The new Federal Occupational Health and Safety legislation: practical steps

The new Occupational Health and Safety (OHS) legislation is scheduled to come into effect on 1 January 2012.  It harmonises legislation across Australia by repealing the current patchwork of State and Territory laws.

The task ahead for in-house counsel to assist and prepare for these changes is daunting given the restricted timeframe.  The starting point is to ensure staff and management are aware of the key changes, including:

  • a primary duty of care due by persons conducting a business or undertaking.  The duty is owed to workers not employees and extends to independent contractors and labour hire personnel;

  • positive obligations for officers to demonstrate due diligence;

  • duty to consult with stakeholders and work together; and

  • tougher penalties for the corporation and individual (WA has indicated it will reduce the proposed penalties).

The impact of some of the changes will be potentially significant, particularly the broader duties owed coupled with the new officers duties.  A few of those changes are highlighted below.

Employers should ideally conduct a gap analysis of current OHS arrangements and systems to identify whether they are suitable, appropriate and consistent with the new legislation.

Strategic objectives need to be developed and a governance framework established that will meet compliance.  Current policies and procedures will require review.  New policies and procedures may need development, including:

  • the process by which officers will demonstrate compliance with the new positive obligation imposed on them;

  • OHS consultation and communication – implementation of a process to enable workers to be consulted with (including employees, labour hire, contractors, visitors);

  • an issues resolution process; and

  • reporting requirements to enable officers to be kept informed of OHS arrangements (including key hazards and risks the organisation may face).

All contractual arrangements will need to be reviewed with an eye to OHS clauses within standard agreements.  Some current agreements will be unlawful where they flout the extended duties (which focus on capacity to influence workplace safety outcomes rather than strict control) by attempting to pass on OHS obligations.  Consultation will also need to be addressed within many of these agreements.  Consideration also needs to be given to negotiation of future contracts, in particular risk allocation for workplace injuries.

In summary, the new OHS laws do change the workplace safety environment.  Some may say the changes are radical.  There are clearly important compliance steps that need to be checked and amended if necessary.  The scope of the legislation is wide.  OHS compliance is being driven by broader duties, increased consultation and stricter penalties.   

Lavan Legal will be offering seminars on this topic to employers over the next few months.  In the meantime, should you have any queries about the proposed legislation, 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.