Tuesday, October 9, 2012

NSW Work Health and Safety Laws and the PCBU

Are you aware that as a property owner or controller of an asset you have a duty of care to those who access, conduct work on and use your property?

Duty of care explained

A duty of care is a duty to take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure persons who are closely or directly affected by your act or omission.

Now that we have established the duty of care, how does this apply to me?

On January 2012 in New South Wales, the new Work Heath and Safety Act 2011 replaced the existing Occupational Health and Safety (OHS) Laws in NSW.

How is this change relevant to me?

The crucial change in the Work Health and Safety Act 2011 is the amendment of the definition for which bodies or individuals are now responsible for the application and ongoing management of a duty of care.

Part of the amendment to the existing definitions includes the specification of who accepts liability to execute and maintain duty of care.

Definitions under the Work Health and Safety Act 2011

Person conduction a business or undertaking:

A person conducting a business or undertaking (PCBU - the new term that includes employers) has the primary duty to ensure, so far as is reasonably practicable, that workers and other persons at a workplace are not exposed to health and safety risks.


The definition of a 'worker' includes any person who carries out work for a 'person conducting a business or undertaking' (PCBU - the new term that includes employers).

This term 'worker' includes any person who works as an:

    work experience student
    contractor or sub contractor
    employees of a contractor or sub-contractor
    employee of a labour hire company assigned to work for a PCBU.

A PCBU has a duty of care to ensure effective consultation, cooperation and coordination on safety matters. A PCBU must ensure that the facilities are available, accessible and adequate.

Who is considered a person conducting a business or undertaking (PCBU)?

A person conducting a business or undertaking as defined under the WHS act includes each of the following:

    Body Corporates who employ staff or subcontractors
    Employers, Self employed, partners, franchisees, franchisor
    Principal contractors, subcontractors
    Business who control workplaces, fixtures, fittings, plant at workplaces

As all of our clients fall into one of these categories, we need to get the point across to our clients that they must show that they have done everything that is reasonable to ensure a safe workplace and safe work practices operate at their building.

The body corporate under the act is included as a 'person conducting a business or undertaking' and has a primary duty to ensure the health and safety of workers they engage, direct or influence.

What can I do to ensure I am not exposed as a result of these legislative changes?

Firstly you have a legislative requirement to ensure that you or your existing management firm has effective control measures in place for your asset.

The Work Health and Safety Regulation 2011 (WHS Regulation) specifies obligations about the work environment and welfare facilities including:

    managing risks to health and safety
    personal protective equipment
    training and instruction
    workplace facilities
    emergency plans
    first aid.

How can I ensure these processes are adequately addressed?

As a property owner and the liable party for the application of this duty of care it is essential that you review, audit and participate in the development of these processes.

The engagement of a management firm does NOT mitigate your responsibility.

You are responsible for the ongoing application and systematic approach to work health and safety regardless of the engagement of a management firm. In fact the engagement of a firm that does not practice safe work practices in line with legislation can be an act of negligence on behalf of the appointing entity.

We recommend that to protect yourself and your building, that you exercise caution with such an engagement.

To protect the interest of the building, we would suggest the following actions we referred to when appointing a building or facility management provider.

    Review policies and procedures relating to the Work Health and Safety of their employees and subcontractors.
    Provide evidence of the these tools in use and that they can explain each of the required functions within

It is most important that any management firm has contractor management framework that identifies the 5 stages of contractor management and how specific actions should be taken at each and every stage:

    Induction and Pre Start
    On the job

If you are concerned that your current provider is not meeting these legislative requirements, it might be time to intervene and take action to rectify the situation. This could include up-skilling your current provider, engaging expert consulting advice to support your current provider or going out to market to engage a firm that is competent and comfortable with meeting all such obligations.

Any of these actions show that the PCBU has attempted to improve the situation and move towards providing a safer environment. Doing nothing is not an option under this new legislation and an unfortunate accident that seriously injures or kills someone will be too late.

It is advised that you seek professional advice on whether the firm you have currently engaged or are considering are suitably qualified (tertiary qualification) in the field of Occupational Health and Safety.

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