The Primary Duty of Care of the business to workers and other persons is expressed under Section 19 under the new model WHS Act. It can be likened to Section 8 under the old NSW OHS legislation, in that most WHS prosecutions will rely on these obligations to bring a case.
Section 19 alludes to the need to provide a work environment without risk, the provision of appropriate safety resources, provision of safe systems of work, ensuring safe use, handling and storage of plant, structures and substances, provision of adequate facilities for the welfare of workers, provision of information, training, instruction and supervision, and monitoring to ensure prevention of injury and illness.
In the event of an incident the prosecution will argue that the business has failed in its duty to meet these requirements. The business need to be able to run a defence that provides clear evidence that all relevant matters that might impact on the health, safety and welfare of the workers have been addressed as far as is reasonably practicable. One of the best ways of doing this is to have systems in place that allow you to demonstrate your duty of care.
First, that you have identified safety critical areas, and that these areas are addressed with systems of work such as procedures and work practices, are appropriately resourced and adequate information, training, instruction and supervision is available.
Clearly, an ability to demonstrate planning and communications is a big part of this process followed up with the appropriate and timely identification and control of hazards and associated risks.
Every system will have “weaknesses”, in both its formulation, application and due to a changing work environment. These “flaws” should be indentified and rectified as a routine. A good management system will be able to demonstrate that this process is working with appropriate communications, reporting and review channels toward a more optimal system, and responsive to change. Management should be able to demonstrate a degree of initiative in identifying and acting on the safety critical issues.
Having a documented system is a key initial step in this process. Being able to demonstrate that you are using the systems through records is a desirable place to be.
In the event of an incident under the old NSW or Queensland legislation it was reasonable to expect that a prosecution would lead to a finding of criminal guilty and the existence of a management system might help to mitigate the penalty. Under the new model legislation you can use the system as a defence to demonstrate that you did all that is reasonably practicable and therefore seek to be cleared.
The other point is that if your management systems are sound then you should be on a path of continuous incremental improvement aimed at creating a robust system, where the likelihood of serious prosecutable incidents in diminished.
At what cost? – you may well ask.
The annual Workers Compensation bill for our NSW members has been estimated at around $15 million. Experience premiums are well in excess of costs. A well structured continuous incremental improvement program needs to be managed but it is largely driven through the involvement of all participants at the margin.
What the management system does is provides the foundation upon which those low cost improvements are based. Low cost because we attack the existing processes to make what you already have, work more effectively and safely rather than making what could be unnecessary capital expenditure.
The system is available to NECA members for $2,200. Give the OHS Department a call on 02 9744 1099 or email NECASafe@neca.asn.au to find out more on how to implement the NECA Safety Management Systems in your workplace.
This article was provided by NECA NSW, National Electrical Communications Association.
NECA is the peak industry body representing the interests of electrical and communications contractors Australia-wide. For further information please go to http://nsw.neca.asn.au/ or contact NECA Work, Health and Safety on 02 9744 1099.