Most businesses will be aware of the new Work Health and Safety Act 2012 (SA) (“the Act”), which came into operation from 1 January 2013 as part of the new “harmonised” federal work health and safety regime.
The Act potentially has wider application/operation than its predecessor, the Occupational Health and Safety Act 1986 (SA), and imposes significant work health and safety duties and increased penalties for breach of those duties.
Pursuant to section 19 of the Act, a Person Conducting a Business or Undertaking (PCBU) has an obligation to ensure, so far as is reasonably practicable, the health and safety of workers they have engaged, or whose activities they can influence or direct whilst those workers are at work.
All “officers” of a PCBU have an obligation to exercise due diligence to ensure that the PCBU complies with its health and safety duties and obligations. An officer can be personally fined or even imprisoned for failure to comply with this obligation. “Officers” as defined in the Act will include directors and some managers.
When the Act came into effect, a number of “Codes of Practice” were also adopted. These Codes of Practice are practical guides to achieving the standard of health and safety required by the Act. The Codes of Practice can be admitted into evidence in any proceedings alleging a breach of the Act and used to demonstrate what is known about a hazard or risk, risk assessment or risk control, and what is “reasonably practicable” in a given situation.
Included in the number of Codes of Practice, which came into effect on 1 January 2013, were several Codes with particular application and relevance to the construction industry, including:
The Preventing Falls in Housing Construction Code outlines a range of control measures primarily addressing risk management and ‘high risk construction’. The Code, in its present form, would most likely apply to all residential construction work.
The Safe Design of Structures Code concerns architects, building designers and engineers. It requires the architect to provide a written report to the person conducting a business or undertaking. The report must address how to eliminate health and safety risks as well as identify any foreseeable hazards during construction of the building or structure.
The Construction Work Code requires a Work Health & Safety Management Plan be completed for all construction projects to the value of $250,000 or more. This would include many residential constructions.
Since these Codes came into operation, the construction industry and small business groups have expressed concern that the steps required to ensure compliance with the Codes was placing unreasonable financial burdens on industry and small business, which could result in increases of up to $35,000 in the cost of constructing a new home – costs which will necessarily be passed onto consumers.
In response to the concerns voiced, on 13 November 2013, Deputy Premier John Rau announced that the above Codes will be suspended while the government engages in consultation with industry and small business with a view to reworking the Codes so as to strike an appropriate balance between the need to ensure worker safety and the need to avoid adversely affecting the economic recovery and stability of the residential housing and construction industry.
Of course, in making the announcement, Deputy Premier John Rau was careful to confirm that the suspension of the Codes in South Australia has not in any way alleviated any requirement to ensure a safe working environment.
The ACT and Tasmania have approved and adopted all 3 controversial Codes. Western Australia has an older version of both the Preventing Falls in Housing Construction and Safe Design of Structures. Victoria has only adopted Preventing Falls and the Northern Territory has only adopted the Construction Work Code of Practice. New South Wales appears to still be consulting over all the Codes, and Queensland has not adopted any of them.
DW Fox Tucker strongly recommends that businesses and their officers (potentially including “middle” management) from all industries ensure that they understand their obligations under the WHS Act, Regulations and Codes of Practice. To assist this, our team can provide training tailored to your organisation.
