Changes to Australian Safety – Work Health Safety Act 2011 Requirements

MAJOR CHANGES RESULTING FROM THE WORK HEALTH SAFETY ACT 2011

1.0 INTRODUCTION
The Work Health and Safety Bill 2011 and Occupational Health and Safety Amendment Bill 2011 were passed by the Lower and Upper House of NSW Parliament on June 1 2011. The Work Health and Safety Act 2011 incorporated the following changes to the existing Act from January 1 2012. Currently, the Act is in place in; New South Wales, Queensland, Australian Capital Territory and the Northern Territory. Victorian Parliament have thrown the Bill out of Parliament, on the basis of the initial implementation cost for SME’s, with little or no capital gain for the outright expenditure of the organisation/s. There were also concerns regarding the union/CFMEU influence and possible control of elected Health and Safety Representatives, who can now issue ‘Provisional Improvement Notices’ and ‘Cease Work Notices’ to their respective employer/PCBU.

2.0 THE ALARP PRINCIPLE
The Act have placed an insertion to the duty of care definition, to the ensure health and safety of workers, regarding risks posed whilst performing working duties on behalf of a company is “as far (low) as reasonably practicable.” This is known as the ‘ALARP Principle.’

The core change of the harmonisation legislation, now places sole emphasis on the ‘ALARP’ principle. The principle itself moves away from previous state legislation, that an employer can, with issues of OHS, implement “infinite; time, effort and money (that) can be spent, on an attempt of reducing the risk involved with an activity to zero.” This now is no longer the case.

An employer now must ensure that risks in the workplace are assessed through the ALARP principle, using the Hierarchy of Controls to determine the lowest point of risk. No longer can organisations simply throw money at a safety issue (worker training, finances for extraordinary licences etc.) Employers now are required to have documented proof that risks posed to all levels of staff, were assessed using the Hierarchy of Control (Elimination, Substitution, Isolation, Engineering, Administration, PPE.) Upon finalising a decision based upon the HOC, evidence supporting the reason/s why it was deemed as posing the lowest possible risk to the employees, must be able to be provided to auditors and external parties, if and when required.

2.1 IMPLEMENTATION INTO AN OHSMS
To ensure ALARP, additional emphasis is now being placed on employers to have a structured Occupational Health and Safety Management System (OHSMS,) and the appropriate documented and recorded paper trial as evidence that all risks posed to an employee, no matter what their employed role, have been assessed by all levels of the company representation, with appropriate control measures implemented.

2.2 IMPLEMENTATION INTO AN OHSMS
Ensuring ALARP principles methods are reasonably simple; it all boils down to common sense. The old saying however, of “Common sense is not all that common!” is still relevant.

• A widely recognised and on-going company induction procedure for all employees, including re-training,
• Assessing training needs, whether on the job, or requiring a certified RTO course,
• Documentation of all training is now required (soft/hard copy certificates and qualifications, company training logs etc.),
• Involvement of all staff in safety matters (safety notifications, committee meetings, election and consultation of health and safety representatives,
• Risk Assessments on owned and hired Equipment/SWMs for frequent works, JRA’s for all site visits. All documentation requires a training and assessment program for all staff, with on-going review.
• Test and Tagging compliance with plant equipment,
• Ongoing servicing of all plant and equipment used by the workforce
• Possible corrective actions, arising from incidents and hazard forms, appropriately assessed.

When implementing the changes, Elimination and Substitution should always be the first port of call, and of course, common sense being administered to all possible actions required undertaking.

3.0 DEFINITION CHANGES
The term ‘employer,’ has now been replaced by the term ‘Persons Conducting Business or Undertaking’ (PCBU.) A PCBU conducts a business or undertaking alone or with others (proprietorship or joint venture). The business or undertaking can operate for profit or not-for-profit, so this can include volunteers and charity organisations, a move which has already come under scrutiny from external parties.

The word ‘employee’ has now been replaced by the term ‘worker.’ A worker is anyone who conducts and performs work for a PCBU, which now includes:

• Employees,
• Contractors or subcontractors,
• Employees of contractors or subcontractors,
• Labour hire employees,
• Apprentices or trainees,
• Students on work experience,
• Outworkers,
• Volunteers.

3.1 IMPLEMENTATION INTO AN OHSMS
All wording within manuals, documents and business contracts require to be altered to ‘PBCU’ and ‘worker.’ The definition enables litigation cases to be brought against anyone within a company, providing there are grounds that a worker was grossly negligent whilst performing works for a PCBU, affecting the health and safety of others. Although widely unpopular, volunteers and charities now can also be sued. Are procedures and policies in place to protect your workers? Is there a system for rectifying negligent behaviour?

A need to raise awareness to existing workers, that the State now can initiate proceedings against an individual and not just a PCBU entity, needs to be performed. Inclusions of information within in; safety notifications, staff inductions or general toolbox meetings are a great way of informing staff of their legal responsibilities towards OHS.

4.0 REVERSE ONUS OF PROOF (Now Removed)
The WHS Act 2011 previously stated a “reverse onus of proof.” For all the non-lawyers out there, it means that the Act was following the French Judicial system, where in litigation cases the defendant was prosecuted and presumed as guilty. In essence, defendants had to prove their innocence.

The Reverse Onus of Proof Principle was removed from the Act, in the OHSA Amendment Act.

4.1 IMPLEMENTATION INTO AN OHSMS
Inclusion is now not required of the ‘reverse onus of proof’ principle.

5.0 DUE DILIGENCE
Defined as “the deemed liability of officers is replaced by the proactive duty of due diligence.”

Due diligence is a term used for a number of concepts, involving either an investigation of a business or person prior to signing a contract, or an act with a certain standard of care.

5.1 COMPANY MANAGEMENT CAPABILITIES
Managing Capabilities aims to balance both current and future operational requirements along with ensuring sustainability and ensuring constant development.

5.2 IMPLEMENTATION INTO AN OHSMS
Do your company’s documents include and make known the individual requirements of a worker? Is the worker made known of these requirements? Is a standard set?

5.3 PERFORMANCE GAPS
Ensuring employee performance remains consistently of a high standard, ensures that the management capabilities and strategic vision of the company maintains constant development. Ways to measure performance can involve a range of registers (KPI, performance), and can include but are not limited to;

1. Comparing performance with objectives,
2. Comparing performance with similar workers or work units,
3. Considering outcomes against key timelines and milestones,

5.4 IMPLEMENTATION INTO AN OHSMS
Does your system include risk assessing outside factors, that can decrease a PCBU’s or a workers performance?
Eg:

Outside Factor Example
Environmental Acts of God, Unforeseen weather
Staff Employee retention, Hours worked, Quality of work
Personality Conflicts Differing views on decisions from employees
Industrial Disputes Outstanding litigation, Union involvement (CFMEU)
Cost Increases From suppliers, Government etc
External Pressures Lobbyist Groups, Legislation, Religious influences

5.5 GROWTH PROJECTIONS FOR PCBU’s WITH DUE DILIGENCE
PCBU’s estimate future business possibilities; based on current trend. Involvement of research into potential company growth, market predictions and acquisitions of assets, are now performed either consciously; through financial professionals, acquisition of work contracts, or subconsciously; such as employing a worker based on experience, knowledge or price. If a PCBU is growing financially by 20% per year, is the size of the workforce also growing to aid with the completion of additional work? If not, are workers workloads increasing, which in turn is causing mental and physical fatigue?

5.6 IMPLEMENTATION INTO AN OHSMS
Using the ALARP Principle, are Fatigue Management Plans implemented, recorded and governed?

Inclusion of a Fatigue Management/Overtime Policy can include a requirement for compulsory days off, after performing x amount of hours. How many minimum hours are required to be worked, before additional being classed as overtime? Is the system in place to recognise overtime, and identify fatigued workers?

In turn, is there a monitoring system for reviewing worker health, and medical requirements? Most of who have been involved in life-threatnening events, state that its a series of little things that combine, to ensure the event did not result in a death. The detail is in the little things. Are EpiPens available for Diabetics, and heart defibrillators for those with predisposed risk? Are personnel trained in handling the situation? What is the known emergency procedure?

In addition, does your system cover the cultural beliefs of Australia’s multicultural workforce? Are measures in place for such occasions with disputes, and worker conflict situations settled with a complaints or conflicts procedure?

5.7 ASSUMPTIONS VALIDATION
With an assumption, we expect something to happen from an individual or group. This incorporates a level of risk with trust in an employee to perform their duty. With a risk, we ask; what will we do if something does not happen, or how do we decrease the probability that something will happen?

Due diligence now states an Officer (elected or employed representative in the company), who can make decisions on behalf of a PCBU, which significantly affect the business, is now responsible for the following areas;

1) Having an understanding of the nature of the operations of the PCBU and the hazards and risks associated with those operations.

2) Ensuring appropriate resources and process to enable; identification, elimination or control of specific hazards, risks, compliance with specific obligations (consultation, incident notification.)

3) Having up to date knowledge of laws and compliance requirements.

4) Verifying that risk and hazards are being appropriately controlled.

5) Ensuring there is a process for receiving, considering and ensuring a timely response to information regarding incidents, identified hazards and risks.

6) Ensuring verification of the provision and use of the resources and processes that have been implemented for the purposes of auditing and review.

How do we ensure that the major decision makers receive as much legal coverage, if an event would arise?

5.8 IMPLEMENTATION INTO AN OHSMS
Does the system provide educational and referencing support, in major decisions from Management? Are prior job references researched and documented, with stated and provided qualifications’ validity checked? How are legislative changes affecting your industry, informed to your PCBU? If legal action was taken against your PCBU, what is the process for installing legal privilege?

6.0 HEALTH AND SAFETY REPRESENTATIVES
The Work Health and Safety Act has included some changes in terminology and emphasis and introduced some new provisions. Health and Safety Representatives can now issue a ‘provisional improvement notice’ and a ‘cease work notice’ to a PCBU, but only if trained to do so. Once elected, the PCBU has 12 months from date of election, to provide Health and Safety Representative training. A Health and Safety Representative can serve a three year term, until they require re-election.

7.0 CONCLUSION
When it boils down to the new legislation, a lot of discussion can be had, many documents can be written, and procedures implemented from a range of the above points, however this is all pointless if safety is not an integral part of a PCBU’s culture.

Any individual working within the OHS field will agree, that to implement or change a culture, it has to be filtered down to the workforce, from the highest point. If safety is number 1 priority to your organisation, an example must be set, and followed by a Board of Directors, General Managers and of course, an OHS Department. Build on this culture of safety first, and with time, a reduction of LTI and MTI rates will shortly follow.

Author Overview
Based in Western Australia, Liam is a Health and Safety professional with 7 year’s experience in establishing and implementing Occupational Health and Safety Management Systems, ranging from Civil/Construction, Mining and Corporate.

Since coming aboard with Alliance Power and Data, Liam has undertaken the role of National HSEQ Manager and lead a HSEQ team Australia wide. He has gained; International, National and State accreditation’s and Approved Service Provider (ASP) status with multiple utilities, through the systems’ procedures and processes implemented, in consultation with all levels of staff in APD.

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