On the 1st of January 2013, the latest South Australian Work Health and Safety Legislation was released. It is comprised of:

• The WHS Act (Work Health and Safety Act 2012)
• The WHS Regulations (Work Health and Safety Regulations 2012)

The new legislation replaced the OHS Act or Occupational Health, Safety and Welfare Act 1986. It’s also a part of the Federal government’s national approach to the harmonisation of work, health, and safety legislation, although Victoria and WA have not yet introduced their own legislation.

Changes to Key Terms

• WHS or Work Health and Safety replaces the OH&S or Occupational Health and Safety
• PCBU or Person Conducting a Business or Undertaking now refers to an employer, which in turn can be defined as:
  • Person conducting a business or undertaking, individually or with partners
  • Person conducting a business or undertaking, with or without gain or profit involved
  • All partners within a partnership
  • Person conducting business or undertaking, and representing an incorporated association
• Worker now refers to employees, including:
  • Employees
  • All contractors and their subcontractors, along with all of their employees
  • A labour hire company employee working with a PCBU
  • Trainees or apprentices
  • Outworkers
  • Volunteers
  • Work experience students

Note that a PCBU can be referred to as a worker if he or she carries out work under a particular business or undertaking. The provisions that surround the primary duty of care applicable to both workers and PCBUs have remained practically unchanged.

Offences and Corresponding Penalties

Any breach in the work health and safety responsibilities by an individual, a PCBU, a body corporate, or an officer can be penalised. Three categories define the offences and corresponding penalties, which are determined depending on the breach’s severity. Here are the categories:

Reckless Conduct (Category 1)

Conduct with no reasonable excuse and exhibited by an individual, leading to another individual being exposed to serious injury, illness, or death, will merit a reckless conduct or Category 1 offence. The maximum penalties for this offence are:

Individual – 5 years imprisonment or a fine of $300,000 (or both)

PCBU and/or officers of PCBU – 5 years imprisonment or a fine of $600,000 (or both)

Body Corporate – a fine of $3,000,000

Failure to Comply with Health and Safety Responsibility (Category 2)

A person failing to comply with the defined health and duty responsibility, which leads to an individual being exposed to serious injury, illness, or death, will merit a Category 2 offence. The maximum penalties for this offence are:

Individual – a fine of $150,000

PCBU and/or officers of PCBU – a fine of $300,000

Body Corporate – $1,500,000

Failure to Comply with Health and Safety Responsibility (Category 3)

A person failing to comply with the defined health and duty responsibility in which there is no risk for an individual being exposed to serious injury, illness, or death will merit a Category 3 offence. The maximum penalties for this offence are:

Individual – a fine of $50,000

PCBU and/or officers of PCBU – a fine of $100,000

Body Corporate – $500,000

Inspectors’ Notices

In addition to the offences defined above, Inspectors still retain the power to issue notices. The type of notice to be issued will depend on individual situations. Three different ‘notice’ types are defined in the legislation, and these are:

Improvement Notice

This is similar to the old legislation. An inspector may issue an Improvement Notice in cases where a work health and safety responsibility has been breached. 

Prohibition Notice

Another remnant of the old legislation but there’s a minor change wherein the notice can first be served verbally and then in writing as a follow-up. An inspector may issue a Prohibition Notice if a present or future activity poses a great risk to the safety of workers.

Non-Disturbance Notice

This is a new type of Inspector’s notice included in the new legislation. When a site needs to be preserved and not disturbed due to a notifiable incident that occurred or any other similar circumstances, an Inspector may issue a Non-Disturbance Notice to the individual who has control or management of that workplace.

For all the above types of notices, non-compliance of individuals will result in a maximum fine of $50,000 and $250,000 if a body corporate is involved.

Codes of Practice

Codes of Practice serve as guidance in specific areas of the business in order to meet the specifications stated in the South Australian Work Health and Safety Legislation. Remember that these codes are admissible as evidence or reference during court proceedings. Therefore, if a requirement or recommendation stated in the Codes of Practice was not followed, you must prove that the implemented processes are more thorough and better than what is outlined.

There are currently more than 50 Codes of Practice being consulted or already approved and more will come in the future. Some of these codes cover very specific industries like construction, mining, etc. There are two Codes of Practice, however, that can be applied to any business: managing risks and first aid.

Managing Risks

In order to determine which processes or things may pose WHS risks and/or hazards, it is highly recommended that a Risk Management Assessment be conducted on each risk or hazard. Risk management is comprised of the following steps:

• Identifying hazards
• Assessing risks
• Controlling the risks
• Reviewing the control measures

Health and Safety Representatives and workers should always be consulted with each step.

Conducting a risk management assessment should be done whenever there is new equipment to be used, you are implementing new work practices, or when you need to respond to workers’ concerns due to a recent incident. 

Once the hazards have been identified and the corresponding risks have been assessed, the next step is controlling the risks. The three ‘control measure’ levels are:

• Level 1 – Eliminating the hazard and the accompanying risk/s
• Level 2 – Substituting the hazard, isolating it from workers, or using equipment to help remove the hazard
• Level 3 – Using personal protective tools or equipment such as hard hats or gloves, or developing procedures that can minimise the risk.

First Aid

Although this code replaced the South Australian Approved Code of Practice for First Aid, the context has remained the same. For example, hotels are still considered as high risk workplaces because of frequent burns during cooking and the probability of armed holdups. 

The requirement for the hospitality industry is that there should be one First Aid Officer that has gone through senior first aid training for every 25 workers in the workplace at any given time. First aid officers should also renew their certificates every three years, except for CPR which should be undertaken every single year.

Access to First Aid Kits should be ensured in workplaces and adequate burn treatment supplies must be placed in kitchens.

If the designated First Aid Officer is unavailable for some reason (e.g. officer is sick), workers should be able to access a First Aid Procedure which provides advice on what needs to be done on a particular situation that requires first aid to be administered.

What Needs to Be Done

So that your business remains compliant with this new legislation, you should ensure that appropriate work health and safety procedures and policies as well as safe work practices are in place. This will eliminate or at the very least minimise hazards, which in turn reduces the risks of unwanted incidents.

If you already have safe work practices, procedures, or policies that are already aligned with the old legislation, you should update them so they’re in compliance with the new legislation. This means now is the perfect time to get those health and safety practices, procedures, and policies reviewed and modified so you remain compliant and avoid penalties.

You should also remember that with each relevant stage in the process, the workers must be consulted to solicit their inputs.

Hiring a WHS Consultant

Most of the time, it’s better to let experts guide you on how you can be compliant with the new legislation. These consultants have been trained and exposed to different businesses and their experience and insight will assist you in meeting your obligations and reduce the likelihood of prosecution. 

WHS Matters offer user-friendly and affordable OHS/WHS safety management systems. These can be customised to your business’ specific requirements while assisting you in meeting your legal obligations. WHS Matters also offers services to help you develop your business management plans.

If you want to see what WHS Matters has to offer, just give them a call and schedule a free initial consultation. You can discuss your concerns with industry experts whether you already have a safety management system in place or you’re still planning on implementing one.