23 April 2012 The new world of OH&S - is there any substantial difference?

By Warwick Ryan, Partner and Nathan Huynh, Law Clerk

In Brief

The Work Health and Safety Act 2011 (NSW) ('WHS Act') came into effect on 1 January 2012 and has brought with it significant changes and even benefits for employers. The following gives you a short summary of this long-awaited change.

Who or what is a: Persons Conducting a Business or Undertaking ('PCBU')

A PCBU is a new term in the WHS Act which replaces the traditional employer. A PCBU now specifically refers entities, whether they be sole trader, not-for–profits or companies.  It expands the scope of those with responsibility.

Who are PCBUs responsible for?

In short – just about everyone. Legislators have also reclassified traditional employees as workers.  The change in terminology means that a duty is owed not only to traditional employees, but also more modern working relationships including: 

  • Subcontractors and their employees;
  • Outworkers & employees of labour hire companies;
  • Trainees and work experience students; and
  • Customers and volunteers.
What are my duties as a PCBU?

The primary duty of care of a PCBU is to ensure that workers and other persons are not exposed to health and safety risks arising from work carried out by the PCBU, so far as reasonably practicable.  In determining what is reasonably practicable in the circumstances, the following must be taken into account:

  • The gravity of the harm;
  • The likelihood of the harm occurring;
  • What the person affected knows or should know about the risk;
  • The availability and suitability of risk controls;
  • The costs involved and whether they are grossly disproportionate to the risk.

The emphasis of the Act is clearly on employers to turn their mind to carrying out risk assessments on all their:

  • Work procedures;
  • Plant and equipment;
  • Substances and material used; and
  • Physical premises and surrounds.

To ensure that they are aware of their risks, have considered ways of eliminating the many risks, and where that cannot reasonably be achieved, minimise the risks.

As part of this process, PCBUs also have a duty to consult workers on their business' health and safety practices and give workers a reasonable opportunity to express their views and concerns.  One method for consultation is the introduction of the Health & Safety Representatives ('HSRs').  We will address the role of a HSR in more detail in future articles.

What does this mean for employers?

Although the above changes are significant, they should not be problematic to most employers who have complied with the previous legislation.  It is recommended that employers establish a clear understanding of who is owed a duty of care and to review their existing procedures to ensure that they comply with the new legislation.  If not, the fines are very steep and can and often will be applicable to owners, directors and senior management, personally.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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