In an effort to create consistency in the occupational health and safety laws around Australia, the Commonwealth and each State and Territory have worked together to create the Model Work Health & Safety Legislation which is (or will soon be) adopted by each State and Territory to replace the State based occupational health and safety laws.
On 1 January 2012, the Work Health & Safety Act 2001 (NSW) (“WHS Act”) came into effect and introduced:
The WHS Act focuses around the concept of a “Person Conducting a Business or Undertaking” (“PCBU”). What does this mean?
Section 5 of the WHS Act provides:
“(1) For the purposes of this Act, a person conducts a business or undertaking:
(a) whether the person conducts the business or undertaking alone or with others, and
(b) whether or not the business or undertaking is conducted for profit or gain.
(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.
(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.”
Practically, PCBU includes, amongst others, owners’ corporations, sole traders, unincorporated associations, incorporated entities, partnerships and community associations.
The WHS Act imposes obligations or “duties of care” on a number of different personnel at different levels of a PCBU.
OFFICERS (which takes on a formal meaning as per the Corporations Act 2001 – ie, a director or person who has involvement in the decision making of the business etc) have an active duty to ensure the PCBU is compliant with its various safety obligations. They must proactively stay up to date on work, health and safety matters affecting the business and generate processes to be implemented for compliance with the obligations imposed.
WORKERS AND VISITORS of a PCBU each have positive obligations to take reasonable care for their health and safety whilst at the workplace and to ensure that their actions do not endanger others at the workplace. This is a shift from the old occupational health and safety laws which placed the obligations on the employer.
An owners corporation is exempt from the WHS Act to the extent that it is only responsible for common areas which are used for residential purposes only. This exemption however, may only apply to a very small number of owners corporations particularly where, for example:
As such, most owners corporations, the strata committee members, employees and consultants will be effected by the WHS Act.
One of the effects of the WHS Act is the broadening of the list of people who are responsible for work health and safety issues. One extension of this list is to strata committee members of owners corporations and the imposition of an obligation on them to exercise “due diligence”.
This obligation of “due diligence” includes a requirement to proactively understand the requirements of the WHS Act and ensure that the owners corporation has appropriate measures, plans and policies to comply with those requirements. This means that the strata committee members are required to:
Pleading ignorance is not a defence to non-compliance for strata committee members.
The WHS Act does however draw a distinction between paid officers and volunteers.
For paid officers, obligations to exercise due diligence must be exercised and significant penalties apply for a failure to comply. On the other hand, while volunteers are also required to comply with due diligence obligations, they cannot be penalised for failing to do so. They can however, be penalised for failing to make sure that their actions or omissions do not adversely impact the health and safety of others.
The importance of consultation has been recognised in the WHS Act and has been implemented as a specific obligation on duty holders, that is, any person that holds a specific duty under the WHS Act. Under the WHS Act duty holders (with similar or overlapping duties) must consult, coordinate and cooperate with each other and also with workers. The Act sets out flexible ways in which the consultation may occur. Significant penalties can be imposed for breaches of this requirement.
Union members holding a WHS entry permit may enter a workplace (or in the case of an owners corporation, a building or common property), to advise and assist with WHS Act compliance and/or when a contravention of the WHS Act is suspected. While 24 hours’ notice is required to be provided in the former case, the permit holders can enter without notice when a contravention is suspected. The PCBU must not refuse, delay or hinder the union permit holder. Owners corporations should implement a process to deal with permit holder entries.
Where a serious or dangerous incident occurs, the PCBU must:
The penalties imposed under the WHS Act are applied in accordance with a sliding scale which generally is as follows:
|Category of Penalty||Owners Corporation||Strata Committee Member||Worker or other|
|Recklessness/risk of death or serious injury/illness||$3 million||$600,000 or 5 years jailor both||$300,000 or 5 years jailor both|
|Breach of Duty/risk of death or serious injury/illness||$1.5 million||$300,000||$150,000|
|Breach of duty||$500,000||$100,000||$50,000|
The weight of the penalties reflects the significance of the obligations which are being enforced by the WHS Act.
Some examples of measures that owners corporations may take to address the implementation of the new work health and safety laws include (but are not limited to):
Thanks to Gavel and Page Lawyers for this article.