Model WHS Act simplifies and clarifies obligations

Company officers, middle managers, and workers have obligations that have been simplified and clarified under the forthcoming national Work Health and Safety Act — and a prominent legal practitioner shed light on the subject at the Safety in Action trade show in Melbourne. 

 

During an address on 5 April, Barry Sherriff, partner at law firm Norton Rose and a member of the panel that undertook the National Review into Model OHS Laws (2008–09), told attendees that although the model Act achieves national consistency for businesses operating in multiple jurisdictions, this is not the most important aspect of the laws (which take effect Australia-wide on 1 January 2012). 

 

‘The Act delivers much more than achieving homogeneity … it is about moving safety forwards,’ he said. 

 

 

In particular, Sherriff reminded attendees that the model Act had necessarily updated existing legislation to reflect contemporary working relationships. For instance, Sherriff said that work was no longer undertaken purely by employees, but also involved a more complex network of contractors, subcontractors, labour-hire companies and even volunteers.

 

‘If you look in the model Act for the duties of an employer, it will be a fruitless task,’ he said.

 

‘If you look in the model Act for the duties of an employee, it will be a fruitless task. Each of these will still have duties, but as part of broader classes of “business” and “worker”. Workers are those who work in any capacity and who are influenced by the holder of the primary duty of care. We have not made fundamental changes to the legislative model but are bringing it up to date. We have made it clearer who owes a duty. No longer are your obligations determined by who you are but by what you do.’

 

 

Sherriff also took the opportunity to address some ‘troubling misinformation’ that has been ‘peddled’ to stakeholders. 

 

In particular, he assured middle managers that they would not be regarded as ‘officers’ under the model Act. 

 

‘Officers are those who participate in making decisions affecting the whole, or a substantial part of, the organisation,’ he said. 

 

‘Contrary to some of the alarming statements being made, these are not decisions at the micro level.’

 

On the other hand, Mr Sherriff said middle managers will ‘not escape responsibility’.

 

‘A word of caution: managers are workers too and have a duty of reasonable care to others,’ he said.

 

See also the recently published WorkplaceOHS article, in which Sherriff looks at the ‘positive duty of care’ officers have under the model Act in greater depth. 

 

 

Further, Sherriff rejected suggestions from an audience member that the model Act would necessarily impose greater costs on employers.

 

‘A lot of what we’ve done is to simplify and clarify things, to make the law better and remove the legal gobbledegook [for the] people in the office, factory, the warehouse, or the road who need to understand the safety laws,’ he said.

 

‘It requires [stakeholders to do what they] should now be doing anyway.’

 

The Safety in Action Conference and Safety Show ran from 5 to 7 April  at the Melbourne Exhibition Centre.