Historically, each state and territory in Australia has had its own occupational health and safety laws. Over time, the nature of work and workplaces has changed. Accordingly, a decision was made to use model legislation to bring about uniformity nationwide – or at least try.
On 1 January 2012, model laws began operation in New South Wales, Queensland, the Australian Capital Territory, the Northern Territory and the Commonwealth. Western Australia, Tasmania and South Australia have delayed introduction of the model laws, whilst Victoria says it will not be introducing them at all.
This partial harmonisation means that organisations that do business in more than one state may still have to comply with different laws in respect of the same work, depending on where it is performed.
A critical change under the model laws involves the primary duty of care. It no longer rests with the “employer” but rather the “person conducting a business or undertaking” (PCBU).
The PCBU must ensure health and safety so far as is reasonably practicable – that is, do that which is reasonably able to be done, taking into account and weighing up relevant matters, including the likelihood of the risk or hazard occurring and the degree of harm it might cause.
The duty extends to the work environment, plant and structures, safe systems of work, use, handling and storage of plant, structures and substances, adequate facilities, information, training, instruction or supervision and monitoring of the health of workers and the conditions at the workplace.
Officers are required to use due diligence to ensure that the business or undertaking complies with its obligations. The use of the Corporations Act definition of “officer” means that the duty rests not only with directors but also the Chief Financial Officer and management – indeed, anyone who makes or participates in the making of decisions that significantly affect a business.
“Worker” has been widely defined to provide protection to all persons who may be engaged at a workplace under the direction of a duty holder, even if they are not directly engaged by that duty holder – e.g. contractors, outworkers, volunteers and work experience students. Workers have a duty to take reasonable care for their own health and safety at work, as do “visitors”.
The notion of the “workplace” has expanded to include anywhere work is done as part of a business.
There are significant penalties for a breach. There are three categories of penalty, which are based on the degree of culpability, risk and harm. The most serious offences attract a maximum fine of $3 million for companies, whilst individuals risk a maximum fine of $300,000 or five years’ imprisonment or both.
All businesses are encouraged, on an ongoing basis, to:
- Familiarise themselves with their obligations – see www.safeworkaustralia.gov.au.
- Identify their risks.
- Identify their duty holders.
- Audit systems and identify areas in need of improvement.
- If in doubt, seek legal advice.