Harmonisation of WHS legislation in Australia – It is time to prepare
The much anticipated harmonised workplace health and safety legislation is due to commence on 1 January 2012 (at least in Queensland, ACT and the Commonwealth). It should be noted that not all States and Territories have enacted the model legislation in their jurisdictions and/or are suggesting a commencement date later than 1 January 2012. Therefore, we would recommend that you confirm the current status of the legislation in each of the jurisdictions that you operate.
It is important to understand that there is no “grace period” provided under the model WHS Act. That is, the duties under the model WHS Act will apply on and from the date of commencement of the legislation on 1 January 2012.
The primary duty for ensuring health and safety rests with the Person Conducting a Business or Undertaking (PCBU). A PCBU has a duty to ensure, as far as is reasonably practicable, the health and safety of:
- Workers engaged, or caused to be engaged by the person; and
- Workers whose activities in carrying out work are influenced or directed by the person
while the workers are at work in the business or undertaking.
Furthermore, a PCBU has a duty to ensure, as far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
It should be noted that the definition of workers includes volunteers (where they are engaged by a PCBU that also has paid staff), contractors and sub-contractors.
In Queensland, under the current legislation, many organisations are required to appoint a Workplace Health and Safety Officer (WHSO) but there is no equivalent in the model legislation. We would however, encourage organisations to maintain management appointed health and safety experts to assist in ensuring the health and safety of workers.
This means that workplace health and safety representatives will likely have a larger role to play and have a wide range of rights and responsibilities. These rights include the ability to issue provisional improvement notices to the PCBU and give directions to other workers to cease work.
Now is a good time to review your workplace health and safety strategies, frameworks, policies and procedures to ensure compliance with the new legislation. This includes the training and instruction provided to employees about health and safety, and ensuring responsibilities for workplace health and safety are adequately reflected in employment contracts, position descriptions, performance and development plans.
