WHS legal requirements

What legislation covers WHS?

Work health and safety is primarily the responsibility of state governments in Australia. This meant that different states had different work health and safety laws. Over the past few years there have been major changes to work health and safety laws. These changes have been directed towards all work health and safety laws being the same across Australia.

This has been achieved by Safe Work Australia (the national policy body responsible for the development of model work health and safety laws) bringing all the states together to develop model work health and safety laws that all states and territories agree on. The model work health and safety laws then had to be enacted or passed by Parliament in each State and Territory to become legally binding.

As at August 2015 all states and territories in Australia had introduced the new nationally consistent WHS Act and WHS Regulations, with the exception of Victoria and Western Australia.

The states and territories are responsible for regulating and enforcing the law in their jurisdictions. The new WHS law provides greater consistency across the whole of Australia making it easier for companies operating across state boundaries.

The new nationally consistent WHS Act sets out general duties of all parties in regard to WHS. Regulations support the Act. The Regulations provide some detail around what companies need to do to comply with the Act. This is particularly important in view of the changes introduced in the new Act. For example the Regulations include a new provision for companies to provide audiometric testing of workers who are frequently required to wear hearing protection to protect the worker against noise above the exposure standard.

The new nationally consistent legislation includes national codes of practice that are passed through parliaments in each state and provide a guide to employers to comply with specific areas of the WHS Act. Examples of national codes include:

• managing the risks of falls at the workplace
• first aid in the workplace
• managing risks of hazardous chemicals in the workplace.

Other publications that support implementation of the WHS legislation continue to be Australian Standards and guidelines covering specific WHS issues or industries. These are not legal requirements but may be used under law to demonstrate compliance with legislation.

The meat industry has National Guidelines for Health and Safety in the Meat Industry. These guidelines were developed through a cooperative arrangement between the Australian Meat Processing Employees’ Union and the National Meat Association of Australia. The guidelines provide practical guidance on measures that may be put in place to reduce the incidence of occupational injury and disease in the meat industry. This is a useful publication as it is meat industry specific however it was developed in 1995 and is now well out of date in many areas. The documentation is available online at http://meatiesohs.org/files/information/guidelines.pdf

Who has responsibilities under WHS legislation and what are those responsibilities?

Achieving the vision of a healthy, safe and productive working life for all, relies on everyone in the workplace meeting their health and safety responsibilities. The WHS Act sets out those responsibilities. These requirements are called Duty of Care.

In general, duties are placed on

• the CEO or most senior manager in the workplace (called person in control of a business or undertaking in WHS legislation). The CEO has overall responsibility for providing a workplace that is safe and without risks to health, as far as practicable
• senior managers who make, or participate in making, decisions that affect the whole, or a substantial part, of the business are deemed to be ‘officers’ in WHS legislation. As ‘officers’ they must exercise ‘due diligence’ to ensure the CEO complies with their duty of care to provide a healthy and safe workplace
• other managers including foremen and supervisors who are responsible for ensuring health and safety in their areas. They implement health and safety procedures in their areas including the induction, training and supervision of workers. Workers should go to supervisors about any health and safety matters.
• ‘workers’ who are employees of your company AND others such as a contractors, trainees etc. who are not employees of your company but they may be working there. All ‘workers’ are required to perform their duties in a manner that ensures their health and safety, and that of others in the workplace
• any others who may influence WHS in the workplace, including contractors, manufacturers, suppliers and installers of plant, equipment or materials used in a workplace.

What are the WHS responsibilities of senior managers?

Under the WHS Act the CEO is given the title person in control of a business or undertaking. The reason for this change is that there may be a number of ‘CEOs’ who have employee relationships with personnel working in your company at any one time. For example there may be contractors, personnel working for a labour hire company, trainees, personnel working for a registered training organisation etc. The CEO of your company is responsible to provide you and everyone else working in the company with a safe workplace and the CEOs of the contractors, labour hire company etc are also responsible for their workers conducting their work safely and following your WHS requirements.

CEOs or persons in control of a business or undertaking bear the ultimate responsibility for health and safety in their organisation. They are responsible to set up the systems to manage health and safety and to hold their senior managers accountable for implementing the systems in their workplace.

Under the new WHS legislation senior managers (that is managers who make decisions that affect the whole, or a substantial part of the organisation) are given the title ‘officers’. They are responsible to exercise ‘due diligence’ to ensure that the systems are implemented and are effective in providing a safe environment. They must take action on unsafe practices or incidents. They must be able to report on safety performance and they must ensure that their personnel have the health and safety expertise they need to do their work.