On 1 January 2012 Australia will see a significant landmark in health and safety legislation, with the introduction of harmonised work health and safety laws across each of Australia’s states and territories. Jo Kitney provides an update on the new legislation and looks at the positive steps that organisations will need to take to make sure WHS obligations are met and organisational WHS risks managed .

Harmonised OHS Legislation

After extensive consultation and negotiations at federal and state Government levels, across industry, organisations and stakeholders, a common legislative framework has been drafted and agreed through Safe Work Australia. Although some states are arguing for a delay, it is expected that each state and territory will adopt this legislation for 1 January 2012.

The harmonised legislation still aims to stop anyone from being killed, injured or becoming ill because of a workplace and work being done. The legislation will follow the current approach with an Act (Work Health and Safety Act) and Regulations (Work Health and Safety Regulations) creating the regulatory framework, with Codes of Practice supporting the legislation and laying down expected standards for management and practice.

Depending on the current WHS legislation within each state or territory, this new legislation will be a case of ‘business as usual’ as well as introducing new or changed obligations. Important inclusions within the new legislation are listed within the box below.

Key inclusions within australia’s new WHS legislation

• Introduction of ‘reasonably practicable’
• Positive duty of care for directors and officers with the clear defi nition of due diligence and penalties for breaches
• Changed definitions of ‘worker’ and ‘PCBU’ (person in control of the business or undertaking)
• Requirement to monitor workers’ health and conditions at work
• Obligation to consult, co-operate and co ordinate WHS matters with workers
• Health and safety representatives powers to issue PINS and direct a work stoppage
• Removal of Workplace Health and Safety Officers (WHSO’s)
• Codes of Practice admissible in a court as evidence

Compliance and enforcement

Compliance and enforcement will follow the current tiered approach by each state or territory, with WHS regulators providing support to businesses to encourage and assist compliance, issuing improvement and prohibition notices to direct compliance and, for cases of negligence in meeting duties of care, regulator and court sanctions including prosecutions, injunctions, infringement notices and enforceable undertakings.

Guidance indicates there will be no ‘grace period’ after commencement of the new legislation, with limited transitional provisions for matters such as prosecutions, appointment of health and safety representatives and notices issued before the repeal of the current legislation. It is important for organisations to have dedicated resources and be taking
action to make sure they are ready for the changes.

Preparing for the new WHS legislation

With the diversity and complexity of operations found within local and regional Councils and Government departments, preparing for the new WHS legislation and rolling out updated or new WHS arrangements will take time, planning and good project and change management. Over the coming months organisations will need to be aware of the changes and make sure their health and safety systems, policies, procedures and arrangements are revised to meet the new legislation on 1 January 2012.

Preparing for the new WHS legislation will mean including actions within the organisation’s WHS Plan and departmental WHS plans, taking into account corporate or organisational and operational WHS management. Key actions for businesses to prepare for the new WHS legislation are listed within the following box.

Key actions for businesses to meet new WHS laws

• Allocate responsibility and resource for preparing for the new WHS legislation
• Identify and work with key internal and external stakeholders for WHS
• Obtain copies of the new WHS legislation for the relevant state or territory
• Understand the continued and changed obligations
• Determine who will be considered a ‘worker’ and an ‘officer’ and their obligations
• Review organisational arrangements and compliance against the new WHS legislation
• Revise the corporate governance processes for Boards, CEOs and executive management
• Undertake a gap analysis and identify areas for action for meeting ‘reasonably practicable’
• Review and revise WHS management system policies, procedures, tools and templates
• Roll out and implement revised WHS management across operational areas
• Provide training and information on the changes to WHS management
• Monitor and review implementation to ensure effective change management and compliance

Governance and organisational risk

A significant element within the new legislation is the drive to manage health and safety by ‘leading from the top’, with provisions for penalty and prosecution for failing to meet obligations for a positive duty of care and in the event of a workplace incident. These obligations can hold individual directors and officers individually liable, as well as the business
or undertaking. 

CEOs, executive and senior management and other officers within Councils and government departments will need to ensure that they individually fulfil their duty of care and that  the organisation meets it obligations. This places health and safety as a subset and in its own right within organisational governance and risk. Governance paves the way for managing organisational risk and, along with a personally held regard for health and safety, is needed for directors and officers to meettheir duties and obligations as well as the  broader goals and obligations of the organisation.

By placing WHS within organisational governance and the organisational risk framework (and particularly within our current economic climate), it should also provide benefit beyond compliance. Any strategies and actions for WHS should secure the best possible return from investment – be they time or money. In deciding on actions for WHS, consideration should also be given to how WHS can link with and support the organisations vision, strategy and broader business goals, taking WHS from being a compliance issue to an integral part of securing the organisations goals and embedded within its day to day decision making and operations.

Further information

Safe Work Australia: http://www.safeworkaustralia.gov.au/Legislation/ModelWHSAct/Pages/ModelWHSAct.aspx

ACT: http://www.comcare.gov.au/laws__and__regulations/ohs_act,_regulations__and__code/information_on_amendments_to_the_ohs_act_ and_regulations

New South Wales: http://www.workcover.nsw.gov.au/newlegislation2012/Pages/default.aspx

Northern Territory: http://www.worksafe.nt.gov.au/

Queensland: http://www.deir.qld.gov.au/workplace/law/harmonisationohslaws/index.htm

South Australia: http://www.safework.sa.gov.au/whs/

Tasmania: http://www.wst.tas.gov.au/safety_comply/whs_model_legislation

Victoria: http://www.worksafe.vic.gov.au/wps/wcm/connect/wsinternet/WorkSafe/Home/Laws+and+Regulations/Occupational+Health+and+Safety /National+Health+and+Safety+Reform/

Western Australia: http://www.commerce.wa.gov.au/worksafe/content/About_Us/Legislation/National_model_act_FAQs.html

Kitney Occupational Health and Safety provide occupational health and safety services, specialising in WHS business management, health hazards and employee health risk management: www.kitneyohs.com.au