OSH Harmonisation – Health and Safety Changes in Australia

This morning I attended an update on the OSH Harmonisation at the Chamber of Commerce and Industry in Perth, Western Australia. There were plenty of like-minded people present from all different industries from small to medium enterprises up to the larger mining houses. I was glad that I was not alone…..we all had great expectations.

The session was short and succinct – enough to keep us all focused on the facts and not giving us any time to dwell on the “What if’s”?

I learnt a few things about the intent behind the harmonization. It was started by Industry asking the Howard government to step in and get all states and territories to be on the same playing field with workplace health and safety. The Gillard government has somehow managed to keep this rolling forward.

There were plenty of slides with a lot of information on each one. I have gone through my notes and it is interesting to see what I have jotted down. When I wrote these notes I was certain that they made sense. Now – only 8 hours later I am disappointed that they already seem unclear! Maybe this is the whole point of me writing this article – to gain clarity.

We were all given handouts of the overhead slides in a bound booklet. Next to slide 2 on the topic of red tape I have written “Note to self – Open up a record keeping business”! Interesting that I am thinking about changing my business from OHS Consulting to record keeping. It is one of the things that jumped out at me that when the new OHS regulations come into play sometime in 2012 that everyone will need to be on the ball with the preservation of documents to ensure compliance.

At this stage I am unsure on what the financial costs will be to businesses. Victoria have voiced their concerns about the costs. We were told that at this stage the costs are uncertain but that there will be indirect costs in the implementation stages for initial compliance with the new regime. Also insurance premiums will certainly be of interest.

When it comes to the two acts – they mirror each other. 63 Codes of Practice and some guidance notes to come! The material within the guidance notes will be industry specific. We were told that the target date is still the same – January 2012. It is hard to believe that statement. The date has been and gone and we are still waiting in some states!

When asked about what was going to happen to the Australian Standards we were told that Safework had decided to minimize the use of the Australian Standards in regulations as they are reluctant to use as they are very prescriptive. They chose not to include then but are covered in other areas within the regulations. Also Safework is not keen on them as they are designed by a third party.

The next slide discussed the mining legislation. A statement was made around the differences between “General Regulations” being compared to Bugs and the “Mining non-core Regulations” being compared to elephants. The mining non-core regulations will apply to states that have specific mining activities being undertaken (out of the ordinary?).

A lot of talk recently has been saying that Western Australia does not support the harmonization process. This misconception was cleared up for me today when we were told that WA certainly does support it fully. The problem has been that other bills and issues have arisen to take precedence over the Harmonisation process. One of these is the CHOGM week that is happening next month.

So the three areas that WA is not picking up on are as follows:

  1. No reversal of the onus of proof in respect to discriminatory, coercive and misleading conduct.
  2. No Union right of entry
  3. No power for health and safety representatives to direct a “Stop Work”.

On point 2 I learnt that all this means is that under the OSH Regulations union entry is not allowed. Under fair work and Industrial Relations they are allowed entry. So there are no real dramas there.

In regards to terminology we were given more clarity. Person conducting a “Business or Undertaking” (PCBU) translates into Entity conducting a “Business or Undertaking”. The word “undertaking” is not so clear. This is what picks up other activities e.g.: volunteer groups, sporting clubs etc. IF they employ a worker.

When talking about volunteers/visitors to the workplace, a volunteer is deemed the same as an employee under this act but not other acts such as workers compensation.

It was mentioned with a bit of humor that Worksafe are not chasing businesses that have volunteers BUT if something goes wrong then they will act!

By this stage my notes have started to become illegible! I hope that I have got this section straight. The slide was about application of duties. The first statement was duties not transferable. This means that duties placed upon PCBU Officers must discharge them. They can delegate their duties but are still responsible. It is also possible for a person to be a multiple holder of duties. Now this is where a person is just that – a person! I previously stated that a person was an entity. Hope you are not confused.

A great point was mentioned at this stage – about the last line on the slide, which said “Management of risk – focus of control”. The whole package is about management of risk and making sure it is in the front line of the business. OSH has turned into a complex system of documents including policies, procedures, risk assessment tools etc. but there has been no reduction in injuries – Over 80,000 workers compensation claims last year! The intent with the harmonization is to bring OSH back to basics and safety being in the front line – not documentation that sits in the background. We were asked to make sure that all identified hazards were managed through the hierarchy of controls and that there was evidence to show that this approach had been used.

I am very aware that a piece of paper does not save lives! So am in total agreement about putting safety in the front line and keeping it basic.

The scope of the new Act covers a few things such as duty of care, duties of PCBU’s, officers, workers and others. Please note that if one of these persons fail in their duties the are subject to imprisonment if there is a breach. Another scope is the consultation duties. This is never ending and when going through the process of consulting with the workers – it does not bottom out.

The slide that I wrote most notes around was titled Officers. At the bottom of the slide is stated in bold print Penalty – monetary and imprisonment. I guess that many places have persons working in the role of Safety Officer. We were given clarity here that Officer is referring to CEO’s, COO’s and CFO’s of the PCBU’s (Oh so many acronyms!). This does not apply to Safety Officers as the are involved only in the implementation side of things. This targets the board of directors and Senior company office holders who make the decisions. A Supervisor is not an Officer unless they are executive or carry out a high leadership role within the company.

The Definition of Worker raised a few questions around prosecutions. PCBU’s, Officers and employees can be prosecuted. There are 7 levels of penalties. Officers can be prosecuted as an employee or as an officer depending on circumstances.

Labour hire employees fall under the definition of worker. Any PCBU that utilizes a Labour Hire company must consult with them to ensure that everyone is clear on who has responsibility around the safety of the employees.

A volunteer is treated as a worker and it is irrelevant whether they are paid or not under the act.

The last type of worker on the slide is “Prescribed class of person”. This will be prescribed in the regulations but is not known yet!

Duties of workers/other persons is interesting. PCBU’s must give instructions to workers to enable them to carry out duties safely and ensure that they understand. No longer can we get workers to read a stack of procedures and get them to sign off that they have understood them. That does not show that they have an understanding – it just means they know how to write their signature!

All Companies will need to carry out their Officer duties and show due diligence by carrying out the following:

  1. Information
  2. Instruction
  3. Training
  4. Supervision

A question was raised about what is the right mix of the above four points. The answer was “It is dependent on your risks in the workplace”. Nothing very prescriptive there.

Conclusion

There is no need to fear this package. There are no real show stoppers and the package has picked up all the traditional areas.

Going forward – Watch this space for updates.

Happy reading when it comes out – over 500 pages at this stage!

Remember S.I.N.A. = Safety is no Accident