Is Workplace Health and Safety (WHS) compliance the “elephant in the room” for Australian schools?
It was recently reported that that South Australia’s public school system had failed to meet basic health and safety standards for at least three years, according to a WorkCover evaluation undertaken in 2010.
This week we ran a poll that indicated that around 70% of schools felt they were not fully compliant with WHS laws. In addition, participants in CompliSpace’s Non-Government School Governance Risk and Compliance Workshop held in Perth last week identified workplace safety compliance as their number one risk in 2014.
Of course the recent introduction of the national harmonised WHS laws in all States and Territories (except Victoria and WA) could go someway towards explaining this trend, however, anecdotally the problem seems to have much deeper roots with many schools struggling to fully understand the extent of their obligations and the infrastructure they required to ensure compliance.
To assist schools better understand their WHS obligations, CompliSpace has published:
- A WHS Briefing Paper for Schools designed to assist governors, principals, executives and business mangers understand the harmonised WHS laws.
- An online WHS Risk Self-Assessment Survey which will allow you to test your school’s level of compliance with the new laws.
The key details of the national harmonised WHS laws are:
- New Model Work Health and Safety (WHS) laws commenced on 1 January 2012 in New South Wales, Queensland, the Australian Capital Territory, Northern Territory and the Commonwealth, and on 1 January 2013 in Tasmania and South Australia. Western Australia is committed to harmonisation in principle, with modified legislation still to be finalised and a likely start date some time in 2013/14. Victoria has indicated it will not enact the new laws.
- Under these new WHS laws all school directors and officers have a positive obligation to undertake due diligence to ensure that their school’s are compliant.
- The definition of officer has been adopted from the Corporations Act which includes directors, company secretaries as well as any other person who, amongst other things, makes or participates in making decisions that affect the whole or a substantial part of the school, as well as any person who has the capacity to affect significantly the school’s financial standing.
- The introduction of a new concept of “Person Conducting the Business or Undertaking” (PCBU), and the expansion of the definition of “worker”, has together greatly increased traditional employer obligations. A PCBU is now explicitly responsible for the health and safety of its own employees, and other workers, including volunteers, contractors, sub-contractors, and their employees.
- Employers (now PCBUs), must ensure that, so far as is “reasonably practicable”, their workers are not exposed to health and safety risks.
- The concept of “reasonably practicable” requires each employer to effectively implement a formalised risk management program, through which it identifies workplace hazards, assesses them and takes action to either eliminate or control them.
- Directors and officers are required to have a good working knowledge of WHS matters and how they apply in practice to their school.
- Directors and officers are also required to ensure their schools have appropriate resources and processes in place to manage WHS and, critically, to verify that these processes actually work in practice. This requires a system that provides both transparency and visibility.
- There is an explicit duty to consult with other PCBUs where there is a joint responsibility for workers.
- The new laws come with significant fines and penalties of up to $3 million per breach for a corporation, and $600,000 per breach for directors and officers. Directors and officers (and potentially, workers) face prison terms of up to five years.
- If directors or officers fail to discharge their duty, they can be prosecuted, even if the PCBU is not prosecuted, or the PCBU is found not guilty.
- In some jurisdictions (including New South Wales and Queensland) criminal proceedings arising from WHS events are being moved from the Industrial Courts to the mainstream court system, where prison terms are handed down on a daily basis. This means that prison sentences for directors and officers are more likely to be applied.
- Volunteer directors and officers have immunity from criminal prosecution or fines under the Model Laws, however may still have liability as a worker and/or be subject to civil liability for breaching their statutory duties and/or duty of care responsibilities.