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Harmonised Work Health and Safety Laws and the Obligations of the School Executive and Board: a Reminder for Most and an Introduction for WA Schools

24/03/22
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WA

The harmonised Work Health and Safety (WHS) laws (which by 31 March 2022 will apply in every state except Victoria) put the onus on the key decision-makers of a “person conducting a business or undertaking” (PCBU) to exercise “due diligence” to ensure that the PCBU meets its health and safety duties. “Officers”, which includes members of a school board, owe this duty to exercise due diligence when making any decisions that could impact the health and safety of staff, students, and others affected by the school’s activities. An officer may be found guilty of an offence under the jurisdiction’s WHS Act if they fail to exercise due diligence, whether someone is injured or not, and even if the school has not been found guilty of an offence under the WHS Act. An officer may be held criminally liable for a serious or reckless failure to demonstrate due diligence requirements, with gaol terms and significant fines if found guilty.

 

What Is Due Diligence?

Section 27 of the WHS Act requires officers to show that they have taken reasonable steps to:

  • acquire and update their knowledge of health and safety matters
  • understand the operations of the PCBU (school) and associated hazards and risks
  • ensure that the school has, and uses, appropriate resources and processes to eliminate or minimise health and safety risks arising from work being done
  • ensure that the school has appropriate processes in place to receive and respond promptly to information regarding incidents, hazards and risks
  • ensure that the school has, and uses, processes for complying with duties or obligations under the WHS Act.

As the final part of the due diligence requirements, officers must be able to verify “the provision and use of the resources and processes” mentioned in the above steps, that is, they must be able to prove that all the processes have been implemented and they are functioning effectively.  

Due diligence is about taking all reasonably practicable measures in the circumstances to protect the health, safety and welfare of all staff, students and others who may be impacted by the work that the school carries out. Due diligence is about being proactive and preventing injuries or hazards before they occur. If due diligence is implemented correctly, it should encourage a systematic identification and assessment of workplace hazards and it should establish control measures to prevent injuries or illnesses from occurring.

 

Who Is an Officer?

An “officer” is a person who has significant decision-making abilities and financial control over a PCBU or a substantial part of a PCBU. The WHS Act defines an officer as:

  • a director or secretary of an organisation
  • a person:
    • who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business
    • who has the capacity to affect significantly the entity’s financial standing; or
    • in accordance with whose instructions or wishes the directors of a corporation are accustomed to act.

The definition is borrowed from the Corporations Act, but it also applies to schools that are not corporations.

The individuals who are considered to be officers will differ among different schools. Being in a management or leadership position in a school does not automatically mean that the individual is considered to be an officer under the WHS Act. The duties and roles performed by the individual in the position will need to be assessed before determining if they are an officer or not, for example, whether they have the ability to make or influence significant financial or operational decisions of the school. Schools should identify the positions/individuals within a school that may be considered to be an officer, so that those individuals can be proactive in taking action to meet their obligations.

Due diligence duties also apply to volunteer officers such as volunteer board or council members.

Board members often have significant powers in allocating budgets and other resources and in determining strategies that can impact on the priority given to health and safety in the school. A responsible board member must ensure that they understand the risks and hazards, school procedures and systems and can apply WHS due diligence in their decision-making. Schools can help volunteer officers fulfil their due diligence duty by making WHS a standing agenda item at board meetings, provide volunteer officers with an avenue to contact a person within the school to ask questions regarding WHS matters (e.g. the WHS Manager) and provide training information to volunteer officers about the model WHS laws.

Although volunteer officers have a legal obligation to exercise due diligence, they cannot be prosecuted for failing to comply with their officer duties under the WHS Act. This immunity from prosecution is designed to ensure that voluntary participation at the board level is not discouraged.

 

Meeting Due Diligence Obligations

Effectively managing health and safety risks within a school starts with those who operate and manage the school and set its strategic direction. As leaders, showing a serious commitment to health and safety will create a flow-on effect with staff who are more likely to follow the lead of those in charge. While the actions of a staff member (rather than an officer) may be the final step leading to a workplace injury, officers are considered to have the power and resources to ensure the implementation of a compliant WHS system in the school including providing safety information, training, supervision and monitoring, ways of working, and safe equipment and premises.

In practice, board members are likely to have a different and less ‘hands on’ role within the school in the application of due diligence at the school compared to other officers in the school’s leadership team such as the Principal, Deputy Principal, and Business Manager/ Chief Financial Officer.

 

Board Members

Board members might fulfil their due diligence obligations by:

  • undertaking training themselves to understand WHS laws and the school’s essential obligations and responsibilities for the health and safety of staff, students and others. This should be undertaken on taking on a role as a board member and at regular intervals afterwards to maintain currency of understanding
  • talking about WHS matters at board meetings. Boards may not typically look at operational aspects of how the school is run but they need to ensure that measures are in place to identify and assess risk, report risks, and respond to potential hazards with effective control measures
  • obtaining and regularly reviewing collated reports on injuries and incidents, any significant changes in control measures, any new hazards that occur, and WHS training that is conducted across the school.

Appropriate reporting at board level on health and safety indicators is key to board due diligence. While board members will not actually be implementing processes and procedures, they need to ensure that these are in place, and that adequate resources are available to make certain that they are effective.

 

School Leadership Team

Members of the school leadership team such as the Principal, Deputy Principal, and Business Manager/ Chief Financial Officer who are “officers” have a more ‘hands on’ role in complying with their due diligence obligations, although they will still need to obtain regular reports and updates from staff who are specifically tasked with implementing WHS.

It is important to be aware that officers in this category, as they are not volunteers, can end up in gaol for making (or not making) certain decisions.

Officers might fulfil their due diligence obligations by:

  • ensuring that appropriate risk assessments and control measures are in place for all known hazards, for example, in relation to school excursions
  • ensuring that the school has an incident reporting system in place, staff are using it to report incidents and any issues arising from those incidents are addressed promptly
  • ensuring that all staff and volunteers receive appropriate training at induction, general health and safety training, training for specific hazards and relevant training for specific positions. This training should be ongoing and consistent with any changes to WHS legislation
  • ensuring that there is ongoing consultation, or opportunities for consultation, with staff and volunteers about WHS issues and that any issues raised are addressed promptly
  • allocating adequate time and resources for health and safety including in relation to committees, and allocating responsibilities
  • ensuring that all WHS policies and procedures are up to date and that staff and volunteers have access to these
  • monitoring and auditing policies and procedures regularly to determine whether they are effective. This may involve analysis of incident and injury data and consulting with staff
  • seeking advice from external experts about specific WHS issues if necessary
  • keeping up to date with WHS developments and best practice relevant to the school, to ensure that all reasonably practicable control measures are implemented to eliminate or minimise hazards. Keeping up to date is likely to involve reading and/or attending conferences.

 

OHS Victoria

While due diligence is not an obligation under the Occupational Health and Safety Act 2004 (Vic), it would assist school executives to keep the due diligence requirements in mind when considering OHS matters and their own understanding of what they should know, what kind of reports they should be receiving about operational matters and what kind of resources they should be applying to ensure health and safety in the school.

This is particularly important in respect of the workplace manslaughter offence in Victoria as the offence applies to negligent conduct of an “officer” of a PCBU who breaches certain duties under the OHS Act and causes the death of another person. The workplace manslaughter offence aims to prevent workplace death from occurring, provide a stronger deterrent for duty holders to comply with their OHS obligations, and send a strong message that putting people's lives at risk in the workplace will not be tolerated. This means that a senior executive in a school can be liable to a goal term of up to 25 years, and a school may be fined up to $16.5 million where the elements of the offence are proven.

Although due diligence obligations do not exist under Victorian OHS laws, it would be prudent for officers of schools in Victoria to consider these requirements when looking at matters regarding the health and safety of their school.

 

OSH Western Australia

Occupational safety and health in Western Australia is finally joining the harmonised WHS system from 31 March 2022, when the OSH Act 1984 (WA) is being replaced by the Work Health and Safety Act 2020 (WA). The due diligence obligations referred to above will apply to a school’s officers from that date.

 

Next Steps

Both board members and the school’s leadership team must ensure that the school has a WHS program that systematically addresses all the elements in the WHS Act. The leadership team must ensure that the school’s WHS policies and procedures, which cover all elements of the school’s activities, are fully implemented and functioning. All foreseeable hazards should be identified, their risk of harm assessed and effective control measures put in place. Control measures should include appropriate training and information sharing, as well as establishing safe ways of working, adequate monitoring and supervision, and maintaining safe premises, and plant and equipment.

A school’s officers must have procedures in place to ensure that their school’s WHS systems are operating effectively, with regular and appropriate reporting on key parameters. School officers should consider instituting the following:

  • regularly examining incident and injury data to look for areas for improvement
  • regularly conducting audits to determine any gaps and effectiveness
  • ensuring that staff and any staff representatives are involved in decision-making and feedback regarding WHS matters
  • key staff staying on top of WHS legislation and developments such as the increasing emphasis on mental health and psycho-social health in the workplace
  • being prepared to allocate resources, both time and money, into areas where there are new hazards, or where existing control measures are inadequate
  • remembering due diligence requirements when making any decisions that could impact on the health and safety of staff, students and others affected by the school’s activities.

Due diligence is an ongoing process, which should deliver continuous improvement in a school’s safety performance, resulting in savings in lost time, damaged property, and workers’ compensation premiums.

 

Authors

Alyssa Kritikos

Alyssa is a Senior Legal Content Associate at CompliSpace. Having graduate from Macquarie University in Sydney, she holds a double bachelor’s degree in Commerce and Law. She has experience working as a lawyer in both private practice and in-house roles with a focus on WHS, employment and privacy laws.

 

Svetlana Pozydajew

Svetlana Pozydajew is the Principal Consultant, Workplace Relations at CompliSpace. Svetlana has a background in management of national HR and WHS functions across the private and public sectors, and has an LLB, MBA and MA (Journalism).

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