What you need to know
OHS laws are changing. The way we look at Work Health and Safety is also changing.
Australia is committed to improving the work health and safety of all Australian workers and enhancing productivity. So from 1 January 2012, all states, territories and the Commonwealth will harmonise all OHS legislation, and implement similar work health and safety laws. The Occupational Health and Safety Act 1991 (OHS Act) will change to the Work Health and Safety Act (WHS Act). With the new WHS laws, there will be nationally consistent approaches to compliance and enforcement.
However, despite this change, much of the new laws are based on policies that are common to many jurisdictions. The new laws don’t significantly change how you lead, direct and support your workers. In fact, if you comply with the current laws, then you are well on your way to meeting the requirements of the new WHS laws.
Because of all this, it will be easier for businesses and workers to comply regardless of how many states and territories they operate in.
But how will the new WHS laws affect you and your business?
While the WHS Act is not significantly different from many current work health and safety laws, the term ’employer’ will be replaced by the term ‘principal duty holders’ or ‘person conducting a business or undertaking’ (PCBU); and ’employees’ will be known as ‘workers’ (which can include anyone from an on-hire worker, to a sub-contractor to a more traditional employee).
PCBUs include the Commonwealth, Commonwealth Authorities, non-Commonwealth licensees, principal contractors, and will, in some cases, necessitate an analysis to understand who is a PCBU in a particular factual context under the new WHS laws.
PCBUs are most affected by the new WHS laws, with a duty of care that warrants the most significant conceptual change from the majority of current OHS Acts. What this means is that for most public sector businesses, every activity that could pose a risk needs to be accounted for as a policy and on an operational scale. This change is aimed at ensuring that the WHS Act coverage extends beyond the traditional employer/employee relationship to include new and evolving work arrangements and risks.
The new laws will also significantly redefine the traditional employee-employer relationship. Under the new laws, if an OHS obligation violation occurs, all parties share responsibility. Obligations for multiple duty-holder workplaces are much wider and complex within the new legislation and will require more cooperation and coordination between host employers, independent contractors and labour hire firms.
How does all this affect Human Resources?
The harmonised WHS laws will have a greater impact on labour hire companies than any other industry. Under the new system, the onus is on businesses to engage reputable on-hire and recruitment firms otherwise they may become liable for introducing unwanted risks into the business.
Therefore, recruitment companies now also bear the responsibility to protect their clients from the stresses of liability and provide a ‘clean’ list of candidates.
To do so, recruitment and on-hire firms should take a number of steps to prepare themselves for the new laws, including:
- Conduct a ‘workforce scope audit’ to determine who is defined under the new laws as a member of your workforce.
- Reflect the new definition of worker and client responsibility in your workers contracts.
- Train recruiters on how to record information properly. Ensure an OHS qualified officer assesses this information to determine any risks and where necessary, execute control measures.
- Establish protocols to ensure the client or host employer will undertake OHS duties; relying on a contractual agreement is simply not enough.
- Undertake a ‘system gap analysis’, comparing your current OHS management system with the new laws. This should then be tabled at a board meeting where, if needed, a new system should be adopted.
- Determine who are ‘officers’ within your business, and who therefore can be held liable for prosecution under the new laws; bearing in mind that officers could be loosely defined as “directors of organisations and individuals who make, or participate in making, decisions which affect the whole or a substantial part of the business”.
- Educate officers on the need for them to exercise due diligence to ensure the company complies with the laws.
- Educate clients about potential liability and obligations to on-hire workers.
- Discuss with clients their existing consultation provisions and establish compliant provisions if none are in place.
Learning Seat keeps you at the forefront
At Learning Seat, we’re counting down the days until the launch of the new WHS legislation on 1 January 2012. So we’re taking a proactive approach. With less than four months to the new legislation, Learning Seat is partnering with Clayton Utz, one of Australia’s leading law firms, to collaborate on a new course addressing the new harmonised WHS laws.
Available at the end of the year, the course will replace our existing OHS course and will help you transition seamlessly into the new legislation.
Contact your Strategic Partnership Manager on 1300 133 151 today for more information.