Understanding the Work Health and Safety Act 2011 is crucial to the productivity and longevity of any Aussie business.
The Act itself is an incredibly long 233 pages, which means most people haven’t read it. We get it. So we’ve done the hard work for you.
Over a series of posts, Pegasus will be explaining the Act and what it means for you – in simple, practical terms that will help you comply and stay on the right side of the rules.
In part one, we covered The Basic – What Is It? Today we take a look at the various duties outlined in the Act and what they mean.
It’s important to remember this post does not constitute legal advice, and shouldn’t be relied upon as such. Compliance with this post doesn’t mean your business will have satisfied all WHS requirements.
Part Two: The Details – What Is Your Duty?
In a nutshell
Everyone is responsible for behaving in a way that eliminates or minimises risks to their health and safety, or that of others. Basically, don’t be a turkey.
Let’s take a look
From employers to workers, we’re all responsible for making sure our workplace is a safe place. The difference is the duty of care at each level which are split up into primary duty, upstream duty, officer duty, and worker duty.
Tip: While you can’t transfer your duties to someone else, you can have more than one duty.
Primary Duty
This is the responsibility of the employer—or in the terms of the Act, the person conducting a business of undertaking. It’s about providing a work environment that presents minimal risks to the health and safety of workers, as far as is reasonably practicable.
Here are some practical examples to help meet a primary duty:
- Safe plant, buildings, and systems of work
- Safe handling procedures
- Access to appropriate facilities to carry out work
- Adequate training for workers
Self-employed? You’re covered under primary duties. You still have a responsibility to ensure health and safety – even when you work for yourself.
A refresher of what is reasonably practicable in this context
Eliminating or minimising the risk of injury in the workplace. This happens after various factors such as the likelihood and severity of an apparent risk, what it would take to control it, and weighing it against the costs associated with eliminating or minimising it.
Upstream Duty
You will have additional duties—also known as upstream duties—if:
- You’re responsible for managing fixtures, fittings or plant;
- You design, manufacture, import or supply plant, substances or structures;
- You install, construct or commission plant or structures.
If the above applies, you need further information specific to your obligations as you need to ensure that the physical structure of the workplace won’t harm the health and safety of workers.
Officer Duty
Officers must exercise due diligence to ensure people comply with their duties and obligations under the Act. Officers may include, but aren’t limited to, executives or directors.
Officer duties include but aren’t limited to:
- Reporting notifiable incidents
- Consulting with workers
- Ensuring compliance with notices issued under the Act
- Providing training and instruction to workers about work health and safety
- Ensuring health and safety representatives are trained
What is due diligence in relation to work health and safety duties?
Due diligence includes reasonable steps to:
- Have up-to-date knowledge of work health and safety matters;
- Understand hazards and risks in the workplace;
- Ensure people have access to appropriate resources and processes to eliminate or minimise health and safety risks;
- Have a process in place for reporting incidents, hazards and risks, and an appropriate response time;
- Implement processes for complying with duties and obligations in relation to the Act
Worker Duty
As with all other duties, worker duties can mostly be summarised by two actions:
- Take reasonable care of your own health and safety
- Make sure you don’t adversely affect the health and safety of others
This extends to:
- Complying with instructions from your employer in relation to the Act
- Cooperating with policies or procedures relating to work health and safety
Workers have the right to stop or refuse to carry out work if they have reasonable concern that they may be exposed to serious risk.
If this happens, workers should be redirected to different work until the issue is resolved.
Other Duties
Additional duties apply to visitors.
When visiting any workplace, you should:
- Look after your own health and safety
- Act in a way that doesn’t adversely affect the health and safety of others
- Follow instructions relating to health and safety
The exception
When it comes to duties, some of the more common exceptions (but not all) apply to volunteers, volunteer associations, and unincorporated associations. Volunteers can’t be prosecuted for non-compliance with health and safety duties, other than in their capacity as a worker or visitor. Volunteer Associations are excluded from primary duties for the purposes of the Act. Unincorporated Associations are excluded and cannot commit an offence, but that does not mean there is no other potential liability.
The exception to the exception (you read that right): an officer or worker of an unincorporated association is still liable under the Act unless they’re a volunteer.
All such organisations and their officers should obtain advice about their particular structure and their rights and obligations.
Okay, now I have the details. How do I make sure everyone is doing the right thing?
In our experience, all organisations benefit from clear WHS policies which are both available and communicated to workers. How can you uphold your duties unless you’re familiar with them?
Every person, from management level to worker, needs to understand their roles and responsibilities in keeping the workplace safe.
Here’s are some ways which may assist you in doing this:
WHS Policies
You need a WHS policy. Not only does it fulfil your legal obligations, it provides a central location for your workers to understand their duties.
These policies state your intention to provide a safe and healthy workplace, and how you plan to do this through objectives and targets. It’s important to acknowledge you understand your legal duties and that you will comply with them in relation to the Act.
Your WHS Policy needs to be signed by the company director, and be regularly updated to reflect current practices.
As we touched on in our previous post, the Pegasus Safety Management System (SMS) Knowledge Base is a great resource and includes example WHS policies for general organisations and for sole traders. We’ve got decades of experience in reviewing these for our clients, we can help make sure your policy is correct, clear and meets the mark. Every organisation will have unique needs and requirements.
Systems of Work
Systems of work is all about procedures—and lots of them. They’re generally step-by-step instructions which help workers carry out routine operations at your business. How many and the kind of procedures you need will depend on the work you’re in, and again the Pegasus SMS Knowledge Base and Auditing team are a great resource here.
Our clients often ask contracting companies to provide these documents as part of Company Pre-Qualification to work for them.
Systems of work can include, but aren’t limited to:
- Management of Incidents
- Emergency Management
- Personal Protective Equipment (PPE)
- Fatigue Management
- Drugs & Alcohol Policy
- Confined Space work
- Hazardous Substances & Dangerous Goods
- Asbestos
- Dust Control, Gases and Vapors
- Energised electrical Installations or Services
- Hot Works
- Lock Out, Tagging and Isolation
- Noise Management
- Plant & Equipment
- Working at Heights
- Demolition
- Gas Distribution Mains or Piping
- Structural Alterations
- Telecommunications Infrastructure
- Tilt-up or Precast Concrete
- Traffic Management
- Tunnels, Shafts or Trenches
- Chemical, Fuel or Refrigerant Lines
Work Health and Safety Training
There is where a Learning Management System (LMS) is about to become your new best friend. Training is critical in providing support to your workers. You also need to be able to prove your workforce is trained to meet your health and safety obligations.
In the Pegasus LMS, workers can complete inductions and training tied to safety outcomes and legislative requirements. By running a simple report, you have access to data and evidence about the training your workforce has, and, critically, any training they’re missing.
The above systems of work can be set as competencies against work roles in the Pegasus platform which a worker will need to complete to work for you.
This simple risk management process may help you comply with the Act and assist in keeping your workforce safe on site.
Examples of internal training can include:
- Incident management training
- SWMS training
In the next post of this series, we’ll be looking at how your business can enact their duties in relation to the Act.
The contents of this blog post do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Putting in place the discussed policies in this post will not guarantee your WHS compliance. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.
