Sunday, December 9, 2012

Goodness me I have been so busy with studies and work that I have not had time for my blog. Sorry to all my readers.... for not keeping up with regular posts. I will try to make up for it in the next few weeks. 

Interestingly I have just finished a summer intensive in the Law of Occupational Health and Safety and thought I would share some of the key points I learned.  I have had my head buried in books, study and work that I did not realize there was a big debate regarding changes to our Occupational Safety and Health (OSH) Laws in Australia..... shame on me. This has made me think if I didn't know how many other midwives did not know....WA's current legislation is Occupational Safety and Health Act 1984 (WA) & OSH Regulations... remember regulations outline how the Act is implemented.

Currently each State and Territory in Australia has their own safety and health laws. They impose broad general duties on key stakeholders such as employers, controllers of workplaces and designers, manufacturers and suppliers of plant to workplaces in relation to ensuring the health, safety and welfare of people.  

As from the 1st January 2012 the Commonwealth, NSW, QLD, ACT and NT have actually passed the new legislation, Victoria, WA, Tasmania and SA will be delayed until sometime in the New Year.

Harmonisation would mean each State and Territory will still have their own safety laws, but they will be based on an agreed model Work Health and Safety Act supported by model Regulations and model Codes of Practice. The new law is called Work Health and Safety (WHS) - WHS laws create obligations on employers to put systems in place to prevent workplace injuries.

Harmonisation also involves a National Compliance and Enforcement Policy, designed to support the consistent application of the laws across Australia by the different state regulators. These laws will only come into play when each state/territory passes them through their own Parliament.

There are several key elements to WHS, they are: duty of care, meaning of worker, cooperate with other business, consult with workers, upstream duties, union right of entry and due diligence.

A key element of the new National Law is the legal term ‘person conducting a business or undertaking (PCBU)’. This term is not intended to mean individual persons unless they are operating the business in their own name, for example as a sole trader or a partner. A person who is a director of, or employed by, a company is not a PCBU, the company is. The responsibilities of individuals who are directors or senior managers of companies are covered under the new element of ‘due diligence’. 

Most of the concepts in WHS are not new, they are just reworded and definitions have been redefined; such as workers means more than employees, this is due to work being completed by people who may not be employees. WHS defines worker very broadly to include; employees; contractors; sub-contractors; outworkers; employees of labour hire companies; and volunteers. 
WHS requires persons conducting business or undertaking therefore to as far as is reasonably practicable, ensures the health and safety of workers it engages, or workers whose work activities it influences or directs, while they are at work in that business. Ensuring health and safety is imperative and this is defined as eliminating risks, so far as is reasonably practicable, or if that is not possible, minimising the risks.

“The phrase “reasonably practicable” means something narrower than ‘physically possible’ or ‘feasible’. What is ‘reasonably practicable’ is to be judged on the bases of what was known at the relevant time and to determine what is ‘reasonably practicable it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk (Gaudron J at para 53. Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304.). 

Alright let me put this in plain language and use water-birth for an example. Under the new laws you are required to exercise due diligence....this means you are required to have updated knowledge of health and safety this instance we are relating it to water-birth - have you considered how you will inflate and deflate the pool? access to power points? How is the woman going to get into the pool? is there a step or stool, is it safe? can she slip? is there a non-slip surface? get the woman out of the water if there was an emergency? what will you do if your pool has a leak? what will happen if the woman faints, hemorrhages etc
Is there a safety culture present? an informed culture? a reporting culture? a just culture (a no blame)? a flexible culture? and lastly a learning culture?

What safety measures have you in place? do you practice safe evacuation? what measures have you in place to protect your back, the clients partners back? 

What is important to remember is that everyone owes everyone a duty of care, as to what is reasonably practicable.

WA has rejected the model WHS Bill, it has highlighted four areas that it did not agree with and consequently would not be adopting as law in this State. However none of the four issues relates directly to safety outcomes within the workplace.

The four issues are penalty levels, union right of entry, Health and safety representatives’ capacity to direct the cessation of work and Reverse onus of proof in discrimination matters. WA agrees in principle that the penalty fees should be increased; however feels that the proposed increase is too high. In terms of workers’ rights to cease working if it is considered too dangerous WA feels that this should remain with the worker and not be delegated to the Health and Safety Representative. Union right of entry is already provided for in WA legislation and to have it in this model would be a duplication of the rules. Lastly WA considers that harmonisation will allow a company to be prosecuted without the opportunity to prove that the company tried to fix the safety issue and also considers this to be contrary to one of the issues that initiated harmonisation.

WA will probably accept the national Model Act with some minor modifications.  

Remember to work safe and always consider is your work environment safe? what can I do to make it safer? Watch out for when these laws come into place and make sure you are aware of the changes and how it will affect your work practice.

                   WHS At a Glance: New National  WHS Laws
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