Complacency will lead to hot water

by 15 Dec 2011

The rollout of the new WHS legislation will become law as of 1 January 2012, and any workplace incident after this time will be subject to the new laws and harsher penalties.

The harmonisation of WHS (previously OHS) laws has broadened the definitions of who exactly are ‘workers’, what constitutes a ‘workplace’, and who are ‘officers’, that is, who is responsible for workplace safety.

Kemp Strang’s employment law partner, Lisa Berton, said employers can’t afford to be complacent when it comes to the roll out of the new laws, and warned that not all stakeholders will be ready.

Speaking to HC, Berton said “certainly the larger organisations are likely to be ready, but the smaller ones are less likely to be”.

She also warned employers to understand there will be no ‘grace period’, and the harsher penalties will apply from day one.

Indeed, the penalties for a breach of an individual officer’s duty can be a fine of up to $600,000 and/or five years imprisonment.

Berton said, “Complying with the new regime needs to be a priority. This includes identifying an organisation’s officers and ensuring these people are up-to-date regarding their liabilities and obligations.”

She added that the broader definition of ‘officer’ has the potential to capture more people who are responsible for workplace safety.

“Depending on the governance structure of the company it could encompass the board, executive team, each individual partner in a partnership, insolvency administrators and even office and HR managers,” she said.

When asked if the new laws are an improvement of those previously, Berton said it’s too early to call, given Tasmania, Victoria, South Australia and Western Australia are yet to follow suit by harmonising their laws – these states are expected to begin adopting the changes within the next 12 months.

“Everyone always welcomes improvements to health and safety matters, but I would be reluctant to call it just yet. If we’re going to see benefits, it’s going to be a little while off yet, at least until we’ve got national harmonisation,” Berton said.

Kemp Strang advised employers to ensure their officers:

  • Keep an up-to-date knowledge of work health and safety matters

  • Understand the hazards and risks of the business or operation and the nature of the business or operation generally

  • Ensure resources and processes eliminate or minimise the risks identified

  • Have appropriate systems in place to receive information on and allow timely response to incidents, hazards and risks

  • Develop processes that ensure compliance with legal obligations under the Act; and

  • Verify the provision and use of resources and processes.


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