Your business and the Work Health and Safety Act
The process of harmonising Australia’s multitude of health and safety legislation, to provide consistent Work Health and Safety (WHS) laws nationally, is well underway.
New WHS legislation, based on the Model WHS Act (the Act), has been passed in the ACT, NSW, QLD and NT commencing on 1 January 2012. However, with the recent election of the Liberal National Party in Queensland, it is anticipated that the Act may be repealed or altered significantly. Franchisees/franchisors in Queensland should follow this issue closely for any changes. It is expected that the remaining States will follow suit and adopt the Act, to varied extents, by the end of 2013.
The introduction of the harmonised legislation has resulted in a fundamental shift for franchise systems in relation to how they manage their health and safety obligations.
The Act provides a number of new areas that franchisees/franchisors need to be aware of. These include:
1. PERSON CONDUCTING A BUSINESS OR UNDERTAKING (PCBU)
A PCBU is a broad based concept used to capture all types of working arrangements, including employers, contractors and franchisors.
A PCBU is the legal entity conducting the business or undertaking and not the individual worker or officer. The concept applies whether or not the business or undertaking is for profit. It also applies whether or not the business or undertaking is conducted alone or jointly with others.
Duties of a PCBU
There are many duties owed by a PCBU; however in a broad sense a PCBU has a duty to ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the PCBU; and
(b) workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are at work in the business or undertaking.
The PCBU also has a duty to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
An officer is, amongst other things, a Director or Secretary of a company, or a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation.
Duties of an officer
The health and safety duty of an officer requires them to exercise due diligence to ensure compliance by the PCBU with its health and safety obligations. This is a positive duty which requires active participation and investigation by the officer.
A worker is a person who carries out work in any capacity for a PCBU, including work as either:
(a) an employee;
(b) a contractor or subcontractor;
(c) an employee of a contractor or subcontractor;
(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking;
(e) an outworker;
(f) an apprentice or trainee;
(g) a student gaining work experience;
(h) a volunteer; or
(i) a person of a prescribed class.
Duties of a worker
Workers must take reasonable care for their own health and safety while at work and, take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons. Workers must comply with reasonable directions and instructions, as well as co-operate with any reasonable policy or procedure of the PCBU.
Duty to consult
A PCBU has a duty to consult with workers and health and safety representatives about matters that directly affect them. There may be a number of different duty holders involved in work. If more than one person in the workplace has a health and safety duty, they must consult all other people with the same duty. Each duty holder must share information in a timely manner and cooperate to meet health and safety obligations.
Consulting with workers
A PCBU must, so far as is reasonably practicable, consult with workers who carry out work for their business or undertaking who are, or are likely to be, directly affected by a work health and safety matter.
The duty is qualified by ‘so far as is reasonably practicable’ which means that the circumstances in each case will be relevant when determining the level of consultation that is required.
The PCBU and their workers can agree to procedures for consultation that best suit their circumstances. If there are agreed procedures for consultation, the consultation must be in accordance with those procedures.
There are three main categories of offences that apply to an individual, a PCBU, a worker, an officer of a corporation or unincorporated association and to a body corporate:
(a) Category 1: Where a duty holder recklessly exposes a person to whom they owe a duty, to a risk of death or serious injury or illness;
(b) Category 2: Where a duty holder breaches an obligation and thereby exposes a person to serious harm; and
(c) Category 3: Where a duty holder fails to comply with a duty.
The maximum penalties for breach of health and safety duty offences are outlined in the following table:
Category - Corporation - Individual as PCBU or officer - Individual as worker or other
Category 1 - $3 million - $600,000 five years jail or both - $300,000 five years jail or both
Category 2 - $1.5 million - $300,000 - $150,000
Category 3 - $500,000 - $100,000 - $50,000
6. MODEL CODES OF PRACTICE
Model Codes of Practice (Code) are practical guides to achieving the standards of health, safety and welfare required.
A Code applies to anyone who has a duty of care in the circumstances described in the Code. In most cases, following an approved Code would achieve compliance with the health and safety duties in the Act, in relation to the subject matter of the Code.
Codes deal with particular issues and do not cover all hazards or risks which may arise. The health and safety duties require duty holders to consider all risks associated with work, not only those for which regulations and Codes exist.
Codes are admissible in court proceedings under the Act and WHS Regulations. Courts may regard a Code as evidence of what is known about a hazard, risk or control and may rely on the Code in determining what is reasonably practicable in the circumstances to which the Code relates.
Transitional arrangements under the Act and WHS Regulations in each jurisdiction will allow duty holders a period of time to make necessary adjustments in order to comply with any new requirements.
Codes are based on existing codes and guidance that are currently available in each jurisdiction. Existing jurisdictional codes will remain in place until replacement Codes are approved.
The transitional policy provides information about the approach work health and safety regulators will take to assist businesses to transition to any new requirements contained in approved Codes from 1 January 2012, for those that have passed the relevantlegislation.
HOW DO YOU ENSURE COMPLIANCE ?
• Update existing OHS policies to conform to your obligations under the Act. These new policies should be circulated to all employees and duty holders;
• Plan how, as a business or undertaking, you will implement and maintain effective WHS controls;
• Define who is responsible and accountable for certain areas within the workplace;
• Create effective channels for reporting WHS matters; and
• Ensure senior management and other duty holders regularly review WHS policies and procedures.
It is best for a franchisee/franchisor to seek legal advice in relation to the Act and how it affects duty holders.
Chad is a Lawyer at Mason Sier Turnbull, a law firm renowned for its franchising expertise.
Located in Melbourne’s industry heartland, Mason Sier Turnbull has strong commercial law skills and provides clients with sensible solutions.