National Work Health and Safety Act

Large shifts under the new national model Work Health and Safety Act demand immediate action from employers, prominent OHS lawyer Michael Tooma will tell The Safety Conference.

The Norton Rose partner will warn delegates at the Safety Institute’s October 26 to 28 conference that company officers will be expected to “do much more and take responsibility for all sorts of things they’ve never had to before” when the laws are adopted on January 1 2012.

Officers must be proactive

Tooma regards the positive, proactive duty of care on senior officers of companies and other organisations as one of the most significant reforms of the model WHS Act. Current laws make officers liable for their companies’ conduct rather than being allocated a duty in their own right.

Under the new laws, officers must exercise due diligence to ensure corporate compliance. “Achieving due diligence is no simple thing: you have to show you’ve met a whole set of criteria,” Tooma says.

To begin with, Tooma says the need to acquire and maintain current knowledge of work health and safety matters mandates regular briefings on developments in safety.

Due diligence also requires an understanding of the nature of the operations of the business or undertaking of the body.

“Long gone are the days of sticking your head in the sand,” he says. “You’ll be expected to understand the hazards and risks within those operations. Due diligence means ensuring the company has appropriate resources and processes available to work safely. It means ensuring the company uses those resources and processes and has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information. It also means verifying the implementation of those processes through regular audits and verifying legal compliance.”

“These are the quintessential features of safety leadership. These are the components of a due diligence system in operation. And from 1 January 2012, this is the law.”

Controversially, not everyone is caught. Without prompting from the expert panel that recommended the laws or the Workplace Relations Ministerial Council, Tooma says, the legislation expressly excludes Ministers from the scope of this new duty. “Ministers are expressly excluded from the definition of officers for a public sector organisation,” he says.

“Remarkably, this decision appears to have occurred only a few weeks after Peter Garrett sounded the alarm bells in Cabinet on the safety risks associated with the insulation scheme.”

Tooma says that no matter how and why Ministers came to be excluded, the decision must be reversed.

“Company directors, including non-executive directors, are required to exercise due diligence in relation to their company’s safety compliance. Ministerial decisions impact on the safety performance of programs run by their departments. There seems little justification for excluding them from a duty to exercise due diligence to ensure compliance by their departments.”

Expanded duty-holder

Rather than restrict itself to employers, the new law will impose the duty of care on any person conducting a business or undertaking.

It captures anyone conducting a business or undertaking whether or not it is for profit and whether it is conducted alone or with others. The duty-holder need not conduct a business – an undertaking is also caught.

While the duty is not intended to catch individual employees or managers, Tooma describes it as extremely broad.

“The traditional way of looking at this legislation as being limited to workplaces is a thing of the past. The legislation is much broader than that.”

“Public safety issues, product and consumer safety issues, food safety, public health issues created by emissions are all potentially within the scope of this legislation. Indeed, the legislation has been renamed to be ‘Work’ Health and Safety Act rather than the ‘Workplace’ Health and Safety Act.

“No doubt, prosecuting these additional matters will not be a priority of regulators in the short to medium term. However, the expansive potential of the legislation is there to be exploited in the future and businesses would do well to prepare for that possibility.”

Worker definition

The definition of worker under the legislation is expanded significantly. Contractors, employees of contractors, sub-contractors, labour hire workers, apprentices, volunteers as well as employees are all caught by the definition.

“This is completely unremarkable for the duty of care provision but has alarming consequences for other parts of the legislation,” Tooma says.

“Worker is the key lynchpin of the workplace definition. A workplace is any place that a worker goes or is likely to go. An expanded definition of worker expands the definition of workplace.

“Also, the consultation obligations are owed to ‘workers’. The protections against victimisation are also owed primarily to ‘workers’. An expanded definition of worker expands these obligations significantly. So much so that it requires a close revision of existing policies and practices.”

Michael Tooma, a partner at the law firm Norton Rose, will be among 70 speakers at The Safety Conference presented by the Safety Institute of Australia at the Sydney Showground, Sydney Olympic Park, from October 26 to 28. For more information, email safety@aec.net.au, visit www.thesafetyshow.com or call 03 9654 773.

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