Building Manager Review Issue 10 2014- Dealing with WHS legislation in Australia

Issue 10 – April 2014

Welcome to the April edition of the Building Manager’s Review (apologies in the delay in sending, but there were technical issues with the newsletter media software)

In this edition I will be dealing with WHS issues.
Work health and safety (WHS) legislation in Australia aims to prevent injury and disease to persons in the workplace. Safe Work Australia has reported that “as at 17 April 2014, 55 Australian workers have been killed while at work”. In 2011/12 there were 128,050 workers compensation claims reported for serious injuries in the workplace.
We all go to work expecting to come home in the same physical and mental state as we were when we left for work – i.e. not physically or mentally broken or abused. Owners corporations, executive committees, strata and building managers have a duty of care to ensure the buildings we manage are safe and secure for contractors, residents and guests.

What is WHS?

Work health and safety (WHS) legislation in Australia aims to prevent injury and disease to persons in the workplace.Importantly, a number of Australian jurisdictions have ‘harmonised’ their legislation from 2012. Harmonised legislation means that each jurisdiction enacts its own legislation, but the legislation is as much alike as possible in its provisions.Common to all WHS legislation in Australia are the following features:
  • support for WHS in the workplace
  • provision of systems of work that are safe and without risk to health
  • prevention of injury and disease through the elimination or minimisation of risks
  • protection of the general public’s safety and health
  • workplace representation, consultation, co-operation and issue resolution
  • inspectors
  • regulations
  • enforcement.
 
Probably the most important principle in the harmonised legislation, from an employment-related perspective, are the ‘duties’ which are placed on ‘persons conducting a business or undertaking’ (PCBU) to provide a safe place of work for workers and other persons, so that they are not put at risk from work carried out as part of the conduct of the business or undertaking. In the non-harmonised jurisdictions this duty is primarily upon the employer and not the broader category of ‘PCBU’.
 

The term ‘PCBU’ includes a broader category of entities, including sole traders, principal contractors, unincorporated associations, partnerships and franchisees as well as those traditionally considered to be employers. Self-employed people and volunteer organisations that employ people are also PCBUs under the WHS legislation. The PCBU is the business entity conducting the activities of the business or undertaking, rather than individuals employed by that entity to undertake certain tasks. Thus, senior managers and directors would generally be considered ‘officers’ under the WHS laws, rather than PCBUs.

PCBUs ‘involved in the management and control of workplaces’ also have duties under the WHS Act, as well as PCBUs ‘with management or control of fixtures, fittings or plant’ at a workplace. PCBUs who design, manufacture, import or supply products also have duties, as do PCBUs who install, construct or commission plant or structures.

 
The following link is to the Guide to the Work Health and Safety Act, which is a very good read – http://www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/717/Guide-to-the-WHS-Act.pdf I also suggest you read Work Cover’s frequently asked questions.
 

WHS Duties for “Workers”

 

Defining “Workers”

With the introduction of the WHS Act 2011 (the Act), the definition of a worker has been broadened. Under the Act a person is a worker if they carry out work in any capacity for a Person Conducting a Business or Undertaking (PCBU), including work as:

a) an employee, or
b) a contractor or subcontractor, or
c) an employee of a contractor or subcontractor, or
d) an employee of a labour hire company who has been assigned to work in the person’s business or
undertaking, or
e) an outworker, or
f) an apprentice or trainee, or
g) a student gaining work experience, or
h) a volunteer, or
i) a person of a prescribed class.

 

Common law

Employers also have an underlying common law obligation to protect their workers from disease and injury at work. Failure to do so results in the common law tort of negligence.

Complying with a WHS duty

Generally, compliance with a safety duty to workers and others will include:

  • proper training of all workers, including advice, information, education and formal training
  • adequate supervision
  • identifying, assessing and controlling (by removal, isolation, substitution or risk reduction) all potential hazards and risks at the workplace — this includes work processes and work systems and is widely referred to as ‘risk management’
  • safe and appropriate work equipment
  • developing and issuing WHS policies that promote safe practices generally and encourage a ‘safety culture’ at work
  • regular inspections and audits of the workplace, preferably in consultation with employees.
 

Common law duties


As well as the legislative requirements outlined above, employers have a common law duty to manage all foreseeable risks of injury at work and to provide:

  • competent staff (which means attention to training them and ensuring they have permits/certificates to use certain equipment or machinery where they are required)
  • sufficient workers to perform the work safely
  • a safe place to work and safe work systems/methods, and
  • proper and safe work plant, equipment and resources.


Duties of workers


Not all WHS responsibilities rest with the PCBU. The harmonised legislation requires workers to take reasonable care of their own safety and health (and that of others), to work safely and follow safety procedures and rules, to report any WHS hazards or other problems to the PCBU, and to cooperate with WHS inspections, investigations and training.

‘Other persons’ are not necessarily other workers — they can be contractors, members of the public or any person who is present at or near the workplace.

 

Contractors


Under harmonised work health and safety laws, contractors engaged to undertake work for a business or undertaking are considered to be workers of the person conducting the business or undertaking (PCBU). PCBUs therefore have the same duties toward contractors (and employees of contractors) as they have towards their own employees and other workers at their business or undertaking.
Because a contractor is a PCBU to his or her own workers, a contractor’s duties to those workers are the same as the PCBU’s duties to workers.Individuals may have more than one role, e.g. a contractor could be a PCBU to his or her staff and a worker for another PCBU. Similarly, more than one PCBU could have obligations regarding the health and safety of particular workers, for example, labour-hire workers could be owed health and safety obligations by both the labour-hire company and the host employer.
General types of WHS issues (but not limitied to) are:
  • air quality
  • site inductions
  • lighting
  • surfaces – slippery, uneven, loose, etc
  • working at heights
  • heavy lifting
  • evacuation
  • electrical
  • chemicals – liquid, powders, radioactive, etc
  • confined spaces
  • abuse – mental & physical
  • fire issues
  • noise
  • hours of work
  • planning – safety, emergency, training, risk, procedures, etc
  • cleaning
  • maintenance & repairs
  • vehicles
  • tools
  • first aid
  • protective wear
  • licensing
  • insurance
  • age
  • experience
  • public
  • rehabilitation
  • work place – hard & soft surfaces, open & closed areas
  • chairs
  • signage
  • support
 

Where can I go for more information?


The following websites provide detailed information about the new WHS Act and the changes in
legislation.
http://www.workcover.nsw.gov.au/Pages/default.aspx
http://safeworkaustralia.gov.au/Pages/default.aspx
 
I hope the following helps you understand a little more about WHS.
Jamie Killorn – Director, K&S Building Management Services
Have a question you’d like answered or feedback on this or past Reviews?

Just get in touch

K&S BMS has now been working in the strata sector for 30 years. Our services are designed to assist owners corporations with the smooth running of their buildings. Duties we undertake include: by-law enforcement, coordinating repairs and maintenance, assisting with building defects issues and claims, coordinating fire and essential service compliance, managing various maintenance contracts, liaising with owners and tenants in the day-to-day operation of their building, and waste management.
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