New South Wales Health and Safety Laws Expand Range of Duties and Duty Holders

New laws, based on the federal government’s model harmonised Work Health and Safety Act 2011, took effect in most states and territories (including New South Wales) on 1 January 2012.

The New South Wales Work Health and Safety Act 2011 (WHS Act) repealed the Occupational Health and Safety Act 2000 (OHS Act).  The WHS Act creates significant obligations for employers and other persons who influence the performance of work.

In this article, we will outline the categories of persons who hold obligations under the WHS Act and some of the more significant of those obligations.

Workplace health and safety responsibilities

Person conducting a business or undertaking

The WHS Act introduces a new category of duty holder — person conducting a business or undertaking (PCBU) — to identify those persons with a primary duty.

The definition of PCBU extends beyond employers and self-employed persons.  The primary duty of a business who is a PCBU is owed to both workers engaged or caused to be engaged by the business, and workers whose activities in carrying out work are influenced or directed by the business while the worker is at work in the business or undertaking.

A PCBU may be an individual or an organisation.  Examples of PCBUs that are individual include:

• partners in partnerships;
• sole traders and self-employed people;
• individual trustees of trusts (as with some family businesses); and
• committee member of unincorporated associated, if they employ someone.

Examples of PCBUs that are organisation include:

• public companies;
• private companies;
• trustees that are companies;
• cooperatives that are companies;
• government departments and authorities;
• incorporated associations, if they employ someone;
• local authorities (municipal corporations or councils);
• independent schools; and
• universities.

A PCBU is not a person engaged solely as an individual worker or officer.  An elected member of a local authority, a person in a volunteer association and a person engaged in purely social, domestic or recreational activities is not a PCBU.

The duty of a PCBU to ‘workers’ extends to all persons below the PCBU in the chain, including subcontractors, the subcontractors’ employees and labour hire workers engaged by the PCBU and out workers.

If a risk cannot be eliminated, the PCBU must minimise the risk, so far as is reasonably practicable, by:

• substituting (wholly or partly) the hazard;
• isolating the hazard from any person exposed to it; and
• implementing engineering controls.

If these controls do not fully eliminate or minimise the risk, the PCBU must implement administrative controls and then, if appropriate, ensure the provision of suitable personal protective equipment.

A combination of controls may be used to minimise a risk if a single control is not sufficient.

In determining control measures, the PCBU should identify and consider everything that may be relevant to the hazards and the means of eliminating or minimising the risks that arise from the hazards.

The PCBU, when determining what is ‘reasonably practicable’, should take into account:

• the likelihood of the hazard or risk occurring;
• the degree of harm from the hazard or risk;
• knowledge about ways of eliminating or minimising the hazard or risk; and
• the availability and suitability of ways to eliminate or minimise the risk.

In short, a PCBU must:

• identify hazards, manage risks and continually review risk control measures;
• introduce or review work health and safety policies and procedures;
• put effective consultation processes in place;
• train and support workers to work safely;
• monitor health and safety performance and record workplace incidents;
• expand safety processes, procedures and consultation to take the health and safety needs of employees, contractors(including employees of subcontractors), labour hire workers, outworkers, apprentices and trainees, work experience students, and volunteers into account.

Officers

Officers of organisations must exercise due diligence to ensure that the PCBU complies with its duties under the WHS Act.  ‘Officers’ are defined as:

• a director or secretary of a corporation;
• any person who can make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation;
• a person who has the capacity to affect significantly the corporation’s financial standing;
• a receiver, or receiver and manager, of the property of the corporation;
• an administrator of a corporation;
• an administrator of a deed of company arrangement executed by a corporation;
• a liquidator of a corporation; and
• a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

A person who is responsible only for implementing decisions is not considered an officer.

In exercising ‘due diligence’, officers are required, as far as reasonably practicable, to take reasonable steps to:

• acquire and keep up-to-date knowledge of work health and safety matters;
• gain an understanding of the hazards and risks associated with the nature of the operations;
• ensure that the business or undertaking has appropriate resources and processes in place to eliminate or minimise risks to health and safety; and
• ensure that the business or undertaking has appropriate processes in place to receive and consider information about incidents, hazards and risks.

The due diligence required of an officer is directly proportional to their influence on the PCBU.  Officers have a duty of care that cannot be delegated.  For example, an officer cannot unreasonably rely on the expertise of a manager or other person. 

Workers and others

The definition of ‘worker’ contained in the WHS Act includes:

• an employee;
• a contractor or subcontractor;
• an employee of a contractor or subcontractor;
• an employee of a labour hire company who has been assigned to work in the person’s business or undertaking;
• an outworker;
• an apprentice or trainee;
• a student gaining work experience;
• a volunteer; or
• a person of a prescribed class.

Workers must take reasonable care to protect their own health and safety while at work and take reasonable care to ensure that their acts or omissions while at work do not affect the health and safety of other persons.  The duty is subject to the degree of control that the worker has over his or her work activities and environment.

Workers must also:

• comply with reasonable work health and safety instructions given by the PCBU; and
• cooperate with reasonable policies and procedures of the PCBU.

Other persons at a workplace — such as visitors and volunteers — must take reasonable care for their own health and safety and must not unreasonably adversely affect the health and safety of others.

Consultation

The duty to consult is enhanced and expanded in the WHS Act.  The main object in the WHS Act is (in part) to ‘secure the health and safety of workers and workplaces’, including by ‘providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety’.

The duty to consult requires that relevant information about work health and safety is shared with workers and workers are given a reasonable opportunity to express views, raise issues and contribute to the health and safety decision making process.  The views of workers must be taken into account and workers must be informed of the outcome of a consultation in a timely manner.

Consultation does not require consensus. The primary duty to ensure health and safety as far as is reasonably practicable remains with the PCBU.  This is a duty that cannot be transferred to another person.

The WHS Act prescribes that if more than one person has the same duty, each such person ‘must, as far as reasonably practicable, consult and coordinate activities with all other persons who have a duty in relation to the same manner’.  The range of duty holders involved in an activity could include the employer, a supplier of plant or equipment or substances, a contractor, the owner of the building where work is performed, an officer and a worker.  As a minimum, each duty holder must share relevant information and cooperate with the other duty holders.

The. WHS Act allows for the election of a health and safety representative (HSR) and the creation of health and safety committees (HSCs).  Transitional arrangements deem some representatives and committees formed in accordance with the OHS Act to be HSRs and HSCs under the WHS Act for the term of their appointment or until 31 December 2014 (whichever is the earlier).

Penalties

The WHS Act introduces three categories of offences and penalties.  The maximum penalties for reckless conduct or other conduct exposing a person to a risk of death or serious injury or illness are far greater than penalties that could be levied under the OHS Act.

Category 1

A category 1 offence is one that involves reckless conduct that exposes and individual to a risk of death or serious injury or illness and is engaged in without reasonable care.

The maximum penalties for an individual convicted of a category 1 offence are $300,000 or five years imprisonment, or both.  If the individual is a PCBU or an officer of a PCBU, the maximum penalties are $600,000 or five years imprisonment, or both.

The maximum penalty for a body corporate is $3 million.

Category 2

A category 2 offence involves a failure to comply with a health and safety duty and exposing an individual to a risk of death or serious injury or illness.

The maximum penalty for an individual convicted of a category 2 offence or, if the individual is a PCBU or officer of a PCBU,$300,000.

The maximum penalty for a body corporate is $1.5 million.

Category 3

A category 3 offence involves a failure to comply with a health and safety duty.

The maximum penalty for an individual convicted of a category 3 offence is $50,000.  If the individual is a PCBU or an officer of a PCBU, the maximum penalty is $100,000.

The maximum penalty for a body corporate is $500,000.

If you would like more information about the WHS and in particular the new harmonised WHS laws, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.