New Work Health and Safety laws 2020

The concept requires business operators to do what is ‘reasonably practicable’ to eliminate or minimise risk to health and safety. This replaces the control test under the Occupational Safety and Health (OSH) laws.  Some key points to consider in relation to this requirement include:

• the greater the likelihood and/or the greater the potential harm from a particular risk, the more likely it is that it would be reasonably practicable for you to make a greater effort to eliminate or minimise the risk;
• when considering the cost to eliminate or minimise a risk, you must consider whether that cost is grossly disproportionate to the risk.

New officer duties which require officers to exercise ‘due diligence’. This includes taking reasonable steps to:

• acquire and keep up to date knowledge of WHS matters; and
• gain an understanding of the nature of the operations of the business and generally of the hazards and risks associated with those operations; and
• ensure the person conducting the business has available for use and uses appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out; and
• ensure that the person conducting the business has appropriate process for receiving and considering information regarding incidents, hazards and risks responding in a timely way to that information; and
• ensure that the person conducting the business has, and implements processes for complying with any duty or obligation of the person under the Act; and
• verify the provision and use of the resources referred to above.

An officer now includes:

• a secretary or director of a corporation;
• someone who makes, or participates in making, decisions that affect the whole, or a substantial part, of a corporation; 
• someone who has the capacity to significantly affect a corporation’s financial standing; and
• someone who is accustomed to having their instructions actioned by the board, however this does not include those who provide advice to the board as part of their role. 

A broadened focus of duties which goes beyond ‘employers’ and ‘employees’. Instead, the new laws will impose obligations on all ‘persons conducting a business or undertaking’ (PCBU) to ensure the safety of all ‘workers’, which will include employees, contractors and ‘others’.

The regulator will need to establish that a PCBU has failed to meet their duties so far as is reasonably practicable, or that an officer has failed to exercise due diligence.

An expansion of designer duties with obligations extending not only to requiring the design to be safe during the construction of the structure but also to ensure it is safe when being demolished/disposed.

In addition, the WHS regulations continue the requirement for designers of structures to provide a written safety report, but the report must be provided to certain persons and additional consultation requirements apply (see below).

A new primary duty to ‘monitor’ workers’ health and conditions at the workplace.

Changes to incident notification procedures, particularly what incidents need to be reported.

Broader consultation requirements, including duties on persons who share a WHS duty to consult, cooperate and coordinate with each other in respect of their shared duties.

Significantly increased penalties for a contravention of the new laws, including the offence of industrial manslaughter.

A range of new specific control measures are prescribed for particular hazards (e.g. falls, falling objects, excavations, demolition, confined spaces, asbestos).

New requirements to provide fall protection for risks of falling from any height and changes to the classification of falls of more than 2 meters in high risk construction work – see below for transition periods.

New requirements to eliminate or minimise risk, including by preventing an object from falling freely or by a system to arrest the fall of a falling object, e.g., a catch platform.

A more prescriptive requirement for a person with management or control of a workplace at which construction work is carried out to ensure, so far as is reasonably practicable, that the workplace is secured from unauthorised access.

Added requirement for emergency plans to include provisions for an effective response to an emergency, notifying emergency services, medical treatment and assistance, effective communication between the person authorised to coordinate the emergency response, and provision of information training and instruction about implementing the emergency procedures.

Additional requirements to ensure SWMS are reviewed and revised as necessary. SWMS must be available for inspection and retained for up to 2 years if a notifiable incident occurs.

New regulation for work with engineered stone to ensure that:

• a power tool is not used for cutting, grinding or abrasive polishing of engineered stone unless the use is controlled; and
• the controls are properly designed, installed, used and maintained to reduce exposure to airborne crystalline silica.

Class 3 demolition licences have been removed. This type of licence only allowed demolition work comprising the removal of more than 200 m² of brittle or fragile roofing material. Anyone that wants to do this type of demolition will need either a class 1 or a class 2 licence, depending on the type of structure to be demolished.

A new provision for persons conducting a business or undertaking to provide for audiometric testing of workers who are frequently required to wear PPE.

The definition of a confined space no longer includes a “restricted means for entry or exit”. This means that some spaces not previously considered to be confined spaces, such as basements, could now meet the definition of confined spaces.

Designers of structures will still need to provide a written report to the person who commissioned the design setting out the hazards associated with the design that create risks to those who are to carry out construction work.

The person who commissions construction work will be required to consult with the designer of the structure about eliminating or minimising risks to health and safety arising from the design during the construction work.

The person who commissions a construction project must give the principal contractor any information the person has about hazards and risks at or in the vicinity of the workplace where the construction work is to be carried out.  This would include providing the designers safety report to the principal contractor.

Codes of practice currently in force will continue to apply.

The provisions of OSH Regulation 3.55 for reducing the risk of a fall of more than 2 metres in high risk construction work will continue to apply until 31 March 2025.

However, the new provisions for the prevention of falls below 2 metres in height will apply immediately.

Those cards issued, or cards applied for prior to 31 March 2022, will be deemed to have been issued or applied for under the WHS Act.

From 31 March 2024 a high risk work licence will be required for all work using material hoists.

Existing SWMS will continue to apply until 2023 unless required to be reviewed earlier.