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Executive Senior Manager - Legislative obligations
Under the Work Health and Safety Act 2011 (WHS Act), the principal duty holder is a ‘person conducting a business or undertaking’, which replaces the term ‘employer’. PCBUs include the Commonwealth, Commonwealth authorities, non-Commonwealth licensees and principal contractors. In some cases, there may be multiple PCBUs who share responsibilities 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.
Broadening the responsibility from employer to PCBU means that WHS Act coverage extends beyond the traditional employer / employee relationship 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.
Any PCBU who is contributing to work has a duty of care, and there can be more than one duty in relation to specific activities.
Note that a ‘Volunteer association’ (as defined in section 5(8) of the WHS Act) is not treated as a business or undertaking.
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.
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 their organisation.
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.
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:
- workplace work groups
- HSRs and worker 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:
- Ask the tough questions and raise issues being avoided.
- Be personal and drop your mask.
- 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.
- 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 creates a workplace where it is 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.
Union right of entry
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 anything 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.