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NEW LEGISLATION PUSHES BOUNDARYS

New Legislation is now in place for Workplace Health and Safety Act which places the primary duty of care and various other duties and obligations on a ‘person conducting a business or undertaking’ (PCBU). The meaning of a PCBU is set out in section 5 of the WHS Act is a broad concept used to capture all types of modern working arrangements. A PCBU or Person in Control of a Business Unit conducts a business or undertaking alone or with others. The business or undertaking can operate for profit or not-for-profit. The definition of a PCBU focuses on the work arrangements and the relationships to carry out the work. In addition to employers, a PCBU can be a corporation, an association, a partnership or sole trader. A volunteer organisation which employs any person to carry out work is considered a PCBU. Householders where there is an employment relationship between the householder and the worker are also considered a PCBU.

An officer is a person who makes decisions, or participates in making decisions, that affect the whole, or a substantial part, of a business or undertaking and has the capacity to significantly affect the financial standing of the business or undertaking. If a person is responsible only for implementing those decisions, they are not considered an officer. Partners of a partnership are not officers but are PCBUs. An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with their duties under the WHS legislation.

You are considered to be an officer if you are:

• an officer within the meaning of section 9 of the Corporations Act 2001
• an officer of the Crown within the meaning of section 247 of the model Work Health and Safety (WHS) Act
• an officer of a public authority within the meaning of section 252 of the model WHS Act.

Much of what we see in the new legislation has flow on effects with thinks like responsibilities for HSR – Health Safety Representatives in the workplace.

A person who conducts a business or undertaking (PCBU) must consult, so far as is reasonably practicable, with workers who carry out work for the business or undertaking and who are (or are likely to be) directly affected by a work health or safety matter. Part 5 of the WHS Act allows for workers to be consulted and represented through health and safety representatives and committees:

• A worker may ask for a Health and Safety Representative (HSR) to be elected to represent them on work health and safety matters. If a worker makes this request, work groups need to be established to facilitate the election. Where HSRs have been elected, the PCBU must consult with them.
• A Health and Safety Committee (HSC) brings together workers and management to assist in the development and review of health and safety policies and procedures for the workplace. A HSC must be established when a HSR or five or more workers makes a request to the PCBU.

PCBU’s and HSR’s also have responsibility for general safety requirements including certification of workers with licensing such as the National Code of Practice for Induction for Construction Work. As all states and territories have agreed to implement the National Code of Practice for Induction for Construction Work which has been declared by Safe Work Australia. This has resulted in a nationally consistent approach to construction induction training given to workers across Australia. It has also meant that building and construction workers who have completed the induction training are now recognised nationally. The code of practice replaced a multitude of state systems currently in operation with a single national approach. The code provides guidance on the recommended induction training required to ensure construction workers gain awareness and understanding of common hazards on construction sites and how they should be managed. The code is supported by a national unit of competency in CPC08 Construction, Plumbing and Integrated Services Training Package which enables required training to be delivered through the vocational education and training system by registered training organisations. On 1 January 2012, new National OH&S laws came into effect in QLD, NSW, ACT, NT and Commonwealth jurisdictions. The new law (Work, Health and Safety Act, 2011) provides for White Cards to be recognised across all States of Australia. This is an example of the type of licensing that PCBU’s and HSR’s have the responsibility to ensure that they comply with National Licensing and Training requirements.

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