The Work Heath and Safety Act 2011 (“the Act”) regulates the obligations of a person conducting a business or undertaking to ensure the health and wellbeing of workers and other persons in New South Wales.
Under the Act the primary duty of care to ensure the health and safety of workers in the workplace falls upon the person conducting the business or undertaking (“the PCBU”). The duty of care extends to all workers and not only employees. A worker is defined as any person carries out work for a PCBU and includes: an employee, contractor, sub-contractor, employee of a labour hire company, outworker, apprentice or trainee, work experience student and a volunteer.
The PCBU has an obligation to provide, amongst other things, a safe working environment, safe systems of work, a system for monitoring risk, facilities for a worker’s welfare and appropriate supervision and training. The responsibility of the PCBU to meet its duty of care is qualified by the “reasonably practicable” test. Put simply, this means that duty holders must satisfy the duty as far as they are reasonably able to, taking into account all relevant factors e.g.: the likelihood of the hazard or risk occurring, the degree of harm that might result from the hazard or risk, what the person knows about the hazard or risk, the availability and suitability of ways to eliminate or minimise the risk. The cost of eliminating or minimising the risk is a factor that can also be taken into account.
The Act also regulates the conduct of an “officer” which includes a director, secretary of a corporation, or a person who participates in the making of decisions for the whole or a substantial part of the corporation. The main duty of an officer is the exercise of due diligence to ensure the PCBU complies with his or her obligations under the Act. This requires the officer to have an understanding of the nature of the workplace and the general hazards and risks associated with its operation. Further, the officer must ensure the PCBU has implemented appropriate resources and processes to eliminate and minimise risks; receive and consider information regarding incidents, hazards, risks and responding in a timely way to that information.
Duty to Consult with Workers
A further obligation of a PCBU under the Act is to, so far as is reasonably practicable, consult with workers who are or likely to be affected by a matter relating to work health and safety. Examples of when consultation is required under the Act include:
The nature of consultation required under the Act involves workers being provided with a reasonable opportunity to express their views, to raise work health and safety issues and to contribute in the decision making process. It is a necessary that any views expressed by workers be taken into account in any final outcome made and that the workers are duly notified of that outcome.
Failure of a PCBU to consult with workers is a breach of the Act and may result in penalties of up to $20,000 for individuals and up to $100,000 for a body corporate.
For further information on consultation obligations, the AHA NSW recommends members read the “Work Health and Safety Consultation, Co-operation and Co-ordination” code of practice published by WorkCover.
Alternatively, members may contact the AHA NSW Legal and Industrial Affairs Department for further information.
Incident Notification and Site Preservation
Another duty of a PCBU arising under the Act is the duty to notify WorkCover NSW of notifiable incidents immediately after becoming aware of the incident. A notifiable incident is defined as involving either a death, a serious injury or illness of a person or a dangerous incident.
A serious illness or injury is one that requires immediate treatment as an in-patient in a hospital or medical treatment within 48 hours of exposure to a substance or immediate treatment for one of the following:
A dangerous incident is defined as one that exposes a worker or any other person to a serious risk to a person’s health and safety emanating from an immediate or imminent exposure to incidents including, but not limited to:
In the event that a notifiable incident arises, the person with management or control of the workplace has a duty to ensure, so far as practicable, that the site of the incident is not disturbed until a WorkCover NSW inspector arrives and/or until the inspector directs otherwise.
If you have, or believe you may have a notifiable incident, you can notify WorkCover at any time by calling 13 10 50 or by emailing email@example.com.
The AHA NSW Legal and Industrial Affairs Department advises all members that in the event that a notifiable incident occurs, to contact your insurer and WorkCover NSW as soon as practicable and within 48 hours of the incident occurring. If you are unsure about whether an incident is notifiable contact the AHA NSW Legal and Industrial Affairs Department on (02) 8218 1855.
Failure to notify of a notifiable incident and/or preserve an incident site is in breach of the Act and may lead to penalties of up to $10,000 for an individual (per breach) or up to $50,000 for a body corporate (per breach).
Want to Learn more?
The AHA NSW Legal and Industrial Affairs Department offers several seminars and webinars during the year which focus directly on the work health and safety rights and obligations of PCBUs, officers and workers. These courses are recommended for licensees, senior managers, and duty managers. For a copy of the AHA NSW Legal and Industrial Affairs Department course calendar please 2014 AHA NSW LIA CALENDAR
If you wish to speak with an advisor about your rights and obligations, please contact the AHA NSW Legal and Industrial Affairs Department directly on (02) 8218 1855.