Key changes to the WHS Act:
> PCBU’s: The main duty holder has been re-cast from an “employer” to a “Person conducting a business undertaking” (PCBU). Further, PCBU’s will no longer owe a duty to their “employees”, but to the much broader category of “workers”. The practical effect of these changes will be to extend both the range of duty-holders and the scope of their health and safety obligations.
> Due Diligence: All ‘officers’ of a PCBU will now have an obligation to exercise “due diligence” and proactively ensure compliance with WHS obligations. This replaces the previous SA duty to designate a “responsible officer”. The scope of “officers” is also broadly defined and will include directors, senior managers and operational or commercial managers who make or participate in business decisions that affect or have the capacity to affect a business’ financial standing in a significant manner.
> Consultation: PCBU’s will have significantly increased obligations to maintain constant consultation with not only workers, but also any other duty holder – including all other PCBUs that are on the same site. This includes circumstances where more than one PCBU may have an obligation for a single worker.
> Penalties: The severity of penalties for breaches of WHS obligations has been markedly increased, up to $3 million for PCBU’s and $600,000 or 5 years imprisonment for directors or senior managers. Given that the legislation aims to foster a uniformed approached to WHS standards across Australia, it is likely that SA fines will significantly increase to align with the much greater penalties that are prevalent across the eastern seaboard.
> Unions: For the first time in SA, unions will have a right of entry to workplaces to investigate safety matters. Currently in SA, unions have an ‘industrial’ right to enter workplaces to examine any matters of pay and conditions under the Fair Work Act 2009 (Cth), but this new right-of-entry will allow union access for safety purposes. Strict safeguards have been built around these provisions to try to prevent misuse by WHS Entry Permit Holders.
SA amendments to the WHS Act
> Control: A person’s health and safety duty to eliminate or minimise risk has been clarified as extending only to circumstances where the person has “the capacity to influence and control the matter”.
> Right to silence: An explicit right against self incrimination has been inserted into South Australia’s WHS Act (Note - the ‘right to silence’ has been abrogated in other jurisdictions that are already operating under these laws).
> Right of entry: WHS Entry Permit Holders will be required to notify SafeWork SA before attending work sites to follow up suspected safety contraventions. They will also need to comply with any directions from Inspectors that attend on site. If no Inspector attends, the permit holder will be obligated to report any findings to SafeWork SA.
> Working from heights: The height threshold for “high risk construction work” in the WHS regulations was raised from 2m to 3m (under Regulation 271); and
> Strata corporations: Executive committee members of strata community/title corporations will be deemed volunteer officers and therefore entitled to the exemptions for volunteers within the Act.
This is an edited version of an article by Luke Hollands of Sparke Helmore Lawyers that appeared in the December/January edition of the SA Mines & Energy Journal.
SACOME together with the Minerals Council of Australia (MCA) and other state Chambers put forward a submission regarding the model codes of practice for mines under the Model WHS Legislation. The submission highlights key areas of concern including; the role of codes should be about how to comply not how to manage risks; more technical information is needed when dealing with a heavily regulated industry; and its relationship with other Model Codes.
SACOME along with the Minerals Council of Australia (MCA) and other state Chambers put forward a submission regarding the Mines Chapter of the Model WHS Regulations. The resources industry saw the national effort to develop uniform WHS laws as a significant opportunity to strengthen safety and health outcomes, including the minerals sector.