The Work Health and Safety Act (WHSA) came into effect on 1 January 2012 resulting in changes to Occupational Health & Safety (“OH&S”) law in Australia. All ACT and NSW businesses need to be aware of these changes.
Firstly, the WHSA extends the employers’ duty of care beyond the traditional employer-employee relationship.
The duty is broad and is imposed on any person conducting a business or undertaking –therefore covering not only employees, but also contractors, labour-hire workers and apprentices (‘Workers’).
Secondly, if there is a breach, the prosecution must prove that the business owner did not take all reasonable measures to prevent the risk of injury to Workers.
Thirdly, business owners (including officeholders in a corporation or unincorporated organisation and partners in a partnership) must exercise due diligence to ensure that the business complies with its OH&S obligations.
This means that unless an officer of the business exercises due diligence, he or she may be liable for any contravention of the WHSA.
Due diligence requires more than the conventional physical review. Each business owner must:
- take reasonable steps to keep up to date knowledge of OH&S matters;
- understand fully the nature and operations of the business and the associated risks to Workers;
- ensure that appropriate resources to minimise or eliminate hazards to Workers are available and utilised;
- ensure the business has processes for receiving and considering information about incidents and hazards and responding in a timely manner; and
- ensure the business has, and implements, appropriate processes for complying with its obligations under the legislation
A consequence of this is that an owner may be liable for failing to exercise due diligence despite the fact that the business itself is complying with its obligations, or without an incident in the workplace even occurring.
Additionally, business owners must consult with all Workers about OH&S matters, as far as reasonably possible.
There are now three categories of offences: Category 1 offences are the most serious, involving recklessness and exposing an individual to the risk of death or serious illness. Category 2 offences occur where a person is exposed to a high level of risk of death or serious injury, but without recklessness. Category 3 offences are breaches without a high risk of serious harm and without recklessness.
Breaches of the WHSA can result in up to 5 years imprisonment and/or penalties between $50,000.00 and $3,000,000.00. Given the significantly increased penalties under the WHSA, employers should acquaint themselves with these new developments.
For advice, please contact:
|Matthew Bridger | e: firstname.lastname@example.org | p: 02 6206 1300|
This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.