Be ready for new OHS laws

According to an article in The Boardroom Report, AICD, Volume 9, Issue 15 published on 10 Aug 2011, “employers with contingent workforces could be caught out by new health and safety laws unless they start preparing now“.

WorkPro director, Charles Cameron, says ”moves to harmonise occupational health and safety (OH&S) laws across Australia, effective from 1 January 2012, will bring significant changes for businesses engaging contractors or labour hire workers, known as ‘contingent’ staff.”

“The new law removes any discrimination between permanent direct-hire employees and contingent staff. The definition of the employer/employee relationship has been expanded to include ‘anyone conducting a business or undertaking’, and ‘anyone involved in the undertaking of work’.”

“These definition changes are important and increase the onus on businesses engaging workers to communicate, consult with, and respond to the safety concerns of ‘all workers’ on their sites, whether permanent, on-hired or outsourced.”

Cameron says this will present new challenges. “The way Australians are working today is different to any other time in history. Modern workplaces include a mix of ‘traditional’ permanent employees, as well as contractors, consultants and on-hired workers and businesses need to start thinking about their ‘total workforce’ rather than simply their own employees. With changes commencing in the new year, the challenge for businesses over the next six months is to start reviewing their current systems and procedures to ensure they meet the new requirements, and this will require more attention and consideration than most people anticipate.”

Cameron advises directors to consider the following ahead of the changes:

• To comply with the new legislation, directors should be doing an audit of all existing persons and organisations working in their workplaces.
• If the director’s employees are working at sites controlled by other organisations, these are still their organisations’ workplaces and they will need to ensure the safety of their people there. Therefore, it is critical that directors consider the very wide scope of this law and don’t fall into the trap of focusing upon their direct hire employees.
• There are specific obligations to consult all “workers”, not just an organisation’s own employees. Workers engaged or employed by other organisations have the rights to be consulted and represented within other organisations’ workplaces. Therefore, directors must ensure that their operational staff and contractors clearly understand the wide scope of the legislation and how the general duties of the organisation have been extended.

Cameron provides the following tips to help directors meet their obligations under the new legislation:

• Work health and safety management must be a regular board agenda item. Directors should demand regular and effective updates on how due diligence is being achieved.
• Directors should ensure that regular internal compliance reviews are being undertaken to ensure that their organisations don’t simply have a paper-based system. A paper-based system, which acknowledges what must be done, but isn’t active, may be worse than no system at all because it demonstrates that an organisation clearly understood its obligations and chose to do nothing about it.
• Invite an expert in workplace law to conduct a workshop with the board to talk about the new obligations under the work health and safety legislation and, in particular, confirm the breadth of the duty owed to workers working for, or under the influence of, that organisation.
• Get out into the workplace from time to time. See for yourself that your system is operating and alive.
• Undertake regular reviews and audits.
• Directors may be personally liable under the new laws, so take an active interest. Officers can be jailed for up to five years for serious breaches of the legislation or incur penalties of up to $600,000.
• Don’t rely upon others. Presuming others were managing the risks is no defence.

What steps will you take to ensure you and your business are ready for these changes?