NEW NATIONAL HEALTH AND SAFETY LAWS - A MUST READ THREE PART SERIES!  Part 3…

 In this third article we will be discussing the concept of the ‘Codes of Practice’, ‘Bullying’ and what a PCBU needs to do to comply with the laws.  Click here to read part one and part two.

What are the new Codes of Practice?

Model Codes of Practice are ‘practical guides’ to achieving the standards of health, safety and welfare required under the model WHS laws. Codes of practice are admissible in court proceedings under the WHS Act and Regulations.

Courts may regard a Code of Practice as evidence of what is known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.

General model Codes of Practice have now been approved by Safe Work Australia, after public consultation.  Some are still to be finalised. 

All States have introduced the model WHS laws and approved the Codes of Practice, except the ACT which has adopted the majority of these new codes.  Some states have different transitional arrangements.  For example, where there is no model Code of Practice yet developed, all States have opted to preserve their corresponding pre-reform Codes of Practice.  It is expected these pre-reform Codes will be replaced as more model Codes are made available.

The ones in orange are related to non-industrial work environments.

The Current Code of Practices available are –

• How to Manage Work Health and Safety Risks
• Hazardous Manual Tasks
• Labelling of Workplace Hazardous Chemicals
• Preparation of Safety Data Sheets for Hazardous Chemical
• Managing Noise and Preventing Hearing Loss at Work
• Managing the Work Environment and Facilities
• Work Health and Safety Consultation Cooperation and Coordination
• How to Manage and Control Asbestos in the Workplace
• How to Safely Remove Asbestos
• Managing the Risk of Falls at Workplaces
• Confined Spaces

Soon to be released are -

• First Aid in the Workplace
• Preventing and Managing Fatigue in the Workplace
• Preventing and Responding to Workplace Bullying
• Construction Work
• Preventing Falls in Housing Construction
• Managing Electrical Risks at the Workplace
• Managing Risks of Hazardous Chemicals
• Managing Risks of Plant in the Workplace
• Safe Design of Building and Structures
• Excavation Work
• Demolition Work
• Spray Painting and Powder Coating
• Abrasive Blasting
• Welding and Allied Processes
• Safe Access in Tree Trimming and Arboriculture

What is Bullying?
Managing and preventing bullying is fast becoming a big issue for all business and society as a whole (i.e. cyber bullying). In addition, under workcover, bullying is adding to the burden of extra costs to businesses and the economy in general.

Under WHS legislation, a PCBU must ensure as far as reasonably practicable that they prevent bullying of their staff, that they have mechanisms in place to identify bullying and are able to effectively and quickly manage incidents of bullying.

The Code of Practice relating to Bullying is still under review, however the information below is based on the current Code.

How is ‘Bullying defined’?

Workplace bullying is currently defined as repeated and/or unreasonable behaviour directed towards a worker or a group of workers.

'Repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time. ‘Unreasonable behaviour’ means behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening.

Preventing and managing bullying should be incorporated with ‘Acceptable Behaviour’ or ‘Equal Opportunities’ policies and procedures. 

This is an area that requires strong HR expertise and input to ensure your business manages its obligations in the most effective and pragmatic way.

Bullying is now set up to encourage claims and managers in particular need to be trained on good management practice as well as managing inappropriate behaviour effectively!

What should a PCBU be doing NOW to ensure compliance?

We recommend that you take the following actions now, as most States are implementing these regulations if they have not already completed.

• Familiarise yourself with the complexities of the new Act, Regulations and Codes of Practice
• Identify all other PCBU’s your business needs to consult with
• Fully Audit existing WHS systems and, where appropriate, updated their policies and procedures to meet the new requirements (for below for The Business Agency Auditing Tool) 
• Review corporate government arrangements to ensure that senior management, managers and directors and other officers know and can meet their due diligence obligations
• Ensure there is an effective, compliant and documented WHS system in place
• Ensure you have met your ‘Due Diligence’ obligations – identifying all possible hazards and consulting with other PCBU’s and workers
• Ensure that following a full audit you have done all that is reasonably practicable to eliminate risks and if not eliminate, minimise risks
• Train all managers and workers on your WHS system
• Ensure clear consultation mechanisms are in place with other PCBU’s and workers
• Develop a change management strategy to demonstrate that you have done, and are doing everything that is ‘reasonably practicable’ to achieve full compliance

THE BUSINESS AGENCY - HR SERVICE

The Business Agency specialises in assisting businesses with their Human Resource, strategy and people issues. We ensure you have effective protection whilst ensuring we deploy strategies and approaches that work for your business in a pragmatic and straightforward way.

To assist businesses in complying with these new laws, The Business Agency has developed a number of packages. Pricing for these packages are discounted by 10% if booked and paid for prior to 28 February 2012. To request further information contact The Business Agency.

WHS Auditing Tool (DIY) – The Business Agency auditing tool provides a standard business the means to carry out a comprehensive audit of their business, to meet their due diligence and identify where the gaps are in their current WHS System. A brief reference guide enables the auditor to find further details on compliance. This is recommended to be used by trained managers only. From $99 + gst*

Executive/Management Briefing – This is a three hour overview of the legislation and compliance issues for leaders in a standard business*. Price $1,795 + gst *

Executive Briefing and Due Diligence Training – This is a one day or 2 half day sessions, designed to ensure the leaders in your business understand the law and ensure they understand how to manage due diligence effectively (including auditing and risk management assessment). Price- 1 day $2,350 or 2 x ½ days $3,250 + gst *

Staff training – We have developed a standard WHS training module that is delivered LIVE by our HR experts and includes a WHS quiz to enable your business to meet its due diligence obligations for providing effective training. This training is delivered using online tools enabling staff from all over Australia to attend (2 hours including the quiz). Price $695 + gst *

WHS Auditing and Training Expert – We will provide a HR/OHS expert onsite to provide one day of standardised OHS training for your business (including Management and Staff Training), audit your business (one site) and provide a full report to the board (including gaps in your WHS system and recommendations for meeting your ‘Reasonably Practicable’ obligation. Additional sites are extra. Price - $4,950 + gst *

*Terms and Conditions apply. Pricing is based on a standard office or retail environment (non-manufacturing/ light industrial) with up to 8 people per session. The Business Agency can provide HR services and review your WHS compliance for a range of businesses. Please enquire about our custom consulting, training and coaching services.

This article is intended to provide commentary and general information. It should not be relied upon as comprehensive or legal advice. Formal legal advice may be necessary in particular transactions or on matters of interest arising from this article. The Business Agency is not responsible for the results of any actions taken on the basis of information in this article, nor for any error or omission in this article.

NEW NATIONAL HEALTH AND SAFETY LAWS - A MUST READ THREE PART SERIES! Part 2…

In this second article we will be discussing the concept of the ‘Consultation”, ‘Due Diligence’ & ‘Reasonably Practicable’ under the new WHS laws. Click here to read part one.

 What is Consultation about under the law?

The new laws make it clear that a PCBU must ensure there are clear consultation mechanisms in place so that the business understands its health and safety risks and that staff have an avenue for communicating any safety concerns. This includes consultation and co-operation between PCBU’s.

This is a much stronger requirement than the previous legislation and places much more emphasis on the PCBU or an Officer of the PCBU to ensure proactive communication and co-operation.

Businesses must NOW ensure that a clear line of communication and effective safety management is in place from the frontline direct to the Managing Director/CEO. Delegating the responsibility to management does not preclude the duties of the MD/CEO under this law.

In summary, all businesses need to have in place a formal and specific WHS communication model that enables workers to be engaged in consultation with the CEO/MD/PCBU on matters related to Workplace Health and Safety. 

The Business Agency recommends each business designs a process that is lawful, but meets the needs of the particular business and ensures full documentation of all consultation with workers and other PCBU’s.

There are also NEW rules regarding, WHS Representatives and a WHS committees.  These rules are too involved to go into in this article.  We recommend each business owner review the appropriate Code of Practice.

Suffice to say that at The Business Agency recommends all businesses seek professional advice from an experience HR or OHS expert to determine what is right and practicable for their business.

Don’t forget that now, the circumstances and processes for consulting with other PCBU’s also needs to be established and recorded.  This again may be quite complex for some businesses and a formal and thorough auditing procedure should help to identify these requirements for a business. For example, if you are leasing a building then the PCBU of the building and the PCBU of your business are require to proactively consult and co-operate to ensure the WHS obligations of both businesses are met.

What is Due Diligence?

The PCBU must also be able to demonstrate due diligence in complying with the new laws. There are a range of things under the new laws that PCBU’s will need to be able to demonstrate.

For example, the PCBU must proactively inform themselves of ALL health and safety matters affecting their business, including all new and up to date industry and safety information, be able to clearly demonstrate a good understanding of WHS risks to their business, show how they have eliminated those risks and make sure they have allocated resources to effectively manage WHS.

The Codes of Practice and legislation appear to make it clear that a PCBU must personally, proactively and actively involve themselves in ensuring the effectiveness of WHS systems of their business.

Demonstrating due diligence under the new laws relies on establishing clear WHS policies, systems and processes.  

There must also be strong and clear processes to identify ALL potential risks in all workplaces, have a formal process for hazard, incident and accident reporting, have formal consultation processes in place and those processes enable quick responses for eliminating risks.

PCBU’s also need to show that workers are trained and know how to comply with WHS policies and processes.

The Business Agency recommends each business regularly conducts a formal and thorough WHS Audit to ensure compliance with these new laws.

What is meant by ‘Reasonably Practicable’?

An in-depth discussion on this subject is not practical for this article. However what is considered to be ‘reasonably practicable’ and able to be done in relation to ensuring health and safety in the workplace, takes into account and weighs up all relevant matters. The law states -

1.   The likelihood of the hazard or risk occurring;

2.   The seriousness of the risk;

3.   What the PCBU knows, or ought reasonably to know, about:

(i)   the hazard or the risk, and

         (ii) ways of eliminating the risk;

4.   The availability and suitability of ways to eliminate the risk first;

5.  After assessing the extent of the risk and the available ways of eliminating the risk, the cost associated with available ways of eliminating the risk, including whether the cost is grossly disproportionate to the risk

6.   If it is not‘reasonably practicable to eliminate the risk, given points 4 and 5 above, then the risk must be minimized effectively. The PCBU will then have to show what they know or ought to know about how to minimize the risk to the highest possible standard to avoid WHS injury or harm to workers and others

In the third article we will discuss Codes of Practice, Bullying and what you need to do to comply with the new laws

THE BUSINESS AGENCY - HR SERVICE

The Business Agency specialises in assisting businesses with their Human Resource, strategy and people issues. We ensure you have effective protection whilst ensuring we deploy strategies and approaches that work for your business in a pragmatic and straightforward way.

To assist businesses in complying with these new laws, The Business Agency has developed a number of packages. Pricing for these packages are discounted by 10% if booked and paid for prior to 28 February 2012. To request further information contact The Business Agency.

WHS Auditing Tool (DIY) – The Business Agency auditing tool provides a standard business the means to carry out a comprehensive audit of their business, to meet their due diligence and identify where the gaps are in their current WHS System. A brief reference guide enables the auditor to find further details on compliance. This is recommended to be used by trained managers only. From $99 + gst*

Executive & Management Briefing – This is a three hour overview of the legislation and compliance issues for leaders in a standard business*. Price $1,795 + gst *

Executive Briefing and Due Diligence Training – This is a one day or 2 half day sessions, designed to ensure the leaders in your business understand the law and ensure they understand how to manage due diligence effectively (including auditing and risk management assessment).Price- 1 day $2,350 or 2 x ½ days $3,250 + gst *

Staff training – We have developed a standard WHS training module that is delivered LIVE by our HR experts and includes a WHS quiz to enable your business to meet its due diligence obligations for providing effective training. This training is delivered using online tools enabling staff from all over Australia to attend (2 hours including the quiz). Price $695 + gst *

WHS Auditing and Training Expert– We will provide a HR/OHS expert onsite to provide one day standardised OHS training for your business (including Management & Staff Training), audit your business (one site) and provide a full report to the board (including gaps in your WHS system and recommendations for meeting your ‘Reasonably Practicable’ obligation. Additional sites are extra. Price - $4,950 + gst *

*Terms and Conditions apply. Pricing is based on a standard office or retail environment (non-manufacturing/ light industrial) with up to 8 people per session. The Business Agency can provide HR services and review your WHS compliance for a range of businesses. Please enquire about our custom consulting, training and coaching services.

This article is intended to provide commentary and general information. It should not be relied upon as comprehensive or legal advice. Formal legal advice may be necessary in particular transactions or on matters of interest arising from this article. The Business Agency is not responsible for the results of any actions taken on the basis of information in this article, nor for any error or omission in this article.

NEW NATIONAL HEALTH & SAFETY LAWS - A MUST READ 3 PART SERIES!

NEW NATIONAL WORKPLACE SAFETY LAWS

 Affects ALL Businesses from 1 JANUARY 2012

Have you familiarised yourself with the new legislation and taken the appropriate actions yet? You may be exposed!

In this 3 part series, we will be providing you with an overview of the new National Work Health and Safety Legislation (including the Act, Regulations and Codes of Practice) takes effect from 1 January 2012 and will mean new laws for all businesses in Australia regardless of their size!

The upside is that these new laws will standardise Workplace Health and Safety (WHS) legislation around the country (yahoo, for those of us running national businesses)!

And if you think, I don’t have any employees so I don’t need to bother with this, well you may need to think again!

If you work with anyone in your business, regardless of their employment status, you are likely to be subject to these new laws. Compliance with these new laws is clearly expected (there are many breaches and penalties identified in the law), regardless of the size of the business!

These changes place much more profound duties on business owners and directors within businesses to proactively manage health and safety themselves. You can no longer just get by with minimal knowledge.

Although South Australia, Western Australia, Tasmania and Victoria are yet to confirm transitional arrangements, if you are running a National business, you are advised to adopt the new standards for workers in those states and be mindful of any additional requirements of State Legislation until the transition period is completed.

Who is affected?

The changes impact ALL businesses with operations in Australia.

What are the Key changes?

Each state has different arrangements in the transition period, however the key changes are -  

• 'Work Health and Safety' or WHS replaces the term Occupational Health and Safety (OH&S)
• The concept of 'Persons Conducting a Business or Undertaking' (PCBU)as opposed to employer has been introduced with the focus on the work arrangements and relationships to carry out the work. This is aimed at ensuring the most senior people in businesses proactively engage in the WH&S of the business on not assuming delegation is ok. The duties of PCBUs have increased. The PCBU also has greater requirement to proactively consult, co-operate and co-ordinatewith other PCBU’s (duty holders) and workers
• Employees are now referred to as 'workers’ (covering a wider range of employment statuses) and who will now also become duty holders for their own workplace safety
• Workplace Health and Safety Representatives (WHSRs) who will be the primary work health and safety mechanism for workers to voice their health and safety concerns. WHSR’s now have the power to issue provisional improvement notices
• 'Reasonably Practicable' and ‘Due Diligence’ requirements and meanings have been more clearly defined
• Greater ‘entry rights’ for members of employee authorised representatives (e.g. unions)
• Greater emphasis on proactively managing WHS, including auditing all related businesses
• Greater and many more penalties for non-compliance - up to $3 million for a corporation and $600,000 for an officer and a potential five-year jail term under certain areas (for EACH breach)
• New Codes of Practices (some are still being finalised)
• Bullying has been more clearly defined

In this first article we will be discussing the concept of the PCBU and Workers.

Who’s responsible? THE PCBU Concept

Under the new legislation, the person who is primarily responsible for complying with the new law is defined as the Person Conducting a Business or Undertaking (PCBU). This person could be an employer, a corporation, an association, a partnership, a sole trader or a volunteer organisation. Further, officers of the business also have a responsibility to comply, with an officer being defined as anyone who participates in making decisions that affect a substantial part of the business.  This may include Directors, CEO/COO/MD, Senior Managers, management teams, managing partners in a partnership or a sole trader.

Specifically the laws means that the PCBU must take all reasonable and practical steps to eliminate any risk of injury to workers, and workers ares considered in the most broadest of terms.

This means there is a more emphasis and focus on a positive duty encompassing all persons likely to impact on the workplace and on workers or to have an effect on the health and safety of the people doing the work.  PCBU’s also now have a much greater requirement to consult with other PCBUs and workers about work health and safety.

It is not only ‘employers’ who need to exercise caution. This legislation also captures designers, manufacturers, importers, suppliers, installers, constructors and commissioners of plant, substances or structures. If these activities are undertaken in a jurisdiction where the WHS laws are in force then those laws now apply to your business, irrespective of whether your business employs people in that jurisdiction. For instance, if a business manufactures products in Queensland but supplies them to businesses in New South Wales, they are subject to compliance with the laws, including the penalties.

Who is a worker?

A key change under the new act is a new definition of who constitutes a worker. The definition covers anyone working for the business, all employee types on the payroll, labour hire staff, temps, apprentices, people on work experience, volunteers, contractors, sub contractors, workers of related businesses. Visitors are also included in this responsibility.

The PCBU’s in all related business must consult, co-operate and co-ordinate together to ensure that they provide a safe place to work and that workers are trained to comply with safety requirements.

In the next article we will discuss the concepts of Due Diligence, Reasonably Practicable and Consultation Requirements.

THE BUSINESS AGENCY - HR SERVICE
The Business Agency specialises in assisting businesses with their Human Resource, strategy and people issues.  We ensure you have effective protection whilst ensuring we deploy strategies and approaches that work for your business in a pragmatic and straightforward way.

To assist businesses in complying with these new laws, The Business Agency has developed a number of packages.  Pricing for these packages are discounted by 10% if booked and paid for prior to 28 February 2012.  To request further information contact The Business Agency.

WHS Auditing Tool (DIY) – The Business Agency auditing tool provides a standard business the means to carry out a comprehensive audit of their business, to meet their due diligence and identify where the gaps are in their current WHS System.  A brief reference guide enables the auditor to find further details on compliance. This is recommended to be used by trained managers only.  From $99 + gst*

Executive & Management Briefing – This is a three hour overview of the legislation and compliance issues for leaders in a standard business*.  Price $1,795 + gst *

Executive Briefing and Due Diligence Training – This is a one day or 2 half day sessions, designed to ensure the leaders in your business understand the law and ensure they understand how to manage due diligence effectively (including auditing and risk management assessment). Price- 1 day $2,350 or 2 x ½ days $3,250 + gst *

Staff training – We have developed a standard WHS training module that is delivered LIVE by our HR experts and includes a WHS quiz to enable your business to meet its due diligence obligations for providing effective training.  This training is delivered using online tools enabling staff from all over Australia to attend (2 hours including the quiz).  Price $695 + gst *

WHS Auditing and Training Expert – We will provide a HR/OHS expert onsite to provide one day of standardised OHS training for your business (including Management & Staff Training), audit your business (one site) and provide a full report to the board (including gaps in your WHS system and recommendations for meeting your ‘Reasonably Practicable’ obligation. Additional sites are extra. Price - $4,950 + gst *


 *Terms and Conditions apply.  Pricing is based on a standard office or retail environment (non-manufacturing/ light industrial) with up to 8 people per session.  The Business Agency can provide HR services and review your WHS compliance for a range of businesses.  Please enquire about our custom consulting, training and coaching services.

This article is intended to provide commentary and general information.  It should not be relied upon as comprehensive or legal advice.  Formal legal advice may be necessary in particular transactions or on matters of interest arising from this article.  The Business Agency is not responsible for the results of any actions taken on the basis of information in this article, nor for any error or omission in this article.