The legislation and regulations governing occupational health and safety issues for organisations operating in the Australian Capital territory will change on the 1st October 2009 the new Work Safety Act 2008 replaces the OHS Act 1989.

The changes introduced by this new Act have significant implications for not-for-profit organisations that will require these organisations to seriously re-evaluate their operations.

Employers

Under the Work Safety Act 2008, an employer includes a person who engages a worker to carry out work in the person’s business or undertaking. A business or undertaking includes a not-for-profit business and an activity conducted by a local, state or territory government.

The concept of business or undertaking is intended to capture all activities that are carried out in the course of conducting a business or enterprise. This concept is not confined to the physical boundary of a ‘workplace’ (see below).

The implication for not-for-profits is that they could considered to be employers, and therefore accountable for worker safety, for any organised activity run under the auspices of their organisation.

Workers

Whereas the old legislation talked in terms of 'employees' who were engaged under a contract of service, the new legislation now refers to 'workers', who are any individual who carries out work in relation to a business or undertaking under an arrangement with the person conducting the business or other undertaking. This can be either for either reward or otherwise. The definition covers all employees, trainees, independent contractors, outworkers, work experience placements, and volunteers.

The inclusion of volunteers under the Work Safety Act 2008 is a significant change concerning not-for-profit organisations. The degree of responsibility by an organisation for the safety of volunteers may depend on the nature, duration and frequency of their work.

Workplace

The definition of the workplace has also been expanded to incorporate any place where work is or will be carried out and it is no longer confined to the physical premises of the employer.

For not-for-profit organisations, workplaces include not just the premises of the organisation but also the homes of volunteers if they are working from home, the homes of clients if they are visited by workers, and public places if work is carried out their.

Work Safety

The definition of work safety has been expanded to now include the worker's well being as well as their health and safety. This change has been made to capture both physical and psychological well being, including stress and fatigue.

This change has potential implications for not-for-profit organisations who have workers exposed to stressful or traumatic situations whilst at work.

Obligations

The main obligation on duty holders under the Act is to manage risk to workers as far as reasonably practical.

Managing risk involves firstly identifying any risk that might be associated with a worker's duties and then taking steps to either eliminate or minimise each risk. The Act specifies a number of steps that should be taken to minimise individual risks.

Reasonably Practical

A duty holder must manage risks as far as reasonably practicable. In working out was is reasonably practical, consideration must be given to:

• the seriousness of the risk
• the availability and suitability of ways to eliminate or minimise the risk
• what the duty holder knows about the risk
• the cost of eliminating or minimising the risk

Evidence of Compliance

The reasonably practical test is often a difficult one to apply after the risk has occured. Duty holders will be called to give account for the decisions they have made in managing the risk in question. It is essential that any analysis of risk and the basis for making decisions on managing it is well documented at the time the decisions are made. These decisions should be reviewed, again with documentation, at regular intervals to ensure the management of the risk is still appropriate.

Case Study

In describing the objectives of the Work Safety Act, the ACT Work Safety Commissioner cites the case of a female real estate agent who was viciously attacked whilst showing a prospective buyer through a house. Her employer did not notice she was missing until she failed to return at the end of the day and then did not know which houses she had attended during the day. She was only found some hours later after the employer checked every house that they had listed.

Under the new Act, this employer would have failed their duty because they did not identify or evaluate the risk, nor take steps to minimise it.

In determining what was reasonably practical, consideration would be given to the likelihood and consequence of the risk occurring. In this case, although the incidences of real estate agents being attacked is low, the consequences for the worker is high enough to warrant action. Options such as security vetting prospective buyers, arming real estate agents or having them travel in pairs could be shown to be unreasonable on cost grounds.

However other options such as recording the identification of prospective buyers and having agents check-in with the office before and after inspections would be considered reasonably practical ways of minimising the risk by acting as a deterrent for the attacker and by quickly alerting the employer if an incident did occur. In these days where most modern mobile phones fitted with a GPS as standard, it could even be argued that real time tracking of staff was reasonably practical.

This case study is highly applicable to not-for-profit organisations that send volunteers to visit clients in their homes. At the very minimum you should know where each volunteer is expected to be and have some way of being alerted if an incident occurs.