Background
All State, Territory and the Commonwealth governments have committed to develop model workplace safety legislation which will be adopted by all jurisdictions and to develop common methods to ensure consistency in the way Regulators enforce the legislation.
A Model Act has been agreed and will establish the framework Regulations to prescribe what is required. Codes of Practice will provide the specific guidance on what is reasonably practicable. National Compliance and Enforcement Policy will detail the principles on how the laws will be enforced and Regulators’ harmonisation projects will outline how consistency in enforcement will be achieved.
All information about this new legislation and how it will impact your organisation can be found at www.safeworkaustralia.gov.au. There is information about the following:
Significant Changes
- The model laws contain considerably more detail (and greater prescription in some areas) than the current laws
- Codes of Practice will provide substantial guidance on what is required – wherever possible Australian Standards are not referenced
- New terminology – in particular the PCBU, or Person Conducting a Business or Undertaking. The use of ‘worker’ rather than ‘employee’ has implications in areas such as consultation and discrimination
- Some parts of our current laws will disappear altogether e.g. Responsible Officers and Accountable Persons
- ‘Officer’ due diligence obligations are defined
- Substantially greater (and a wider range) of penalties for breaches
- Greater focus on consultation and the role of health and safety representatives
- Dangerous Substances (Safe Handling) Act will be revoked
What does this mean for NFP Boards and their CEO?
As defined in the Model Work Health and Safety Bill, the PCBU is your organisation – the legal entity that causes the work/activities to be undertaken. Perhaps the most important change for the Board and the CEO is the term ‘Officer’ and what is actually involved in exercising due diligence.
‘Officer’ has the same definition as Section 9 of the Corporations Act:
(a) a director or secretary of the corporation; or
(b) a person:
(i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
(ii) who has the capacity to affect significantly the corporation’s financial standing; or
(iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation);
Therefore, to be an ‘Officer’ the person must make or participate in making the key decisions on how the PCBU (or a substantial part of the PCBU) operates. In a NFP’s case, Board Members and the CEO will be considered Officers. In terms of other staff, they will not be deemed Officers as they assist the decision making through the provision of information and advice and have responsibility for implementing decisions made by the CEO or Board.
What does this Due Diligence by an Officer mean?
Board members and the CEO will need to:
- Learn and then keep up to date, knowledge of work, health and safety matters
- Gain an understanding of the nature of the NFP’s operations and the hazards and risks associated with those operations
- Ensure that the NFP has available for use, and uses, appropriate resources and processes to enable hazards associated with the organisation’s operations to be identified and for the risks associated with those hazards to be eliminated or minimised
- Ensure that the NFP has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information
- Ensure that the NFP has, and implements, processes for complying with any duty or obligation that they have under the Model Legislation
Moreover, a Board and CEO need to consider the activities undertaken at their organisation which have a high likelihood of serious consequences if they go wrong. It follows that the Board and CEO also need to ensure that doesn’t happen where possible. We would recommend a detailed Risk Management Strategy. This will require the implementation of processes to ensure, as far as reasonably practicable, that appropriate preventative measures are taken. The Board and CEO should also ensure that they are provided with meaningful WHS information and advice as well as being satisfied that compliance with a WHS Policy and Procedural framework is being appropriately monitored.
We strongly recommend that all Board Directors and Senior Staff familiarise themselves with the information on the website and put in place transition plans and training for all staff.
All information about this new legislation and how it will impact your organisation can be found at
http://safeworkaustralia.gov.au/Legislation/FAQ/Pages/FAQ%20-%20General-model-WHS-laws.aspx and http://www.wst.tas.gov.au/