Middle Manager - Legislative obligations
Further Information
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Summary of the Model Work Health and Safety Bill [pdf]
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Model Work Health and Safety Act
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Model Work Health and Safety Laws Fact Sheet
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Summary of the Model Work Health and Safety Act
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Explanatory Memorandum – Model Work Health and Safety Act
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What is 'Model legislation'?
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Who can be a HSR?
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How many HSRs can represent a work group under the draft WHS Act?
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Health and safety representative: a guide for HSRs in the Commonwealth jurisdiction
The WHS Act
The WHS Act is not significantly different from many 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 that are needed 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 PCBU's and workers to comply with their work health and safety responsibilities because the requirements will largely be the same, regardless of how many states and territories they operate in
What’s changed in the WHS Act from the previous OHS Act?
Harmonised occupational health and safety laws have long been recognised as a critical area of regulatory reform. In July 2008 the Council of Australian Governments signed an Inter-Governmental Agreement that established the commitment of the Commonwealth, States and Territories to adopt uniform WHS laws by the end of 2011. The WHS laws are complemented by nationally consistent approaches to compliance and enforcement.
There are some important changes to the WHS Act that managers should understand and promote to their workers. These include:
- New terminology e.g Work Health and Safety replaces Occupational Health and Safety.
- The introduction of the term workers replacing employees. Workers will include contractors, volunteers etc. Required Action: Managers will need to ensure that the broader term of workers is applied to how they communicate and consult.
- Broader consultation requirements e.g. who needs to be consulted, when and to what extent. Required Action: Managers will need to ensure that they actively participate in and encourage open and meaningful consultation with workers.
- The addition of a new ‘officer’ duty holder. It is unlikely that managers will meet the definition of an ‘officer’.
- Enhanced and changed duties on most duty holders, however the duties on workers remains essentially unchanged.
- Changes to the potential numbers of HSRs and deputies in a work group and who can be a HSR. Required Action: Managers need to be aware of the potential increase in HSRs in a single work group and that they may need to broaden who they consult with.
- Changes to how the regulator is notified of incidents in the workplace – notifiable incidents are now required to be notified to the regulator immediately. Required Action: Managers will need to ensure that their workers comply with this duty by reporting all incidents as per any internal policy or procedure.
How will the WHS laws affect me in my role as a manager?
The WHS laws do not essentially change the overall role of managers in a workplace. As a manager you already play an essential role as a mentor, leader and communication channel for workers in your workplace.
Your role under the WHS laws will continue to be one where you lead, guide and support workers to understand and adhere to all heath and safety policies and procedures as well as supporting assisting other duty holders to meet their WHS legislative obligations. Managers are also a key link between the WHS practitioners and workers.
Managers will need to ensure that workers are consulted and involved in any health or safety matter that will, or may, affect them. Workers should be given the opportunities to raise issues or provide ideas and feedback to you as their manager or through the WHS practitioners and senior leaders.
For further information refer to Health and safety representative: a guide for HSRs in the Commonwealth jurisdiction.
What do I have to do?
In most cases, managers are already fulfilling their roles under the new WHS law and won’t need to make any substantial changes. The WHS laws offer an opportunity to review how you, as a manager, work, lead and support workers in their daily work activities.
To assess if you are already doing things that will meet the requirements of the WHS laws ask yourself these questions, Do you, as a manager:
- understand, promote and comply with health and safety policies and procedures
- engage with your workers in an open honest and meaningful way to ensure they understand what safety standards are expected of them
- encourage feedback and communication channels between you and your workers and you and senior leaders
- ensure that WHS practitioners and senior leaders are made aware of issues or concerns on safety, especially where you or your workers identify hazards or flaws in any operational procedures
- demonstrate your commitment to health and safety and model safe work practices to your workers
- put into practice what you expect workers to follow, the standard you set is the one they will follow
If you are already doing these things, then it is likely that a majority of your role, as a manager, will not need to change once the new WHS laws come into effect.
Who are the duty holders and what are their duties?
Managers are workers. Managers have the same legislative obligations under the WHS Act as any other worker. Under the WHS Act, a worker includes:
- Employees
- Independent contractors
- Sub-contractors
- Outworkers
- Apprentices
- Work experience students
- Trainees
- Volunteers who work in employment-like setting
The definition of workers is broad and includes any person who works, in any capacity, in or as part of the business or undertaking. The intention is to capture the range of work relationships and business structures within the duty framework.
Volunteer means a person who is acting on a voluntary basis (irrespective of whether they receive out-of-pocket expenses)
- The WHS Act specifically protects volunteers in their capacity as workers
- Ensures that volunteers are not discouraged from participating in community-based activities
- A ‘volunteer association’ (as defined) is not treated as a business or undertaking
All Workers must:
- take reasonable care for their own health and safety,
- Take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons, and
- comply, so far as the worker is reasonably able with any reasonable instruction given by a person conducting a business or undertaking to allow the person conducting the business or undertaking to comply with the WHS Act, and
- cooperate with any reasonable policy or procedure of the person conducting the business or undertaking which relates to work health or safety and that has been notified to workers.
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.
There are additional upstream PCBUs who have duties as designers (not currently captured in current Commonwealth OHS Laws), manufacturers, importers and suppliers of products used in the course of work.
Officer
Who will be regarded as an ‘officer’ under the WHS Act will largely depend on a number of key factors and the unique organisational profile within each business.
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 positive duty to be proactive and continuously ensure that the business or undertaking complies with relevant duties and obligations.
Consultation
Managers 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 worker representatives
- other involved Senior leaders
- ensuring that effective consultation processes are built in to the business through its systems, policies and procedures
- engage with workers by being visible and open to feedback and ideas.
What am I accountable for as a manager?
Actions, or inactions by managers of businesses, are very visible to the workers they lead. All workers in the business have accountability at one level or another.
Every worker at all levels of a business should:
- Take ownership of their own health and safety for those matters within their control or ability to influence.
- Work with colleagues to promote health and safety and ensure that it becomes a part of everyday business
- Contribute to providing quality information that enables the establishment of baseline compliance levels and the measurement of changes in compliance over time. This rich source of information provides a reference point for targeting prevention and better practice initiatives
- Be accountable as an individual to enhance a culture of health and safety within the business
- Ensure that they meet duty of care obligations as required under the WHS laws. Non-compliance can result in a range of regulatory responses, and in some cases, criminal prosecution with substantially increased fines which may include jail sentences.
In addition to the above, managers should also:
- Be accountable for involving and assisting workers in any change management processes.
- Ensure that health and safety is integrated into team planning and does not get downgraded based on competing priorities, budgetary constraints, or a lack of resources.
- Promote and encourage open discussions on health and safety at all levels of the business to ensure that workers can achieve outcomes based on open communication, consultation, negotiation and agreement.
- Establish and promote fair and equitable issue resolution processes.
Right of worker to cease unsafe work
Managers should be aware that a worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to aserious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.
The WHS Act requires workers who cease work to notify the relevant PCBU that they have ceased unsafe work as soon as practicable after doing so. PCBUs are able to re-direct workers who have ceased unsafe work to carry out suitable alternative work at the same or another workplace. The suitable alternative work must be safe and appropriate for the worker to carry out until they can resume normal duties
In the first instance, a worker will more than likely let you, as their manager know of the unsafe work and it will require you to then consider how to provide ‘suitable alternative work’ for the worker to undertake until the issue has been resolved.
Mangers should also:
- Ensure that they inform the WHS Practitioner/Advisor of the situation as soon as possible after becoming aware of the unsafe work. This will assist in meeting the notification requirements placed on the PCBU under the WHS Act and to initiate a risk management processes.
- Undertake an immediate risk assessment of the work area, in consultation with any work group HSR, to ensure that no other workers are affected or at risk and that the risk is contained.
- Communicate and consult with the WHS team (HR) to assist in determining the most appropriate options for dealing with the issue i.e risk controls.
Who is responsible to notify the Regulator for incidents?
PCBUs have the overall duty to notify the regulator for certain serious injuries, illnesses and dangerous incidents that arise out of work performed out of an undertaking of the PCBU. A PCBU must ensure that policies and procedures are in place to enable an immediate notification of a notifiable incident to the regulator.
Managers are an important part of this process and are often the first ones to hear about or witness an incident. They will need to ensure that there is an effective local reporting procedure in place that supports or complies with business polices or procedures. It is often the managers who are tasked to implement reporting procedures and to ensure they are followed by workers.
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. Managers must ensure that all workers are aware of their need to report incidents through the internal policies and procedures and to understand that they must not disturb an incident site until an inspector attends the site or advises otherwise.
See What is a notifiable incident?