Executive/Senior Manager - Legislative obligations
Further information
Revised draft 26 November 2010The WHS Act
The WHS Act is not significantly different from the previous OHS laws. Much of it is based on policies that are common to many jurisdictions.
The intention is for each jurisdiction to enact the model provisions, subject to permitted minor variations required to ensure the model provisions are workable in each jurisdiction and interact effectively with local laws without affecting harmonisation.
When the harmonised work health and safety laws are in place across Australia it will be easier for businesses and workers to comply with their work health and safety responsibilities. The requirements will largely be the same, regardless of how many states and territories they operate in.
See the Harmonisation process and the Intergovernmental Agreement for Regulatory and Operational Reform in OHS (IGA).
Duty holders and duties
PCBU
The principal duty holder is a ‘person conducting a business or undertaking’ and replaces the term ‘employer’. PCBUs include the Commonwealth, Commonwealth authorities, non-Commonwealth licensees and principal contractors. In some cases, an analysis may be necessary to understand who is a PCBU in a particular factual context under the WHS laws.
The duty imposed on a PCBU is probably the most significant conceptual change from the majority of previous OHS Acts. For the public sector, it means that every activity that could give rise to a risk is captured, both policy and operational.
This change ensures the WHS Act coverage extends beyond traditional employer/employee relationships to include new and evolving work arrangements and risks.
The WHS Act also places specific upstream duties on PCBUs who carry out specific activities, including:
- persons with management or control of a workplace/fixtures, fittings and plant
- designers, manufacturers, importers, suppliers and PCBUs that install construct or commission plant or structures.
Duties extend to any PCBU who is contributing to work has a duty of care. This can be more than one duty in relation to specific activities
‘Volunteer association’ (as defined) is not treated as a business or undertaking.
Officer
An officer is a senior executive who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking. Officers have a duty to be proactive and continuously ensure that the business or undertaking complies with relevant duties and obligations.
The scope of an officers’ duty is directly related to the influential nature of their position. Continuous examination and care is required to ensure that the resources and systems of the business or undertaking are adequate to comply with the duty of care required under the WHS Act. This also requires officers to ensure that delegations are working effectively. Where the officer relies on the expertise of a manager or other person, that expertise must be verified and the reliance must be reasonable.
The intention of the officers’ duty is to ensure engagement and leadership by officers in WHS management. This supports sustainability and improvement in WHS performance.
What is required of an officer should be directly related to the influential nature of their position. This is because the officer governs the PCBU and makes decisions for management. Continous examination and care is required to ensure that the resources and systems of the PCBU are adequate to comply with the duty of care required by the PCBU. This also requires ensuring that they are performing effectively. Where the officer relies on the expertise of a manager or other person, that expertise must be verified and the reliance must be reasonable.
Due diligence
Officers have a duty to exercise ‘due diligence’ to ensure that the PCBU complies with any duty or obligation. An officer must have high, yet attainable, standards of due diligence. These standards should relate to the position and influence of the officer within the PCBU.
In exercising due diligence, an officer must:
- take reasonable steps to acquire and keep up-to-date knowledge of work health and safety matters
- gain an understanding of the hazards and risks associated with the nature of the operations
- ensure that the business or undertaking has appropriate resources and processes to enable hazards to be identified and risks eliminated or minimised
- ensure that the business or undertaking has appropriate processes for receiving and considering information about incidents, hazards and risks and responding in a timely way
- ensure that the business or undertaking implements processes for complying with its duties and obligations.
Consultation
Executive and senior leaders should promote and foster open lines of communication and consultation with workers. This can be achieved by:
- creating and nurturing joint partnerships with:
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- workplace work groups
- HSRs and employee representatives
- other involved PCBUs
- ensuring effective consultation processes are built in to the business through its systems, policies and procedures
- engaging with workers by being visible and open to feedback and ideas.
Paying attention requires a deep form of listening and genuine dialogue:
- Listen: deep, still and generous listening will move groups.
- Ask the tough questions and raise issues being avoided.
- Be personal and drop your mask.
- Deeply connect with your team so you are not outside the group or either above or in front manipulating them.
- Help your team to connect to core values and purpose.
- Help your team to confront conflicts, hidden agendas and contradictions in values.
- Let yourself be inspired and inspire.
- Tap into your intuition and creativity.
- Build your credibility with your team through the value you're offering them.
Notifications to the regulator
PCBUs are responsible for ensuring the regulator is notified for certain serious injuries or illnesses that arise out of work and dangerous incidents that occur at a workplace. An open reporting culture makes it safe to admit, report and learn from incidents. This content coexists with high standards of performance.
A PCBU must notify immediately once they become aware of a notifiable incident by the fastest possible means.
The executive/senior leaders will need to review their internal incident notification systems/procedures to ensure compliance under the WHS laws. It is often the executive and/or senior leaders who set the internal reporting directions in consultation with their WHS practitioners and middle managers.
Investing in hazard and incident reporting systems won’t reduce injuries and premiums unless the information is properly analysed. Research shows human factors significantly contribute to 80–90 per cent of all incidents. A reporting and tracking system that methodically analyses risk with a specific focus on human factor breaks down general risks into specific risks.
Having clear, effective and workable reporting processes will enable the PCBU to meet their obligations to notify the regulator within the requirements of the WHS laws. Leaders must ensure all workers are aware of their need to report incidents through the internal policies and procedures and not disturb an incident site until an inspector attends the site or advises otherwise.
See Strategies for Learning from failure, Amy C Edmondson (Harvard Business Review - April 2011).
Union right of entry
For the first time in the Commonwealth jurisdiction unions will have right of entry for health and safety purposes. The WHS Act confers rights on a person who holds an office in, or is an employee of, a union (WHS entry permit holders) to enter workplaces and exercise certain powers while at those workplaces.
There are certain requirements of WHS entry permit holders who are exercising or proposing to exercise a right of entry.
A WHS permit holder may do any of the following on entering a workplace to inquire into a suspected contravention:
- inspect any thing relevant to the suspected contravention including work systems, plant, substances etc
- consult with relevant workers or the relevant PCBU about the suspected contravention
- require the relevant PCBU to allow the WHS entry permit holder to inspect and make copies of any document kept at the workplace or accessible from a computer at the workplace that is directly relevant to the suspected contravention other than an employee record
- warn any person of a serious risk to his or health or safety emanating from an immediate or imminent exposure to a hazard that the WHS entry permit holder reasonably believes that person is exposed to.