Manufacturers who believe they have established a reasonably complete OH&S Risk Management system in their premises and who have no ambition to benchmark their SMS with the compliance requirements of the Australian Standard AS 4, often pose the question whether their system meets all of the key OH & S Laws’ conformance requirements including those of the Regulatory Authority.
To assist them, RMH Schaffer has listed some key compliance requirements.
The whole of the OH&S law’s compliance regime in NSW and Victoria (this is no different in any State or Territory in Australia) is predicated on the Principle of –Risk Management. But, in fact the O H & S Laws in NSW and Victoria – to take but two examples - define a number of additional statutory compliance requirements that are all too often overlooked. It is important to note here, that all of these are not optional but instead - they are mandatory.
The additional compliance requirements are as follows:
First up – the requirement of the identification of all foreseeable hazards (Regulation 9 NSW OH & S Regulations) and Clause – in the Victorian Regulations (OH & S Regulations 2007)
The whole foundation of both sets of law in NSW and Victoria requires that the owner of the business who surely knows his business or ought to, better than any Regulatory Authority Inspector – must record - as set down in the Regulations with some precision - what exactly it is that the employer must identify and hold formal written records of – so that these can be produced for a Regulatory Authority inspector.
But, in fact the reasoning goes further than this. It is only logical that the owner of the business will have set in place the necessary controls if he knows and has systematically first, identified all of the foreseeable hazards in the business.
This is a statutory requirement that is all too often given only lip service. Finger pointing to the employers’ head does not conform to the laws’ requirements, it is simply not good enough. They must be identified and formally written down.
Refer to Clause 10 NSW – OHS Regulation 2007. Clause 10 explains the risk assessment requirement – in regard to the foreseeable hazards already identified.
The next step is to conduct risk assessments, which are critically important records of due diligence exercised on the part of the employer. The methodology in the preparation of these documents is set down in, for example, in the NSW Workcover Guide which lists with examples, the steps to be undertaken in the preparation of RAs.
To be able to stand up in a Court of Law, RA will need to conform in substantial part to these compliance requirements.
The Victorian Occupational Health and Safety Regulations 2007 introduced mid-year 2007 have created a fair amount of confusion as to whether risk assessments are still required to be performed or not.
An initial examination of the new Regulations appears to omit the need for risk assessments. The Victorian Worksafe Authority have stated by way of clarification that there is only one set of circumstances when risk assessment preparation is not required to be carried out.
And this is when, for example, a risk is well known and the solution is obvious. This is further clarified by the Authority going on to indicate that risk assessments must still be carried in circumstances of incomplete knowledge about a known hazard / risk as well as the manner in which the risk may have potential for causing harm.
The second scenario which is offered is where it is not clear whether all potential sources of harm have been identified and the third scenario occurs where several potential hazards on, say, plant have potential together, to create a new even greater harm potential.
The Victorian legislation continues to lay down that risk assessments remain mandatory.
Regulation 11 of the NSW Regulations requires elimination or control of the hazards duly identified and assessed. But the conformance requirements under the law does not end there.
What furthermore must take place, is that the employer is required in terms of S 15(b) of the OHS Act to consult with those employees directly involved in performing the task. This consultation record and the workers input is an essential part of the compliance necessary as part of this Clause.
Regulation 12 of the NSW law requires employers to review the risk assessments made, under certain conditions.
The controls identified and employed may need changing from time to time. For example, workplace changes may make the controls previously identified, inadequate. Thus, despite having performed a R.A. and properly recorded same, the employer may still be guilty of negligence, which may be recorded in the risk assessment document itself. Beware of this potential for self-incrimination.
Regulation 13 lay down the employer’s duty to provide Induction Training to all employees. Not as simple an item as this, at first, appears.
For example, employers who send workers off in company motor-cars often, do not stop to consider the hazards created by the unsafe use of mobile phones, in the company car. The Induction Manual usually does not address this issue not as far as information, instruction or supervision. Many other similar issues are also overlooked.
Induction Training has another negative side to the same coin, skills and competencies. In ensuring operators are properly instructed in the hazards, the assessments and controls they are likely to face on the job – they must also be given the necessary skills and competency training to perform the talk safely – especially the young workers.
And records of these – skills and competencies of each individual worker must be made – and updated periodically.
This is the true measure of the employers due diligence efficiency. If the employer does not know what are the skills and competencies of each worker - especially young workers a proper training programme cannot be created, especially not one that meets the requirements of the law.
Regulation 14 (NSW and Clause – Victoria) touches on perhaps one of the least understood of the conformance/requirements – namely, adequate supervision.
This is well illustrated by the following classic example. The employer had been explained all the important sequence of minimising his potential negligence with apprentices. “Sure” he responded, “I show them to perform a few turns in front of men then I leave them to it – I just haven’t got time to “nurse” them all day long. What do I pay them for?”
The above is not adequate supervision under Regulation14 which begs the question - just what is adequate? This is set down in the Victorian Work safe website under the heading – supervision.
“Effective supervision means closely monitoring employees work practices and conditions, correcting any unsafe work habits and being available for questions.”
The employer be warned – anything less, is evidence of negligence and will around an action for a criminal prosecution in the event of a serious accident, and injuring to an employee – especially a young worker. (Defined as a worker being between the ages of – 16 – 25).
Regulation 15 requires the provision of information and training. The information dissemination element is especially important in regard to the ever growing body of chemicals used in many processes and which may cause a wide variety of negative health impacts on employees – from minor dermatitis to severe respiratory illnesses and cancer.