National workplace health & safety harmonisation – have we really got our Act together?

As we hurtle towards the end of 2011, we are only weeks away from the start of a new regime of “national harmonisation” in workplace health & safety commencing 1 January 2012.

With many businesses still to review their current position, 2012 may well find them breaching the requirements of the new Work Health & Safety Act 2011 in any number of areas warned Maralyn Kastel, Managing Director of The Detail Devils.

“There is a double whammy with this, whilst the Act has been passed by the Queensland government, the Regulations haven’t,” said Ms Kastel.

“In effect, this means that businesses could well be penalised under the new Act when introduced, even though it is very difficult without the Regulations for businesses to fully understand the extent of the changes and consequently implement actions to fully comply,” she said.

The Regulations which were due in August are now anticipated to be released in December 2011. The new laws are, according to Ms Kastel, broader and clearly define safety responsibilities of everyone in the workplace, specifically Officers such as directors, company secretaries, general managers, chief executive officers, chief financial officers and any person who has the ability to influence decision making such as heads of departments.

Officers will be obliged by law to exercise “due diligence” to make sure they do not breach WHS laws and will have the legal responsibility to be informed about health and safety matters and act immediately on risks identified.

Some of the changed requirements include:

The definition of worker now includes all volunteers, contractors and subcontractors (current legislation excludes contractors) and the definition of workplace has been expanded – both of which means that the duty of care is expanded significantly;

• Monitoring of worker’s health and conditions at the workplace (under current legislation there is no requirement to monitor);
• Increased liability of officers, with a more clearly stated definition of officers to make sure there is greater compliance in the workplace;
• Changed timeframes for reporting a notifiable incident (death, serious injury or illness of a person, or a dangerous incident);
• New terms for Health & Safety Representatives and Deputy Health & Safety Representatives; and
• Substantial increases in penalties and fines - Under the new Act, the maximum fines in Queensland increases from $150,000 for any individual to $600,000 and a corporation from $750,000 to $3,000,000 there is also a maximum jail term of up to 5 years.

Whilst harmonised laws are set to come into effect from the start of next year as indicated by Ms Kastel, the regime has been questioned by various state governments concerned that the harmonised laws will bring down the level of safety for their workers.

Western Australia has been critical of the harmonisation for two years, claiming it agrees with the proposal in principle, but is concerned it would require the state to adopt inferior standards to its existing regime.

With Victoria calling for a deferment of 12 months in September and with little movement in SA, ACT, NT and Tasmania, it appears that NSW and QLD are the only states that have both passed the Health & Safety Act. 

However, regardless of the politics, and unfortunately these cannot be ignored, it is imperative that businesses are not distracted by any delay in the harmonisation process, and to continue managing workplace health and safety efficiently and effectively,” said Ms Kastel.

“There are a number of areas of significant changes from the existing Act and with no provision for a transitional period at this time, it is imperative that businesses understand and act on the changes that affect your workplace,” she said.    

Ms Kastel offered the following advice to businesses to get ready for 2012:

Understand the concept of management of risks

• Know who is classified as a worker
• Review who are officers of your business and understand the onus of compliance
• Know the timeframes for reporting notifiable incidents to the regulator
• Identify workgroups within the business
• Recognise the right of WHS entry permit holders

N.B. This is the first of a series of updates to be provided in the coming few months on the new Act and Regulations.