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New Terms and Definitions under the New Work Health and Safety Harmonisation Laws

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On 1 January 2012 new legislation governing the area of work health and safety commenced in Australia. The Work Health and Safety Act 2011 (new Act) introduces a number of changes in the way in which workplace health and safety is practiced. The most obvious change will be the change in name Occupational Health and Safety (OHS) will now be known as Work Health and Safety (WHS).

The National uniform work health and safety laws will ensure a consistently high level of protection for all Australians and over time reduce the compliance and regulatory burden for businesses, which operate across state borders. Below is an overview of some of the terms and duties created under the Work Health and Safety Act 2011 (the Act).

New terms The Act creates new terms to describe roles within the workplace, they are: Person conducting a business or undertaking (PCBU); who is a PCBU? Broadly speaking a PCBU replaces the term employer. PCBU includes all employers, sole traders, principle contractors, unincorporated associations, partnerships and franchisees. Volunteer organisations that employ people will be PCBUs. PCBU is intended to cover a broader range of work relationships; some not considered an employer under the old legislation might fall within the definition of a PCBU under the new legislation.The key safety duties of PCBUs are similar to the obligations on employers. What are the duties of a PCBU? PCBUs will have a duty of care for the health and safety of all workers (the definition of who constitutes a worker has broadened under the Act). The primary duty of care extended to all workers as is reasonably practicable. The term reasonably practicable is defined in the Act. There can be more than one PCBU (i.e. duty holder) in a workplace, particularly where there are a number of contractors. Where there are multiple contractors at a workplace, with each separate organisation having a PCBU, the Act requires that each PCBU consult with other duty holders to ensure the duty of care is met for all workers. PCBUs will not be able to transfer their duties to another person or contract out their health and safety duties. What does reasonably practicable mean? Duties imposed on PCBUs, workers and corporations under the Act will be judged by the standard of what was reasonably practicable in the circumstances. The test for what is reasonably practicable is an objective test. Ask yourself:

2012 Ensafe (www.ensafe.com.au)

What can be done? What can reasonably be done?

You are judged by the standard of behaviour expected of a reasonable person who is committed to providing the highest level of protection against risks to a persons health and safety, and who is proactive in taking measures to ensure this protection takes place. To determine what is reasonably practicable, you must consider: the likelihood of the hazard or risk occurring the degree of harm that may arise from these hazards or risks what the person concerned knows, or ought to know, about the hazard or risk, and the ways of eliminating or minimising the risk The availability and suitability of ways to eliminate or minimise the risk.

After assessing these matters, you might consider the costs associated with eliminating or minimising the risk, and whether they are grossly disproportionate to the risk. Officers; who is an officer?

An officer is a newly created position under the Act. An officer of the Crown for the purpose of the Act is taken to be a person who makes, or participates in making, decision(s) that affect the whole, or a substantial part, of the business or undertaking of the Crown sec 247 (1).

What are the duties of an officer? The officer is responsible for conducting due diligence as prescribed in the Act to ensure oversight that the PCBU complies with the Act. What does due diligence mean? The Act requires that an officer must exercise due diligence to ensure that the PCBU complies with their duties. They must take reasonable steps to: acquire and keep up-to-date knowledge of work health and safety matters gain an understanding of the operations, hazards and risks of the business or undertaking ensure the PCBU uses appropriate resources and processes to eliminate or minimise risks ensure the PCBU receives, considers and responds to information regarding incidents, hazards and risks 2012 Ensafe (www.ensafe.com.au)

ensure the PCBU implements processes for complying with their duties e.g. reporting notifiable incidents, consulting with workers, ensuring compliance with provisional improvement notices (PINs), providing training and instruction to workers, ensuring health and safety representatives receive training Verify the provision and use of resources and procedures.

Workers; who is a worker? Worker replaces the term employee. It is defined to mean a person who carries out work in any capacity for a PCBU. In the Act the following are considered to be a worker: Employee; Contractor or subcontractor; An employee of a contractor or subcontractor; An employee of a labour hire company who has been assigned to work in the persons business or undertaking; An outworker; An apprentice or trainee; A student gaining work experience; Volunteer; or A person of a prescribed class.

What are the duties of workers?

Workers and other persons at the workplace (e.g. visitors) will have duties to exercise reasonable care for their own health and safety, as well as the safety of others. There are two new duties for employees being:

comply with any reasonable instruction that has been given to assist the PCBU to comply with the Act; and Co-operate with any reasonable policy or procedure that has been notified to workers.

Where can I get more information? Further information can be obtained on the following link: http://www.safeworkaustralia.gov.au/sites/swa/legislation/pages/modelwhslegislation. aspx

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2012 Ensafe (www.ensafe.com.au)

2012 Ensafe (www.ensafe.com.au)