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.