Q&A New OHS Law and OHS Training

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Current Situation of OHS Regulations

As many of you know this year marked the introduction of the new harmonised occupational health and safety laws across Australia. While not all states and territories jave adopted the legislation at the moment, by 2013 we hope to have harmonisation nation-wide.

However, the new laws have many of us asking questions about what is it we need to change? For your convenience, I have done some research into the changes and found answers to some common questions asked by individuals, businesses, employers and employees and the general public.

Q: Will there be a national regulator?

No. Each State and Territory will continue to have its own regulator that will administer the laws in their jurisdiction.

Q: Will the new Act apply to individuals that employ a full-time nanny to care for children?

Yes. When an individual chooses to employ a worker directly, rather than engage a contractor, they are entering into an employer-employee relationship. As an employer, the individual exercises a higher degree of control over the work being carried out by the employee. As a result, while there is no formal business organisation involved, the worker carries out activities on behalf of their employer and therefore the employer has a duty of care to their employee.

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Q: What defines “reasonably practical”?

“Reasonably practical” can be determined through a number of factors. One can be what is reasonable in terms of controlling risk. To do so, a person must take into account all relevant matters including:

  • The likelihood of the hazard occurring
  • Degree of harm possible
  • What the person knows about the hazard and how to minimize the risk
  • The availability and suitability of ways to eliminate or minimize the risk

Q: Are workplace safety officers needed?

No. According to the 1 January 2012 implementation, the requirement for workplace safety officers is abolished. However, employers still have a duty to exercise due diligence and the employment of a safety officer with appropriate training like the Cert IV OHS, will ensure the employer maintains compliant with the WHS Act.

Q: What is due diligence?

All employers must show due diligence to ensure they meet workplace health and safety regulations and duties. Due diligence is shown when employes:

  • Acquire and update their knowledge of health and safety matters
  • Understand the operations being carried out by the PCBU in which they are employed, and the hazards and risks associated with the operations
  • Ensure that the PCBU has, and uses, appropriate resources and processes to eliminate or minimise health and safety risks arising from work being done
  • Ensure that the PCBU has appropriate processes in place to receive and respond promptly to information regarding incidents, hazards and risks
  • Ensure that the PCBU has, and uses, processes for complying with duties or obligations under the WHS Act.

Q: Is there a Certificate (issued by an RTO) issued to a person who has successfully completed a health and safety representative course?

There is no requirement for safety representatives to have a certificate before starting their training. Most training organisations who supply safety training courses like the Cert IV OHS and the Diploma of Occupational health and Safety grant a certificate and statement of achievement on completion to show the certificate training course has been completed.

Q: What are the new requirements for volunteers under the regulations?

Under the new legislation, a ‘volunteer’ is someone who acts on a voluntary basis. It is important to distinguish whether the volunteer is  acting on their on behalf or as part of a volunteer association. If part of a volunteer association, they are excluded from the new regulations where they have a ‘community purpose’ and are not technically carrying out work for the association itself.

A community purpose includes philanthropic purposes including art, culture, science, religion, education, medicine or charity as well as sporting or recreational purposes like clubs and associations. If this is the case then the volunteer is not conducting an undertaking as stated under the WHS Act.

All other volunteers are classified as workers and are owed a duty of care. The volunteer also owes a duty of care to take reasonable care of their own health and safety.

Q: What are the new requirements for charities under the regulations?

If the charity or not-for-profit organisation has an employee, the organisation has a duty of care to ensure the health and safety of their workers at work so far as is reasonably practical. The charity will also have a duty of care to ensure the health and safety of other people is not affected during the businesses undertaking. However, volunteer associations are excluded from the charity category. For more information see the previous question, “What are the new requirements for volunteers under the regulations?”

Q: Will there be separate mining or electrical safety laws in Queensland?

Yes. The Government has determined that separate legislation will be maintained for electrical safety and mining safety.

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