Synchronised safety: The ins and outs of the model WHS laws
Facility Management speaks to the Australian Industry Group, Allens and Holding Redlich about whether or not full harmonisation is achievable, and how compliance with the model work health and safety laws can be ensured.
In 2008, all Australian governments signed an inter-governmental agreement (IGA) in which they agreed to work cooperatively to harmonise occupational health and safety (OHS) regulation through the adoption and implementation of model OHS legislation by 2011 – the legislation to be supported by a national compliance and enforcement policy to ensure a consistent regulatory approach across all jurisdictions. The IGA further stated, “Each party to this agreement will, subject to its parliamentary and other law-making processes, take all necessary steps to enact or otherwise give effect to model OHS legislation.”
According to Tracey Browne, manager of national safety and workers’ compensation policy and membership services at the Australian Industry Group (Ai Group), it was always going to be a difficult path to harmonise one set of laws (OHS/WHS) that sit within a broader context of related laws and systems, such as electrical safety, road safety, and the criminal law system.
“Hence, the Act and regulations include a range of jurisdictional notes that are designed to allow the WHS laws to be fitted into the surrounding systems within each jurisdiction,” she notes.
“Further, once the laws were agreed and individual governments gave a commitment to adopt the laws, the local consultation mechanisms and parliamentary processes come into play, especially in the jurisdictions where the government does not hold the balance of power,” she adds.
Browne notes that this is why we have witnessed some variations to the laws that are outside the model. She provides the example of New South Wales retaining a limited right for unions to initiate prosecutions, which was a necessary concession to get the laws through the upper house. She adds that South Australia has faced a long negotiation process in order to get the support necessary to get the laws through their parliamentary processes and that some amendments are expected to be inserted into the bill.
CURRENT STATUS OF THE MODEL WHS LAWS
On 1 January 2012, the model WHS laws commenced in New South Wales, Queensland, the Northern Territory and the Australian Capital Territory. The Commonwealth also introduced the model legislation, although it has quite limited application in this jurisdiction, note Simon Dewberry, a partner at Allens, and Andrew Stirling, senior associate in the Workplace Relations group at Allens.
The model legislation has since been passed in Tasmania, where it commenced on 1 January 2013. Dewberry and Stirling add that most of the states that have adopted the model laws have made some small amendments to them without changing any of the legislation’s important features.
At the time of writing, the positions of the remaining states were as follows:
- the Victorian Government had indicated that it would not be introducing the model legislation
- the Western Australian Government had indicated that it was likely to introduce the model legislation, but with some amendments, and
- the South Australian laws were expected to be passed, with a commencement date of either 1 January 2013 or 1 July 2013.
“Western Australia has always indicated that there were four areas within the Act that they would not adopt,” Browne says. “Consultation has been undertaken in relation to the regulations and it is expected that the Western Australian Government will introduce its laws into parliament around the middle of 2013.”
According to Browne, the Victorian Government has categorically refused to adopt harmonised laws in their current form, on the basis that they have the best safety record and lowest workers’ compensation premium in the country and do not want to jeopardise that by introducing new laws.
HARMONISATION – IS IT ACHIEVABLE?
“There has been much debate about the level of harmonisation that can be achieved within a federation such as that which exists in Australia,” Browne states. “As the first state to pass their WHS laws, New South Wales was criticised by many as breaking the harmonisation model by allowing for union prosecutions.
“However, the key rationale for harmonisation of WHS laws was to give employers (or persons conducting a business or undertaking as they are referred to in the WHS laws) a common basis for approaching the key obligation to eliminate or minimise risks so far as is reasonably practicable. The changes to the New South Wales Act do not affect this, the provisions that Western Australia will not adopt do not affect this and the negotiated amendments to the South Australian bill do not affect this.
“Hence, Australia will have an approach to WHS where obligations related to eliminating or minimising risk are harmonised in eight of the nine jurisdictions. Specific obligations under the WHS Act for officers to exercise due diligence (section 27) are just as relevant to Victorian workplaces as they are in the other jurisdictions. This is because, in these provisions, the WHS laws are clearly stating expectations that are present, but less obvious, in the Victorian laws.
“An employer who is operating in Victoria and one, or more, other jurisdictions can confidently adopt most of the provisions of WHS laws without fearing non-compliance with Victorian laws,” she concludes.
Browne notes that the Ai Group supports the full adoption of the model WHS laws across the country, and hopes that this can be achieved in the near future.
IMPORTANT FEATURES OF THE MODEL LEGISLATION
Michael Selinger, a partner at Holding Redlich Lawyers in the company’s workplace relations and safety team, states that the new laws have introduced an added level of risk by imposing personal responsibility on all ‘officers’ of a business to take reasonable steps to ensure the business complies with its duty of care. He notes that ‘officers’ include the director or owner of a business, and may also extend down to key operational managers who have significant control over a particular facility.
According to Selinger, one of the most significant changes brought in by the new laws is a new primary duty of care imposed on a “person conducting a business or undertaking” – known as the PCBU. “The bottom line is that a company is a PCBU. Before the new laws came into operation, a company owed a general duty of care in its capacity as either an employer or as an entity that controlled (or owned) premises. That duty was limited, to an extent, to those activities taking place at a workplace or in the premises controlled,” he states. “Now, the duty owed is much broader and is owed to all people (workers or visitors) who may be put at risk from work carried out as part of the conduct of a business or undertaking. This includes work by contractors and tenants.”
Dewberry and Stirling add that the duty is strict, in the sense that if there is an incident and there were reasonably practicable steps that could have been taken to control the risk and they were not taken, the PCBU is in breach. According to them, beyond its employees, a PCBU is also responsible for the health and safety of the following workers working in its business or undertaking:
- contractors and subcontractors
- employees of contractors and subcontractors
- labour hire employees
- apprentices or trainees
- students gaining work experience, and
“Given the definition of worker, it is possible multiple PCBUs will be responsible for the health and safety of an individual worker,” Dewberry and Stirling continue. “With that comes the potential for confusion – who will do what to ensure a worker’s health and safety? To facilitate the practical application of co-existing duties, the model legislation imposes a new positive obligation on PCBUs to consult and cooperate with other PCBUs if they are responsible for the same worker’s health and safety.”
They add that facilities managers are likely to owe a duty to ensure, so far as is reasonably practicable, that the fixtures, fittings and plant at facilities under the managers’ control are without risks to the health and safety of any person. “For the first time, officers of PCBUs have a duty to be proactive about OHS issues. Failure to meet that duty is a criminal offence, punishable by fine and (only in the most severe cases) imprisonment,” Dewberry and Stirling state.
ENSURING CONTRACTOR AND TENANT COMPLIANCE
The introduction of new safety laws across Australia has created some challenges for facilities managers, particularly in the areas of contractor management and tenant works as facilities managers can no longer simply rely on the contractor or tenant to do their work safely. “There is a need to be vigilant at all times. Any failure to monitor contractors or tenants’ activity could lead to significant financial penalties if an accident occurs,” Dewberry and Stirling warn.
“The issue of contractor management under the WHS laws has attracted a lot of debate,” says Browne. “There is a move away from a focus on the employment relationship to a relationship that considers how anyone affected by the work could be put at risk. This is particularly relevant to contracting arrangements.”
“The contractors are the ‘experts’, but you have to check that they have the right experience to do the job,” Selinger adds. “They promise to provide trained and qualified people, but you still need to check that the appropriate people turn up to do the work. They often work in sectioned-off areas, but you still remain responsible for keeping members of the public and staff safe while the contractors are at work.”
The WHS Act (sections 15 and 16) clearly states that more than one person can have a duty for the same matter and each person “must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity”, notes Browne. “This concept of overlapping duties is further supported by an obligation to consult, cooperate and coordinate with other duty holders who have an obligation for the same matter (section 46),” she adds.
Browne states that these provisions clearly articulate what has always been expected by the regulators and the courts:
- every organisation in the contracting chain must actively understand and manage the risks associated with the work they are involved in, not just the work being undertaken by their own employees
- it is not sufficient to rely on the policies or procedures of another party to meet health and safety obligations, and
- each duty holder must take the time necessary in the circumstances to understand how other parties are planning to manage their part of the safety responsibility and to check that they are doing what they said they would.
“In contracting and labour hire arrangements, many incidents occur in the ‘gaps’ that are created when organisations think that someone else is responsible for an issue. The structure of the laws encourages all duty holders to have the conversation, rather than finding out after an incident that things weren’t being managed effectively,” explains Browne.
“While you always had a duty of care towards contractors, there was a greater ability to rely on their expertise to do the job properly. This is no longer the case,” Selinger notes. “Work performed by contractors is now clearly considered to be part of the work carried out by your business. This means that you may need to reassess how you engage contractors and how you monitor their work, as there may well be further practicable steps that you can take to ensure that they perform work safely.”
According to Selinger, in practical terms, it all boils down to having an effective contractor management system in place. “Most importantly, you need to ensure that the system is being enforced on a day-to-day basis and is not simply a nice bundle of documents that sit on your shelf or intranet and occasionally get signed off by a contractor,” he states.
“If an incident occurs and a workplace inspector arrives, you can be sure that you will be asked to demonstrate that your contractor management system was working – in particular, that it ensured only appropriately experienced and trained contractors were performing the work in a safe manner.
“In short, this means that the contractor’s qualifications and skills were assessed by you before they started the job, that they were inducted by you, that they had a safe work method statement and that this method was actually being followed,” Selinger explains.
“In addition, you need to consider whether any substantial works undertaken by tenants are being brought to your attention and what steps you are taking to monitor that those steps are being taken safely, particularly if those works are going to impact on the general public,” he adds.
“While you don’t have to supervise the works being undertaken by a tenant (except perhaps in situations where there is a risk to the structural integrity of the building), you will need to assess the nature of the work being performed each time and determine the level of involvement you need. This is particularly the case if the work is going to be scheduled to take place during normal operating hours or if there are going to be numerous contractors involved in the job that will be accessing the tenancy through common areas,” Selinger states.
Dewberry and Stirling believe that PCBUs that are well-prepared for the model legislation are unlikely to find the new laws more onerous than the existing legislation and that they expect the biggest change to occur in workplaces in which officers are yet to take an active role in OHS issues.
Browne agrees, stating, “If you were managing contractors effectively under pre-harmonised laws, it is highly likely that you will be meeting your obligations under the WHS Act. If, however, you are concerned about the requirements to actively engage with contractors in relation to the management of health and safety, it is essential that you review your arrangements to ensure compliance.”