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Areas of Practice

Work Health and Safety Law

For decades before 2013, Australia had 9 different sets of Occupational Health and Safety (OHS) laws across the nation. For a country of approximately 22 million people, this did not make sense. Many businesses that operated across state boundaries had to familiarise themselves with several sets of complex OHS laws and apply them appropriately.

The South Australian Work Health Safety scheme

The Work Health and Safety scheme was developed nationally over recent years. The law was designed not only to increase safety, but reduce red tape and provide Australians with the same standard of health and safety protection regardless of the type of work they do, or where they work.

It has already been adopted by the Commonwealth, Queensland, New South Wales, Northern Territory, ACT and Tasmania.

South Australia became the latest jurisdiction to adopt the 'harmonised' law, being operational on 1 January 2013.

WHS - the general principles

The general principles of the new law are the same as the Occupational Health Safety and Welfare Act 1986, and businesses and workers that are currently complying with their existing duties should still be compliant under the new system.

There are however some key changes (click on each heading below for a more detailed explanation):

Specific WHS regulations

There are also specific Regulations that may apply to all workplaces, or relate only to specific industries. For example, there are Regulations that deal with:

  • Personal protective equipment;
  • Noise;
  • Hazardous manual tasks;
  • Confined spaces;
  • High risk work;
  • Demolition work;
  • Electrical work;
  • Plant and structures;
  • Construction work;
  • Hazardous chemicals;
  • Asbestos removal.

This list is not exhaustive but provides you with an idea of the types of issues faced in the Work Health and Safety environment.

Some of the Regulations that contain significantly new obligations are subject to a transitional period to allow duty holders time to prepare for the changes.

WHS codes of practice

Also, several Codes of Practice have been developed to assist workers, PCBUs and officers comply with their duties. These include, but are not limited to:

  • Managing, controlling and removing asbestos;
  • Managing electrical risks;
  • Preventing falls in housing construction;
  • Labelling hazardous chemicals;
  • Welding processes.

The Codes are admissible in court proceedings as evidence of whether or not a duty has been complied with. However, if there is a better or equivalent way to reach the standard, then that way can be relied upon instead of the Code.

The harmonised laws also mean that certain training and licensing arrangements in one state/territory may be recognised in other states and territories across Australia.

The matters outlined above are not the only changes, and it is important that bosses, workers and Unions familiarise themselves with all their rights and obligations.

The world of Occupational Health and Safety (or 'Work Health and Safety' from 2013) is complex and far reaching.  If you think there are OHS/WHS breaches in your workplace or you are concerned for the safety of your workplace colleagues, you should seek guidance from a relevant Union or SafeWork SA.  Alternatively, can seek advice and assistance from Andersons Solicitors, by calling 8238 6666.

 

The concept of a Person Conducting a Business or Undertaking (PCBU)

For legal purposes, a 'person' (the "P" in PCBU) may be an individual or may include a body corporate (company), unincorporated body or association and a partnership. Generally speaking, an individual will only be a PCBU where the individual is conducting the business in their own right (for example, as a sole trader or self-employed person).

For over 25 years, the Occupational Health Safety and Welfare Act has served South Australia well. However, it was based on some outdated concepts that required updating.

Modern working relationships often extend beyond the employer/employee relationship to include contractors, labour hire, franchisors, outworkers, etc. The new concept of a PCBU is broad and attempts to capture all types of modern working arrangements.

A Person Conducting a Business or Undertaking (PCBU) has a primary duty of care to ensure the health and safety of workers. They also have a duty to ensure that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking.

A PCBU's duty is subject to what is 'reasonably practicable' in the particular situation. Some factors that may determine whether something was reasonably practicable include:

  • the likelihood of the hazard/risk occurring;
  • the degree of harm that might result from the hazard/risk;
  • what the person knows about the hazard/risk; and
  • the cost associated with eliminating or minimising the risk.

More than one person may have the same duty, and must discharge their duty to the extent to which the person has the 'capacity to influence and control the matter'.

Manufacturers, designers, suppliers, importers and installers of structures, plant and substances may also be PCBUs for the purposes of the Act.

Apart from PCBUs, individual workers also have duties to take reasonable care for their own safety and the safety of others.

 

Officers and their responsibilities under WHS

An 'officer' is a senior executive who makes or participates in making decisions that affect the whole or a substantial part of the business or undertaking.

The Work Health and Safety laws remove 'responsible officer' provisions. Under the current (and soon to be replaced in 2013) Occupational Health Safety and Welfare Act 1986 each body corporate that carries on business in South Australia must appoint one or more responsible officers to ensure compliance with OHS obligations - failure to do so may constitute an offence. Remember, this requirement will not exist from 2013.

However, under the new Work Health and Safety laws, an 'officer' of a PCBU must exercise 'due diligence' to ensure that the PCBU complies with its duty or obligation.

Human Resource managers and supervisors would not generally be classified as an officer (they may assist in decision making, or implement decisions, but do not generally make key decisions regarding the operation of the business or undertaking).

Exercising due diligence could be as simple as keeping up to date with Work Health and Safety issues, discussing health and safety at meetings and being proactive in ensuring the PCBU meets their Work Health and Safety obligations.

An officer can be prosecuted for failing to exercise due diligence. However a volunteer officer cannot be prosecuted.   

 

Work Health and Safety Right of Entry

In South Australia, Unions can already enter worksites for industrial relations reasons. It only makes sense to extend this to include health and safety reasons.

From 2013, a Union official who has undergone prescribed training and has been issued a permit may enter a workplace to inquire about a suspected contravention, inspect employee records and consult with and advise workers in relation to Work Health and Safety (WHS).

There are protections in place for misuse of right of entry provisions, and disputes can be referred to an Inspector or the Industrial Relations Commission where the permit can be revoked.

The use of WHS entry permits should not be seen as a threat but a positive safety measure that will assist workplaces in meeting their health and safety duties.

 

Increased penalties for breaches of Work Health Safety

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The Work Health and Safety Act establishes three main categories of criminal offence penalty for a breach of a work health and safety duty. These penalties can be applied to an individual, an officer, a body corporate and a Person Conducting a Business or Undertaking (PCBU).

Category 1 offences

These involve reckless conduct that risks death or serious injury or illness.

  • maximum penalty for an individual is $300,000 or 5 years imprisonment or both;
  • maximum penalty for a PCBU or an officer is $600,000 or three years imprisonment or both;
  • maximum penalty for a body corporate is $3,000,000.

Category 2 offences

These involve a failure to comply with a WHS duty and that failure exposes an individual to a risk of death or serious illness or injury.

  • maximum penalty for an individual is $150,000;
  • maximum penalty for a PCBU or an officer is $300,000;
  • maximum penalty for a body corporate is  $1,500,000.

Category 3 offences

These involve a failure to comply with a health and safety duty. In this case:

  • maximum penalty for an individual is $50,000.
  • maximum penalty for a PCBU or an officer is $100,000,
  • maximum penalty for a body corporate is $500,000.

 

Enforceable undertakings relative to WHS

The Work Health and Safety Act allows for an 'enforceable undertaking' to be used as an alternative to costly prosecution through the courts. Such undertakings are voluntary.  That is, a person cannot be compelled to make an undertaking. Also, SafeWork SA has discretion whether or not to accept the undertaking.

An enforceable undertaking is an agreement between SafeWork SA and the alleged offender to implement actions relevant to improving work health and safety (WHS) where there has been a breach of the WHS law.

A breach relating to a Category 1 offence (a serious breach involving reckless conduct by a duty holder that exposes an individual to a risk of death or serious illness or injury without reasonable excuse) cannot be the subject of an enforceable undertaking.

Non-compliance with the undertaking can be referred to court to have it enforced, along with additional penalties.

Enforceable undertakings may alleviate concerns about the impact of legal proceedings on small business, workers and victim's families.

 

Volunteers and work health safety

According to the Australian Bureau of Statistics just over one third of Australians regularly volunteer in a number of sectors of society such as health, welfare, the arts and education. Volunteering is an important part of people's lives and volunteers across Australia provide valuable services for millions of Australians every day.

If a particular association is run solely by volunteers then it does not fall within the scope of the Work Health and Safety Act (the Act).

However common law obligations to ensure the safety of volunteers still exist. Common law means a person/business may still be sued if their negligence causes injury to the volunteer.

Under the Act, a volunteer association is a group of volunteers, working together for one or more community purposes, that has no employees. The association may be either incorporated or unincorporated. A volunteer association is not regarded as a Person Conducting a Business or Undertaking (PCBU) and is explicitly excluded from the scope of the legislation.

If, however, the association employs someone (even one person) to carry out work, then the association would become a PCBU and then the duties under the Act will apply. Arranging for a contractor to perform some repair work would not create an employee/employer relationship, and the volunteer association would not become a PCBU.

If an association does become a PCBU, it will have a duty to ensure, so far as is reasonably practicable, the health and safety of the paid workers and also the volunteers.

An individual volunteer may be an 'officer' for the purposes of the Act. If the volunteer is an officer of the PCBU, the volunteer must exercise 'due diligence' to ensure that the PCBU complies with its duty or obligation. However volunteer officers are immune from prosecution for failure to comply with their officer duties.

They may however be prosecuted if they fail to comply with their duties as a worker. A worker encompasses more than just an 'employee' and can include a contractor/subcontractor, and employee of a labour hire company, an outworker, an apprentice/trainee, a work experience student and a volunteer. All workers have duties to take reasonable care of their own health and safety and ensure that their acts or omissions do not adversely affect the health and safety of others.

An important aspect of the Act as it relates to volunteer associations is the removal of the provisions that require the appointment of responsible officers.  The responsible officer provisions had previously led to uncertainty for many volunteer associations.

The Act provides greater certainty for volunteer associations about when work health and safety duties apply.

 

Health and Safety Representatives (HSR's) 

The Health and Safety Representatives (HSR) provisions under the Work Health and Safety Act (the Act) are generally consistent with those under the old Occupational Health Safety and Welfare Act.

The new scheme is less prescriptive in relation to HSR processes including conducting elections and determining workgroups.

The powers and functions of HSRs are to:

  • represent the workers in their work group in relation to Work Health and Safety (WHS) matters;
  • monitor the measures taken by the Person Conducting the Business or Undertaking to comply with the Act in relation to their work group members;
  • investigate complaints from work group members about WHS;
  • inquire into anything that appears to be a risk to the health or safety of work group members, arising from the conduct of the business or undertaking.

In South Australia, HSR's are entitled to receive 5 days of paid training in their first year following their election, 3 days in their second year and 2 in their third year. It is not compulsory for a HSR to be trained, although training should be encouraged.

Transitional arrangements regarding training are in place for existing HSRs.

Under the WHS laws, HSRs can issue Provisional Improvement Notices (PINs) and direct work to cease only if they have been trained. A PIN is a notice issued by the HSR requiring a person to address a health and safety concern in the workplace (formerly a 'default notice').

A HSR cannot be held personally liable and cannot be prosecuted for anything done or omitted to be done in good faith; that is, carrying out their functions with honest intentions:

  • when exercising a power or performing a function under the Act; or
  • in the reasonable belief that the thing done or omitted to be done was authorised under the Act.