Marcel Vaarzon-Morel and James Willoughby explain the recent changes to the Work Health and Safety Act and how they will affect marine businesses.
Significant changes to the Work Health and Safety Act have changed the seascape for all of us in the marine business. With many organisations running courses on these changes, the changes are complex enough to have resulted in making a visit to your lawyer one of the things you have put on your to-do-list for 2012. Hopefully, this article while sticking to the basics and using relevant examples should assist you further in your understanding of the new laws.
By way of background the changes were brought in to harmonise all state laws, thereby giving no one state an advantage over the other in respect to differences in laws and thus employment costs. Employer’s or as known under the new law a “Person conducting or undertaking a business” (PCBU) may be a company, sole-trader, franchisee, contractor and sub-contractor. Additionally, workers or “Someone who carries out work for a PCBU” can take some sense of security as they travel from state to state in search of work that the compensation laws in each state will be the same in the future.
Currently the new law applies in:
- The Commonwealth;
- NSW and;
- the ACT.
Tasmania will follow in 2013, SA, VIC and WA have not passed the legislation but say they are committed.
So how does the new scheme affect employers? Broadly speaking it was developed to make employers more accountable for worker accidents by capturing more workers and increasing employer’s obligations.
To capture more workers the definition of worker has been broadened, not just to include an employee (person) but also contractor, being a major departure from the old laws has real ramifications for business when it comes to employing a contractor in so far as the employer will be responsible for the contractors safety and not only them, but if thecontractor has an apprentice, it may be responsible for the apprentice’s safety as well. So what does this mean in reality, potentially more costs either directly or indirectly with direct costs being in insurance premiums the indirect costs have the potential to have a much greater impact. In order for business to avoid being caught by the new legislation checks will have to put in place that meet the legal test of being “Reasonably practicable” considering the hazard, possible harm, knowledge of risk and its elimination and cost. For example contracting out services to repair moorings, slipways and jetties are inherently dangerous but business is expected to make these safe before a contractor starts work within what is reasonably practicable.
Another example of the capturing more workers is where high school student employed for work experience are also caught within the definition of worker and may effect your decision to employ given the additional costs to the business.
Simply put, if your not sure whether a person is a worker, err on the side of caution by considering that anyone doing anything for you or your business probably is a worker (person) for the purposes of the act.
The work place
The definition of a workplace is also extremely wide therefore capturing workers who in the past may not have fallen under the act.
Examples of this broad approach are where someone runs errands such as fetching a paper from the corner store on Monday, the path, road and store they walk down are all part of the work place.
Another example is where your workers test drive boats or sell boats on the water the water ways where this work is conducted could be considered part of your work place.
The bottom line is that anywhere a person is doing something for you, or your business, that place is probably the workplace under the act.
What do I do?
So you as an employer are responsible for a wide class of people in a wide amount of areas and you need to do the following:
Consulting means talking to workers and other people affected by the legislation and take on board their concerns about the potential problems and solutions. Keep a log of these discussions; action plans and outcomes. The action plans and solutions need to consider the welfare of workers when making decisions about the work place. And the Business needs to be proactive when making decisions to resolve any issues. The main thing being, be proactive about problems as it is far worse to know about a problem and not act to rectify in a reasonable period depending on the issue.
If you or your business fails to notify when there is a serious incidence, such as death, amputation, explosion or leakage of chemicals, this failure to notify is in itself a serious breach of the law.
So put into place a procedures manual that directs all workers what to do in case of a serious or for that matter any incident, which should include a log of incidence. The business should train a safety officer that is aware of all procedures being in essence your ears and eyes on the ground and able to manage the situation, knows the obligations and is responsible for enforcing them. Workers should be directed to notify the employer (PCBU) as soon as possible. You the (PCBU) then needs to notify Workcover immediately.
As part of procedure workers and you should take reasonable steps to preserve the work site until an inspector arrives. Although, in the event the site is unsafe it can be altered to make it safe. The business and as such you will need to keep records of these instances for five years and failure to do so may result in fines that could be up to $50, 000.
So in reality this means if there is an oil spill on a boat, that exposes employees to serious risk, you should report that incidence. In the event of the incident occurring make sure others, such as customers, are safe at work you work place. And obviously, you need to comply with any regulations that affect your business as well as keeping records.
The issue for business and employers is that it must be aware of the changes as ignorance could have serious implications for “PCBU’s and their ‘persons”. The difficulty for the marine industry is that, by its very nature, the control of ‘persons’ and work areas covered is almost impossible to police and hence the need to no what is reasonably practicable in your specific circumstance. Therefore, highlighting the importance to plan so that at least the known and controllable areas of the business meet the requirements of the new laws. Adding to this difficulty is the fact each business will have its own idiosyncrasies that must be taken into account. One positive aspect of the law from a cost perspective is that the Burdon of Proof has been reversed making the prosecution prove its case, not business.