We focus on continual OHS improvements to ensure compliance to changing regulatory requirements. The new harmonised OHS laws on 1 January have been integrated into Assetmark Group’s operations. Below are the Legislation’s key changes.
Changes in new harmonised OHS laws by 1 January 2012
The Occupational Health and Safety (OHS) harmonisation laws were implemented by 1 January 2012.
The concept of uniform OHS laws across the country has gained support as it became evident that the lack of consistency has been problematic for both employers and employees. Some states initially expressed hesitation; however, once Queensland initiated acceptance of the new OHS laws, other states, including NSW, moved to pass the set of laws as well. On 5 May 2011, the elected NSW Liberal Government tabled two Bills which not only introduced the model Work Health and Safety Act (“WHS Act”) but also expedited many of the changes by proposing amendments to the Occupational Health and Safety Act (NSW) 2000 (“OHS Act”)
Change in onus of proof
Under the old OHS Act, employers had a duty to ensure health and safety in the workplace subject to a limited defence of reasonable practicability, a “reverse onus” duty. This reverse onus of proof has now been removed from the harmonised legislation which restores the presumption of innocence.
Under the new WHS Act, the onus moves to the prosecution to establish the employer did not take all reasonably practicable measures to prevent the risk to health and safety occurring. The prosecution must prove that an employer has not “so far as reasonably practicable” ensured the health and safety of its employees and that they are not put under any risk from work carried out.
Directors and officers
Under the old OHS Act, a director or a person concerned in the management of the company is liable for any contravention of the Act unless due diligence was used to prevent the contravention.
The WHS Act, imposes a duty on “officers of a corporation” to exercise due diligence to ensure that the corporation complies with its occupational health and safety duties. This creates a positive obligation on the part of the “officers of a corporation” to ensure due diligence has been conducted.
Officers of a corporation include:
- a director or secretary of a corporation;
- administrators and liquidators of a corporation;
- partners in a partnership; and
- officeholders in a unincorporated association.
The WHS Act also imposes a duty of care beyond the traditional employer-employee/ contractor relationship to capture a variety of working arrangements. Duties under the WHS Act are imposed on any “person conducting a business or undertaking”. The duty is broad and is owed not only to employees, but to contractors, labour hire workers, apprentices, trainees and work experience students.
Due diligence requires an officer to take reasonable steps:
- to acquire and keep up-to-date knowledge of WHS matters;
- to understand the nature and operations of the trade, business or other undertaking of the corporation and the associated risks;
- to ensure that appropriate resources to eliminate or minimise hazards from such operations are available and utilised by the corporation;
- to ensure the corporation has processes for receiving and considering information about incidents and hazards and responding in a timely manner; and
- to ensure the corporation has, and implements, appropriate processes for complying with its relevant duties and obligations under the legislation, for example, reporting, consultations, training.
A consequence of this duty is that officers may be liable for failing to exercise the requisite due diligence despite the fact that the corporation itself is complying with its obligations, or without an incident or accident in the workplace even occurring. There is now a positive duty on company officers to enquire and monitor their company’s safety performance and assist company officers to better understand their safety obligations.
Under the new WHS Act, an officer of the corporation may commit an offence by failing to exercise the required due diligence, despite the corporation itself complying with its requirements.
Changes in the offences
The WHS Act groups offences into three categories, with penalties scaled according to each category.
Category 1 offences are the most serious breaches involving recklessness and exposing an individual (to whom a duty is owed) to the risk of death or serious illness or injury.
Category 2 offences occur where a person is exposed to a high level of risk of death or serious illness or injury, but without recklessness.
Category 3 offences are breaches without a high risk of serious harm and without recklessness.
The WHS Act significantly increases penalties for breaches, with maximum penalties scaled according to the offences. The maximum penalty for a body corporate ranges from $500,000 (category 3 offence) to $3,000,000 (category 1 offence). Under the old OHS Act, reckless conduct by corporations causing death attracted a penalty of $1,650,000, while breach of general duties attracted $550,000 for a first offence and $825,000 for second and subsequent offences.
The legislation also grants courts a wider variety of sentencing orders. Under the old OHS Act, orders could be imposed on defendants to take steps to remedy any matter the offence caused, pay WorkCover’s investigation costs, publicise the offence, or undertake projects for general improvement of OHS.
Where a court convicts a person or finds a person guilty of an offence against the WHS Act, sentencing options include enforceable undertakings, remedial orders, adverse publicity orders, training orders, injunctions, compensation orders and community service orders, in addition to any penalty.
The WHS Act takes the jurisdiction for OHS offences away from the NSW Industrial Relations Commission and prosecutions will now be instituted for summary offences in the Local Court (which will have the jurisdiction to order fines of up to $50,000) or the District Court.
Difference in consultation
The WHS Act imposes a broader obligation on the person conducting the business or undertaking regarding consultation. Persons conducting the business or undertaking must consult with “workers”, not just “employees”, as far as reasonably practicable, about OHS matters.
In addition to this, for instances of specific circumstances, consultation is required when for example, identifying hazards and assessing risks.
For more information visit: Work Health and Safety Act 2011 No 10 http://www.legislation.nsw.gov.au