Even though businesses and individuals who do not comply with the 1 Jan 2012 harmonisations of the new WHS laws face harsh penalties, many businesses are ill-prepared and have not properly addressed the legislative changes.
Sydney employment law firm Kemp Strang highlighted the following key points to ensure workplaces are abiding by the new regulations:
Employers are expected to do all that is ‘reasonably practicable’ to ensure safety – defined as “That which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety”
Employers must weigh up (without limitation):
- the likelihood of a hazard/risk occurring
- degree of potential harm
- what the person concerned knows, or ought reasonably to know, about the hazard/risk and ways of eliminating / minimising it
- the availability and suitability of elimination / minimisation methods
- after all of the above, the costs
The laws affect any person conducting a business or undertaking (PCBU) and include all employers, principal contractors, self-employed persons, franchisors, partners and others. A PCBU must ensure, so far as is reasonably practicable, the health and safety of:
- Workers (engaged, influenced or directed) while at work
- Other persons who may be impacted by work carried out as part of the business or undertaking
There is a four-step ongoing process that employers can follow to guide their WHS adherence, namely:
1. Identify all hazards and risk
How to control? Use a three-step scale:
Eliminate risks and hazards wherever possible – it is only if you can’t eliminate the risk that you should proceed down the scale eg Instead of employees lifting boxes, can you provide a trolley?
Substitution. Isolation. Engineering controls eg Can you provide safer equipment? Can you separate employees from the hazard or risk eg erect a barrier?
Administrative controls (induction briefings, signs) and personal protective equipment (PPE) (last resort measure, only when no other control method is possible)
Kemp Strang partner Lisa Berton commented that there is a real mix in terms of business’s levels of preparedness, and that ignoring the laws would be a costly mistake – penalties include fines of up to $600,000 and/or five years’ imprisonment for some breaches.
While so far only the Commonwealth, NSW, Queensland, the ACT and the Northern Territory have enacted the new WHS laws, they have implications for national businesses operating across state and territory borders. Most importantly, under the new laws, each person falling under the “officer” definition in the act has the same duties, making it impossible to delegate those duties – all employees must be trained to ensure WHS compliance.
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