WHS: over 1million Australian businesses at risk of breaking new laws…are you?

The new model Work, Health & Safety (WHS) laws have now commenced in five jurisdictions including NSW, QLD, ACT, NT and the Commonwealth, impacting many of Australia’s two million businesses that operate within these states and territories, or across multiple jurisdictions. WA, VIC, and SA have all indicated that they will most likely enact the new WHS laws during 2012 or, in the case of Tasmania, by 1 January 2013.

The WHS laws change the way organisations, directors, senior managers, and even workers themselves are liable for workplace behaviour and safety.

So how prepared is Australia?

In the lead up to  the 1 January 2012 introduction of the new WHS, CompliSpace released a number of resources including a Director’s Briefing Paper and online WHS risk self-assessment survey to assist businesses prepare for the changes.

Initial results from the WHS survey show that 70 per cent of small and medium sized organisations fall into the ‘High’ to ‘Extreme Risk’ category, meaning that they have little or no WHS infrastructure in place to address these obligations.

Only 8 per cent of companies are ‘low risk’ or considered fully compliant and ready.

These preliminary results are alarming, and reflect general confusion in the business community about who is responsible for what. Under the previous State based systems, everyone used to talk about directors and officers going to jail, however this rarely happened.

Things might be about to change under the new regime as States such as NSW and QLD will now hear the prosecution of significant WHS breaches through the criminal court system. Unlike the Industrial Court, these are courts that send people to jail every day.

Failure to comply with the new laws carries a maximum prison term of 5 years and fines of up to $3 million for a company and $600,000 per breach for an officer.

Under the new WHS laws:

• “Officers” (including directors, company secretaries and, in some cases, key managers) have a positive obligation to undertake due diligence to ensure that their organisations are compliant with their WHS obligations.
• Officers’ due diligence obligations include the need for each officer to have a good working knowledge of WHS laws and how they apply to the organisation, to allocate appropriate resources and processes to manage WHS, to have a compliance program in place and to verify that these systems and processes actually work in practice.
• The primary duty to ensure a safe and healthy workplace has been expanded and now rests with the Person Conducting the Business or Undertaking (“PCBU”). The PCBU is not just the employer but is any person or organisation who exercises influence or control over workers or a workplace.
• PCBU’s are required to conduct a formal risk assessment to determine that they can ensure, so far as is reasonably practicable, that their workers are not exposed to health and safety risks.
• The definition of ‘Worker’ has been expanded considerably to include volunteers, contractors, work experience students and various other individuals to whom the PCBU owes the primary duty.
• Health and Safety Representatives have expanded powers and can issue directions to cease work or improve work practices.
• Fines and penalties have basically doubled from those under the previous state systems.

The big message is that organisations, and their directors and officers, should act now to ensure compliance and to avoid fines and penalties.

So how prepared are you?

To find out, we encourage you to complete the online WHS Risk Self-Assessment survey, which allows you to quickly assess your organisations readiness for WHS. An instant, tailored report outlines the organisation’s risk profile and identifies key areas that need to be addressed.

In addition to the survey, CompliSpace has published a briefing document that provides a high level overview of the ‘must-know’ changes to assist Directors and Officers.

We will be watching with keen interest to see how the levels of risk change during the course of 2012. The most important thing to remember is that there is no time to waste – the laws are in force now and employers and individual directors and managers are at risk if they fail to implement the changes necessary to fulfil their WHS obligations.

If you have any questions about managing your WHS obligations please feel free to contact us on +61 (2) 9299 6105 or contactus@complispace.com.au. Further information on our services is also available at www.complispace.com.au.