Two new sets of regulations which provide a much greater level of detail to the requirements under the new Health and Safety at Work Act (HSWA) have recently been announced and come into force on 4 April 2016. The regulations flesh out the duties set out in the HWSA and persons conducting a business or undertaking (PCBUs) should take note of how their business may be affected.
Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 (the “Risk Regulations”)
PCBUs have duties under the HSWA to ensure, so far as is reasonably practicable, that the workplace is without risks to the health and safety of any person.
The Risk Regulations provide greater detail to ‘put flesh on the bones’ of existing legislative duties, as well as setting out specific duties for PCBUs which apply to all situations where risks and hazards, addressed by the regulations, exist.
A PCBU must first identify all hazards that could give rise to reasonably foreseeable risks to health and safety. If it is not reasonably practicable to eliminate those risks, the PCBU must follow a mandated procedure under the regulations, including (so far as possible) substituting and isolating the hazard, implementing engineering or administrative controls and providing Personal Protective Equipment (PPE).
The Risk Regulations go a step further than this, however, and also provide specific duties to maintain control measures that are fit for purpose and to review and revise them over time. While a breach of any clause of the Risk Regulations can lead to the issuance of an improvement notice under the HSWA, a breach of some requirements (such as training, first aid or workplace facilities) are standalone offences with specified fines.
Exposure to hazardous substances and health monitoring are also dealt with, with prescribed requirements for when monitoring is required, and duties to ensure that health monitoring is supervised, paid for and recorded by the PCBU, and results provided to workers.
The Risk Regulations also include a number of specific matters for the management of young persons at a workplace, and require police vetting of workers at limited-attendance childcare centres.
Health and Safety at Work (Worker Engagement, Participation and Representation) Regulations 2016 (the “Worker Engagement Regulations”)
These regulations set out matters relating to work groups, health and safety representatives, and health and safety committees, to support more effective worker participation. This includes information on who can be a health and safety representative or on a health and safety committee, and health and safety representative training.
PCBUs will be required to comply with these regulations where the HSWA mandates that, upon a worker request, the PCBU elect a health and safety representative or establish a health and safety committee. This will be the case where a PCBU either has more than 20 workers or participates in a “high risk” industry.
The Worker Engagement Regulations confirm what industries are considered to be “high risk” for the purposes of the HSWA and include forestry, coal mining, building and heavy and civil engineering construction industries.
Also included in the Worker Engagement Regulations is the prescribed minimum ratio for the number of workers for every health and safety representative (19), requirements for the election and training of health and safety representatives, and the membership issues that an inspector may determine if the parties are unable to reach an agreement themselves. Failing to comply with such a decision of an inspector will attract liability for the PCBU of up to $10,000 for an individual and $50,000 for a company.
It is important for all businesses to review their current practices against the prescribed requirements in the incoming regulations. Russell McVeagh regularly provides advice to its clients on its compliance with health and safety requirements, and our specialist team of health and safety experts can assist businesses with their transition to the new regime, which takes effect on 4 April 2016.
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This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.