OHS Harmonisation - Commercial Property 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 commercial property industry

One of the changes in the Workplace Health & Safety Act that businesses in the commercial property 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 property controllers 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 a tenant engages a contractor to fit out a commercial office, the building owner or manager (or both) may owe a duty of care to ensure that the contractor is performing work in a safe manner. This would arise if a wider view is taken of the building owners’ “undertaking” to include any activity taking place in a tenancy on the basis that the undertaking includes all activities within the tenancy that contributes to revenue of the building owner. This view would be a significant departure from the commercial approach currently adopted by many building owners and managers.

If that broader view is adopted by the Courts, then similarly the new requirement to consult with “workers” and not just “employees” will also impose additional obligations on building owners and managers as, in the above example, consultation and co-ordination regarding safety will now extend to the contractor undertaking the fit out and potentially those directly affected by the risks involved such as the tenant’s staff, customers or visitors.

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 commercial property industry. In general terms, some of the areas that businesses operating in the commercial property industry will need to consider are the following:

• General Workplace Management – There are changes to the requirements for emergency plans and procedures, first aid and review of general workplace management measures. In particular, there is a duty to review general workplace management measures if:
• there is a significant change to the workplace or work systems;
• a risk control measure does not control the risk;
• a notifiable incident occurs; or
• a health and safety representative requests a review.

Importantly, there is a duty to also test emergency procedures and also to ensure that any visitor or consultant who is supplying their own personal protective equipment when visiting premises, uses that equipment and that it is suitable to minimise risks to the person’s health and safety.

• Noise – Businesses will continue to be required to ensure that workers are not exposed to noise above certain levels. Noise must be eliminated at the source or minimised by implementing control measures throughout the premises.
• Electrical Work – Requirements for controlling electrical hazards at the workplace, dealing with unsafe electrical equipment, testing and tagging and work on “live” energised electrical equipment are covered under the new Regulations. Any “live” work must be conducted in accordance with a safe work method statement and a safety observer must be present who is competent in emergency procedures.

Importantly, residual current devices (RCD’s) will be required in all work places rather than just construction sites. The new requirements will also require retrofitting of existing buildings and will be subject to transitional arrangements.

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 work environment and facilities
• how to manage and control asbestos in the workplace
• general risk management (chemicals)
• storage and handling of dangerous goods
• electricity (various)
• first aid
• traffic management

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