The new Occupational Health and Safety legislation is scheduled to come into effect on 1 January 2012. It harmonises legislation across Australia by creating consistent laws across the State and Territories. The new laws will make significant changes by broadening the duties owed to maintain a safe workplace and also substantially increasing penalties. There are also new important positive duties on ‘officers’ of organisations. The law makers have clearly resolved to enhance the health and safety of Australian workplaces.
The current legislation focuses on a primary duty on employers with potential liability for others who control the workplace. The new act establishes duties on those who have ability to influence the workplace. It is a subtle but significant change. The direction of the legislation is towards requiring those with the ability to ensure a safe workplace to take pro-active steps.
For example, landlords will need to be vigilant to ensure that the contractual arrangements protect their position. Does the lease agreement address health and safety matters? What are the obligations and controls placed on tenants with respect to health and safety? Has the landlord consulted with other shareholders over health and safety? If the landlord fails to take steps to ensure compliance, the landlord is potentially liable.
One of the most significant changes under the new legislation is the requirement that ‘officers’ act with ‘due diligence’ with respect to health and safety matters. An ‘officer’ not only includes company directors, but also includes partners and the most senior operational staff, or the key players responsible for ensuring excellent health and safety practice within the organisation. This includes management within a public organisation. Essentially, the provision requires an officer to be cognisant with the risks and hazards of the workplace, to put in place formal compliance plans and to ensure those plans are operating fully.
The primary duty for a safe and healthy workplace used to be on employers. This will now be on a ‘person conducting a business or undertaking’. This may include a voluntary non-profit organisation if it employs staff.
Although the workplace accident rate in Australia has fallen markedly over the past decade, the new legislation reflects the government’s view that the workplace injury rate is still too high. Penalties will increase substantially under the new Act. A corporation faces a maximum fine of $3 million and an individual can be fined or imprisoned for a period of up to five years.
Organisations should be preparing for these significant changes. It is imperative that formal compliance plans are put in place and actively implemented. Officers must be cognisant of their new personal pro-active duty. There is now an explicit duty that sets out the important steps that every officer must take. The obligation to exercise due diligence will affect all persons and control of organisations and creates a direct role in ensuring compliance with OHS duties. The duties owed under the legislation, including those owed by officers, cannot be delegated.
While the suggested changes are intended by the Federal Government to apply throughout Australia, currently Western Australia is not fully committed to the adoption of the model Act.
Please contact Ian Curlewis, Partner on (08) 9288 6756 / ian.curlewis@lavanlegal.com.au or Trent Petherick, Senior Associate on (08) 9288 6884 / trent.petherick@lavanlegal.com.au should you have any queries concerning the above.
