The Work Health and Safety Bill 2011 has been passed by Parliament and is awaiting Royal Assent.
The Bill is an important part of the harmonisation of Australia’s work health and safety laws. Queensland, New South Wales and the ACT have passed model WHS laws which mirror the Commonwealth Act and will all start on 1 January 2012. Other states will follow.
The Bill includes the following key elements:
• a primary duty of care requiring persons conducting a business or undertaking (PCBUs) to ensure, so far as is reasonably practicable, the health and safety of workers and others who may be affected by the carrying out of work (“workers” is very widely defined and is not limited to employees).
• duties of care for persons who influence the way work is carried out, as well as the integrity of products used for work
• a requirement that ‘officers’ exercise ‘due diligence’ to ensure compliance: officers (as defined by the Corporations Act) must exercise ongoing due diligence to ensure that a PCBU meets its WHS obligations.
• reporting requirements for ‘notifiable incidents’ such as the serious illness, injury or death of persons and dangerous incidents arising out of the conduct of a business or undertaking
• a framework to establish a general scheme for authorisations such as licences, permits and registrations (e.g. for persons engaged in high risk work or users of certain plant or substances)
• provision for consultation on work health and safety matters, participation and representation provisions
• provision for the resolution of work health and safety issues
• protection against discrimination for those who exercise or perform or seek to exercise or perform powers, functions or rights under the Bill
• an entry permit scheme that allows authorised permit holders to inquire into suspected contraventions of work health and safety laws affecting workers who are members, or eligible to be members of the relevant union and whose interests the union is entitled to represent
• provision for enforcement and compliance including a compliance role for work health and safety inspectors.
The penalties for a breach will be a maximum of $3 million for corporations and up to a maximum of $600,000 or 5 years imprisonment or both for officers.
Unless otherwise specified, offences in the Act are strict liability offences.
