Don’t Get Caught in the Past – WHS Regulations and Codes Released

As our readers would already be aware, OHS / WHS harmonisation was a big topic in the lead up to Christmas 2011.  However, with minimal fanfare the new laws are now in force in NSW, QLD, ACT, NT and at the Commonwealth level.

In NSW, the Work Health and Safety Act 2011 (NSW) (“WHS Act”) and accompanying Work Health and Safety Regulation 2011 (NSW) (“WHS Regulations”) and Codes of Practice now provide further clarity regarding how the national Model Work Health and Safety Laws will be applied in the NSW jurisdiction.

Passed just before Christmas and effective from the start of 2012 the WHS Regulations and Codes of Practice apply to employers / persons conducting a business or undertaking (“PCBU”) already, whether they are understood or not.

Although the WHS Regulations deal with such areas as hazardous materials, construction and asbestos (to name but a few) there are some areas in the WHS Regulations and even Codes of Practice which apply to all businesses, regardless of size or industry.  These include:

• Management of risks to health and safety.  Not only set out in the Regulations, this also forms a separate Code of Practice.  PCBUs need to be careful of evaluating the small and big risks, as a Queensland employer found out with a recent $80,000 fine.
• Workplace entry by WHS entry permit holders.
• Further information on consultation provisions and a separate Code of Practice.
• Hazardous manual tasks – in the WHS Regulations and forming a separate Code of Practice, PCBUs need to be aware that the risk management principles require elimination of risks wherever possible and not just teaching people how to lift properly – a fact recently emphasised by the Queensland WHS Regulator.

Employers, and anyone classified as a company ‘officer’ have a duty to ensure they understand the Codes of Practice (which provide minimum standards for safety) and WHS Regulations relevant to their business(es), and how they apply to their workplace and their workers.

Staying up to date

Set out below are some tips of how to keep on top of the new laws.

• Visit your State or Territory WHS Regulator’s website (eg WorkCover NSW) to access the relevant WHS Regulations and Codes that have been released.
• Undertake an audit of your current systems.  Even if you did one previously using the Model Act, it is a good idea to check that everything is in line, now the WHS Regulations are available.
• Get advice, both legal guidance as well as consulting a WHS specialist to assess any practical as opposed to legal risks.
• Assess who is a company officer.  It is also crucial to provide training for officers and directors regarding their exposure and due diligence obligations.  There is a lot to take in now and they will be held responsible if something goes wrong.
• Keep up to date.  There are still more Codes to come throughout 2012, including on workplace bullying and first aid, so keep abreast of any developments.

For further information please contact either bertonl [at] kempstrang [dot] com [dot] au (Lisa Berton), partner or urryb [at] kempstrang [dot] com [dot] au (Ben Urry), senior associate.