The WHS regime in Australia – introduction and background information
New work health and safety (WHS) laws came into effect in some Australian jurisdictions on 1 January 2012 and in other jurisdictions on 1 January 2013.
Each Australian State and Territory, and the Commonwealth, is responsible for implementing and enforcing their own WHS laws.
WHS laws impose duties on a range of different stakeholders including persons who conduct businesses or undertakings, persons who manage or control workplaces, officers, workers and others.
Who owes a duty – Who are the duty holders?
The WHS laws apply to all organisations and persons who conduct a business or undertaking in Australia, including medical practices. The WHS laws impose duties on identified duty holders, who include the following people:
- a Person Conducting a Business or Undertaking (PCBU),
- persons who manage or control workplaces and fixtures, fittings or plant at workplaces,
- persons who design, manufacture, import or supply plant, substances or structures used as, or at, a workplace,
- persons who install, construct or commission plant or structures that are to be used, or could reasonably be expected to be used, as, or at, a workplace,
- an officer of a corporation,
- a worker,
- other persons at the workplace.
What this means for you
If you own or operate a medical practice you may be a Person Conducting a Business or Undertaking (PCBU) and have duties under WHS laws.
Principles that apply to duty holders
Duty holders must consult, co-operate and co-ordinate their activities with all other persons who have duties in relation to the same matter.
There are core principles that apply to duty holders as follows:
- No transfer – A duty cannot be transferred to another person.
- One person, multiple duties – A person can have more than one duty if they are in more than one class of duty holder.
- Many people, multiple tasks – More than one person can concurrently have the same duty. A duty holder must comply with their duty even if another person has the same duty. Each person retains responsibility for their duty and must discharge their duty to the extent to which they have the capacity to influence or control the matter.
- Risk management – A duty on a person to ensure health and safety requires the person to eliminate risks to health and safety so far as is reasonably practicable, and if not reasonably practicable to eliminate, to minimise risks so far as is reasonably practicable.
Who are the PCBUs?
While the term Person Conducting a Business or Undertaking "PCBU" is not defined, examples of PCBUs who are individuals include:
- partners in partnerships,
- sole traders and self-employed people who conduct a business in their own right,
- individual trustees of trusts (in the case of some family businesses).
Examples of PCBUs that are organisations include:
- public and private companies, whether or not the business or undertaking of the company is conducted for profit or gain,
- service companies that employ staff,
- trustees that are companies,
- government departments and authorities,
- incorporated associations, if they employ someone.
What this means for you
- Most medical practices will be a PCBU in one form or another. This will mean that the medical practice owes a duty to ensure worker health and safety.
- It may be the case that multiple PCBUs operate in the same medical practice. For example, if a locum doctor is contracted to work they may be contracting and operating through a company and be a separate PCBU from the medical practice. In this case, multiple people may owe duties to ensure worker health and safety.
- Identify who in the medical practice has a WHS duty or obligation.
Duties on PCBUs
The primary duty of care is imposed on a PCBU to ensure, so far as is reasonably practicable, the health and safety of workers and other persons, and to ensure that health and safety risks are eliminated or minimised. For medical practices, the duty arises in three main ways:
Worker health and safety
The PCBU must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the PCBU, along with any workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the medical practice. Ensuring against bullying and harassment forms part of the duty that a PCBU owes to a worker.
The health and safety of other persons
The PCBU must also ensure that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the medical practice. The term "other persons" includes visitors and patients.
The PCBU must ensure, so far as is reasonably practicable, that work health and safety risks are eliminated or minimised by undertaking risk management. This includes identifying hazards, assessing risks, controlling risks and reviewing control measures by, for example:
- providing and maintaining a work environment that is without risks to health and safety,
- providing and maintaining safe plant, structures and systems of work,
- providing for the safe use, handling (including transport) and storage of plant, structures and substances,
- providing for and giving access to adequate facilities for the welfare of workers at the workplace,
- providing information, training, instruction or supervision necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking,
- ensuring that the health of workers and the conditions at the workplace are monitored for the purpose of preventing work-related illness or injury.
What this means for you
- It is important that medical practices develop clear policies and procedures which specify the obligations and duties of the medical practice and its workers in relation to WHS issues.
- Appropriate systems of work should be devised that minimise or eliminate risks to worker health and safety that might arise in the medical practice.
What does “reasonably practicable" mean?
The term "reasonably practicable" in relation to a duty to ensure health and safety means that which is, or was at the relevant time, reasonably able to be done in the circumstances, taking into account and weighing up all relevant matters.
Only when these matters have been assessed can the cost of eliminating or minimising the risk be taken into account, including whether or not the cost is overly disproportionate to the risk.
Relevant matters could include considerations such as:
- the likelihood of the hazard or risk occurring
- the degree of harm that might result from the hazard or the risk
- what the person concerned knows, or ought reasonably to know, about the hazard or risk and the ways of eliminating the risk
- the availability or sustainability of ways to eliminate or minimise the risk
- the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Duties on workers
PCBUs owe duties to ensure the health and safety of "workers". The concept of "worker" is defined in the WHS laws and includes:
- an employee,
- a contractor or subcontractor and their employees,*
- the employee of a labour hire company who has been assigned to work in the medical practice,
- an apprentice or trainee,
- a student gaining work experience,
- a volunteer.
(* Note: In medical practices, contractor organisations are also PCBUs in their own right and owe duties to their workers [and others], wherever work is performed).
Workers also have duties under the WHS laws. While at work a worker must:
- take reasonable care for their own health and safety
- take reasonable care that their acts or omissions do not adversely affect the health and safety of others
- comply, so far as the worker is reasonably able, with any reasonable instruction given by the medical practice to allow it to comply with the WHS laws
- co-operate with any reasonable policy or procedure of the medical practice relating to health or safety at the workplace that has been notified to workers.
What this means for you
- It is important to understand who are the "workers" in a medical practice. This includes not only direct employees, but also contractors and their employees.
- All workers should be informed and trained about their obligations under WHS laws.
- All workers should be informed and trained in the policies and procedures of the medical practice so that a safe working environment is created and maintained.
Duties on officers
An "officer" owes duties under the WHS laws. An officer includes:
- a director of a corporation
- a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation
- a person who has the capacity to affect significantly the corporation's financial standing
- a person in accordance with whose instructions or wishes the directors of the corporation are accustomed to act.
If a medical practice has a duty or obligation under the WHS laws, an "officer" of the medical practice must exercise due diligence to ensure that the medical practice complies with its duties or obligations. The duty to exercise due diligence is a proactive and continuous duty. Under the WHS laws, due diligence includes taking reasonable steps to:
- acquire and keep up-to-date knowledge of WHS matters,
- understand the operations of the medical practice, including the hazards and risks associated with those operations,
- ensure that the medical practice has available, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the medical practice,
- ensure that the medical practice has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responds in a timely way to that information,
- ensure that the medical practice has, and implements, processes for complying with any duty or obligation under WHS laws,
- verify the use of resources and processes referred to above.
What this means for you
- It is important to understand who are "officers". This is a factual question and will depend on the role each person has in the business of the medical practice.
- Each officer should understand their obligations under WHS laws to exercise due diligence.
- Each officer should devise their own due diligence system where they undertake due diligence tasks and document them.
The WHS laws require duty holders, so far as is reasonably practicable, to consult, co-operate and co-ordinate with each other, and for the medical practice to consult with workers when there is a health and safety matter that will directly affect those workers.
The qualification, "so far as is reasonably practicable", means that the level of consultation required will be dependent upon the circumstances in each case, including the urgency of the WHS issue and the seriousness of the risk.
Consultation involves taking the views of workers into account before making a decision – it does not require consensus or agreement, but does entitle workers to contribute to decisions made.
The consultation duty requires that:
- relevant information about WHS matters is shared with workers
- workers are given a reasonable opportunity to express their views, raise issues and contribute to the decision-making process relating to the WHS matter
- the views of workers are taken into account
- workers are advised in a timely manner of the outcome of the consultation.
Consultation must happen when a medical practice is:
- identifying hazards and assessing risks arising from the practice
- making decisions about ways to eliminate or minimise those risks
- making decisions about the adequacy of facilities for the welfare of workers
- proposing changes that may affect the health and/or safety of workers at work in the medical practice
- making decisions about WHS procedures – including procedures relating to consultation, resolution, monitoring of conditions and provision of information and training to workers.
In summary, consultation is about the medical practice sharing information and providing an opportunity for workers to respond and contribute to WHS issues that affect them in their work at the medical practice.
Consultation can be undertaken directly with workers, or via committee structures, or with WHS representatives.
What this means for you
- Consultation is an important aspect of the WHS laws.
- Each medical practice should consider how best to consult with workers and other duty holders about managing WHS risks and that consultation should take place when required.
Management of WHS incidents
Particular work health and safety incidents must be notified to the appropriate State regulator (e.g. WorkCover NSW, WorkSafe Victoria etc). The types of incidents that are notifiable include incidents that involve the death of a worker, other serious injury or illnesses to workers or dangerous incidents. Each State/Territory WHS law contains a list of prescribed incidents that should be notified to a regulator. The reporting procedures in each jurisdiction may be different.
In all cases, there is a duty to preserve the scene of an incident until a regulator attends or until any other time as directed by a regulator.
What this means for you
- Familiarise yourself with the types of incidents which should be notified to your appropriate State or Territory regulator.
- Familiarise yourself with the way in which to notify an incident.
- Train your staff in the requirement to preserve the scene of an incident until a regulator is contacted.
Penalties for non-compliance with WHS laws
Compliance with WHS laws is mandatory and there are penalties associated with a failure to comply with them. Regulators have a range of options available in relation to enforcement including issuing an Improvement Notice to a medical practice requiring that certain actions be undertaken. Regulators may also commence prosecutions for WHS laws for more serious matters. Prosecutions under WHS laws are criminal matters and attract significant financial penalties and, in some cases for individuals, a term of imprisonment.
Medical Practice Safety management
Work health and safety is about ensuring the wellbeing of workers (including contractors), patients and others in the medical practice. Regular review of your practice will assist in making your practice a healthy place in which to work.
It is important that you assess the WHS risks that might arise in your medical practice and develop policies, procedures and worker training that address these risks so that you can ensure a safe working environment.
WHS policies and procedures
WHS policies and procedures are important as they set clear standards and expectations for how WHS issues are to be managed. They also clarify which individuals hold certain obligations for managing WHS issues.
For medical practices, consideration should be given to developing appropriate policies and procedures which relate to the risks which exist in each medical practice.
Typical policies and procedures that could be developed for a medical practice include:
- work health and safety policy
procedures that deal with:
- security and staff safety,
- dealing with patients,
- ergonomic set-ups and assessments,
- manual handling,
- electrical safety,
- the storage and handling of drugs, medicines and other chemicals,
- incident/accident reporting,
- cash handling,
- first aid,
- fire safety and emergency procedures – including the location of fire extinguishers, how to use them and an emergency evacuation route and assembly point,
- working practices including the use of personal protective equipment (PPE) and other safety equipment, access/egress issues including the requirement to keep entry and exit points clear from congestion, and dealing with slips, trips and falls,
- worker training and competency assessment,
- anti-bullying, Equal Employment Opportunity (EEO) and harassment.
Consultation and training
When developing policies and procedures, medical practices should consult with workers and involve them in formulating policies and procedures that relate to specific practice risks.
Training workers in the policies and procedures that apply at the medical practice is also important, as this allows workers to understand what is expected of them and how they can contribute to a safe work environment.
Worker training should take place on a regular basis and should focus on:
- informing employees about their obligations under applicable policies and procedures, and the methods by which they can actively minimise safety risks to themselves and others,
- assessing worker competency and awareness of safe work practices.