1. Changes in Work Health and Safety Duties
This especially relates to officers and workers. Under (s.4A), An officer makes, or takes part in, big decisions about all or part of the business. E.g. CEO, CFO, Director, Company Secretary, officer of the Crown.
- Officers have due diligence obligations, which they cannot delegate
- Officers can be prosecuted for not meeting their obligations.
Note: Managers who are not. ‘Officers’ are considered ‘workers’
Under (s.7) A Worker means a person working for a PCBU including:
- employee
- contractor or subcontractor
- employee of a labour hire company
- outworker
- apprentice or trainee
- student gaining work experience
- volunteer
- person of a prescribed class
Principles that apply to duties (s.14-s.18)
- Duties not transferable – s.14
- Person may have more than one duty – s.15
- More than one person can have a duty – s.16
- Management of risks – s.17
- Definition of reasonably practicable – s.18
2. Updated Offences & Penalties.
This includes implementing Industrial Manslaughter (s.30A) and an increase in fine maximums across the board.
However, there is no need to be scared about prosecution of the offence of industrial manslaughter if you are trying to do the right thing.
To be prosecuted under Industrial Manslaughter, All 5 elements must be proven, beyond reasonable doubt.
This includes:
- Person had a health and safety duty as a PCBU
- Caused death of an individual through an act or omission
- Failed to comply with their health and safety duty
- Knew it was likely to cause death or serious harm of the individual
- Disregarded likelihood of death or serious harm.
Officer: Must prove the PCBU’s conduct was due to the officer’s neglect, consent or connivance.
3. WHS Undertaking (s.216-222)
- Enforceable agreement with regulator to undertake activities, as an alternative to prosecution
- Cannot be used for industrial manslaughter or category 1 offences
- Regulator decides whether to accept a WHS undertaking, publishing the decision and reasons on the regulator’s website
- Enforceable from acceptance date (or date set by regulator)
- Can be withdrawn or varied, if regulator agrees.
4. There is a change in prosecution limitation.
This means that instead of the 3 year limitation in the old Law, the new Work Health and Safety Law implements different limitation periods depending on the category of offence. (S.232)
Finally, it is the responsibility of the workplace to ensure that compliance in achieved, not only for regulation sake but also to ensure that workers have the reassurance that they are cared for and adequate safety measures are implemented keep all safe.
Industry Regulators can only do so much through proactive and reactive responses it is the responsibility of the workplace to ensure that period inspections, audits and safety implementation practices and communication in achieved which in turn shows the regulators that you are proactive with safety and also creates a positive safety culture within your workplace.
It is good practice to use external parties such as us, to review you safety systems, in order to verify that they are adequately implemented or to provide corrective actions as a preemptive response in assisting your workplaces duty within safety.
Want to see how our safety consultants are able to provide support to your organisation?
Weather you need inspections & Audits, Management System review or development or even ongoing HSE Labour Hire, we have you covered with all aspects of Work Health and Safety.
