OHS Harmonisation
The process of harmonising Australia’s multitude of health and safety legislation to provide consistent Work Health and Safety (‘WHS’) laws nationally is well underway.
New WHS laws based on a Model WHS Act have been passed in all jurisdictions, except for WA, VIC and SA, and will commence on 1 January 2012. It is anticipated that the remaining states will follow suit and adopt, to varied extents, the Model WHS Act by the end of 2013.
Changes under the WHS Laws
Two key changes reflected in the new WHS laws concern:
- The obligations imposed on Persons Conducting a Business or Undertaking (‘PCBUs’); and
- Increases to fines for breaches of WHS duties.
Obligations of a PCBU
The WHS laws impose a primary duty for the health and safety of workers on a PCBU. Previously, this obligation rested with the worker’s employer.
In so far as is reasonably practicable, a PCBU will be required to ensure:
- the health and safety of workers who are engaged or are caused to be engaged by the person or whose activities are influenced or directed by the PCBU; and
- that the health and safety of other persons is not placed at risk by the work carried out as part of the business or undertaking.
Consequently, at any given time multiple PCBUs may exist in relation to the health and safety of persons in the workplace. Each PCBU will be responsible for discharging their duties under the WHS to the extent of their capacity to influence, control, consult, co-operate and coordinate the activities of persons in the workplace.
Increases to Fines
The Model WHS Act provides for three categories of offences that apply to an individual, a PCBU, a worker, an officer of a corporation or unincorporated association and to a body corporate:
- Category 1: Where a duty holder recklessly exposes a person to whom they owe a duty to a risk of death or serious injury or illness;
- Category 2: Where a duty holder breaches an obligation and thereby exposes a person to serious harm; and
- Category 3: Where a duty holder fails to comply with a duty.
The maximum penalties for breach of health and safety duty offences are outlined in the following table:
|
|
Corporation |
Individual as PCBU or officer |
Individual as worker or other |
|
Category 1 |
$3 million |
$600,00, five years jail or both |
$300,00, five years jail or both |
|
Category 2 |
$1.5 million |
$300,000 |
$150,000 |
|
Category 3 |
$500,000 |
$100,000 |
$50,000 |
In some jurisdictions the increase in fines is quite significant, highlighting the detriment that can befall a business that is not compliant with the WHS.
Moving Forward
MST will hold seminars early in the new year to address the changes to WHS laws in further detail.
Although workplaces in WA, VIC and SA will not be subject to the new WHS laws on 1 January 2012, all businesses must prepare for the inevitable. It is particularly important that businesses contracting with the federal government or operating across multiple jurisdictions be proactive in understanding their obligations under the new laws.
Businesses should conduct a review of their existing WHS procedures and policies and address any differences between current business WHS obligations and the obligations under the new WHS laws.
For assistance in determining how your business can become compliant with WHS laws please contact the MST Workplace Relations team.
Authors: Alexandra Klimovics & Chad Issa
