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

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’)

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.