New Work Health and Safety Act
The new Work Health and Safety Act commenced operating in NSW on 1 January 2012. The new Act is the result of a national review into work health and safety laws across Australia. These laws will replace previous occupational health and safety laws operating in NSW.
We will provide a number of updates over the coming months explaining key concepts in the new legislation.
The main object of the Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces. WorkCover will monitor compliance with the new workplace laws in NSW.
There is some new terminology that business owners will need to familiarise themselves with in the new Act. This update focuses on those definitions.
(1) For the purposes of the Act, a person conducts a business or undertaking:
(a) whether the person conducts the business or undertaking alone or with others; and
(b) whether or not the business or undertaking is conducted for profit or gain.
(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.
(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.
(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.
A volunteer association does not conduct a business or undertaking for the purposes of this Act. Volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or
(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or
(i) a person of a prescribed class.
What is reasonably practicable in ensuring health and safety?
In the Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(1) the likelihood of the hazard or the risk concerned occurring; and
(2) the degree of harm that might result from the hazard or the risk; and
(3) what the person concerned knows, or ought reasonably to know, about:
(a) the hazard or the risk; and
(b) ways of eliminating or minimising the risk; and
(4) the availability and suitability of ways to eliminate or minimise the risk; and
(5) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Primary Duty of Care
(1) A person conducting a business or undertaking 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.
(2) A person conducting a business or undertaking must ensure, so 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.
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:
(a) the provision and maintenance of a work environment without risks to health and safety; and
(b) the provision and maintenance of safe plant and structures; and
(c) the provision and maintenance of safe systems of work; and
(d) the safe use, handling and storage of plant, structures and substances; and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and
(b) the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.
(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.
The definitions provided above are self explanatory and their application will be reviewed as case law develops. Briefly take note of the following:
(1) Obligations under this legislation are on PCBU’s.
(2) Note the definition of worker.
(3) ‘Reasonably practicable’ can be argued to be a higher onus than the common law duty to merely take ‘reasonable care’.
(4) The obligation is to ensure that workers are not put at risk first and foremost.
Further updates will follow in the next few months. In the meantime, please let us know if you have any questions.