Workplace health and safety - new legislation
The Council of Australian Governments “COAG” in conjunction with the Commonwealth Government, has agreed to implement nationally harmonised Workplace Health and Safety Legislation to commence on 1 January 2012, which will have the practical effect of extending the liability net to encompass Company Directors as well as external parties or suppliers.
The Queensland Parliament has now passed the new Work Health and Safety Act 2011 (‘the Act’) in May 2011. Whilst this new legislation imposes similar obligations as the Workplace Health and Safety Act 1995 (Qld) (‘the Old WHS Act’), there are some fundamental changes which are relevant to your business. The Act broadens the duty of care to ‘a person conducting a business or undertaking’ and introduces the ‘reasonably practicable’ standard of care. The Act also introduces new responsibilities for Directors…. (read more)
Obligation as a “person conducting a business or undertaking”
The Act requires certain measures to be taken by a ‘person conducting a business or undertaking’ (‘PCBU’). This differs to the old WHS Act which primarily concerned obligations on ‘employers’. Section 5 defines a PCBU, which would cover both an employer and any Contractors, suppliers or installers.
Under this definition, both employer and contractors would qualify as PCBUs, irrespective of the fact that the employer may not employ persons who work for the contractor.
Duty of Employer and Contractors
The Act makes it clear that all parties have a duty of care. S19(1) provides that a PCBU must ensure:
“so far as is reasonably practicable, the health and safety of —
(a) workers engaged, or caused to be engaged by the person; and
(b) 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.”
Company Directors
The impact on Company Directors is that in addition to doing what is reasonably practicable to eliminate or minimise risk to health and safety, Directors have a positive and proactive duty to exercise due diligence. This represents a fundamental shift away from attributed liability (i.e. being liable for contraventions or breaches) by the company, and now requires Directors to:
• Acquire and keep up to date knowledge of health and safety matters.
• Gain an understanding of hazards and risks associated with their operations.
• Ensure appropriate resources are available for use to eliminate or minimise risks from work carried out.
• Ensure appropriate processes for obtaining information about incidents, hazards and risks, and responding to them.
• Ensure processes for complying with duties are implemented e.g. reporting, consultation, training and instruction.
• Verify the provision and use of resources for the matters listed above.
The Act also requires that workers must exercise reasonable care not to adversely affect the health and safety of all persons at a workplace.
Summary
In summary, this new legislation, in conjunction with the proposed harmonised workplace health and safety legislation to commence on 1 January 2012, adds yet another layer of obligations on companies and their Directors. Livingstones can assist you with pro-active advice and strategies to meet your obligations under this legislation. Please contact Laurie Moloney, Director, if you would like more information.
