Everyone will now be aware that the new national workplace health and safety regime will commence on 1 January 2012.

Importantly there will be no 'grace period' during which dutyholders will have the benefit of the leniency in relation to non compliance.

Therefore it is critical that:

  • Dutyholders are identified
  • The scope of each duty is understood.

Due diligence

It is important that officers of all PCBUs can demonstrate the exercise of due diligence to comply with the new legislation.

Officers will be required to ensure that they take 'reasonable steps' to:

  • Understand relevant workplace health and safety ('WHS') hazards, risks and their responsibilities
  • Ensure that the PCBU has adequate resources, policies and procedures to provide management of workplace hazards
  • Be satisfied that the PCBU has effective risk management and compliance with the Act.

To meet this obligation, officers should ensure:

  • The development of a management structure that clearly details responsibilities and accountabilities for WHS
  • The presence of information management systems that provide the flow of accurate and timely information to relevant members of the management team
  • Information is received and actions taken by responsible persons
  • Internal and (potentially) external auditing processes are available to validate compliance and identify any remedial action.

These elements should be documented to enable demonstration of due diligence requirements.

Consider statutory liability insurance

A number of national insurers are now offering a product known as Statutory Liability Insurance. These policies cover, in relation to all Acts administered by the Commonwealth, state and local government:

  • Fines
  • Costs and expenses (including legal expenses) incurred in defending the imposition of a fine.

As this policy includes cover for fines under the current and new WHS regimes, and with fines up to $3,000,000 for corporations, securing such a policy is worth close consideration. In particular, it is important to be aware that Statutory Liability Insurance generally provides different cover to Directors and Officers Liability Insurance. You should check with your broker and insurer as to the potential cover available.

These policies can (depending on the policy wording) extend to provide cover for your business, directors and potentially managers.

Even if your business already has such cover, you should enquire as to whether your policy will cover the maximum fine capable of being levied under the new regime.

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.