New Occupational Health and Safety Legislation (NSW)With the commencement of the Occupational Health and Safety Act 2000 ("the 2000 Act") and the Occupational Health and Safety Regulation 2002 ("the Regulation"), New South Wales' OHS laws will undergo the most significant change in the last 20 years. The new legislation is of relevance to all employers in Australia who have any operations or dealings in New South Wales. The new legislation imposes broad and, in some respects, novel obligations on employers and other at work. The legislation does not, however, tell employers and others how those obligations are to be fulfilled. For this reason, the approach taken to safety in the workplace needs to be more sophisticated and proactive than in the past. The 2000 Act and Regulation The 2000 Act was passed by Parliament in June 2000, but its commencement was delayed pending the finalisation of the public comment and consultation phase in relation to the Regulation. Although described as a "plain English" re-write of the 1983 OHS Act, the 2000 Act brings with it a number of interesting changes which will be discussed below. A draft of the Regulation was first released for public comment in October 1999. The second draft was released for further comment in November 2000. What's the same? The 2000 Act retains the duty of care concept. As in the 1983 Act, the 2000 Act states that all employers, self-employed persons, controllers of work premises, and designers, manufacturers and suppliers of plant and equipment must ensure the health, safety and welfare of all employees and others at the place of work. As in the 1983 OHS Act, the duty of care obligations in the 2000 Act continue to be of a "strict liability" nature. The 2000 Act also retains the two defences that were set out in the 1983 Act, namely, that it was not reasonably practicable for the person to comply with the legislation or that the commission of the offence was due to causes over which the person had no control. Generally, the penalties which the 2000 Act imposes are the same as those provided for in the 1983 OHS Act, namely, a penalty up to a maximum of $825,000 in the circumstances where an employer has a pervious conviction (or up to a maximum of $550,000 for a first offender). Under the 2000 Act, directors and persons concerned in the management of the corporation may still be prosecuted for breaching the legislation. What's new in the 2000 Act and Regulation? The most significant changes which the new legislation delivers are:
There are also new provisions in relation to the notification of accidents, the types of notices which WorkCover can issue, and also some interesting orders which Courts can make where there has been a breach of the legislation. (i) Duty to consult The 2000 Act now makes it mandatory for every employer to consult with employees so that employees are able to contribute to the making of decisions that affect their health, safety and welfare at work. An employer is required to value and take into account the views expressed by employees. Consultation is an ongoing obligation. The 2000 Act provides that consultation is required:
OHS Committees, representatives and other agreed arrangements The 2000 Act requires that consultation be undertaken in a way that ensures effective and meaningful communication with employees, and sets out three mechanisms via which consultation is to be undertaken - OHS committees, OHS representatives or "other agreed arrangements". The requirements with respect to the function, composition, role and responsibilities of OHS committees and representatives are detailed. Each employer should review the legislation carefully to ensure that the arrangements they have in place will comply with the new legislation when it is operational, OHS committees and representatives have certain functions set out in the new legislation. Those functions include keeping under review measures to ensure health, safety and welfare at work, investigating any matter that may be a risk to health and safety at work and attempting to resolve that matter and, if resolution is unable to be achieved, requesting WorkCover to conduct an investigation. (ii) Risk Management The other significant change which the new Act and Regulation delivers concerns the requirements to undertake risk management. The legislation now requires all employers (and others) to ensure that all risks to health and safety at a place of work are identified, assessed and eliminated or controlled. Employers are required to do this by, amongst other things, providing employees with instruction, training, information and supervision, by issuing personal protective equipment, and by ensuring that all measures for risk management at the place of work are implemented. Risk management is required to be undertaken on an ongoing basis, for example, before using work premises, before and during the commissioning, installation or alteration of plant, before changes to systems of work are made, whilst work is being carried out and when new information becomes available. As well as the employer, other parties have obligations with respect to risk management. For example, controllers of premises, designers, manufacturers and suppliers of plant and equipment, those who install,erect and commission plant and equipment and those who maintain and repair plant and equipment, all have ongoing obligations to undertake risk management strategies. Other areas of interest In addition to the requirements with respect to consultation and risk management, there are a number of other new and interesting requirements which the new legislation brings. For example, there are new and detailed requirements in respect of hazardous substances. A feature of the new legislation is the requirement to keep records in relation to a broad range of areas such as training, risk assessment and health surveillance. The legislation also gives the Courts a broader range of options in respect of penalties which may be imposed in the circumstances where there has been a breach of the legislation. For example, the Courts may now make publicity orders, requiring a company to issue press releases or statements (for example in an Annual Report) about the company's breach of the legislation. Conclusion As can be seen, the obligations contained in the new Act and Regulation are quite broad and, in some respects, deliberately general. The legislation does not tell us how an employer is to fulfill its obligations so as to ensure compliance with the legislation. For this reason, employers are required to undertake a more sophisticated approach to safety in the workplace. Information
compiled by What steps should you take to ensure OHS compliance? It is important that all employers (and others who have obligations under the new legislation) plan for compliance now. There are a few fundamental steps and questions which all employers should consider:
Many employers will need to undertake a detailed review of their current practices and procedures and, in many instances, managemnt and employees will need to be briefed regarding the new obligations. Last updated: 24/07/03 |