OHS Harmonisation - Manufacturing & Distribution 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 manufacturing and distribution industry

One of the changes in the Workplace Health & Safety Act that businesses in the manufacturing and distribution 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 manufacturing and distribution 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 peak production periods, your business will owe a duty of care to the relevant contractors, any sub-contractors that the contractors engage and their employees.

Similarly the new requirement to consult with “workers” and not just “employees” will also impose additional obligations on manufacturing and distribution 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

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

• Plant and Structure – Manufacturers, importers and suppliers of plant, including in relation to second hand plant, must ensure any structure they install or construct has regard to information provided by the designer or “competent person”. Businesses with management or control of the plant also have a range of duties to ensure the safe operation of the plant and the specific control measures that are mandated for specific items of plant (for example, protective structures on earth moving equipment).
• 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. A new class of licence is to be added for the operation of reach stackers. Reach stackers are used in moving shipping containers, port areas and logistic operations.
• 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.

• 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.

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:

• how to safely design, manufacture, supply and install plant
• specific plant codes, including the use of devices, cranes, forklift trucks, guarding, rural plant and heritage plant
• storage and handling of dangerous goods
• electricity
• fatigue
• hazardous manual tasks

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