STORY BY MATT CROUCH
Bartier Perry Solicitors
Matthew Crouch says the new work health and safety laws are a double edged sword.
On January 1 this year new Work Health and Safety Acts commenced in all states and territories excepting WA and Victoria. These new Acts replace the laws known as Occupational Health and Safety laws. The laws are almost uniform (ie but for subtle differences) in the states that have adopted them.
All businesses need to come to grips, as soon as possible, with the ramifications of the new laws. And they are something of a double edged sword, as we’ll see.
The new Work Health and Safety Acts soften the harshness of the old laws somewhat; but it casts an ever wider net, so that employers have wider responsibilities and owe a duty in relation to a wider category of persons.
The primary duty under the new Acts is for business owners and officers to “ensure so far as reasonably practicable” that health and safety of various categories of workers and others is not put at risk from work carried out as part of the conduct of the business.
The categories of persons to whom the duty is owed is very wide indeed:
• “workers” who are engaged by that person. The expression “worker” includes employees, as is to be expected, but it also includes contractors and subcontractors (and their employees); apprentices and trainees and volunteers. All of these types of worker are regularly encountered in the meetings and events industry; they are all covered.
• workers whose activities in carrying out work in the business or undertaking are influenced or directed by the person conducting the business. This is where we are likely to encounter some unexpected outcomes. The trend in recent years in procurement and outsourcing has been to impose ever more prescriptive requirements on service providers in terms of how the services are performed. Under the new Act if you have influence or a power to direct how persons carry out their work, you may have a duty to ensure that person is not exposed to health and safety risks. This may well put the brakes on some prescriptive contracts for the supply of services.
• other persons ! Here also we are in almost impossibly wide territory. The boundaries of this category will need to be set by the courts, but it will likely mean that a duty is owed to visitors and passers by, persons who inadvertently wander onto the workplace.
The Act provides some examples of how you will comply with your duty to these persons, but the items listed are only examples and there could be many other requirements:
• Provision of a workplace without risk to health or safety;
• Provision of safe plant and structures;
• Providing safe systems of work;
• Providing adequate facilities for welfare at work of workers;
• Provision of information, training instruction and supervision necessary to prevent illness or injury;
• Monitoring health and conditions of the workplace; and
• Ensuring that accommodation does not expose workers to risk to health or safety.
A “workplace” is anywhere work is carried out and includes a place where the worker goes or is likely to go while at work – and includes a vehicle, vessel or aircraft.
I stated above that the new Act casts a wider net, creating a duty towards an extraordinarily wide spectrum of persons.
But I also stated that it’s a double edged sword – the softening of approach comes with the use of the expression “so far as reasonably practicable”. To recap, your duty is to ensure the health and safety of workers (and others), so far as reasonably practicable.” It is here that the question of liability under the Act is likely to be most often played out. To decide what is reasonably practicable, you must weigh up:
• likelihood of risk and degree of harm occurring;
• what the person knows or ought reasonably to know about the hazard and ways to eliminate or reduce it; and
• the cost of eliminating or reducing the risk.
Penalties are severe, ranging up to $3 million for a company guilty of recklessly exposing a worker to risk of death or serious injury.
My conclusion is this new law creates more “wriggle room” than previous laws allowed – you now have to do what is “reasonably practicable” – reaching the goal of a safe workplace, so far as the law is concerned, should be achievable. But at the same time the net is wider and will catch more. It’s a double edged sword.