ON April 8 the Western Australian Government introduced its long-awaited amendments to the Occupational Safety & Health Act into Parliament.
The proposed changes are significant and far-reaching.
Many of the recommendations in the Laing Report have been included.
The duty of care in the workplace has been enlarged to cover not only those traditionally considered "employees" but also those the bill deems as employers:
p Those conducting "trade or business" where that person has the capacity to exercise control;
p A person who pays another to have work undertaken;
p The labour hire entity where it has the capacity to exercise control; and
p The host employer where a person is placed by a labour hire entity where it has the capacity to exercise control.
Actual control is not necessary. Agreements attempting to circumvent these provisions will be void and ineffective.
The bill not only extends who is considered an employer but also who is considered to be an employee – essentially extended to persons working for another for remuneration.
It would be prudent for employers to review their contractual arrangements with independent contractors, dependent contractors and labour hire providers to ascertain how, and if so, by what means those arrangements can be varied or terminated so employers are not disadvantaged when (and if) the proposed changes become law.
Is the employer’s Occupational Safety Health Management System in place? Is it current? How, if at all, does it correspond with the OSHMS of your contractors, labour hire providers and others?
When did the employer last cause an independent safety compliance audit to be undertaken? Have its results been acted on? What, if anything, do employers know about the safety compliance audits of their contractors or labour hire providers?
The amendments also introduce new penalties.
The maximum penalty for an employer who is a body corporate where death or serious harm has resulted and "gross negligence" is involved, is $500,000 for a first offence and $625,000 for a subsequent offence.
The maximum penalty for an individual who is not an employee (for example, a director), where due to that person’s "gross negligence" an employee has been seriously harmed or killed is $250,000 and two years imprisonment for subsequent offence.
"Gross negligence" is where the person knew that a contravention would likely cause death or serious harm to an employee but the person failed to act, or acted, in disregard of that likelihood and then the contravention resulted in death or serious harm.
Directors and Officers liability policies are not likely to cover any such breaches.
Occupational safety and health representatives, being persons who have completed a "prescribed training course" are given a fundamental role in identifying hazards at the workplace and bringing their concerns to management.
They are entitled to used a Provisional Improvement Notice if of the opinion that an employer has contravened, or is contravening, the occupational safety and health laws and is likely to continue with or repeat that contravention and suggest remedial action.
Non-compliance with a PIN is a statutory offence.
The bill recognises the potential for abuse of these powers but has very limited built in controls – preferring to see how effective the system is before placing limits on them in foreshadowed regulations.
It would be prudent for employers to review the qualifications and experience of current OS&H representatives at the workplace and identify suitable courses for their attendance.
The bill provides that employer is responsible for the cost of these courses and associated out-of-pocket expenses and wages to cover the attendance at these courses.
Employers are now required to investigate an unsafe situation that has been reported, decide action he or she intends to take and report all this to the employee who notified the complaint.
This is to be done within a "reasonable time".
Failure to investigate constitutes an offence.
As a result, employers must ensure that their processes enable the identification, investigation and tracking of such complaints.
A Commissioner of the WA Industrial Relations Commission will be appointed to hear and determine all occupational safety and health matters including:
p The appointment of safety and health representatives and their committees;
p Non-payment of ages where employees have refused to work;
p Alleged discrimination against safety and health representatives; and
p Prosecutions for breach of the act.
Such a move is a recognition that OS&H is a workplace issue that needs to be dealt with by a specialised tribunal dealing with a wide array of workplace issues.
But it may serve to blur the previous distinction between industrial issue (usually involving unions) and a safety issue.
Time will judge whether this will serve the best interests of all stakeholders.
Maria Saraceni, partner
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