Home Building Tips for Builders in NSW
New OHS Laws come into effect from 1 January 2012
From 1 January 2012, new changes will be introduced to the Occupational Health and Safety Act 2000 (NSW) to make it consistent with the model Work Health and Safety Act that each state has agreed to implement. The changes will mean that OHS laws in each state across Australia will be the same.
This E-News Bulletin summarises the main changes that will come into effect next year.
Broadening of obligations
Old laws
OHS laws created obligations on employers and principal contractors to ensure the health, safety and welfare at work of their employees and / or contractors.
New laws
The new laws will place various duties upon any “person conducting a business or undertaking”, which will mean that the duty will be broadened to cover not only employees and contractors, but also labour-hire workers, apprentices, trainees, and work experience students.
Furthermore, the duty to consult about OHS matters will be changed, so that consultation will be required with “workers” (including the above types of people), rather than just “employees”.
Change in onus of proof
Old laws
Employers and
principal contractors had a strict duty to ensure health and safety in the workplace, subject to a limited defence of reasonable practicability. This meant that if a person was injured or killed at the workplace, an employer or principal contractor was automatically guilty unless they could prove otherwise.
New laws
The onus will now be on the prosecution to establish that the employer or principal contractor did not take all reasonable practicable measures to prevent the risk to health and safety occurring.
The prosecution will now be required to set out what the employer or principal contractor could ‘reasonably’ have done to prevent the risk to health and safety.
The new laws will be consistent with the concept of ‘innocent until proven guilty’.
Requirement of due diligence
Old laws
Although employers and principal contractors were previously required to have in place systems of risk management, penalties for failing to have such systems in place were not commonly imposed unless an incident occurred at the workplace.
New laws
Directors / secretaries of a corporation, or partners in a partnership, are now required to carry out due diligence (explained below), and such persons may be liable for failing to do so even if the business itself complies with the law or even if no safety incidents occur in the workplace.
In relation to ‘due diligence’, such persons must take reasonable steps:
- to obtain and keep up-to-date knowledge of OHS matters
- to understand the nature and operations of the relevant trade, business or undertaking and the associated risks
- to ensure that the business has processes for receiving and considering information about incidents and hazards and responding in a timely manner
- to ensure that the business implements and has in place appropriate processes for complying with the law generally (for example, consultations and training).
Summary
Builders should familiarise themselves with the new OHS laws to ensure that they remain compliant and maintain a safe workplace.
More information will be distributed by HBBC once it becomes available.
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