What exactly will OHS Harmonisation mean for you and your business and what will the penalties and fines under the new laws be?
The purpose of the WHS Act 2011 is to harmonise existing Occupational Health and Safety legislation across Australia through the creation of uniform health and safety obligations. Our later article discusses which states will commence this new legislation from January 1st 2012 and which will be delayed.
While dates have been set for commencement it has been announced that businesses will be able to postpone implementing new occupational health and safety regulations by up to twelve months, if the regulations require them having to make significant changes and require a long period of time.
Federal Workplace Relations Minister Chris Evans has stated that Safe Work Australia has arrangements to assist businesses in the transition into the new system on January 1. Evans said the extension would be granted to businesses that have to fulfil the model regulations which subsequently would require the completion of several duties.
The new WHS Act 2011 seeks to:-
Protect workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant
Providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety
Promote the provision of advice, information, education and training in relation to work health and safety
Provide a framework for continuous improvement and application of higher standards of work health and safety
In this article we will focus on the increase in potential penalties and fines – under the new laws, companies face fines up to $3 million per offence, while individuals face fines of $600,000 or 5 years in jail.
What happens if a serious injury, illness or dangerous incident occurs?
Under the work health and safety laws, incidents such as fatalities, serious injuries and illnesses, and dangerous incidents must be notified to WorkCover immediately, and incident records must be kept for five years.
If you are the person with management of control of the workplace, you must also preserve the incident scene until an inspector attends, or directs otherwise. Render assistance, if it is required, and allow police and ambulance officers to fulfil their functions.
If someone suffers an injury or illness where workers compensation is, or may be payable, contact your insurer within 48 hours.
What is a serious injury or illness?
A serious injury or illness includes:-
an injury or illness that requires immediate treatment as an ‘in-patient in hospital’
amputation
serious head, eye or burn injuries
de-gloving or scalping
spinal injury
loss of bodily function
serious laceration
exposure to a substance, which requires medical treatment within 48 hours
What is a dangerous incident?
A dangerous incident exposes someone to a serious risk, such as:
the uncontrolled escape, spillage or leakage of a substance
uncontrolled implosion, explosion or fire
electric shock
the uncontrolled escape of gas, steam or pressurised substance
falls from height of any machinery, equipment, substance or the like
damage to any plant that requires authorisation in accordance with the WHS Regulations (eg registrable plant)
collapse, malfunction or damage to any authorised plant
the collapse of a structure or excavation (including shoring)
an inrush of water, mud or gas
the interruption of underground ventilation.
How will you be penalised for breaching your duties?
Company
Officers
Workers
Category 1 Reckless Conduct
$3,000,000
$600,000 or 5 years imprisonment
$300,000 or 5 years imprisonment
Category 2 Breach of Primary Duty
$1,500,000
$300,000
$150,000
Category 3 Breach of Regulatory Duty
$500,000
$100,000
$50,000
What is reckless conduct?
A person engages in reckless conduct if they, without reasonable excuse, engage in conduct that exposes an individual under their duty of care to the risk of death or serious injury or illness.
What is breach of primary duty?
A breach of primary duty is when a person engages in actions or omissions that expose others to risk of serious injury/illness.
What is breach of regulatory duty?
A breach of regulatory duty is when a person fails to comply with a duty.
Is this something that could be an issue at your place? Inspire Success is all about implementing practical solutions that help create high performing workplaces which are customer focussed and free of conflict - no matter what size your business is. Contact Rae Phillips at Inspire Success for further information raephillips@inspire-success.com
Last year, a Telstra employee made a successful workers' compensation claim against Telstra because she fell twice while working from home and claimed her injuries occurred in the course of her employment. Telstra were found liable to pay her workers compensation.
As a result of this and other similar cases, many employers have had concerns about allowing their employees work from home. Working from home arrangements don’t have to be to be feared but the risks do need to be managed carefully.
Under NSW OH&S laws, the employer is expected to maintain a working environment, equipment and systems of work that are ‘safe and without risks to health’. That includes your employees working at home. The employees working from home should have the equipment they need just as if they were in the office – a chair, desk, computer, adequate lighting, clear access to exits, a first aid kit and knowledge of safe working procedures.
What do your responsibilities include?
• provide or maintain a working environment that is a safe and without risks to health
• provide or maintain equipment and systems of work that are safe and without risks to health
• provide the information, instruction, training and supervision necessary to ensure the health and safety at work of workers
• make arrangements for ensuring the safe use, handling, storage and transport of equipment and substances.
It is important to put in writing agreed procedures regarding working arrangements particularly regarding hours of work and access (eg. to check that the workplace is safe and that safe systems of work are in place, or to review systems and procedures following an accident).
A workplace assessment / risk assessment of the home environment is another step in identifying health and safety hazards, and deal with them. The person doing the assessment should focus on the part of the home which is used as a workplace - or you can give employees a checklist for self-audit rather than send someone in to tick the boxes.
This checklist – which confirms there is an appropriate desk, chair and lamp, for example, and that electrical cords have been tagged and tested – must be completed and handed back. The idea is that employees who want to work from home would need to complete a self-assessment form and sign up a document that frees you, the employer, from liability in the event of an OH&S issue.
Under NSW OH&S laws the following are some steps to follow when an employee requests working from home:-
Establish whether the duties are suitable for work from home – if special equipment needs to be used or work procedures followed that are not appropriate for home then the job may not be suitable for being done at home;
Establish what equipment will be necessary for the employee to safely work from home – ensure employee’s desk, chair and computer are suitable. Check if any other equipment is needed by the employee. NSW Regulations require that all places of work have a first aid kit. A basic (type C) kit is sufficient for most home-based work situations;
Establish that the home working environment is healthy and safe – ensure there is sufficient lighting, exits are clear, there is a smoke detector, sufficient power points (ensure power points are not overloaded) and if an earth leakage protect device is required;
Establish that the employee who will be working from home has the information and training necessary to do the work safely – ensure they have been trained on safe working procedures to prevent the occurrence of injuries;
Establish agreed hours of work and communication procedures -Establish the days and hours on which work from home can be done and agree on procedures for recording work hours, including actual starting and finishing times (this is important for workers compensation purposes). It is also useful to establish the way in which performance will be monitored and assessed and to establish communication procedures to ensure that appropriate information is passed between the person working from home and his or her co-workers and management;
Revise your workplace rehabilitation program – you may want to include a commitment to provision of suitable duties at the main workplace when this is necessary as a rehabilitation strategy, and to clarify arrangements for monitoring work from home rehabilitation programs.
It is important to monitor your employees working from home arrangements – things change, standards may drop so ensure there is open communication with these employees and a clear procedure where the employee reports any health and safety concerns or any incidents to you.
The Fair Work and Anti-Discrimination legislation allows employees to request flexible working arrangements in certain situations, so as an employer you need to have reasonable business grounds to refuse a request. If you do refuse a request inform your employee of the reasons and document these, keeping all records around this.
At Inspire Success, all our people work from home and we use a home based work agreement to outline who is responsible for what and get the expectations clear from the start.
Is this something that could be an issue at your place? Inspire Success is all about implementing practical solutions that help create high performing workplaces which are customer focussed and free of conflict - no matter what size your business is. Contact Rae Phillips at Inspire Success for further information raephillips@inspire-success.com
For the next few months we will discuss a different safety topic for IT within your company. This month we look at the office desktop and the security issues to be mindful of.
We all know that IT security is extremely important, it is essential to protect your business from a data breach. Here are our TOP 12 tips to help keep your confidential information secure on office desktops.
Every employee should have their own profile set up and all logins should be protected with strong passwords which need to be changed every 4-6 weeks;
Every time employees leave their desk, they should log off. Screen savers should also be set to log users off after a few minutes of inactivity;
Login details and passwords should not be written on pieces of paper and never written on a post it and stuck to computer screens;
Educate staff about your IT security, keep up to date with what scams are happening currently in the computer world and let staff know what to be careful of and monitor this;
All information on a business network should be saved to a central location to reduce risk;
Have a good privacy policy and make protecting sensitive data a part of the company culture;
Use a good firewall and a secure wireless connection;
Keep anti-virus and anti-spy ware software up to date. Most small businesses have anti-virus and anti-spy ware software in place, but forget or neglect to make sure they have the latest versions or the latest updates, which can open the business up to all sorts of data security breaches;
Keeping computers up-to-date individually is time consuming and can create inconsistencies in the business. Having a network server centralising the rollout of software patches and updates makes managing a network far easier;
Make sure you and your employees only download applications that come from reliable sources. Because applications (e.g., games, mobile apps) may contain viruses, spy ware etc, it's important to know and trust the source of an application before downloading it;
If you outsource any critical functions or store information offsite, ensure you vet third-party security practices such as cloud providers or ISPs. You are still responsible for that data and should ensure the third party is secure.;
Have very specific policy developed around this area of your business. Set standards with new employees, check often and ensure that you follow your policy to the T.
Is this something that could be an issue at your place? Inspire Success is all about implementing practical solutions that help create high performing workplaces which are customer focussed and free of conflict - no matter what size your business is. Contact Rae Phillips at Inspire Success for further information raephillips@inspire-success.com
The harmonisation of OHS laws across Australia is in process and is being introduced in order to standardise the state/territory based system we have in place at present. The Commonwealth and each state and territory government have agreed to harmonise their work health and safety laws, including Regulations and Codes of Practice, so that they are similar in each jurisdiction.
As you may have heard, the implementation of the new WHS Act is not going smoothly with some regions deciding to implement the new laws at different times rather than the date of 01/01/12 as had been planned for. This will make life difficult for some Australian businesses, in particular those who cross state borders who will be faced with complying with current OHS legislation and then the new legislation.
Update on status of WHS Act in States ACT - Model law passed and expected to commence 1/1/12
NSW - Model law passed and expected to commence 1/1/12
VIC - No law before the parliament. VIC Government has confirmed that it will defer to 1/1/13
Tasmania – Have introduced model legislation to Parliament but date of commencement not confirmed
SA – WHS will be delayed
NT – Model law passed and expected to commence 1/1/2012
QLD – Model law passed and expected to commence 1/1/2012
WA - WHS will be delayed
NSW has confirmed a 1 January 2012 commencement date for the WHS Act, and has approved $550,000 in training grants to get businesses up to speed with the new legislation. Queensland will continue with the 1 January 2012 commencement and has enacted 11 of the new Codes of Practice while amending 24 of its existing State codes. Commonwealth parliament passed the Work Health and Safety Bill 2011, which will cover employers under the Comcare scheme. The Commonwealth legislation will come into effect on 1 January 2012.
While harmonisation is delayed in some states it will happen and will affect your business. However, some businesses can delay the new laws by twelve months. Federal Workplace Relations, Minister Chris Evans, announced in November 2011 that Safe Work Australia has arrangements to help businesses move to the new system from January 1. "The transitional arrangements will apply to the model occupational health and safety regulations and provide delayed commencement of up to 12 months or more where the new laws result in a new or significantly different set of duties," Senator Evans said.
The high income threshold increased from 1 July 2011, along with modern award and minimum wages. The high income threshold affects how a modern award applies to an employee, and affects their ability to access unfair dismissal.
From 1 July 2011:
the high income threshold increased to $118,100
the compensation limit under unfair dismissal increased to $59,050.
The high income threshold is indexed annually on 1 July.
Why is the high income threshold important?
The high income threshold affects three main entitlements:
employees who earn over the high income threshold, and who are not usually covered by a modern award or enterprise agreement, cannot make a claim for unfair dismissal
employees who have agreed to a written guarantee of annual earnings by their employer, that is more than the high income threshold, no longer receive their modern award entitlements. However, they are still entitled to unfair dismissal.
the maximum compensation payable for unfair dismissal is capped at either half the high income threshold, or the equivalent of six months of the dismissed employee’s wage, whichever is lower.
So, it is important to calculate exactly how much employees are earning from 1 July 2011. The increase in the high income threshold could mean a major change to an employee’s workplace entitlements.
What’s counted under the high income threshold?
To find out whether an employee is earning above this threshold, the following are included in any calculation:
wages
amounts applied or dealt with in any way on the employee's behalf or as the employee directs (e.g. superannuation top-ups, salary sacrifice)
the agreed monetary value of non-monetary benefits (e.g. personal use of a company car, mobile phone or laptop).
The following are not counted:
commissions, bonuses, overtime, and any other payment where the amount can’t be determined in advance
With the introduction of the Fair Work Act 2009, from 1 January 2010 it became mandatory for an employer to provide an employee with a copy of the Fair Work Information Statement. The statement needs to be provided to the employee before employment or as soon as practicable after commencement of employment. Provision of the Fair Work Information Statement is one the 10 National Employment Standards (NES), which are outlined in the Fair Work Information Statement. Additional information in this document includes modern awards, agreement making, individual flexibility arrangements, freedom of association and workplace rights, termination of employment, right of entry, and the Fair Work Ombudsman and Fair Work Australia.
In recent audits conducted by the Fair Work Ombudsman, businesses have been asked to provide proof that an employee has received a copy of the Fair Work Information Statement from their employer. Additionally, as provision of the Fair Work Information Statement is one of the NES, employees are able to make a claim against their employer for a breach of the NES if they have not received the Fair Work Information Statement.
Keep this in mind when you are inducting your new employees. It may also be worthwhile reviewing your standard induction processes to ensure you have a system in place to record the provision of the Fair Work Information Statement to your employees when they join your business. Here is an induction checklist we prepared earlier!
Contact Inspire Success on 1300 620 100 or terri@inspire-success.com if you would like to discuss how this affects your business.
Given that a new year has just begun, what better time is there to make some business resolutions?
Here's a good one to start you off - a new year the perfect time for you to review your workplace practices and make sure they're legally correct and up-to-date.
Here are some aspects of your business practices you must review at the beginning of each year:
1. Your Workplace Policies.
Remember, having clear and legally correct workplace policies (such as workplace bullying policies, drug and alcohol policies and e-mail and internet usage policies) can help you guide the behaviour of your employees and help you avoid being held liable under various types of legislation. It is essential that you review and update your policies on a regular basis.
2. Your Awards, Agreements and Employment Contracts.
Are you sure that all of your employment agreements and contracts are 100% up-to-date? Remember, amendments may still need to be made as a result of the new Fair Work Act. To avoid liability, it is imperative that your awards, agreements and employment contracts are legally correct.
Need a hand with updating your policies, contracts and agreements? Click here for more information.
3. Your OHS Procedures.
Make it a priority to review all your OH&S procedures at the beginning of each year and check they are running smoothly. You could even consider conducting a few drill tests to make sure your employees are completely clear about what to do in an emergency situation.
Need help ensuring your business's OHS practices are up-to-date? Click here for more information.
Please call Inspire Success on 02 4356 1767 if you need some more information.
Figures from Fair Work Australia have revealed that three quarters of the unfair dismissal claims conciliated involved employers paying a financial settlement to former staff.
I have summarised the recent Fair Work Australia board report to the Senate Committee, as it relates to unfair dismissals, let me know what you think:
There has been a 35% increase in unfair dismissal claims under the Labor Government's Fair Work confirming that applications around termination of employment issues soared by over 63% to 13,054 in 2009-10, of which almost 10,000 were unfair dismissal cases (the others were adverse action and unlawful termination claims).
Previously released figures showed the number of claims in the 12 months to June 18 was 10,751, compared with 7,994 claims in 2008-09, when the Howard Government's WorkChoices rules were still in place.
In the first 11 months under the Fair Work Act, 83% of matters that were conciliated were resolved at conciliation, compared to a settlement rate of 75%. 196 unfair dismissal claims proceeded to a hearing, with 15 resulting in reinstatement, 35 resulting in a payment in lieu of reinstatement and 144 being dismissed
The figures show that of claims that were settled at conciliation with an employer payment, 28% of these were settled for less than $2,000 and 30% were settled for between $2,000 and $4,000. A further 3% of claims were settled for payments of between $20,000 and $40,000.
25% of cases are settled with no payment at all, and that most cases are settled for very little payment shows many cases are a "try on". For small businesses – this is down time that costs! On top of having to pay out settlements, small businesses are also having to meet the costs of legal services and simply not being able to run their business.
These figures also include claims lodged, but not progressed based on jurisdictional reasons – for instance, that the employer was a small business.
Hearings have become as much about whether the employer has followed the Small Business Fair Dismissal Code as about the dismissal itself. However, the Fair Dismissal Code checklist has been labelled “deficient” because it does not mention that employees have the right to have a support person present in a termination discussion.
So here are the keys to minimising your small business risks:
Be fair – treat your employees the same, don’t have ‘one rule for some’, focus on the behaviour not the person;
Be clear - set standards early, schedule regular performance discussions and provide feedback;
Be concise - document all of your performance discussions, get into the habit of providing a copy so that employees are aware of your practice;
Be systematic - follow the Small Business Fair Dismissal Code, but also provide the opportunity for the employee to bring a support person;
Be informed – an employee is still able to lodge an application for unfair dismissal which will be denied in your response on jurisdictional grounds.
Be prepared – if you become involved in a claim, make a financial provision for a settlement at conciliation.
The reality is that under the Labor government, Fair Work Australia has been giving a substantially increased role compared to under WorkChoices. As a consequence, we are going to be dealing with Fair Work much more.
Since we now have some clear statistics on what is keeping the Fair Work Ombudsman and Fair Work Australia busy, there are also some very clear steps for us to take moving forward.
We know that in the first 11 months under the Fair Work Act, 83% of matters that were conciliated were resolved at conciliation, compared to a settlement rate of 75%. 196 unfair dismissal claims proceeded to a hearing, with 15 resulting in reinstatement, 35 resulting in a payment in lieu of reinstatement and 144 being dismissed.
The figures show that of claims that were settled at conciliation with an employer payment, 28% of these were settled for less than $2,000 and 30% were settled for between $2,000 and $4,000. A further 3% of claims were settled for payments of between $20,000 and $40,000.
This means it is critical that as small businesses we are very diligent in managing our workplace risks.
So here are the keys to minimising your small business risks:
1. Be fair – treat your employees the same, don’t have ‘one rule for some’, focus on the behaviour not the person;
2. Be clear - set standards early, schedule regular performance discussions and provide feedback;
3. Be concise - document all of your performance discussions, get into the habit of providing a copy so that employees are aware of your practice;
4. Be systematic - follow the Small Business Fair Dismissal Code, but also provide the opportunity for the employee to bring a support person;
5. Be informed – an employee is still able to lodge an application for unfair dismissal which will be denied in your response on jurisdictional grounds.
6. Be prepared – if you become involved in a claim, make a financial provision for a settlement at conciliation.
So once we are managing our risk appropriately, why not have a go at adopting some best practice employee engagement systems? Here are the winners of the 2010 Dream Employers Awards to give you some inspiration – www.dreamemployers.com.au
Unlike other health hazards in the workplace, stress may not be easy to detect. Managers may see it as a potential problem but have so many other responsibilities they 'push it under the carpet'. This could be a major stressor for them!
Likewise staff may worry that they cant fix the problem or that it is a failure to cope on their part.
Either could lead to a breakdown in the communications vital to the support and maintenance of good teamwork, potentially setting your business up for accidents and injuries, workers compensation claims, complaints from customers and costs attributed to high staff turnover.
Be aware of these signs:
* An increase in overall sickness absence – especially frequent short absences
* Poor work performance – less output, lower quality of work, poor decision making, poor timekeeping, increased occurrence of accidents
* Relationships at work – poor relationships with colleagues and clients, bullying, harassment, conflict
* Employee attitude and behaviour – poor timekeeping, loss of motivation or commitment, working long hours but with decreasing effectiveness
While each individual’s response to stressors is unique, some common symptoms are obvious
Behavioural – withdrawal, hostility, eating disorders, increasing use of coffee, alcohol, drugs or tobacco, poor concentration, poor judgement, loss of creativity, making more mistakes, being too busy to relax, absenteeism;
Emotional – loss of confidence, lack of self esteem, anxiety, frustration, anger, apathy, worry or anxiety, depression;
Physical – difficulties in sleeping, frequent and unspecified aches and pains, digestive problems, exhaustion, nausea, lowered resistance to minor illnesses.
Displaying some of these symptoms does not automatically indicate that a person is experiencing stress, but they do point to such a possibility.
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