Work health and safety (WHS – formerly Occupational Health & Safety, or OH&S) legislation aims to reduce the personal, social and economic impact of work-related accidents and incidents. Effective management of workplace risks also makes good business sense. It can help improve workplace morale, enhance the reputation of your reserve trust, avoid costs associated with workplace injury and illness and minimise disruption to the workplace.
Crown Lands is committed to promoting legislative compliance and good WHS practice within reserve trusts.
For the purposes of the Work Health and Safety Act 2011, reserve trusts with employees (including where a reserve trust employs a contractor) comprise a "person conducting a business or undertaking” (PCBU) and are required to ensure the health, safety and welfare at work of all workers engaged or caused to be engaged by the reserve trust, as well as all others who come onto the reserve, such as the public and volunteers.
This situation changes where the reserve trust comprises a volunteer association (as defined under the Work Health and Safety Act 2011) only; that is, it has no employees.
Meeting WHS legislative obligations can present a challenge to reserve trusts. However, reserve trusts should be protected from prosecution for alleged breaches of the legislation where they have taken all reasonably practicable steps to prevent workers sustaining injury or illness. Trusts can do this by ensuring they take active steps to identify and manage foreseeable risks at their workplaces.
One way of achieving this is by developing a Work Health & Safety Management System (WHSMS) (previously generally referred to as an Occupational Health and Safety Management system) which is then monitored and periodically evaluated. A WHSMS can be tailored to the specific circumstances of the workplace and the size of the organisation.
This Chapter provides guidance on the WHS obligations of your reserve trust and how to meet them, and advice on setting up an effective WHSMS. This advice differs depending on whether you are a small, medium or large reserve trust.
10.1
Your obligations regarding WHS
Trust board members need to keep in mind that the laws regarding WHS require “officers” of a PCBU (“officers” in this regard includes members of a trust board) to exercise due diligence to ensure the reserve trust meets its WHS obligations.
If a reserve trust employs people as managers or supervisors of others, these managers/ supervisors are responsible for being actively engaged in fulfilling the reserve trust’s obligations to manage work health and safety and ensuring trust board members are kept well informed of the reserve trust’s WHS performance.
Obligations under the Work Health and Safety Act 2011
The objective of the Work Health and Safety Act is to protect the health, safety and welfare of people at work. The Act recognises that a PCBU will adopt a risk management approach to the prevention of injury and illness. Under the Act, everyone at a place of work has responsibilities to contribute to the safety and wellbeing of persons at the workplace (this includes employers, employees and other “workers”, contractors and other third parties).
Obligations of reserve trusts which have employees (i.e. are a PCBU)
The Work Health and Safety Act places a 'primary duty of care’ on PCBUs to ensure the health, safety and welfare of all workers and others at the workplace. In this regard:
• a Crown reserve is a workplace – although it has other uses, it is also a place where work is carried out, and
• a PCBU is any person or company conducting a business or undertaking (other than a volunteer association – see below) – and therefore includes a reserve trust where that reserve trust has employees (whether full-time, part-time or contractors).
The duties of PCBUs to their workers extend to, so far as is reasonably practicable: • providing and maintaining a work environment without risks to health and safety; • providing and maintaining safe plant and structures;
• providing and maintaining safe systems of work;
• the safe use, handling, and storage of plant, structures and substances;
• providing adequate facilities for the welfare at work of those persons carrying out work for the business or undertaking, including ensuring access to those facilities;
• providing any 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 business or undertaking; and
• monitoring the health of workers and conditions at the workplace for the purpose of preventing illness or injury to workers arising from the conduct of the business or undertaking.
Under the Work Health and Safety Act workers include employees, contractors, employees of contractors and volunteers.
PCBUs must also ensure that the health and safety of others at the workplace (e.g. visitors) is not put at risk from work carried out as part of the conduct of the business or undertaking. Obligations of reserve trusts which do not have employees (i.e. are a volunteer association)
Under the Work Health and Safety Act a “volunteer association” means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for that volunteer association or receive any form of remuneration.
Trust board members are generally volunteers. Where this is the case, and if the reserve trust does not employ any person to carry out work, then the reserve trust is likely to be a volunteer association.
Note: Volunteer associations are not PCBUs. As such, if your reserve trust is a volunteer association, then trust board members will not be an “officer” for the purposes of work safety laws, and you will not be subject to prosecution for failures to carry out appropriate due diligence. You are, as a worker, subject to all relevant safety requirements and associated policies of Crown Lands.
Obligations of “officers”
Trust board members for reserve trusts which have employees (and are therefore a PCBU) are “officers” for the purposes of the Work Health and Safety Act. “Officers” have a responsibility to:
• exercise due diligence to ensure that the PCBU in which they are involved complies with its work health and safety duties and obligations.
Due diligence includes taking reasonable steps to:
• acquire and keep up-to-date knowledge of work health and safety matters
• gain an understanding of the nature of the operations of the PCBU and any associated hazards and risks
• ensure the PCBU has available and uses appropriate resources and processes to eliminate or minimise risks
• ensure the PCBU has appropriate processes for receiving, considering and responding to information about incidents, hazards and risks, and
• ensure the PCBU has and implements processes for complying with its duties and obligations. Examples of such processes would be the reporting notifiable incidents, consulting with workers, ensuring compliance with notices issued under the Work Health and Safety Act, the provision of training and instruction to workers, and health and safety representatives receive their entitlements to training.
• verify the provision and use of the above resources and processes. Obligations of “workers” (which includes volunteers)
“Workers” have a responsibility to:
• 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 other persons.
• comply and cooperate with, so far as they are reasonably able, with any reasonable instruction given by the person conducting the business or undertaking for the purpose of allowing that person to comply with the Work Health and Safety Act.
A volunteer is also a “worker” and as such has the above responsibilities. Reserve trusts need to ensure that their volunteers are aware of these responsibilities.
Other PCBU obligations
In addition to the primary duty of care, further specific duties apply to certain PCBUs (e.g. PCBUs with management or control of a workplace, or PCBUs related to the design,
manufacture or installation of plant). If your reserve trust is likely to comprise one of these other types of PCBUs, consult Part 2, Division 3 (Further Duties of Persons Conducting a Business or Undertaking) of the Work Health and Safety Act for the detailed requirements.
Obligations under the Work Health and Safety Regulation 2011
The Work Health and Safety Act 2011 is accompanied by the Work Health and Safety Regulation 2011. The Regulation provides detail on how to comply with the mandatory provisions of the Work Health and Safety Act. The following topics are covered:
• duties in relation to general workplace management
• risk management process and risk control of particular hazards, processes and types of work
• establishment of employee consultative arrangements
• regulation of construction work and specific duties in relation to construction work, including for principal contractors
• notification of accidents and other matters • licensing for certain types of work.
This Chapter addresses key topics only, and reserve trusts must further familiarise themselves with the applicable requirements to ensure they comply with the law.
Other obligations
The Workplace Injury Management and Workers Compensation Act 1998 requires reserve trusts to establish a workplace injury management and workers compensation system to enable early and effective management of workplace injuries and illnesses and the provision of income support for injured workers and their dependants. Reserve trusts need to make themselves familiar with these requirements.
The information sources listed below (in priority order) provide additional guidance across a wide range of topics. They are also briefly covered in the Further Guidance section at the end of this Chapter.
• Safe Work Australia National Codes of Practice • Australian Standards
• Specific Guidelines
• Material Safety Data Sheets • Safety Alerts
Most investigations and prosecutions in New South Wales in relation to workplace injury and safety management are undertaken by WorkCover NSW, which also publishes many of the resources listed above.
In addition to NSW work health and safety legislation, other regulators impose requirements regarding the management of related areas not covered by the Work Health and Safety Act, for example:
• Department of Health – infection control • Local Government – building approvals
• Office of Environment and Heritage – workplace hazardous substance spills which can affect the environment; packaging and transportation of dangerous goods; radiation control
• Transport for NSW – e.g. motor vehicle registration.
For further work health and safety-related information or legislation administered by these agencies, go to the NSW Government Directory website and follow the links to the specific agency, contacts and topic area: www.directory.nsw.gov.au
10.2 Developing a Work Health & Safety Management System (WHSMS)
Employers must ensure the health, safety and wellbeing of all employees. To achieve this, it is essential to have in place a program of activities and procedures to help you establish a WHSMS which takes a risk management approach to injury and illness prevention. An WHSMS also makes good business sense for managing WHS risks and peoples’ safety in an efficient and effective manner. An WHSMS is “the overall management system which includes organisation structure, planning activities, responsibilities, practices, procedures, processes and resources for developing, implementing, achieving, reviewing and maintaining the WHS policy, and so managing the WHS risks associated with the business of the organisation.”7
Although the format suggested in this section for a WHSMS is not mandatory under WHS legislation, it will guide reserve trusts in developing a systematic and planned approach to managing work health and safety risk exposure in accordance with the size and operations of their specific trust. Many of the activities and procedures covered below are specifically required by the Work Health and Safety Regulation 2011.
Developing an WHSMS
Reserve trusts will already have varying levels of work health and safety management in place. For reserve trusts that are in the early stages of setting up management systems, the risk management checklist and other resource material referred to in this Chapter will help you decide what is needed and in what order to do it.
Reserve trusts that are more advanced in this process and want to improve their systems can, in addition to completing the risk management checklist, use the planning and review process in Australian Standard AS 4801: 2001 Occupational Health and Safety Management Systems – Specifications with guidance for use.
Most important to the development and implementation of a WHSMS is the commitment, leadership and continual support of reserve trust management to that process.
It is also essential to involve the workforce in decision-making that may affect their health and safety. This should be done during the planning, implementation and evaluation phases of the WHSMS. An effective WHSMS provides for suitable training of both management and workforce to carry out their roles in accordance with WHS legislative requirements.
The WHSMS must be concerned with both: • injury prevention, and
• being able to respond in a timely and effective manner should an injury or illness occur Both of these actions will minimise the costs associated with workplace incidents. Reserve trusts should also aim to continuously improve their WHSMS through a process of monitoring, review and evaluation.
For further guidance on how to set up, implement and evaluate a WHSMS see:
• AS 4801:2001 Occupational Health and Safety Management Systems – Specifications with guidance for use.
• AS 4804:2001 Occupational Health and Safety Management Systems – General guidelines on principles, systems and supporting techniques.
7
AS 4801:2001 Occupational Health and Safety Management Systems – Specifications with guidance for
use.
• Workplace Safety Kit: A Step by Step Guide to Safety for Business 2001 published by WorkCover NSW.