New model Work Health & Safety (WHS) laws commence today, Jan. 1, 2012

Happy New Year newsagents.  New national OH&S regulations come into effect from today. They impose on newsagents, and indeed all businesses, tough requirements which will be time consuming and present to us considerable risks for lack of compliance.

Thanks to the assistance of the ANF, here is what you need to know.  This is a summary of information provided by the ANF to newsagents already:

Newsagents need to be aware that new model Work Health & Safety (WHS) laws commence on the 1st of January 2012 in most States and Territories. (Victoria, South Australia and Western Australia are still to confirm exact dates) Under these new model laws all newsagents have a positive obligation to undertake due diligence to ensure that their organisations are compliant.

The introduction of a new concept of “Person Conducting the Business or Undertaking” (PCBU), and the expansion of the definition of “worker”, has together greatly increased traditional employer obligations.

Employers (now PCBU’s) must ensure that, so far as is “reasonably practicable”, their workers are not exposed to health & safety risks.

The concept of “reasonably practicable” requires each employer to effectively implement a formalised risk management program, through which it identifies workplace hazards, assesses them and takes action to either eliminate or control them. Newsagents are required to have a goodworking knowledge of WHS matters and how they apply in practice to their organisation.

Newsagents are also required to ensure that their organisations have appropriate resources and processes in place to manage WHS and, critically, to verify that these processes actually work in practice. This requires a system that provides both transparency and visibility.

It only takes one worker (it could even be a work experience student), to request that a Health & Safety Representative (HSR) be appointed and an organisation must comply with this request.

HSR’s have expanded powers and can issue directions to cease work, which must be complied with.

The new laws come with significant fines and penalties of up to $3 million per breach for a corporation, and$600,000 perbreach for Newsagents.

Newsagents (and potentially, workers) face prison terms of up to 5 years.

If Newsagents fail to discharge their duty, they can be prosecuted, even if the PCBU is not prosecuted, or the PCBU is found not guilty.In some jurisdictions (including New South Wales and Queensland) criminal proceedings arising from WHS events are being moved from the Industrial Courts to the mainstream court system, where prison terms are handed down on a daily basis. This means that prison sentences for Newsagents are more likely to be applied.

The simple message is that newsagents should act NOW to ensure compliance and avoid fines and penalties.

The following is a summary of the key changes due to commence on the 1st of January 2012.

Move Away From Employer Definition:
From 1 January 2012, the primary duty of care for workplace safetywill sit, not with the employer but rather, with the “Person Conducting the Business or Undertaking” (PCBU). A PCBU may be a corporation, partnership, unincorporated association, a self-employed person, or a sole trader.

Expansion of Duty of Care:
The PCBU concept is much broader than the employer definition it replaces. In simple terms, the introduction of the PCBU definition is designed to break down barriers of responsibility so that there can be more than oneparty primarily responsible for the health and safety of workers.

Expanded Definition of Worker:
The definition of “worker” has also been expanded to include contractors, subcontractors (or their employees), employees of a labour hire company, volunteers and work experience students, to name but a few. This expanded definition is designed to better reflect the nature of the modern workplace and the types of relationships that now exist within it.

Expanded Obligation to Consult:
The obligation to consult has been significantly expanded to include a requirement for each PCBU to consult downstream, upstream and cross-stream, depending on the nature of the workplace and the other PCBUs it interacts with.

Additional Powers for Representatives:
The role of the Health and Safety Representative (HSR) has been expanded to include the power to stop work or demand remedial action. From 1 January 2012, it will only take one worker to request the appointment of an HSR and an employer must do so.

Officers Required to Exercise Due Diligence:
Officers (adopting the broad Corporations Act definition of an “Officer”), are required to exercise ongoing ‘due diligence’ to ensure that a PCBU meets its WHS obligations. The definition of due diligence requires each and every officer to take positive steps to inform themselves of their organisation’s workplace safety obligations and to ensure that they have adequate systems and procedures in place to comply with these obligations.

New Model Codes of Practice:
In conjunction with the introduction of the Model Law, new Model Codes of Practice have been developed. These provide guidance as to how to comply with certain aspects of the new legislation. Courts can reference the Codes to identify what is “reasonably practicable”.

Increased Penalties:
Maximum penalties have increased significantly.

• Up to $3 million per breach for a corporation.
• Up to $600,000 per breach, or 5 years’ imprisonment, or both, for a director or officer
• Up to $300,000 or 5 years’ imprisonment for a worker.

Change in Criminal Jurisdiction:
Whilst in the past directors often referred to the possibility of “going to jail” for workplace safety breaches, the reality was that in the Industrial Court system, offenders were rarely sentenced to a prison term. This may be about to change, with some States now passing jurisdiction for serious offences arising from WHS breaches to the criminal courts. Here, judges are used to imposing prison sentences on a daily basis.

The ANF along with all State Newsagent Associations have recently been communicating with newsagents about this issue and have launched a newsagent specific Smart WH&S online workplace safety system to proactively assist newsagents manage this significant risk in their businesses. With changing obligations under WH&S harmonisation newsagents should not ignore this risk.

The ANF will be providing further communication about this issue to members to help them understand its significance. New additional costs associated with compliance hurt and the ANF has made representations about this issue during consultation. However, faced with requiring a solution for newsagents that is easy for them to use and that will proactively prompt them to remain compliant where a simple manual is unlikely to achieve this, an online solution has been deployed. It is a very comprehensive online system that is easy to use and that has been customised for newsagents.

The ANF would love this to be free to members, but this is unfortunately not possible. We have negotiated a dramatic discount for members of all Newsagent Associations with Smart OH&S who have developed the system. If you would like more information please contact your ANF or State Newsagent Association or you can download a flyer HERE.