The new Federal Occupational Health and Safety laws come into effect on 1 January 2012. The law will 'harmonise' the former patchwork of State and Territory laws. Preparing for compliance cannot be left to the last minute given the review and planning that is required.
The new legislation introduces liability for ‘officers’ by creating a positive duty of care to exercise due diligence to ensure that their corporation complies with its statutory obligation. This is a significant change that harmonisation will bring. The new penalties are substantial; including corporations now facing a maximum fine of up to $3 million with an individual facing potential fines or imprisonment for a period of up to five years.
So what steps do organisations and officers need to take? One step relates to the broadened obligations under the proposed legislation. For example, those conducting a business or responsible for the workplace (as opposed to essentially employers under the former legislation) will have obligations to ‘workers’. Workers are a wider group than ‘employees’ and include independent contractors and labour hire employees.
Officers of a business need to be aware what their obligation of due diligence means. In practical terms this may mean that officers need to ensure that adequate reporting processes are in place and followed. They must be proactive in ensuring that the organisations they control have adequately planned for health and safety. This includes the necessary provision for resources, both human and financial, including of course training.
The starting point for organisations is to conduct a gap analysis to review the processes which are presently in place. Strategic objectives need to be developed and a governance framework established that will meet compliance. Review of the consultation process will need to take place to ensure that consultation with broader groups under the legislation occurs including with employees and their safety representatives. The processes for resolving safety related disputes are a further important issue to also be addressed. New policies for health and safety will need to be evaluated. Contractual arrangements may need to be reviewed with an eye to OHS clauses within standard agreements and negotiation of new contracts, in particular risk allocation for workplace injuries.
In summary, the new OHS legislation will be in operation soon. Organisations need to be proactive in dealing with the imminent changes. The review process with respect to existing contractual relationships and relevant procedures and policies should best be taking place presently, at this time to ensure that workplaces will be compliant with the new legislation in 2012.
If you want further information about the above, please contact partner Ian Curlewis on (08) 9288 6756 / ian.curlewis@lavanlegal.com.au or senior associate Trent Petherick on (08) 9288 6884 / trent.petherick@lavanlegal.com.au.
