Large shifts under the new national model Work Health and Safety Act (WHS) demand immediate action from employers, according to a prominent OHS legal expert.
Company officers will be expected to “do much more and take responsibility for all sorts of things they’ve never had to before” when the laws are adopted on 1 January 2012, said Michael Tooma, a partner at international law firm Norton Rose.
Speaking ahead of the Safety Institute of Australia’s NSW Conference in Sydney, Tooma regards the positive, proactive duty of care on senior officers of companies and other organisations as one of the most significant reforms of the model WHS Act.
Current laws make officers liable for their companies’ conduct rather than being allocated a duty in their own right, but under the new laws, officers must exercise due diligence to ensure corporate compliance.
“Achieving due diligence is no simple thing: you have to show you’ve met a whole set of criteria,” Tooma said.
To begin with, the need to acquire and maintain current knowledge of work health and safety matters mandates regular safety developments briefings, he said.
Due diligence also requires an understanding of the nature of the operations of the business or undertaking of the body, according to Tooma, who said: “Long gone are the days of sticking your head in the sand.
“You’ll be expected to understand the hazards and risks within those operations. Due diligence means ensuring the company has appropriate resources and processes available to work safely.
“It means ensuring the company uses those resources and processes and has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information. It also means verifying the implementation of those processes through regular audits and verifying legal compliance,” he said.
Rather than restrict itself to employers, the new law will also impose the duty of care on any person conducting a business or undertaking.
It captures anyone conducting a business or undertaking whether or not it is for profit and whether it is conducted alone or with others. The duty-holder need not conduct a business – an undertaking is also caught, Tooma said.
The definition of worker under the legislation is also expanded significantly under the new law. Contractors, employees of contractors, sub-contractors, labour hire workers, apprentices, volunteers as well as employees are all caught by the definition.
“This is completely unremarkable for the duty of care provision but has alarming consequences for other parts of the legislation,” Tooma said.
“Worker is the key lynchpin of the workplace definition. A workplace is any place that a worker goes or is likely to go. An expanded definition of worker expands the definition of workplace.”
Tooma will be among 70 speakers at conference presented by the Safety Institute of Australia at the Sydney Showgrounds, Sydney Olympic Park, from 26-28 October.
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