April 2012

The new workplace safety laws: we have lifted off!

For the first three months of this year, it’s been business as usual following the commencement on 1 January 2012 of the new NSW Work Health and Safety Act 2011.  While we’ve seen some interesting legal issues arise, such as the scope of union rights and the proper exercise of powers by investigators, it is far too early for any significant legal developments. 

The main activity to date remains with businesses continuing to focus on these new laws and working towards compliance with the new regulations, which were published on 22 December 2011.  There are now 11 published Codes of Practice and many to come in the near future – including the controversial bullying code of practice.

All businesses need to continue to make a concerted effort to sophisticate and update work health and safety policies and practices to comply with the new laws.  In this bulletin we examine the new Work Health and Safety Regulation 2011 and help give some focus to those initial efforts.

The Work Health and Safety Regulation 2011

In some respects the Work Health and Safety Regulation 2011 does not dramatically differ from the previous regulation.  It follows a similar structure and contains regulation of many of the same workplace hazards and risk areas.

There are, however, differences.  There are new obligations.  For example, the business that commissions a construction project will be deemed to be the principal contractor unless someone is specifically appointed in that role (see clause 293); principal contractors have various obligations to ensure safety. 

There is a default procedure for issue resolution at a workplace (clauses 22 and 23).  During the consultation process, disputes may arise about work safety.  Section 81(2) of the WHS Act provides that everyone must make reasonable efforts to achieve a timely, final and effective resolution of issues in accordance with an agreed procedure, or if there is no agreed procedure, the default procedure.  The default procedure requires resolution to be recorded in a written agreement. 

Risk and workplace management

Perhaps one of the most important areas of the new Regulation is Chapter 3 of the Regulation, dealing with general risk and workplace management.  Chapter 3 provides a useful checklist against which to initially assess compliance with the new laws.

Chapter 3:

  • confirms the obligation to identify foreseeable hazards, then eliminate or control risks (clauses 34 to 36);

  • imposes an obligation to maintain and review any control measures implemented (clauses 37 and 38);

  • reinforces the importance of providing information, training and instruction to workers that is suitable and adequate (clause 39);

  • prescribes a general duty to provide a safe working environment in respect of layout, work areas, floors and surfaces, lighting, ventilation, temperature and essential services (clause 40);

  • sets out the duty to provide adequate facilities and first aid (clauses 41 and 42);

  • details the duty to ensure emergency plans exist, are implemented and maintained (clause 43);

  • regulates the provision and use of personal protective equipment (clauses 44 to 47);  and

  • imposes duties with respect to remote or isolated work (clause 48).

Chapter 3 is worth a read.  It is written in general and easy to understand terms; however it is this generality that gives the Regulation some breadth of application.  For example, the duties of businesses with respect to remote or isolated work may have some application to work from home arrangements.

Hazardous manual work

Clause 5 of the Regulation defines a hazardous manual task as: "a task that requires a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any person, animal or thing that involves one or more of the following: (a) repetitive or sustained force; (b) high or sudden force; (c) repetitive movement; (d) sustained or awkward posture; and (e) exposure to vibration".  There is no reason why this definition would not apply to most manual handling or other manual tasks in the workplace.

Clause 60 of the Regulation requires businesses to manage risks to safety relating to a musculoskeletal disorder associated with a hazardous manual task.  That is, assess the risk and then eliminate or control the risk, review and audit, instruction and training.

Conclusion

Business should continue to work towards compliance with the new laws.  As this bulletin outlined, the new Regulations impose familiar but some new obligations on businesses, and require a sophistication of practices to adhere to the new regime. 

Business must look at its practices more broadly and in more detail to ensure it adequately protects from all hazards and risks.  Chapter 3 of the Regulation is a good checklist for starting to ensure your compliance.

Author: James Mattson