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.