OHS Harmonisation - Construction & Infrastructure Industry - April 2011

How will the new safety laws affect your business – an industry approach

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 construction and infrastructure industry

One of the changes in the Workplace Health & Safety Act that businesses in the construction and infrastructure 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 construction and infrastructure businesses 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 your business engages contractors during a construction project, your business will owe a duty of care to the relevant contractors, any sub-contractors that the contractors engage and their employees as they will be considered to be working as part of your “undertaking”.

The effect of a clear broad duty of care is that the new requirement to consult with “workers” and not just “employees” will also impose additional obligations on construction companies as, in the above example, consultation and co-ordination regarding safety will now extend to the contractor as well as potentially their sub-contractors and their employees.

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

The proposed draft Regulations will implement significant changes to businesses operating in the construction industry. Nearly every regulation that currently exists within jurisdictions across Australia will be modified slightly such that businesses in the construction industry will bear significant costs in assessing compliance with the new Regulations. A summary of some of the key areas of change in the Regulations include 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.
• Construction work – Chapter 6 of the Regulations deals specifically with construction including the construction induction training. The appointment of a Principal Contractor and the requirement for safe work method statements for high risk construction work is contained in the Regulation.
• Designers of structures - are required to consult with and provide a safety report, setting out the hazards that are associated with the design, to the person who commissions the work. Construction work includes maintenance, refurbishment, demolition and dismantling of a structure so the designers report has to specify hazards specific to that design that may create risks not only during initial building but also to those persons who may undertake maintenance or demolition work in the future.
• Demolition work - requires a safe work method statement but there are no specific requirements for demolition licensing. Businesses must also notify the regulator of any excavation work where the excavation is more than 1.5 metres high and is capable of allowing a person to enter or there is a risk of injury from a fall or a dislodgement of soil or rock.
• Construction induction training – there is no requirement to provide site specific and task specific induction.
• 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 and rigging and the use of cranes, hoists, lifts, forklifts and pressure equipment. There will no longer be high risk work licences required for front end loaders or excavators.
• 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:

• general risk management codes (including construction induction and safe work method statements)
• precast, tilt-up and concrete elements
• excavation
• demolition
• formwork and falsework
• falls
• how to manage the risks of plant in the workplace
• hazardous manual tasks
• how to prevent falls at workplaces
• facilities for construction sites

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