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News Bulletin : ADA News Bulletin October 2011
19 OCTOBER 2011 The Model Work Health and Safety Legislation and the SIGNIFICANT CHANGES From 1 January 2012, occupational health and safety (OHS) legislation will be ‘harmonised’ in order to create uniformity in legislation in setting safety standards intended to establish a national OHS scheme. Currently, the states, territories and the Commonwealth operate under different OHS legislation, regulations and codes of practice. A national OHS scheme will be expected to create benefits to organisations in reducing time spent interpreting and complying with complex legislations and regulations across the different states. The expectation is for all states and territories to adopt the amendments under the Model Work Health and Safety (WHS) Act into their current state and territory OHS legislation. The changes do not affect workers’ compensation laws. The Federal Government has created a new national body called Safe Work Australia to assist with the coordination of the OHS harmonisation process. The key features of the Model WHS legislation include: PRIMARY dUTY Of CARE fOR dUTY HOLdERS One of the most significant changes brought by the model laws will be a shift to the current approach of the primary duty of care being on the employer-employee relationship to an emphasis now being imposed on a ‘Person Conducting a Business or Undertaking’ (PCBU). Duty holders include PCBUs, workers, officers and others. REASOnAbLY PRACTICAbLE The duties a PCBU must fulfil is being aware of what is being considered ‘reasonably practicable’ by looking into: • The likelihood of the hazard or risk occurring; • The degree of harm that may arise from these hazards or risks; • What the person concerned knows or ought to know, about the hazard or risk, and the ways of eliminating or minimising the risk; • The availability and suitability of ways to eliminate or minimise the risk. After assessing these matters, a consideration as to the costs associated with eliminating or minimising the risk, and whether they are grossly disproportionate to the risk. dUE dILIGEnCE The Model WHS Legislation will impose a positive obligation on the officers of an organisation to exercise due diligence in ensuring that the organisation meets its safety obligations by taking reasonable steps to: • Acquire and keep up-to-date knowledge of safety matters; • Gain understanding of the nature of operations and hazards and risks of the business/undertaking; • Using appropriate resources and processes to indentify, eliminate or minimise risks; • Ensure the business/undertaking has appropriate processes for receiving and considering information regarding risks and incidents and responding in a timely way; • Verifying the implementation of those processes through regular audits; • Verifying legal compliance. COnSULTATIOn The process of consultation has changed. Three ways to consult will be through: Health and Safety Representatives (HSR), Health and Safety Committees (HSC), and other agreed arrangements. A PCBU has an obligation to consult with workers and other PCBUs if necessary when managing the risks arising from the work of the business or undertaking. This requires consultation with a broader range of parties as a worker can include an employee, labour hire staff, a volunteer, apprentice, work experience student, sub- contractor, contractor, trainee and outworker. Also a worker must exercise reasonable care. “A national OHS scheme will expect to create benefits to organisations in reducing time spent interpreting and complying with complex legislations and regulations across different states.”
ADA News Bulletin September 2011
ADA News Bulletin November 2011