AUST – Hendry advises that with work health and safety legislation in force across a number of jurisdictions, it is important that businesses operating across state and territory borders take stock of the changing regulatory environment.

Businesses also need to be mindful that the model Work Health and Safety (WHS) laws involve more than a new set of Acts – comprehensive Regulations and Codes of Practice also form part of the reform agenda.

The key changes

In short, these include:

  • Positive duties of due diligence being placed on officers and senior managers;
  • Consultation of workers about matters that will directly impact on their safety and the reasons for any policies or decisions affecting their safety;
  • The primary duty for safety shifting to a “person conducting a business or undertaking” instead of an “employer”. This imposes the duty to take all reasonably practicable steps for safety on a broader group of people in recognition of the changed nature of business and contractual arrangements;
  • A significant increase in maximum penalties – up to $3 million for a corporation and $600,000 for an officer and a potential five-year jail term (per breach); and
  • Businesses operating across multiple states and territories need to be mindful of inter-border variation. Safety systems tailored to satisfy pre-harmonisation regulation in one or multiple jurisdictions may no longer be adequate.  It is therefore critical that businesses undertake a review of their systems and approach to OHS more generally, considering the scope of the reforms in this area.

It is not only ‘employers’ who need to exercise caution.  Safety legislation also captures designers, manufacturers, importers, suppliers, installers, constructors and commissioners of plant, substances or structures.  If these activities are undertaken in a jurisdiction where the model WHS laws are in force, then those laws now apply to your business, irrespective of whether your business employs people in that jurisdiction.

For instance, if a business manufactures products in Western Australia but supplies them to businesses in New South Wales, the new WHS Act provisions in effect in NSW, including the significantly increased penalties, will apply to those activities.

Conclusion

OHS/ WHS harmonisation provides a significant opportunity for a refresh and improvement in the safety of Australian workplaces.  The objective of the new laws is to encourage businesses to identify key changes and to review their current situation to ascertain what can be done better, not simply to comply with the new regime, but to tangibly improve safety.

Businesses need to review their OHS/WHS practices:

  • If operating in a harmonised jurisdiction(s) to ensure they are compliant with the new laws and will be compliant with all changes by the end of the transition periods;
  • If operating in non-harmonised jurisdiction(s), but providing products or services to entities in harmonised jurisdiction(s) – to ensure compliance with the requirement of the harmonised jurisdiction to the extent services are  provided in harmonised jurisdiction(s).