What changes will the Health and Safety at Work Act bring about?
The Health and Safety Reform Act has been passed by Parliament and will come into effect as the Health and Safety at Work Act on the 4th April 2016 and it will replace the current Health & Safety in Employment Act 1992. The major changes will affect business owners, directors and senior managers and it is up to all duty holders to familiarise themselves with the requirements placed on them under this Act.
The Act introduces the term Person Conducting a Business or Undertaking (PCBU) and it is this entity/person who has the Primary Duty of Care for health and safety. This is a large step away from current legislation and is much broader than an employer or person who manages and controls a workplace. Of particular note are contractors, installers or persons who commission plant or structures are considered a PCBU.Other examples include:
Officers are those who have a very senior governance role in the organisation that allows them to exercise significant influence over the management of the business or undertaking; for example directors, chief executives and CEOs. To avoid doubt the Act expressly recognises that an officer does not include a person who merely advises or makes recommendations to an officer of the organisation.
The Hierarchy of Control will require the PCBU and other duty holders to eliminate the hazards and risks to health and safety so far as is reasonably practicable. If this cannot be done then they have a duty to minimise risks so far is reasonably practicable. The term Isolation has also been removed from the current hierarchy of control
A critical focus of the Act is around worker engagement to facilitate the development and implementation of health and safety practices and strengthens existing requirements for worker engagement and participation in work health and safety matters. Stronger worker participation underlines the expectation in the Act that everyone in the workplace is responsible for workplace health and safety, and that workers are empowered to intervene when they see an unsafe situation
The changes improve the flexibility of these worker participation provisions so that innovation is not stifled and all PCBUs whether they are small or large, low-risk or high risk will still be required to engage with their workers on matters of health and safety that affect them. They also have to have worker participation practices that give their workers reasonable opportunities to participate effectively in improving work health and safety. The nature of the PCBU and number of employees may affect the requirement for the appointment of health and safety representatives and it is the Officer’s duty to familiarise themselves with these
The Government is sending a clear message, failure to comply with duties under the Act will not be tolerated, through significant increases in the penalties for breaches to those in place under the current Health & Safety Employment Act. For reference the maximum penalties are listed below:
What Is The Due Diligence Duty Of Officers?
Where to from here
The Health and Safety Reform Act has been passed by Parliament and will come into effect as the Health and Safety at Work Act on the 4th April 2016 and it will replace the current Health & Safety in Employment Act 1992. The major changes will affect business owners, directors and senior managers and it is up to all duty holders to familiarise themselves with the requirements placed on them under this Act.
The Act introduces the term Person Conducting a Business or Undertaking (PCBU) and it is this entity/person who has the Primary Duty of Care for health and safety. This is a large step away from current legislation and is much broader than an employer or person who manages and controls a workplace. Of particular note are contractors, installers or persons who commission plant or structures are considered a PCBU.Other examples include:
- Employers
- Persons who manage or control a workplace
- Persons who manage or control fixtures and fixings or plant at workplaces
- Suppliers, designers, manufacturers and importers of plant or structures
Officers are those who have a very senior governance role in the organisation that allows them to exercise significant influence over the management of the business or undertaking; for example directors, chief executives and CEOs. To avoid doubt the Act expressly recognises that an officer does not include a person who merely advises or makes recommendations to an officer of the organisation.
The Hierarchy of Control will require the PCBU and other duty holders to eliminate the hazards and risks to health and safety so far as is reasonably practicable. If this cannot be done then they have a duty to minimise risks so far is reasonably practicable. The term Isolation has also been removed from the current hierarchy of control
A critical focus of the Act is around worker engagement to facilitate the development and implementation of health and safety practices and strengthens existing requirements for worker engagement and participation in work health and safety matters. Stronger worker participation underlines the expectation in the Act that everyone in the workplace is responsible for workplace health and safety, and that workers are empowered to intervene when they see an unsafe situation
The changes improve the flexibility of these worker participation provisions so that innovation is not stifled and all PCBUs whether they are small or large, low-risk or high risk will still be required to engage with their workers on matters of health and safety that affect them. They also have to have worker participation practices that give their workers reasonable opportunities to participate effectively in improving work health and safety. The nature of the PCBU and number of employees may affect the requirement for the appointment of health and safety representatives and it is the Officer’s duty to familiarise themselves with these
The Government is sending a clear message, failure to comply with duties under the Act will not be tolerated, through significant increases in the penalties for breaches to those in place under the current Health & Safety Employment Act. For reference the maximum penalties are listed below:
- Breaches arising from reckless conduct – $600,000 for a PCBU or PCBU officer and/or five years imprisonment / $3m for a company
- Failure to comply with duty exposing to risk of death or serious injury – $300,000 for a PCBU or PCBU officer / $1.5m for a company
- Failure to comply with health and safety duty – $100,000 for PCBU or PCBU officer / $500,000 for a company
- Familiarise yourself with the key concepts of the legislation
- Review your current health and safety practices
- Identify health and safety risks in your business and take steps to prevent these from causing harm
- Make health and safety part of your workplace culture
- Lead by example
What Is The Due Diligence Duty Of Officers?
- A new duty proposed by the Act is that an officer of a PCBU (such as a director, board member or partner) must exercise due diligence to ensure that the PCBU complies with its duties.
- This places a positive duty on people at the governance level of an organisation to actively engage in health and safety matters, reinforcing that health and safety is everyone’s responsibility.
- A business or undertaking is governed by individuals who, through their decision making, influence the specific activities that will in turn ensure the success or failure of health and safety initiatives and whether the PCBU is complying with its own duty.
- strongly influence the culture of the business or undertaking and accountabilities within it. For instance, they make important decisions on the resources that are available for work health and safety and the policies that support the PCBU to comply.
- The officers’ duty is not the same as the PCBU duty. Officers do not have to ensure the health and safety of the PCBU’s workers.
- The test is whether the person has sufficient authority to make governance decisions that affect a substantial part of the business.
- Companies: For a PCBU that is a company, the officers are:
- Partnerships: For a PCBU that is a partnership, the officers are its partners (but note in limited partnerships, only general partners are officers).
- Other types of undertakings: For other types of business structures or undertakings, people who hold a position comparable to a director of a company, such as board members, will be an officer.
- In addition to these specified positions, an officer is any person who ‘makes decisions that affect the whole, or a substantial part, of the business of the PCBU’.
- Exactly who comes under this definition will depend on the individual structure and governance of the business or undertaking in question. It will almost certainly include the chief executive
- The test is whether the person has sufficient authority to make governance decisions that affect a substantial part of the business.
- Due diligence means that officers must make sure they perform certain functions to ensure the PCBU complies with its duties. These include taking reasonable steps to:
- Know about work health and safety matters and keep up-to-date
- Gain an understanding of the operations of the organisation and the hazards and risks generally associated with those operations
- Ensure the PCBU has appropriate resources and processes to eliminate or minimise those risks
- Ensure the PCBU has appropriate processes for receiving information about incidents, hazards and risks, and for responding to that information
- Ensure there are processes for complying with any duty, and that these are implemented
- Verify that these resources and processes are in place and being used.
- The primary duty of care is only for workers who work for the business or undertaking.
- All PCBUs must engage with workers in health and safety matters.
- All PCBUs must have effective worker participation practices
- A PCBU may develop its own worker participation practices.
- Workers or PCBU may choose to have a Health and Safety committee.
- Workers 0r PCBU may choose to have a Health and Safety Representative
- The Act continues the right for workers to refuse to do unsafe work and it expands protection for workers who raise w/place Health and Safety matters.
Where to from here
- Reviewing current safety management system policies & procedures in preparation for the new legislation.
- Establishing due diligence arrangements for officers to ensure their compliance with the new legislation.
- Providing training for workers on the requirements of the new Health and Safety Legislation and their obligations.
- Expand the safety management system to capture worker opposed to employees (consider in particular consultation arrangements)
- Review the Safety Management System in preparation of the broad scope of the PCBU duty of care- ensuring all risks arising from the business/undertaking are being managed.
- Review existing policies against the requirements of the proposed new legislation and update where required (including risk management, consultation, and incident management policies)
- Develop new policies and procedures for new duties/obligations under the new legislation (including policies for horizontal consultation, duties and discrimatory conduct
- Produce a documented Due Diligence Framework Policy
- Produce an information management system and training program to update officers in developments of the new legislation
- Produce a safety inspection program
- Involve Officers in identifying critical risks of the Organisation.
