Have you got your ‘Act’ together?

The harmonised safety laws across Australia are one step closer to becoming a reality and will bring about significant changes to the construction industry. With only six months to go until the new laws commence operation on 1 January 2012, businesses have a limited timeframe to become familiar with the new Workplace Health & Safety Act and regulations that will replace the current laws.

Key issues for the construction industry

While this article cannot address all the changes under the new laws, some of the most significant changes are discussed.

Greater duty of care

One of the most significant changes that construction businesses should pay particular attention to is the expanded duty of care under the new laws. This will be a change to all businesses other than those operating in Queensland. The new duty is owed by any “person conducting a business or undertaking” (PCBU) to workers whose activities are influenced or directed by the PCBU.

Construction businesses may be particularly exposed to a wider interpretation of what constitutes the extent of their ‘undertaking’ and therefore expand the pool of persons who are owed a duty of care. If your business engages contractors, your business will owe a duty of care to the relevant contractors, any subcontractors that the contractors engage as well as their employees. This is because they will all arguably be considered to be working as part of your ‘undertaking’.

Consultation

The new requirement to consult with ‘workers’ and not just ‘employees’ will impose additional obligations on those operating in the construction industry. This is because, as in the above example, consultation and coordination regarding safety will now extend beyond your own employees to other contractors’ employees and potentially any subcontractors and their employees. Businesses will need to assess their current practical and contractual arrangements to see whether they are adequate to comply with this expanded requirement.

The starting point will be to consider the current consultation arrangements that are in place to see whether they can be adapted to deal with the new requirements. For example, in the case of existing construction projects or standalone businesses with processes such as safety and project committees already in operation, consideration will need to be given to whether these comply. In the case of new projects or developments, then different consultation structures may need to be implemented from those contained in any existing safety management system.

The other important element is the extent and level of consultation and coordination required. The law provides that it must be done as far as “reasonably practicable”. This suggests that each organisation involved in any undertaking must assess the extent of its resources to be able to be involved in ongoing consultation. For example, clear guidelines will need to be established at the commencement of any new development or construction project to deal with contractors who may have only limited interaction with your business. It will be critical to determine where responsibility for consulting on safety issues will lie and ensuring an ongoing process of review is undertaken.

Greater intervention at your workplace

Another key impact will be the increased opportunity for the safety regulators and unions to access your workplace. The new laws provide a number of different avenues for the regulator to be invited to your organisation. These include disputes over safety committees, work groups and right of entry.

Similarly, although the right to commence a prosecution will no longer be available to a union in NSW, there will be greater scope for a union to become involved in your organisation under the new laws. In particular, there will be a general union right of entry to consult and advise workers on safety issues as well as a right of entry for the purpose of resolving health and safety issues.

The appointment of a health and safety representative (HSR) with rights to issue Provisional Improvement Notices and direct that work cease will be new to most jurisdictions. An HSR will have the right to request the assistance of any person, including a union official, in the conduct of their duties. The issue for construction businesses is how they will deal with the prospect of greater intervention. An assessment will also be needed of the industrial impact that HSRs will present, particularly in those jurisdictions where HSRs do not currently hold these powers.

New regulations

Nearly every regulation that currently exists within jurisdictions across Australia will be modified slightly such that businesses in the construction industry will bear significant costs in assessing compliance with the new Regulations. Similarly, new Codes of Practice are being introduced. Some of the key areas of change that construction businesses will need to consider include the following:

• Representation and participation - The establishment of work groups, election of health and safety representatives and WHS entry permit holders’ rights will be modified for all jurisdictions.
• Construction work - Chapter 6 of the Regulations deals specifically with construction including the construction induction training. The appointment of a Principal Contractor and the requirement for safe work method statements for high-risk construction work is contained in the Regulation.
• Demolition work - Requires a safe work method statement but there are no specific requirements for demolition licensing. Businesses must also notify the regulator of any excavation work where the excavation is more than 1.5 metres high and is capable of allowing a person to enter or there is a risk of injury from a fall or a dislodgement of soil or rock.
• High-risk work - There will be new licensing for high-risk work such as scaffolding and rigging and the use of cranes, hoists, lifts, forklifts and pressure equipment. There will no longer be high-risk work licences required for front end loaders or excavators.
• Electrical work - Requirements for controlling electrical hazards at the workplace, dealing with unsafe electrical equipment, testing and tagging, and work on ‘live’ energised electrical equipment are covered under the new Regulations. Any ‘live’ work must be conducted in accordance with a safe work method statement and a safety observer competent in emergency procedures must be present.

Preparing for the change

The introduction of uniform safety laws across Australia presents many challenges for the construction industry both in assessing the scope of the changes and the practical impact on operating in that industry. Steps that your business can now take include:

• Review the new safety laws
• Assess the key areas that will impact your business
• Undertake a gap analysis of your current OHS management system and contractual arrangements
• Amend or update contracts, policies and procedures
• Train contract administrators, managers and staff on new obligations, systems and policies
• A user’s guide to the practical aspects of the Workplace Health & Safety Act is available at: http://www.holdingredlich.com.au/assets/docs/Holding-Redlich-Model-Work-Health-Safety-Bill-A-Practical-Users-Guide.pdf.