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What the Model Work Health and Safety Act Means for Employers

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article image Michael Tooma

Australian Exhibitions & Conferences  is a leading organiser of exhibitions, trade shows and various industry events in Australia.  

The Safety Conference presented by the Safety Institute of Australia at the Sydney Showground, Sydney Olympic Park from October 26 to 28, 2010 will see prominent OHS lawyer Michael Tooma tell delegates about how large shifts under the new national model Work Health and Safety Act demand immediate action from employers.  

The Norton Rose partner will warn delegates at the conference that 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 January 1 2012.  

Officers must be proactive

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.  

Under the new laws, officers must exercise due diligence to ensure corporate compliance.  

To begin with, Tooma says the need to acquire and maintain current knowledge of work health and safety matters mandates regular briefings on developments in safety.    

According to him, due diligence means: 

  • Understanding the nature of operations of the business or undertaking of the body
  • Understanding the hazards and risks within those operations
  • Ensuring the company has appropriate resources and processes available to work safely
  • Ensuring the company has appropriate processes for receiving, considering and responding to information regarding incidents, hazards and risks
  • Verifying the implementation of those processes through regular audits and verifying legal compliance

"These are the quintessential features of safety leadership. These are the components of a due diligence system in operation. And from 1 January 2012, this is the law."  

Controversially, not everyone is caught. Without prompting from the expert panel that recommended the laws or the Workplace Relations Ministerial Council, Tooma says the legislation expressly excludes Ministers from the scope of this new duty.  

Tooma says that no matter how and why Ministers came to be excluded, the decision must be reversed.  

Expanded duty-holder  

Rather than restrict itself to employers, the new law will 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.  

While the duty is not intended to catch individual employees or managers, Tooma describes it as extremely broad.  

"Public safety issues, product and consumer safety issues, food safety and public health issues created by emissions are all potentially within the scope of this legislation. Indeed, the legislation has been renamed as 'Work' Health and Safety Act rather than the 'Workplace' Health and Safety Act.  

Worker definition

The definition of worker under the legislation is expanded significantly. Contractors, employees of contractors, sub-contractors, labour hire workers, apprentices, volunteers as well as employees are all caught by the definition.

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