries, risk and hazards, and
• enable PCBU’s to manage workplace injuries and return to work obligations.

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