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With over 300 pages for the new national Work Health and Safety ACT and over 700 pages of regulations, how can any small business manage to stay within the confines of the ACT, without help?
Make no mistake, this Work Health and safety ACT 2011 has the makings of a litigation nightmare. I know I sound like a cynic, but it is pretty obvious to me that this was put together by solicitors, for solicitors. Anyone want to hazard a guess what percentage of former solicitors that are now in politics? Our Prime Minister is a former legal hound, working for Gordon and Slater no less.
Reading the ACT makes me think of a quote by Will Rogers – “People are getting smarter nowadays; they are letting lawyers, instead of their conscience, be their guide.”
The authors of the ACT have worked very hard at eliminating ‘common sense’ and ‘personal obligation’ and replacing it with something akin to legalised ‘buck passing’. But the buck always stops with the business owner, especially in a small to medium enterprise (SME).
I don’t have any issue with accountability, as some business owners clearly push the boundaries of safe work practices. But the new rules and regulations, almost 1100 pages of reading, is well beyond the average SME’s grasp. We are talking some pretty hefty fines here too.
Management do make mistakes, but workers can make poor decisions too, in an effort to cut corners and save time. Some staff also have little care or respect for those around them. I know of one building company that had discovered staff trying to settle a dispute by firing nail guns at each other. Only thing missing was common sense. They got instant dismissal.
Management jumped on it pretty quickly, but it was the staff that disabled the safety guards and turned the nail guns into a weapon. If a WHS inspector had of stumbled across the 'fight' instead of management, it would have had a totally different outcome, with huge fines to the managers on duty at the time.
I also know of one mature gentleman who used an extension ladder upside down, and wondered why it didn’t grip the floor, causing him to fall. He was no dill and had worked for the company for many years. It didn’t worry him that the rubber feet were in the air, and the bare metal was on the ground. He probably reasoned it was a small job and it would take too long to correct the ladders position. Common sense was all that was missing here too.
The company were fined for his error of judgement though. Apparently they were penalised for thinking that the staff member had brains rather than assuming he was just plain stupid.
Sir Alec Issigonis, the British designer, also said "A camel is a horse designed by a committee." I can’t help but think this WHS ACT is of the same ilk. It is an overkill of gargantuan proportions. In trying to make it litigation proof, they have made it bloated, cumbersome and unbalanced.
I'm sure we can all imagine how the Workplace Health and Safety organisations in each state will grow with more public servants, more bureaucracy, more red tape and more expense. I suggest we’ll be slugged for it along the way in hidden taxes, as that seems to be the thinking of all levels of government these days.
Within the WHS ACT, the person in the frame is essentially the Person conducting a business or undertaking (PCBU). This literal description within the framework is “a person conducting a business or undertaking alone or with others, whether or not for profit or gain. A PCBU can be a sole trader (for example a self-employed person), a partnership, company, unincorporated association or government department of public authority (including a municipal council). An elected member of a municipal council acting in that capacity is not a PCBU.” Interesting that a politician seems to be exempt, but his department isn’t.
“Reasonably practicable” is also a term scattered throughout the ACT, and is probably going to be the catalyst for a fair bit of dispute.
They explain it this way; “The guiding principle of the WHS ACT is that all people are given the highest level of health and safety protection from hazards arising from work, so far as is reasonably practicable. The term ‘reasonably practicable’ means what could reasonably be done at a particular time to ensure health and safety measures were in place.”
It really is, in my view, a case of interpretation, depending on how you feel about what is ‘reasonable’ and ‘practical’ to ensure one’s health and safety.
They enlarge on this by saying “In determining what is reasonably practicable, there is a requirement to weigh up all relevant matters including:
• the likelihood of a hazard or risk occurring (i.e. the probability of a person being exposed to harm)
• the degree of harm that would result if the hazard or risk occurred (i.e. the potential seriousness of injury or harm)
• what the person concerned knows, or ought to reasonably know, about the hazard or risk and ways of eliminating or minimising it
• the availability of suitable ways to eliminate or minimise the hazard or risk
• the cost of eliminating or minimising the hazard or risk.
The government go on to explain “Ordinarily, cost will not be the key factor in determining what it is reasonable for a duty holder to do unless it can be shown to be ‘grossly disproportionate’ to the risk. If the risk is particularly severe, a PCBU will need to demonstrate that costly safety measures are not reasonably practicable due to their expense and that other less costly measures could also effectively minimise the risk.”
I wonder if they have a value in mind for the cost of a human life to enable you to weigh up what is grossly disproportionate to the risk? I’m also not sure who determines what or when it is “not reasonably practicable due to their expense and that other less costly measures could also effectively minimise the risk”. Perhaps a solicitor will need to advise you on that.
“The WHS ACT requires all PCBUs to ensure the health and safety of workers, so far as is reasonably practicable. Workers include volunteers, contractors and contractors’ workers. PCBUs also have the same duty of care to any other people who may be at risk from work carried out by the business. A self-employed person must ensure his or her own health and safety while at work, so far as is reasonably practicable.”
I get back to the ladder incident mentioned earlier.
Would it not have been a reasonable assumption that someone of average intelligence would know that rubber feet should go on the ground and not in the air?
I’m sure we have all seen the YouTube® clip of the English police showing its members on how to use a ladder. It was labelled ‘stupid’. Turns out it should have been taken more seriously.
The WHS ACT sets out specific duties which a PCBU must comply with as part of their general duty so far as is reasonably practicable. These include:
• providing and maintaining a working environment that is safe and without risks to health, including the entering and exiting of the workplace
• providing and maintaining plant, structure and systems of work that are safe and do not pose health risks (e.g. providing effective guards on machines and regulating the pace and frequency of work)
• ensuring the safe use, handling, storage and transport of plant, structure and substances (e.g. toxic chemicals, dusts and fibres)
• providing adequate facilities (i.e. washrooms, lockers and dining areas) for the welfare of workers at workplaces under their management and control
• providing workers with information, instruction, training or supervision needed for them to work safely and without risks to their health
• monitoring the health of their workers and the conditions of the workplace under their management and control to prevent injury or illness
• maintaining any accommodation owned or under their management”
You would be excused in thinking that these duties include the mining industry, but they don’t.
The documentation states that ‘The Act will not apply to;
• coal mining (Coal Mining Safety and Health Act 1999)
• metalliferous mining (Mining and Quarrying Safety and Health Act 1999)
• operating plant under the Petroleum and Gas (Production and Safety) Act 2004
• a facility or plant used for geothermal exploration under the Geothermal Exploration Act 2004
• where the Electrical Safety Act 2002 applies
• where the Transport Operations (Rail Safety) Act 2010 applies (i.e. prescribed railway operations)’
What is ‘reasonably practicable’ in terms of “a working environment that is safe and without risks to health”? I’m sure you don’t need me to tell you that there is no such thing as risk free. In reality, life is a risk. The point is, everyone will have their own view as to what is reasonably practicable. There are a lot of variables that would lead a business owner to come to his or her own conclusions.
Therein is the problem. Without knowing the WHS ACT intimately, you could find yourself in a whole heap of trouble.
It also targets specific types of businesses. Designers, Importers, Manufacturers and Suppliers all have their own rules to follow.
The ACT states ;
“A PCBU who is a designer of a plant, structure or substance that is to be used, or could reasonably be expected to be used, at a workplace must ensure all workplace activity relating to the plant, structure or substance, including its handling or construction, storage, dismantling and disposal is designed to be without risks to health or safety.
They must carry out tests and examinations sufficient to ensure that when used for its intended purpose it is safe and without risks to health and safety. Plus, information must be made available to those for whom the plant, structure or substance was designed about its intended purpose, test results and any conditions necessary to ensure that it is safe and without risks to health or safety, when used for its intended purpose.
A PCBU who is an importer, manufacturer or supplier for a workplace must ensure all workplace activity relating to the supplied goods including its handling, storage and disposal or dismantling is without risks to health or safety when used for its intended purpose.
Suppliers must carry out or arrange tests and examinations sufficient to ensure that the supplied goods are safe and without risks to health or safety when used for its intended purpose. Alternatively suppliers must ensure that these tests and examinations have been carried out.
Based on these enforceable requirements, nothing should be supplied without Material Safety Data Sheets (MSDS). Site inspections and Risk Assessments are also going to be required if we are to do the job to the letter of the law. It is fair to say that larger companies already have this on their radar, but many smaller shops will be less likely to go down this path in the interests of saving time and expense. That could be an expensive mistake if things go pear shaped on site.
All these requirements are not without significant fines if they are not carried out to an inspector’s satisfaction either.
As the writer Douglas Adams once said - “A common mistake that people make when trying to design something completely fool proof is to underestimate the ingenuity of complete fools.” I think the authors of the WHS ACT have overlooked this simple thought.
The WHS ACT, and no doubt the unions, also added an extra expense in the daily operation of the business owners.
By law, if requested, a PCBU must allow Health and Safety Representatives (HSR) and deputy HSRs to attend a work health and safety course approved by the relevant Workplace Health and Safety agency in your state.
At the time of writing, the course details and costs hadn’t been released. But based on previous courses, it wouldn’t be unreasonable to expect these courses will be in the area of a few thousand dollars for each recipient.
The ACT also states that within three months of the request, the PCBU must give HSRs paid time off to attend a course and pay the course costs and reasonable expenses - accommodation, meals and travel, if a course is not available locally. A course must be selected in consultation with the PCBU to ensure it is relevant to the work carried out. If agreement cannot be reached, an inspector may be called in to assist.
The PCBU has a duty to ensure the relevant training has been provided to the HSR so that they can perform their functions and exercise their powers under the WHS ACT. Before the HSR can issue a provisional improvement notice (PIN) or direct a person to cease unsafe work, they must attend an approved training course.
Whether or not the HSR has undergone training, a PCBU must give them the resources, facilities and assistance to enable them to carry out their functions.”
Interestingly, whilst the business owner is fully liable and responsible for any issues that require investigation by a Work Health and Safety inspector, the ACT states that a “ HSR is not personally liable for anything done, or not done, in good faith while carrying out their role.”
So, on top of the course costs, travel, accommodation and meals, they are also given paid leave and exempt from any liability. Is it only me that sees the one sided nature of this legislation?
As a small business owner, I’d like to know why the government can’t pay for the training (details were not available at the time of writing, but it could be assumed that rebates will be available for business owners through other government sources, based on past experience). Or better still, how about the employee pay for it? The employee is the one will be able to use the completed course as leverage for a higher pay when he/she decides they will move on to a better offer. Surely the government can see that it will be easier to employ an already trained employee rather than go through the motions of training someone up and have them leave?
What about the SME’s that don’t have the resources of the larger companies, and can’t afford to be without staff for probably a 5 day course, on full pay and perks. What about the increased wage costs when a trained person realises their extra worth within a company. Some smaller operators will not be able to justify the higher wages.
It really does boggle the mind. Did they actually talk to any small business when formulating these laws? I doubt it.
The documentation states that the “aim of the ACT is to encourage consultation as a collaborative process between the PCBU and any workers undertaking work within or for the business or undertaking. It involves sharing information about health and safety.
PCBUs must give workers who are, or are likely to be, directly affected by a matter relating to health and safety, a reasonable opportunity to express their views or raise issues. If an HSR is representing workers, the consultation must involve them.
A PCBU must consult with workers when:
• identifying hazards and assessing risks arising from work
• proposing changes that may affect the health and safety of workers
• carrying out activities prescribed by the WHS Regulation.
A PCBU must also consult with workers and take their views into account when making decisions about:
• ways to eliminate or minimise risks
• the adequacy of facilities for workers’ welfare
• procedures for consulting workers
• resolving health and safety issues
• monitoring the health and safety of workers or workplace conditions
• how to provide health and safety information and training to workers.
Workers are entitled to:
• elect a health and safety representative
• request the formation of a health and safety committee
• cease unsafe work
• have health and safety issues resolved in accordance with an agreed issue resolution procedure
• not be discriminated against for raising health and safety issues.”
Sounds like the tail wagging the dog to me.
The WHS ACT also states;
“A PCBU must set up a Health and Safety Committee (HSC) within two months of being requested to do so by an HSR, or by five or more workers in a workplace or when required by the WHS Regulation. But, at least half of the members of an HSC must be workers that have not been nominated by the PCBU. An HSR can also consent to be a member of the committee and, when a workplace has more than one HSR, they can choose one or more to be members.”
The WHS ACT also makes easy access available to Union representatives, giving them the title of a ‘WHS entry permit holder’. An entry permit allows the holder to investigate ‘suspected’ contraventions of the WHS ACT, meet with workers and exercise their legal rights under WHS ACT.
When inquiring into any 'suspected' contravention, the Union has the full backing of the legislation to inspect or make copies of all employee records and documentation that are directly relevant to it.
“A WHS entry permit holder may enter a workplace during working hours to inquire into a contravention if they reasonably suspect one has or is occurring. While there, they may inspect any work or thing that directly relates to the matter, talk to any worker who is entitled to be represented by the union and warn anyone they believe is exposed to a serious health or safety risk. The Union may consult with the PCBU about the matter and request to look at, and make copies of, relevant records or documents kept at the workplace in hard copy or on a computer. A PCBU must not, without reasonable excuse, refuse or fail to comply with this request, unless the request will breach the privacy act 1988.”
The WHS ACT states that “A workplace health and safety entry permit holder must advise the PCBU and person with management or control of the workplace of their entry as soon as reasonably practicable. However, this is not needed if it would defeat the purpose of the entry or cause unreasonable delay in an urgent case.”
Who defines ‘unreasonable delay? The Union?
“The WHS ACT prohibits anyone, without reasonable excuse, to refuse or unduly delay a permit holder’s entry to a workplace, or obstruct them from exercising their rights.”
It is clear to me that the Union(s) have had some pretty strong influence within the ACT.
I could go on, but you are probably going glassy eyed like I was by the time I got to page 52.
I’ve obviously not read the entire 1000 plus pages. I have skimmed through the 52 page overview and gleaned only a portion of what seems to apply to me as an SME. In this article I have used direct quotes from the overview.
The WHS ACT is, as I said before, a bloated piece of legislation that is a legal minefield to most SME’s that don’t have the staff or manpower to keep on top of it.
In short, the WHS ACT holds the business owner liable for basically everything. If you contravene anything in the ACT, from preventing a Union representative from doing his job, to breaching health and safety duties as a PCBU, fines range from being deducted demerit points in the WHS system, to fines of up to $3mil for a corporation or $600,000 and/or 5 years jail for a PCBU. Perhaps that is the value of a human life in terms of the legislation?
This legislation is going to make it difficult to manage staff, difficult and expensive to keep up with the legalities, and difficult to justify employing accident prone juniors or inexperienced staff for the average SME.
I’d suggest if you have an association that covers your industry, or a sizeable Chamber of Commerce that you can join, then you should seriously consider going down that route. Most have advisory contacts within their organisation. It would pay to check.
Our own association, the ASGA, has OHS Compliance/Risk Management Templates available to members (www.signs.org.au). It may be worth contacting Michael Punch to discuss your options.
The new ACT has also introduced competency rules for some machinery. The PCBU is now liable if an operator is found to be incompetent, irrespective of how long he/she has held a license for the machine in question.
Who defines ‘competency’? It is probably buried in the regulations somewhere.
Suffice to say, even if they are licensed for 10 years, if they have an accident, the business owner could be found liable for letting them operate the machine if they are deemed incompetent by the WHS inspector.
It is a legal minefield. My advice would be, if you don’t like the one-sided nature of the WHS ACT, complaining to your local member is probably a good option.