The Work Health and Safety Act took effect on 1 January 2012 and represents a major overhaul of occupational safety and health laws in Australia. These are expected to have a particular impact on mining and construction.
For builders and contractors, whether you are involved in building houses , large skyscrapers, factories or mining plant and equipment, and whether you are the head contractor, a subcontractor or a sole trader providing skilled or unskilled labour, these new laws will almost certainly affect you.
At their most basic level, the new laws abolish the old distinctions between employer and employee and replace these with PCBUs (Persons Conducting a Business or Undertaking) and Workers. The distinction between employees and independent contractors will disappear for the purpose of determining the rights and obligations of PCBUs and workers in a work group (which is the new term for workplace). This will make a real difference to the rights and responsibilities of companies and individuals who work together on large construction projects. Specifically, those who:
- work for a head contractor or subcontractor; and
- engage other trades, labour or subcontractors to work for them,
have both rights as Workers and obligations as PCBUs.
Interestingly, even volunteers are now regarded as "Workers" under the new laws.
These changes are set to affect many aspects of daily business in the building and construction industry as well as those who supply contractors and subcontractors with materials and/or labour. Legal services will be indispensable during the transition phase, which will involve drafting appropriate clauses in construction and supply contracts and formulating, implementing and reviewing compliance and management processes.
In one way, these reforms mirror recent reforms to WA's building laws. The most obvious similarity is the move in each field towards professionalisation. Like builders (and other professionals such as lawyers, doctors, real estate agents, etc.), those responsible for the health and safety of Workers in work groups will:
- no longer be authorised to do the job without a practising certificate (compare builders' registration);
- be bound to perform prescribed functions and duties with due care, skill and diligence; and
- be liable to prosecution by professional regulators for breaching their duties.
This will have obvious knock-on effects in other industries, such as insurance (consider, for example, the increased need for professional indemnity insurance).
We expect that the challenge presented by these new laws will be particularly acute in the building and construction industry. Safety and health standards in construction are already regarded as well below the baseline and are expected to worsen as numbers of experienced builders decline and those of apprentice-level participants increase.
Professional safety and health executives and the officers and directors of the companies they work for will have duties of due diligence under the new laws. This seems to be aligned with broader trends in the courts towards holding those who run companies personally accountable for their companies' conduct.
Other proposed laws are expected to be particularly prescriptive. For example, there are proposed laws governing the management, assessment and control of risks at various stages in a mining project, from initial design through all stages of operation. Amongst others, the reforms impose a duty on certificated professionals to formulate:
- a principal hazard management plan having regard to the relative probability and impact of each known hazard; and
- a principal hazard control plan.
These plans will be subject to mandatory review periodically.
The relevant provisions of the Model Work Health and Safety Regulations, which require these plans to be prepared and implemented in the States where they have been enacted into legislation, have yet to become law in WA.
If you are involved at any level in mining or construction, even if you would be regarded as an independent contractor under the old laws, you will be affected by the new workplace safety laws and should come to us for advice about what your rights and obligations are and how to become compliant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
