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The new workplace, health and safety laws - What do aged care providers need to know?

By Julie McStay05 Apr 2012

The new Work Health and Safety Act 2011 (the Act) has now been introduced in all states and territories except Victoria, South Australia and Western Australia (it commences in Tasmania on 1 January 2013). The legislation which has been adopted is uniform and is intended to ensure that all workers in Australia have the same standard of health and safety protection regardless of the work they do or where they work.

The laws are intended to provide greater certainty for employers particularly those operating across state borders and over time, to reduce compliance cost for business.

The Act applies to employees, contractors, sub-contractors, apprentices and trainees, work experience students, volunteers and employers who perform work.

The Act also provides protection for the general public so their health and safety is not placed at risk by work activities.

The new legislation introduces some significant changes and additional obligations that aged care providers must understand.

What’s new?

The Act introduces some new terms and definitions.

A worker is now replaced by the term employee and an employer is replaced by the term ‘a person conducting a business or undertaking’ (PCBU).

The Act imposes very serious obligations on PCBUs and on ‘officers’ of PCBUs. All aged care providers will be regarded as a PBCU. An ‘officer’ includes a director and any person who makes, or participates in making decisions that affect the whole, or a substantial part of the business or who has the capacity to significantly affect the entity’s financial standing or whose instructions or wishes are likely to be acted on by the directors.

Key personnel are likely to be regarded as ‘officers’. This will be a question of fact and degree referenced by the degree of influence each person who has been notified as key personnel has over decision making.

The Act imposes onerous obligations on PCBUs and on officers and provides several categories of offences for breach of those duties. The penalties for a breach of those offences are very serious and include significant fines (up to $3m) and in the case of extreme breaches resulting in the death or serious injury of a person, even jail sentences.

Officers who are volunteers (which would include a volunteer board member) are exempt from personal prosecution for a breach of their duties as an officer. This does not however relieve those officers from their obligation to comply with those duties.

Prudent aged care providers will consider the legislation very carefully and take immediate action to ensure they have systems in place to meet the obligations imposed.

PCBUs

The Act imposes general health and safety duties on PCBUs, workers and any person who is entering the workplace. The primary duty of care owed by a PCBU is to ensure the health and safety of workers so far as reasonably practicable. Workers include volunteers, contractors and contractor’s workers.

The primary duties owed by a PCBU include, so far as is reasonably practicable:

  1. providing and maintaining a work environment and work equipment that is safe and without risk to people entering the workplace; and
  2. providing workers with appropriate information and training for them to work safely and without risk to their health.

Duties of officers

The new legislation imposes onerous obligations on officers of PCBUs to exercise due diligence to ensure that the PCBU complies with its workplace health and safety obligations. An officer may be charged with an offence under the Act independently of any breach of duty by the PCBU.

In practice, due diligence means that officers (irrespective of whether you are a volunteer) must proactively ensure they are taking reasonable steps to acquire information on workplace health and safety matters, understand the risks in their facilities and ensure that appropriate resources and processes are implemented to eliminate or reduce those risks. Ignorance of the law will be no defence to a failure to comply.

If you are a paid officer, hefty penalties can be imposed for a breach of these obligations. The consequences for volunteer officers are not as dramatic as those for paid officers, but the obligations must still be met and a prudent board (including a board consisting only of volunteers) will take immediate steps to ensure the obligations are being met.

Duty to consult

A PCBU also has a duty to consult with workers and health and safety representatives about matters that directly affect them. This extends to an obligation to consult with contractors and their workers, employees of labour hire companies, students on work experience as well as the PCBUs own employees and volunteers.

In an aged care context, this has a number of implications. For example, it would certainly impose an obligation on an aged care provider to ensure that they consult with any agency who provides staff to a facility to ensure that the workplace health and safety of those agency workers has been considered and to develop a plan to ensure that obligations with respect to those workers are being met. The same obligation applies with respect to volunteer workers and work experience students.

Notification of incidents

Workplace health and safety legislation has always imposed obligations on employers to notify the local Division of Workplace Health and Safety as soon as they become aware of a workplace incident which has caused a death or a serious injury. These obligations turn not on whether the death or serious injury was of a worker, but rather whether the incident occurred in a workplace.

This of course can create confusion in an aged care context where, by the very nature of its business, death and serious illness can occur on a daily basis.

Under the new legislation, the incident reporting obligations are somewhat clearer. A PCBU must notify the Division of Workplace Health and Safety immediately after becoming aware of a death or serious illness or injury arising out of the conduct of the business that results in immediate hospital treatment as an in-patient, immediate medical treatment or medical treatment within 48 hours of exposure to a chemical substance.

A notification to the Division of Workplace Health and Safety in an aged care context should be made:

  1. for every incident which caused the death or serious injury or illness of an employee, contractor, sub-contractor, apprentice, trainee, work experience student or volunteer; and
  2. when the incident relates to the death or serious illness or injury of a resident - only when the incident arose out of the conduct of the business (ie the incident was caused or contributed by some action or inaction of the employer or of an employee, contractor or subcontractor etc).

Some examples:

  1. Where a resident falls and is admitted to hospital - A notification should be made if the cause of the fall was some action or inaction of a worker or some failure by the provider to have a safe system in place.
  2. If a resident is seriously injured during a transfer in a sling - A notification should be given if the cause of the incident was some action or inaction of a worker or some failure of the equipment.
  3. If a resident passes away as a result of the natural progression of their age and condition - A notification to the Division of Workplace Health and Safety is not required.

The Division of Workplace Health and Safety may or may not decide to take any action in respect of reports made but by adopting the above approach providers should be safe from any criticism about a failure to report.

The Act also imposes additional notification requirements in relation to incidents. For example, the Division of Workplace Health and Safety must be notified in relation to any asbestos removal work or work involving hazardous chemicals.

What should you do?

It is important to take immediate steps to deal with the obligations imposed under the legislation. Ignorance of the law is definitely not an excuse for failing to comply with workplace health and safety obligations.

As a minimum, aged care providers should take the following steps:

  1. Review your organisational structure and allocate responsibility for workplace health and safety obligations including notification obligations.
  2. Identify what policies need to be implemented to ensure that workplace health and safety obligations are met including ensuring that you can demonstrate that the due diligence obligations of officers have been met.
  3. Ensure that you have undertaken an appropriate assessment of your facilities to identify workplace health and safety risks and to ensure that the PCBU and its officers have appropriate resources and processes to eliminate and reduce risks. This should include preparing a workplace health and safety plan for your facilities. It is important to remember that when you are assessing workplace health and safety risk, the assessment must be site specific.
  4. Ensure that you have appropriate employment arrangements in place to assign responsibility for workplace health and safety requirements.
  5. Review contracts with suppliers to clarify obligations.
  6. Ensure that the PCBU and officers have appropriate processes in place to receive and consider information about hazards, risks and incidents and to respond to those incidents in a timely manner.
  7. Ensure that the PCBU and officers (including key personnel) have processes that enable them to demonstrate they have complied with their duties and obligations. For example, reporting incidents, consulting with workers and contractors, providing training and instruction.
  8. Review arrangements with third party contractors to ensure that workplace health and safety obligations are met and to manage any additional risk created by those arrangements.

The ultimate intention is for the new legislation to reduce regulatory burden and improve workplace health and safety across Australia. The new Act will involve some additional compliance work for approved providers but the obligations imposed (and the penalties for breach) are serious and cannot be disregarded.

Hynes Legal are specialists in aged care and in workplace health and safety. We can review your systems and documents to ensure they comply with the changes we have outlined above.