How New OHS Laws Impact Aged Care

The new Harmonised OHS Laws affect the aged care workforce in many ways.  Aged care operators in most states in Australia are now covered under the new Work Health and Safety Act 2011.

The legislation is uniform and intended to ensure that all workers in Australia have the same standard of health and safety protection regardless of the work they do or where they work.

In particular the laws are intended to provide greater certainty for employers particularly those operating across state borders. The Act applies to employees, contractors, sub-contractors, apprentices and trainees, work experience students, volunteers and employers who perform work.

For aged care providers the new legislation brings with it some significant changes and obligations.

Firstly the Act introduces some new terms and definitions. A worker is now replaced by the term employee and an employer is replaced by the term ‘a person conducting a business or undertaking’ (PCBU).

The Act imposes general health and safety duties on PCBUs, workers and any person who is entering the workplace.  All aged care providers will be regarded as a PBCU.  The primary duty of care owed by a PCBU is to ensure the health and safety of workers including volunteers, contractors and contractor’s workers. In particular this means providing and maintaining a work environment and work equipment that is safe and without risk to people entering the workplace; and providing workers with appropriate information and training for them to work safely and without risk to their health.

An ‘officer’ includes a director and any person who makes, or participates in making decisions that affect the whole, or a substantial part of the business or who has the capacity to significantly affect the entity’s financial standing or whose instructions or wishes are likely to be acted on by the directors. Key people in the aged care organisation who previously may not have been liable will now find themselves referred to as ‘officers’.

The new legislation imposes onerous obligations on officers of PCBUs to exercise due diligence to ensure that the PCBU complies with its workplace health and safety obligations. Of particular note is the fact an officer may be charged with an offence under the Act – independent of the PCBU.

In practice, due diligence means that officers (irrespective of whether you are a volunteer) must proactively ensure they are taking reasonable steps to acquire information on workplace health and safety matters, understand the risks in their facilities and ensure that appropriate resources and processes are implemented to eliminate or reduce those risks. Ignorance of the law will be no defence to a failure to comply.

If you are a paid officer, hefty penalties can be imposed for a breach of these obligations. The consequences for volunteer officers are not as dramatic as those for paid officers, but the obligations must still be met and a prudent board (including a board consisting only of volunteers) will take immediate steps to ensure the obligations are being met.

Also the Act imposes onerous obligations on PCBUs and on officers and provides several categories of offences for breach of those duties. The penalties for a breach of those offences are very serious with fines up to $3m and in extreme cases where there has been a death or serious injury of a person there are jail sentences.

A PCBU also has a duty to consult with workers and health and safety representatives about matters that directly affect them. This extends to an obligation to consult with contractors and their workers, employees of labour hire companies, students on work experience as well as the PCBUs own employees and volunteers.  In aged care this has a number of implications where an aged care provider must ensure that they consult with any staff agency that provides staff to a facility to ensure that the workplace health and safety of those agency workers has been considered and to develop a plan to ensure that obligations with respect to those workers are being met.

Also the PCBU must be able to prove that officers have skills in consulting with staff on safety. Many aged care providers are training their officers in how to consult with workers on safety matters. For example by completing an online government accredited course the officer is able to demonstrate the necessary skills and the PCBU is able to show a proactive approach and an audit trail to this important requirement. Safety Concepts now offers the course BSBOHS402B OHS Consultation in the Workplace as an online option for officers wishing to complete their own training in a convenient way.

Workplace health and safety legislation has always imposed obligations on employers to notify the local Division of Workplace Health and Safety as soon as they become aware of a workplace incident which has caused a death or a serious injury. In an aged care facility where death and illness can occur on a daily basis this can create confusion. The new legislation clears things up by stating that a PCBU need only notify the Division of Workplace Health and Safety where the death or serious illness or injury arises out of the conduct of the business and the incident was caused or contributed by some action or inaction of the employer or of an employee, contractor or subcontractor etc).

An example would be where a resident falls and is admitted to hospital.   The regulator should be notified if the cause of the fall was as a result of an action or inaction by a worker or some failure by the provider to have a safe system in place.

On the other hand if a patient passes away from their age and condition no notification to the Division of Workplace Health and Safety is required.

It is important for aged care providers to make the compliance with these new laws a priority at the board level. Ignorance of the law is not an excuse for failing to comply with workplace health and safety obligations.

Steps you should take include:

• Allocate responsibility for workplace health and safety obligations including notification obligations.
•  Identify what policies need to be implemented to ensure that you can demonstrate that the due diligence obligations of officers have been met.
•  Prepare a workplace health and safety plan for your facilities.
•  Ensure that you have appropriate employment arrangements in place to assign responsibility for workplace health and safety requirements.
• Review contracts with suppliers to clarify obligations.
• Review arrangements with third party contractors to ensure that workplace health and safety obligations are met and to manage any additional risk created by those arrangements.

 We recommend that aged care providers consider their obligations under the new legislation very carefully and ensure they have systems in place to meet the obligations imposed.