OHS Harmonisation - Agribusiness Industry - April 2011

With the public consultation period drawing to a close, the harmonised safety laws across Australia are one step closer to becoming a reality. With only nine months to go until the new laws commence operation, it is important to assess the impact of the new laws and whether your business is in a position to comply.

Significant change for the agribusiness industry

One of the changes in the Workplace Health & Safety Act that businesses in the agribusiness industry should pay particular attention to is the expanded duty of care owed by any “person conducting a business or undertaking” (PCBU) to workers whose activities are influenced or directed by the PCBU. This is because agribusinesses may be particularly exposed to a wider interpretation of what constitutes the extent of their “undertaking” and therefore expand the pool of persons who are owed a duty of care. For example, if an agribusiness engages the same contractor on a permanent basis to pick up its products for delivery to customers, and that contractor is subject to contractual requirements imposing significant levels of control by the agribusiness on the manner in which the deliveries are made, the work that the contractor performs may arguably be part of the agribusiness’ undertaking.

The broad requirement to consult with “workers” and not just “employees” will also impose additional obligations on agribusinesses as, in the above example, consultation and co-ordination regarding safety will now extend to the contractor and potentially those directly affected by the risks involved, if any, in the delivery of the products.

The new Workplace Health & Safety Act will also introduce significant changes to the management of safety in Australia, including:

• Leadership – a new positive duty on “officers” of businesses to ensure safety by exercising ‘due diligence’
• Reputation – an approach to enforcement through greater use of adverse publicity orders
• Intervention at the business – greater avenues for intervention by unions and the regulator at your business
• Shift in attitude – by the regulators and courts in adopting a “uniform” approach to investigation and enforcement

We addressed these issues in more detail in the publication OH&S Harmonisation in November 2010. We also provided a User’s Guide to the practical aspects of the Workplace Health & Safety Act.

New Regulations

In addition to the major changes taking place as a result of the Workplace Health & Safety Act, the draft Regulations also will implement significant changes impacting the agribusiness industry. In general terms, some of the areas that businesses operating in the agribusiness industry will need to consider are the following:

• Representation and participation – The establishment of work groups, election of health and safety representatives and WHS entry permit holders’ rights will be modified for all jurisdictions.
• Confined Spaces – Changes to the Regulations to do with work that occurs in a “confined space” will need to be examined carefully. In particular, a change in the definition of “confined space” which is one that must have a restricted means of both entry and exit. There is a requirement for a business to identify all hazards and assess all risks to the health and safety of workers; review risk assessments and also ensure that the worker does not enter a confined space unless a confined space entry permit has been issued for the work.
• Falls – Regulations will now provide that a business must identify all fall hazards associated with the business and identify and control the risks of persons falling by adopting the hierarchy of controls. This hierarchy includes performing the work on the ground or a solid construction, the use of fall prevention devices and, ultimately, implementing administrative controls. If administrative control measures are the only control mechanism used then there must be a record as to why other measures are not being implemented.
• High Risk Work – There will be new licensing for high risk work such as scaffolding, rigging and the use of cranes, hoists, lifts, forklifts and the use of pressure equipment. There will no longer be high risk work licences required for front end loaders or excavators.
• Hazardous Chemicals – Pesticides, drugs and poisons may now require separate hazardous substance labelling under the Regulations. Further, hazardous chemicals will include articles, waste and hazard chemicals generated in the work place. Regulations impose requirements to identify hazards and control risks associated with the use of hazardous chemicals; labelling and safety data sheets; and notifying the regulator if quantities of dangerous goods at a particular site exceed specified threshold quantities.

Further, the Regulations deal with hazardous atmospheres to ensure exposure standards for substances are not exceeded. There are also changes to lead risk work and provisions relating to asbestos.

New Codes of Practice

Businesses will also need to pay careful attention to the new codes of practice to be issued by Safe Work Australia including those relating to:

• managing the risks of plant in the workplace
• general risk assessment for chemicals
• storage and handling of dangerous goods
• forestry safety
• hazardous manual tasks
• confined spaces

For further information about the new safety laws, please feel free to contact our office.