‘Do more rather than less’: New OHS laws

by HCA08 Nov 2011

Organisations must focus on improving their communication between internal departments if they are to successfully meet the new OHS laws which will take effect on 1 January 2012.

As a result of new consultation requirements, which extend the definition of a ‘workplace’ and an ‘employee’, employers will now be obligated by their duty of care to consult with both workers and managerial colleagues on potential occupational health and safety issues.

Kemp Strang employment lawyer, Ben Urry, said the new OHS provisions outlining consultation requirements will mean more leg-work for employers.

He added: “That duty [of care] is very broad - both the definition of ‘worker’ and ‘workplace’ have been extended under the harmonised OHS laws, so there are more people that fall under an employer’s duty of care, and more places that they’ll have to ensure are safe to work in.”

As an example, Urry described the scenario of an employer’s potential responsibility to consult on OHS risks with the owners or managers of a shopping centre which a worker must walk through frequently as part of their job.

“The news OHS laws tell employers they must consult on OHS issues where it is ‘reasonably practicable’ for them to do so. We’ll be waiting on clarification of that term in the case law that will start trickling through next year,” said Urry.

However, a key term in the new laws is to do all that’s ‘reasonably practicable’, and this will be difficult to assess as employers will have to weigh up the risks when deciding if they should be consulting on these issues.

According to Urry, ‘smart companies’ will err on the side of caution and do more rather than less, and consult with ‘short-term’ workers, such as tradespeople who may only be on the site premises for a short time.

Urry said the consultation process must take place when identifying hazards, assessing and subsequently minimising risks, assessing the adequacy of working facilities, when proposing changes that may affect worker health or safety, and when providing information and/or training to workers on health and safety matters.

Kemp Strang suggested that when looking at their consultation duties:

  • It’s advisable to keep a written record of who was consulted and when, what the safety matter was and any decisions made and actions taken.
  • Organisations should identify other duty holders who they may be consulting with on a regular basis, i.e. landlord, building management, co-tenants. Having a contact list and clear understanding of who you need to consult with will make the process much easier.
  • One consultation isn’t enough: Discussions with other duty holders and workers themselves should be ongoing and frequent, to ensure the health and safety of those involved. OHS issues are ever-changing, so a once-off discussion isn’t going to cut it.


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