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 matters...in 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.
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