Home Environmental Health and Safety Management Chapter 1: Legislation and duty of care

Chapter 1: Legislation and duty of care

by editor

It’s a jungle out there in the world of landscaping and gardening, not only with the physical and often unpredictable environment you have to contend with, but the complexity of your legal responsibilities with respect to WHS compliance.

This responsibility falls on all employees of the business, with a chain of responsibility cascading from company management (PCBU) to workers.

  1. WHS Responsibilities: You would need to be a Philadelphia Lawyer to be able to cut through the legal complexities to establish where your WHS responsibilities lie, but a company/site specific WHS Management System would home in on the specific areas that you as a L&G Contractor should be committed to, in relatively simplistic terms.

It is advisable, initially, to engage a WHS Adviser to work with your management and develop a compliant system that is manageable by your organisation, without a huge impost on your resources or finances.

  1. Acts, Regulations and Standards: L&G contractors should be committed to complying with their own state’s OH&S/ WHS legislation, regulations, standards and codes of practice.

Your WHS Management System (WHSMS) should be based on ISO 45001 – the international standard for management systems of occupational health and safety (superseding AS4801), and detail how your organisation will comply with the requirements. The WHSMS should be company-specific, based on and referencing the specific WHS Act and regulations you are committed to. This would create a workable plan that you are capable of achieving, and an auditable platform for reviews and audits.

A key clause of the ISO 45001 standard is: 6.1.3 Determination of legal requirements and other requirements. Your organisation must establish, implement and maintain processes to:

  1. Determine and have access to upto- date legal requirements and other requirements that are applicable to its hazards, OH&S risks and OH&S management system;
  2. Determine how these legal requirements and other requirements apply to the organisation and what needs to be communicated;
  3. Take these legal requirements and other requirements into account when establishing, implementing, maintaining and continually improving its OH&S management system.

Your organisation must maintain and retain documented information on its legal requirements and other requirements and shall ensure that it is updated to reflect any changes.

There is a multitude of Acts, Regulations, compliance codes, guidelines, etc. to consider when developing a WHS Management System to suit your company’s operations, and you need to know where to go for the information required to focus on the specifics of your activities and company structure.

The skills and knowledge that you need relate to knowing how to find the legislation and interpret it (‘How does this apply to our workplace?’). You then need to be able to simplify and explain it to your team.

Each state has different Acts and Regulations to detail the responsibilities of all parties with respect to WHS compliance, and different penalties for breaches of the legislation.

Refer to browsers (eg Google) for the particular Act and Regulations relevant to your state.

The draft Model WHS Act and Regulations have been developed by SafeWork Australia, which aims to:

• Impose uniform health and safety obligations on businesses throughout Australia; and

• Reduce the burden of having to comply with different obligations across different States and Territories.

They make the legislation easier to understand, but ultimately the legislation of your own state or territory must apply. The Hierarchy of Legislation applying to any company’s operations are:

  1. Acts: NT, SA, QLD, NSW, ACT and TAS work under the Work Health and Safety harmonised legislation. Vic and WA, however, use different legislation. The Act contains the broad requirements of what you have to do.
  2. Regulations: contain information about how to comply with the Act, in detail.
  3. Guidelines, Codes of Practice, and guidance material (including Australian standards, Site Specific Procedures) can assist us in adhering to best practice, and ensuring that we are operating in a recognised safe way.
  4. Codes of Practice / Compliance Codes give practical advice on ways to comply with legislation.

Acts and Regulations are law. They must be obeyed, always.

Guidelines, such as Compliance Codes are not mandatory in all states and territories, except Victoria, where penalties may apply if we fail to comply with a code of practice.

It is generally accepted that if you meet Compliance Codes’ requirements, yoursystem is compliant with the Act.

  1. WHS Responsibilities: The following categories of people are defined in the Work Health and Safety Act:

• The PCBU (Person Conducting a Business or Undertaking) – The PCBU must ensure a safe working environment, so far as is reasonably practicable, for workers, including safe facilities, systems of work, training and monitoring of worker health.

• Officers are directors, CEOs, secretaries, senior management, or other persons who make decisions or participate in making decisions that can affect the whole or a substantial part of the organisation. They would be considered ‘officers’ of the company and have a legislative requirement to exercise ‘due diligence’ to ensure that the company complies with WHS legislative requirements. Eg administrative reporting, consulting and training.

• Workers – Under WHS Laws, anyone who is engaged by the PCBU for work is considered a worker. This includes office staff, contractors, subcontractors, volunteers, interns, work experience students, and so on. Supervisors and managers oversee work teams and groups, unless they have enough power to be considered an Officer, the Act treats most supervisors as ‘Workers’. This will be most people at the workplace.

Workers have a Duty of Care under common law, which applies to everybody in Australia, not necessarily workers. Under the law of negligence they can be sued in a civil court if they breach this duty.

Duty of Care: Take care at all times not to cause physical or mental harm to others that could be reasonably foreseen to result from your action or inaction.

Workers also have duties under the Act, and can be prosecuted if they do not comply. These duties are stated in the Work Health and Safety Act (section 28).

• Other – This includes visitors, customers and clients. Anyone who may be involved in the organisation but who is not employed.

  1. Penalties and Consequences
    There are penalties under Work Health and Safety laws for a breach of duty of care (as well as under common law). Penalties are stated in terms of ‘Penalty Units’, or a dolla amount, and vary from state to state. Fines are not the only penalty, the Court may decide upon imprisonment.

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