The national harmonisation of Occupational Health and Safety laws is due to take effect on January 1, 2012. The harmonisation will redefine and standardise laws across Australia. But what are the real implications for the sports, events and venues industries? Background into the New Laws
As a result of a national review of work health and safety laws across the country, a model Work Health and Safety (WHS) Act was developed and endorsed by the Workplace Relations Ministers’ Council in December 2009. Harmonisation is to be achieved through the enactment of legislation in each jurisdiction (states, territories and the Commonwealth); each state’s current safety regulator will enforce each state’s new safety laws. Essentially this means there will be a national approach to state laws, (and not a Commonwealth Act to replace state laws).
Removal of the ‘reverse the onus of proof’
Prior to the new legislation, OHS laws in some states placed the onus on the defendant to prove that he or she had taken all reasonably practicable measures to prevent contravention of OHS responsibilities (referred to as a reverse onus of proof).
The new Act changes this situation so that the onus now falls to the prosecution to prove that the defendant failed to take all reasonably practicable measures to avoid breaching OHS duties. The prosecution is now required to indicate steps that could reasonably have been taken by the defendant to ensure that the breach did not take place.
This change should make it more difficult to be prosecuted for OHS breaches; however, there are also major changes to the penalties attracted by serious OHS breaches.
Penalties are to be based upon the degree of culpability and risk or degree of harm recognised.
Category 1 offences can attract up to:
- Corporation – fines of up to $3m
- Individual as a Person Conducting a Business Undertaking (PCBU) or an officer - $300k
- Workers and other persons - $300k and/or up to 5 years jail
The Person Conducting a Business Undertaking (PCBU) replaces the ‘employer’ as the primary duty holder. The ‘person’ under this term may be an organisation or an individual. There may be more than one duty holder.
The duty toward ‘workers’ has significant implications for venues and events. New workers include not just employees, but other groups such as:
- Employees of contractors
- Labour hire companies
This suggests that every event is a PCBU and that a consultative mechanism must be introduced by the primary duty holder to consult and coordinate the elimination or minimisation of hazards and risks to these other parties. This involves either documenting and implementing risk control plans themselves, or verifying that such plans are in place and satisfactorily implemented by other workers under their care.
In an event example, the bump in and bump out may require a risk assessment where there are multiple ‘workers’ from different organisations, working together for a PCBU. The primary duty holder should host a planning meeting and document the risks and controls that may occur during this time such as:
- Material handling
- Forklift driving
- Elevated work platforms
- Manual handling
- Electrical hazards
Changes to duties of directors and officers
Directors and officers were previously liable for OHS offences committed by the corporation. Under the new legislation, this provision was replaced with a positive duty to exercise due diligence to ensure that health, safety and welfare obligations are complied with. The due diligence requirements are now the same as those covered under the Corporations Act (Cth) 2001.
This applies to any person (manager), who makes or participates in making decisions that affect the whole, or a substantial part of the business or the business undertaking. This can also include a person who has the capacity to affect the body’s financial standing.
For anyone that falls under this category the key requirements are that they must:
- Acquire and keep up-to-date knowledge on OHS matters within the business undertaking
- Gain an understanding of the nature of the business and the risks and hazards that occur within that business unit
- Ensure appropriate resources and processes are available to people working in this business unit to eliminate or minimise risk
- Ensure the business unit has appropriate processes in place for receiving and reviewing information about incidents, hazards and risks that apply in a timely way
- Ensuring that the business unit has all necessary resources to comply with their duties under the new Act
- Put in place a mechanism to verify that the resources and processes are put in place and are working
Managers cannot argue that they delegated responsibility to a subordinate, as a defence in prosecution unless they can prove that the above provisions were all satisfied.
Changes to the rights of trade unions to commence proceedings
As a result of the Amendment Act, trade unions are no longer able to commence proceedings against employers; however OHS Representatives can issue Provisional Improvement Notices on the primary duty holder of the PCBU.
Implications for Venues and Events
For most venues and events, the advent of the new health and safety legislation will have little impact on the ground in the way that they currently operate. It will however have significant implications for the level of interest and involvement of managers and senior management in the attention they give to safety risk management. It is our experience that this function often gets delegated to the operational level with, often, little reporting requirements to senior management on the major outcomes of risk assessment.
In summary the new legislation requires:
- Systematic top down and bottom up information flow on incidents, hazards and risk between workers and management
- An enterprise-wide ‘systems’ approach to safety management
- Adequate resources made available to safely undertake work safely – If you cannot afford the appropriate risk controls, you should not undertake the activity
- The completion of risk assessment for all facets of business undertakings
- Adequate consultation amongst representatives of all workers undertaking business
- Senior management to understand and be actively diligent in the management of the major safety hazards, risks and incidents