HARMONISATION OF WHS LEGISLATION

KEY CHANGES IN THE ACT

• Some new terminology.

• Applies to all States.

• A greater range of sanctions, higher penalties, restrictions on a Trade Unions right to prosecute and abolition of the reverse onus of proof are new to the NSW enforcement framework.

Prosecutors must prove all matters relating to non-compliance with duties of care, including whether the person conducting the business or undertaking failed to do what was ‘reasonably practicable’ to ensure the health and safety of workers. This reflects the generally accepted principle that in a criminal prosecution, the onus of proof to the standard of beyond reasonable doubt normally rests on the prosecution. This is a major change in Australia. The previous OHS legislation stated that the onus of proving that a person had done everything reasonably practicable to prevent a contravention lies with the defendant.

Duty Holders

PCBU Responsibilities:

• Provide and maintain a safe workplace and environment

• Provide and maintain safe plant, structures and systems of work

• Provide appropriate, information, instruction, training and/or supervision

• Monitor work safety

• Ensure safe use, handling, storage and transport

•  Ensure workers are qualified

• Provide adequate facilities

• Keep information and records

• Consult people at the workplace on work safety

A PCBU is a ‘Person in Control of a Business or Undertaking’ this includes sole traders, partnerships, corporation, designers, importers, suppliers, installers, etc.

An officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with the duty or obligation” OFFICERS “A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking”.

A worker has the right to cease or refuse to do work due to lack of safety measures.
WORKERS Includes independent contractors, apprentices, outworkers, work experience, volunteers etc.  
OTHERS Includes clients, customers, visitors.

Incident Notification

What is a Notifiable Incident?

• the death of a person; or

• a serious injury or illness of a person; or

• a dangerous incident.        

Serious Injury or Illness: An injury or illness that reasonably could be considered to warrant:

• medical treatment within 48 hours of exposure to a substance

• immediate treatment as an in-patient in a hospital

• immediate treatment Includes serious head injuries, burns, spinal injury, eye injury, amputation and loss of bodily function

Dangerous Incident: Exposes a worker or any other person to a serious risk to their health or safety emanating from an immediate or imminent exposure to a number of risks. 

Duty to notify notifiable incidents

• immediately by phone (Ph: 13 10 50 in NSW)

• in writing within 48 hours

• PCBU must keep a record of each notifiable incident for at least 5 years  

Maximum Penalty: (for not reporting notifiable incidents)
In the case of an individual - $5,000
In the case of a body corporate - $25,000

Duty to preserve incident sites

Ensure as far as is reasonably practicable that the site is not disturbed until permitted to do so.
Maximum Penalty:
In the case of an individual - $10,000
In the case of a body corporate - $50,000

Three categories of penalties apply to breaches of the work health and safety duties:  
Category 1 - for reckless conduct that exposes an individual to a risk of death or serious injury or illness and is engaged in without reasonable excuse,  
Category 2 - failure to comply with a health and safety duty and exposing an individual to a risk of death or serious injury or illness, and  
Category 3 - failure to comply with a health and safety duty. Maximum penalties are set according to the category of offence committed and the type of duty holder (i.e. individual, officer or body corporate) convicted of the offence

The size of the maximum offences for each type of duty holder has significantly increased from previous legislation.

What you should do