1. Work Health and Safety Act
Senior Managers
Trainers Notes: Overview
Explain
This session provides an overview of the reasons behind the federal Government’s initiative to harmonise WHS laws. The session also covers the objects of harmonisation, a summary of the benefits anticipated for business and for workers as a result of consistency across all jurisdictions as well as a summary of the changes that will be introduced in NSW by the new legislation.

2. Senior Managers Trainers Notes: Overview Explain
This session provides an overview of the reasons behind the federal Government’s initiative to harmonise WHS laws. The session also covers the objects of harmonisation, a summary of the benefits anticipated for business and for workers as a result of consistency across all jurisdictions as well as a summary of the changes that will be introduced in NSW by the new legislation.

3. 01
What is new for NSW under the
WHS Act?

4. Summary
An employer
Is captured under the definition PCBU ‘person conducting a business or undertaking’
Controllers, self employed etc.
Are also a PCBU with general duties of care
General duties of Employers
Will be subject to qualifier ‘reasonably practicable’ and will apply to all PCBUs and extend to all who are involved in the conduct of work
Employees
Are captured under the definition of worker which is broadly define to include anyone who carries out work in any capacity, including volunteers
Trainers Notes: Overview
Explain:
Following is a summary of the main changes which will impact on businesses in NSW. For detailed information about each of these changes and what they really mean you will need to complete the detailed training module as indicated
The Model Act includes the following key elements:
The concept of the employer with responsibility for WHS has been broadened by using the term person conducting a business or undertaking (PCBU). (Refer to Module on PCBU and Duty of Care)
Self employed person and a controller of a premise will also be as a Person Conducting a Business of undertaking with the same obligations. (Refer to Module on PCBU and Duty of Care)
The primary duty of care will require persons conducting a business or undertaking (PCBUs) to, so far as is reasonably practicable, ensure the health and safety of workers and others who may be affected by the carrying out of work. (Refer to Module on the Reasonably Practicable Test)
The concept of the worker also has been broadened to someone who carries out work for a PCBU in any capacity. (Refer to Module on PCBU and Duty of Care)

5. Summary Duty of workers
Workers have an expressed duty to take reasonable care of themselves at work
Duty of others
Others are required to take reasonable care when at a place of work
Duty of Officers
Will change from having an attributed liability to a positive duty of “due diligence” to ensure PCBU complies with duties
Due diligence
Is specifically defined and includes knowledge of WHS and business risks , allocation of resources, WHS reporting, compliance and verification processes
Consultation
Broadened to include all workers affected and other PCBUs with shared responsibilities
Trainers Notes: Overview:
Explain:
Workers have an express duty to take reasonable care of themselves while at work. (Refer to Module on Duties of Officers and Workers)
Other, although they have limited control, are also required to take reasonable care when at a place of work. Others include persons at the workplace other than workers or other PCBUs, such as visitors, customers, clients, passers-by, relatives and associates of workers and trespassers
Officers of PCBUs have a duty to exercise due diligence to ensure compliance obligations are met. (Refer to Module on Duty of Officers and Workers)
Due diligence has been specifically defined in the legislation making it very clear what officers must do to meet their obligations. (Refer to Module on Duty of Officers and Workers)
PCBUs will have to consult more directly and widely with both workers and other PCBUs who they interact with at a workplace. (Refer to Module on Consultation).

6. Summary OHS Representatives
Replaced by health & safety representatives (HSR) with increased functions and powers
HSR powers
After completing approved training HSRs will be able to issue PINs and direct unsafe work to cease
Management of Risk
Risk assessments are not mandated in the Act but are mandated in the Regulation for certain high risk work
Union officials
Can apply for WHS entry permit to enter a workplace to advise on WHS or when a breach is suspected
Trainers Notes: Overview:
Explain:
The OHS Representative will be replaced by the Health and Safety Representative with increased functions. (Refer to Module on Consultation and Module on HSRs)
Elected Health and Safety Representatives (HSR)can issue Provisional Improvement Notices under certain conditions. (Refer to Module on HSRs)
The requirement to undertake risk assessments has been removed with a greater focus placed on getting the appropriate risk controls in place rather than on paperwork. Risk Assessments are mandated in the Regulation for some high risk activities. (Refer to Module on Reasonably Practicable)
Unions can apply for a WHS entry permit that allows them to enter workplaces to inquire about suspected breaches and consult with workers. (Refer to Module on Union involvement in WHS)

7. Summary Protection against discrimination
Enhanced to protect workers and those in commercial arrangements from coercion, inducements or misrepresentation
Onus of Proof
Reverse onus removed with the prosecution having to prove a breach was committed
Penalty Options
Graduated enforcement options to include injunctions, remedial action and enforceable undertakings
Penalties
Maximum penalty for a corporation of $3 million and for an individual $300,000 & up to 5 years imprisonment for the most serious breaches
Trainers Notes: Overview:
Explain:
There are enhanced protection for workers who raise WHS issues and those in commercial arrangements against discrimination, coercion, inducements or the misrepresentation of powers . (Refer to Module on Union involvement in WHS)
The reverse onus of proof in current NSW OHS law will be replaced with the prosecution having to prove that the PCBU or the individual being prosecuted did not do everything reasonably practicable to prevent the contravention. (Refer to Module on Offences, Penalties and Proof)
The range of Penalty options has been extended with a graduated approach to enforcement to include injunctions, remedial action and enforceable undertakings along with the more traditional existing penalties. (Refer to Module on Enforcement, Penalties and Proof)
Penalties for breach of WHS duties divided into 3 categories; reckless conduct, failure to comply where person exposed to high risk and failure to comply with a duty. (Refer to Module on Enforcement, Penalties and Proof)

8. New Terminology Employer
Replaced by the term ‘person conducting a business or undertaking’ (PCBU)
Controllers, self employed etc.
Are also a PCBU with general duties of care
Employees
Replaced by the term worker which is broadly defined to include anyone who carries out work in any capacity,
General duties of Employers
Will be subject to qualifier ‘reasonably practicable’ and will apply to all PCBUs
Duty of workers
Workers have an expressed duty to take reasonable care of themselves at work
Trainers Notes: Overview
Explain:
Following is a summary of the main terminology that will change with the commencement of the WHS Act. For detailed information about each of these changes and what they really mean you will need to complete the detailed training module as indicated
The Model Act includes the following new terminology:
The concept of the employer with responsibility for WHS has been broadened by using the term person conducting a business or undertaking (PCBU). (Refer to Module on PCBU and Duty of Care)
Self employed person and a controller of a premise will also be as a Person Conducting a Business of undertaking with the same obligations. (Refer to Module on PCBU and Duty of Care)
The concept employee has been broadened by the use of the term worker. A work is someone who carries out work for a PCBU in any capacity. (Refer to Module on PCBU and Duty of Care)
The primary duty of care will require persons conducting a business or undertaking (PCBUs) to, so far as is reasonably practicable, ensure the health and safety of workers and others who may be affected by the carrying out of work. (Refer to Module on the Reasonably Practicable Test)
The duty on employees has been broadened to a duty on workers and includes a duty to take reasonable care of themselves at work. (Refer Module Duties of Officers and Workers)

9. New Terminology Directors and Manager
Replaced with the term “Officer” as defined in the Corporations Act 2001
Duty of Officers
Officers have positive duty of “due diligence” to ensure PCBU complies with duties
OHS Representatives
Replaced by health & safety representatives (HSR) with increased functions and powers
OHS Committees
Will be referred to as health and safety committees with effectively the same functions
Union officials
Can apply for WHS entry permit and will be know as WHS entry permit holders.
Trainers Notes: Overview:
Explain:
Directors and Managers have been replaced with the term “Officers” as defined by the Corporations Act (Refer to Module on Duty of Officers and Workers)
Officers of PCBUs have a duty to exercise due diligence to ensure compliance obligations are met. (Refer to Module on Duty of Officers and Workers)
Officers have a positive duty of Due diligence (Refer to Module on Duty of Officers and Workers)
The OHS Representative will be replaced by the Health and Safety Representative with increased functions. (Refer to Module on Consultation and Module on HSRs)
OHS Committees will be know as Health and Safety Committees with similar functions
Unions officials can apply for a WHS entry permit that allows them to enter workplaces to inquire about suspected breaches and consult with workers and will be referred to a WHS Entry Permit Holders. (Refer to Module on Union involvement in WHS)

10. New Terminology Workplace
Defined to include any place where a worker goes, or is likely to be, while at work.
Structure
The provision of safe structures included in general duties of PCBUs and upstream duties of designers
Trainers Notes: Overview:
Explain:
A workplace has been more broadly defined to include anyplace where a worker goes, or is likely to go, while at work
The provision of safe structures has been included in the general duties of PCBUs and the upstream duties of designers

11. Definitions A person conducts a business or undertaking:
‘Person conducting a business or undertaking’
A person conducts a business or undertaking:
whether the person conducts the business or undertaking alone or with others; and
whether or not the business or undertaking is conducted for profit or gain.
A PCBU may be a partnership, an unincorporated association, a self- employed person, a government agency.
A person does not conduct a business or undertaking when:
the person is engaged solely as a worker in, or as an officer of, that business or undertaking-
the person is acting in the capacity of an elected member of a local government authority
If the Regulation prescribes
Trainers Notes: Overview:
Explain:
S5 of the WHS Act details the meaning of a business or undertaking
For the purposes of the WHS Act, a “business or undertaking” is taken to mean activities carried out by, or under the control of, a person:
whether the person conducts the business or undertaking alone or with others; and
(b) whether or not the business or undertaking is conducted for profit or gain.
(2) Includes a business or undertaking conducted by a:
partnership or
an unincorporated association.
A self-employed person
A Government agency
A person does not conduct a business or undertaking when:
the person is engaged solely as a worker in, or as an officer of, that business or undertaking
the person is acting in the capacity of an elected member of a local government authority
If the Regulation prescribes

12. Definitions
‘Worker’
A person is a worker if the person carries out work in any capacity for a PCBU, including work as:
an employee
a contractor or subcontractor
an employee of a contractor or subcontractor
an employee of a labour hire company
an outworker
an apprentice or trainee
a student on work experience
a volunteer
a person of a prescribed class.
The PCBU is also a worker if the PCBU is an individual who carries out work in the business or undertaking
Trainers Notes: Overview:
Explain:
The duty of care owed by a PCBU is owed to workers in a broadened sense of the word:
Section 7 of the Act defines a worker as:
A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or
(d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or
(i) a person of a prescribed class.

13. Definitions
‘Others’
Is taken to mean visitors, customers, members of the public etc.
‘A workplace’
A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
'Place' includes:
Offices, factories, warehouses, work vehicles, mobile advertising structure, billboards, bus shelters, phone booths and any other form of advertising structure.
Trainers Notes: Overview:
Explain:
A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
Others include persons at the workplace other than workers or other PCBUs, such as visitors, customers, members of the public
The important concept in relation to others is the definition of “workplace”. and may therefore not only include traditional workplaces like factories, construction sites and offices but is extended to include roads, parks, homes, hotels, airports, shopping centres, etc.
Section 8 of the Act defines a workplace:
A workplace is a place where work is carried out for a business or an undertaking. This includes anyplace where a worker goes, or is likely to go while at work
Place includes:
(a) a vehicle, vessel, aircraft or other mobile structure; and
(b) any waters and any installation on land, on the bed of any waters or floating on any waters.

14. Definitions
‘Officer’
Means:
an officer within the meaning of s.9 of the Corporations Act 2001; other than a partner in a partnership;
An officer may be:
A director or secretary of the corporation.
A person who makes, or participates in making, decisions that affect the whole, or a substantial part of the corporation.
A person who has the capacity to affect significantly the corporation's financial standing.
Trainers Notes: Overview:
Explain:
“Officer" of a corporation means: according to S9 of the Corporations Act 2001 means
                     (a) a director or secretary of the corporation; or
                     (b)  a person:
                              (i)  who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
                             (ii)  who has the capacity to affect significantly the corporation's financial standing; or
Officer does not include:
A partner in a partnership

15. Definitions Plant Includes:
any machinery, equipment, appliance, container, implement and tool; and
any component of any of those things; and
anything fitted or connected to any of those things.
Structure
Means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes:
buildings, Billboards, bus shelters and indoor advertising signs
any component of a structure; and
part of a structure.
Substance
Means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour.
Trainers Notes: Overview:
Explain:
Plant is defined to include:
any machinery, equipment, appliance, container, implement and tool; and
any component of any of those things; and
anything fitted or connected to any of those things.
Structure is defined to include anything that is constructed, whether fixed or moveable, temporary or permanent, and includes:
buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and
any component of a structure; and
part of a structure.
Substance is defined to include any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour.

16. Definitions
‘Designer’
Is a person who conducts a business or undertaking that designs:
plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or
a substance that is to be used, or could reasonably be expected to be used, at a workplace; or
a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. This includes billboards, bus shelters, phone booths and any other form of advertising structure.
Trainers Notes: Overview:
Explain:
Designer is defined as [s.22(1] a person who conducts a business or undertaking that designs:
plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or
a substance that is to be used, or could reasonably be expected to be used, at a workplace; or
a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

17. Definitions
‘Manufacturer’
Is a person who conducts a business or undertaking that manufactures:
plant that is to be used, or could reasonably be expected to be used as, or at a workplace; or
a substance that is to be used, or could reasonably be expected to be used, at a workplace; or
a structure that is to be used, or could reasonably be expected to be used as, or at a workplace. These include the fabricators that build billboards, bus shelters, phone booths and any other form of advertising structure.
Trainers Notes: Overview:
Explain:
Manufacturer is defined as [s.23(1)] a person who conducts a business or undertaking that manufactures:
plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or
a substance that is to be used, or could reasonably be expected to be used, at a workplace; or
a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

18. 02
NSW Work Health & Safety Act - PCBU’s, the Primary Duty of Care & Other Duties
Trainers Notes: PCBU
 Explain
This session covers the background to the concept of a Person Conducting a Business or Undertaking (PCBU) and illustrates who is a PCBU and why and what their obligations are.
This session should be covered before the session on Duties

19. What is a business or undertaking?
Activities carried out by, or under the control of, a person
Whether alone or with others
Whether or not for profit or gain
Including activities conducted by:
A corporation, partnership,
Unincorporated association
Self employed person
Government agency
Trainers Notes: Consultation
 Explain
S5 of the WHS Act details the meaning of a business or undertaking
For the purposes of the WHS Act, a “business or undertaking” is taken to mean activities carried out by, or under the control of, a person:
whether the person conducts the business or undertaking alone or with others; and
(b) whether or not the business or undertaking is conducted for profit or gain.
(2) Includes a business or undertaking conducted by a:
partnership or
an unincorporated association.
A self-employed person
A Government agency

20. Who will be a PCBU?
The primary duty is owed by the operator of the business or undertaking; Examples are:
PCBU
Employers, Self employed, Partner, Franchisees , Franchisor
Principal Contractors, Sub-Contractors
Businesses who design, manufacture, import, supply plant, substances and structures used at work
Businesses who control workplaces, fixtures , fittings, plant at workplaces
Trainers Notes: PCBU
Explain:
The duty is owed by the person conducting a business or undertaking, whether as an individual, company, partnership, etc. We are talking here about the legal entity that conducts the business or undertaking .
The duty applies to those for whom the work is being done, including those who are providing or contributing to the things necessary for the work to be done. This includes all of the duty holders who had a primary duty of care and those with only other duties under our existing legislation, namely:
Employers, self employed persons, partners in a partnership, franchisees, franchisors
Principal Contractors, Sub-Contractors
Persons conducting businesses or undertakings that design, manufacture, import, supply plant, substances or structures used at a workplace
Persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces
Some of these duty holders will also have specified “further duties” in addition to their primary duty of care which we will talk about later in this session.
Activity: Think about the business or undertaking you represent
Is it a PCBU?
Why?
What work activities does this PCBU perform
Whose health and safety could be affected by these activities:
Facilitation:
Get the group to discuss the organisation they represent and identify the nature of the business or undertaking
Is it a company, a sole trader, a partnership, an incorporated association.
Who exactly is the PCBU – it’s the entity of the operator.
Who can their undertaking affect?

21. What WHS Act says PCBU’s must do:
Primary duty of Care:
A PCBU MUST so far as is reasonably practicable, ensure the health & safety of:
Workers engaged, or caused to be engaged by the PCBU
Trainers Notes: PCBU:
Explain:
What the WHS Act says PCBUs must do?
Section 19(1) of the WHS Act states:
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
In relation to workers – the primary duty of care extends beyond direct employees to others who do work for or under the influence or direction of the PCBU.
Other persons is taken to mean visitors, customers, members of the public etc.
It is important to emphasise at this point that the obligation is to fulfil this duty to the extent that it is reasonably practicable. There is a complete module which will help you understand how this reasonably practicable test is applied.
Workers whose activities are influenced or directed by the PCBU
Other persons who could be put at risk from work carried out by PCBU

22. Other PCBU Duties Primary Duty of Care plus 1. Consultation
2. Issue Resolution
3. Incident Notification
4. Complying with regulations
Trainers Notes: PCBU
Explain:
In addition to the Primary Duty of Care PCBUs have other duties: These duties include the following
Consultation:
The WHS Act includes a provision requiring consultation, cooperation and coordination of activities between concurrent duty holders as well as a broadening of the requirement to consult with employees to a duty to consult with all workers who may be affected by the work being carried out.
There is a separate training module dealing with consultation with workers and coordination with other PCBUs
Issue Resolution:
The new legislation requires a PCBU to have a mechanism in place to resolve WHS issues and requires that a PCBU make reasonable efforts to resolve the matter. If after reasonable attempts the issue remains unresolved, it may be referred to an inspector to assist in resolving the issue. Again this requirement has been extended in the new legislation to apply to all PCBUs. There is a separate training module dealing with this requirement.
Incident Notification:
A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.
Also the person with management or control of a workplace at which a notifiable incident has occurred must ensure, so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.
While both these requirements exists in the current legislation they have been expanded in the new Act to apply to all PCBUs, and the requirement to preserve the site is a little different.
Complying with Regulations:
The regulations include many of the administrative aspects of licences and permits. There are certain requirements for PCBUs to make sure that certain types of workplaces, plant and work as prescribed by the regulation to be authorised are authorised and that work does not occur if the authorisation is not obtained. This would include things like asbestos removal.

23. All duties are concurrent and non-transferrable
Multiple PCBUs in respect of same activities
Several PCBUs may owe a duty of care to the same people concurrently:
Each PCBU MUST comply with their duty, so far as is reasonably practicable
Each PCBU must discharge their duty to the extent that they can influence or control the matter
Landlords & Site Owners
Sign Installation Companies
Trainers Notes: PCBU
 Explain
Because of the expanded nature of the duty of care owed by all PCBUs to not only their employees but anyone working with or for them, including the employees and workers of other PCBUs, it is more than likely that several PCBUs may own the same duty of care to the same person concurrently. In this regards the WHS Act states:
S 16: More than one person can have a duty:
(1) More than one person can concurrently have the same duty.
(2) Each duty holder (PCBU) must comply with that duty as far as is reasonably practicable, even if another duty holder has the same duty.
(3) If more than one person has a duty for the same matter, each person (PCBU):
(a) retains responsibility for the person's duty in relation to the matter; and
(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement
Where a PCBU has a very limited involvement or very limited ability to take relevant steps in relation to managing risks, those factors will assist in determining what is ‘reasonably practicable’ for them in complying with their duty of care.
The PCBU is not necessarily required to directly undertake the activities necessary for compliance – these can be done by others at the instigation or direction of the PCBU
BUT - arranging for another person to undertake activities necessary for your compliance with the duty of care you owe to a person would not be sufficient to meet the duty so far as is reasonably practicable, unless you took steps necessary to confirm the relevant matters were appropriately attended to, and the required health and safety standards were maintained.
The PCBU is required to ensure that the activities are undertaken and the outcomes achieved.
This allows for the coordination of activities between duty holders and the reasonable reliance on others to facilitate compliance. For example the host employer providing adequate facilities for the hired labour and inducting them into the specific work environment and work activity with the Labour Hire Company ensuring and checking that it is done!
Example of PCBUs sharing duties include:
Principal contractor and sub-contractor
Labour provider and person with management of workplace
A contractor with employees working in another's workplace
It should also be emphasised that the duties are concurrent and not delegable – meaning the PCBU can’t transfer their specific duties to another PCBU. Each duty holder retains the non-delegable duty of care at all times.
Advertising Companies
Billboard Production Companies
Electrical Companies
All duties are concurrent and non-transferrable

24. What are the major differences in the WHS Act?
Major difference is the application of Primary Duty of Care
NOW the primary duty of care does NOT rely on the employment relationship
NOW the primary duty of care is OWED BY a PCBU. It is OWED TO workers carrying out work for PCBU
NOW the primary duty of care is also owed by the PCBU to OTHER people affected by the work
Trainers Notes: PCBU
 Explain
 How is the new Act different?
 The major difference in the WHS Act from the current NSW OHS Act 2000 lies in the application of the Primary Duty of Care.
The primary duty of care under the existing legislation is owed by an employer to its employees and in a more limited way to others at the workplace.
The WHS Act removes the employment relationship as the basis of the duty of care and as a result has broadened the scope of the primary duty of care.
The duty is owed by the person conducting a business or undertaking – whether or not that PCBU is an employer, self employed, company, incorporated association. The duty is owed to workers, not just employees but workers carrying out work for the PCBU or affected by the PCBU
The primary duty of care is now also owed to people other than workers who may be affected by the activities of the business or undertaking. While this has been covered to a limited extent in the existing requirements it should now be clear that the fully duty of care and specified duties is owed to these persons.
While our current legislation requires that an employer ensures that persons not in their employment are not exposed to risks to their health or safety whilst at place of work, it does not require specifically that these non employers are afforded all the specific duties owed by an employer to employees in relation to systems of work, plant etc.

25. What are the major differences in the WHS Act?
Major difference is the application of Primary Duty of Care
NOW the specific duties that the PCBU has are more explicit and include the duty to monitor workplace
NOW there is a greater chance that PCBUs will share duties for the same activities
NOW the duty of care is qualified by the standard of what is reasonably practicable.
Trainers Notes: PCBU
 Explain
 How is the new Act different?
 The specific things that a PCBU must do are similar to the current NSW requirements but are in some instances more explicit. For example currently the requirement is to provide safe premises, safe plant and substances, safe systems of work and a safe working environment as well as facilities for worker welfare as well as information, instruction, training and supervision of employees to enable them to work safely. The WHS Act includes the provision of safe structures as well as the safe use, handling and storage of plant, structures and substances; and a requirement to monitor workers and the working conditions to prevent injuries or illness. Overall the changes are not that major.
The nature of the PCBU and the expansion of the duty of care is almost certain to mean that there is a greater chance that PCBUs will share duties for the same activities and this will impact on the way these PCBUs work together to achieve the desired safety outcomes.
Under the WHS Act, the primary duty of care is qualified by the standard of what is reasonably practicable.
The placement of the qualifier of ‘reasonably practicable’, within the duty or within a defence, is relevant to the issue of who bears the onus of proving or disproving that the standard has been met. This is significant in the NSW jurisdiction and is addressed in full in a separate module.

26. NSW Work Health & Safety Act - Duties of Officers, Workers & Others03
NSW Work Health & Safety Act - Duties of Officers, Workers & Others
Trainers Notes: DUTIES
 Explain
This session covers the obligations on Officers under the WHS Act as well as the duty on workers and others at a place of work.

27. OHS Amendment Act 2011
Recent amendments to the NSW OHS Act (The OHS Amendment Act 2011) have changed the provision of S26, effectively bringing forward the provision contained in the WHS Act which removes this attributed liability and introduces the positive duty of “Due Diligence”. This provision commenced in June 2011
Trainers Notes: DUTIES
Explain
Recent amendments to the NSW OHS Act (The OHS Amendment Act 2011) have changed the provision of S26, effectively bringing forward the provision contained in the WHS Act which removes this attributed liability and introduces the positive duty of “Due Diligence”
This provision commenced in June 2011
The details of this change are covered in this session.

28. WHS Act specifies Duty of Care on Officers
One of the most significant changes
introduced by the new Act
Introduces a “duty of care” on officers - the duty is to the PCBU
This is a positive duty allocated to officers in their own right
Trainers Notes: Duties
 Explain
S27 of the WHS Act introduces a duty of care for officers – due diligence.
Officers of companies or other bodies now have a duty to exercise due diligence to make sure that the organisation which they manage is meeting all its duties under the Act .
This is a positive duty in that it is allocated to the officer in his/her own right.
An officer of a PCBU may be convicted or found guilty of an offence under this Act whether or not the PCBU has been convicted or found guilty of an offence under this Act
This is a significant reform and will require the officers of a PCBU to show leadership with regard to health and safety in order to influence health and safety outcomes and the safety performance of the organisation. It will also require officers of a PCBU to be able to prove that they have taken steps to make sure their organisation or entity complies with its legal obligations and continues into the future to comply .
An officer may be found guilty of an offence whether or not the PCBU has been found guilty or convicted of an offence

29. THIS DUTY CANNOT BE DELEGATED
What WHS Act says about Officers Duties:
Duty of Officers s27 “If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation”
Trainers Notes: Duties:
Explain:
 What the WHS Act says an Officer must do?
Section 27 of the WHS Act states:
27 Duty of officers
“If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.”
An officer of the PCBU must actively take steps to ensure that the PCBU complies with its duty or obligations. The officer is liable for his/her own conduct or omission. The onus of proving a failure to meet the standard of due diligence is on the prosecution.
The advantages of placing a positive duty on officers is that it requires the officer(s) to take active steps to make sure the PCBU meets its primary duty of care in the first instance – not only after a breach has occurred. The officer(s) will be liable if he/she failed to do whatever was reasonably necessary – to the extent of his/her ability to do so – to cause the business or undertaking to comply.
Importantly an officer cannot delegate this duty to someone else in the organisation. Its not acceptable to leave this responsibility to the care of an OHS coordinator, line manager etc…
So what do we mean by due diligence in relation to officers?
THIS DUTY CANNOT BE DELEGATED

30. Officers must exercise Due Diligence
What is Due Diligence?
Audit & review WHS processes and use of resources
Acquire safety knowledge and keep up to date
Ensure WHS legal compliance
Trainers Notes: Duties
Explain:
The WHS Act clearly defines what officers are expected to do in order to exercise due diligence.
S 27 of the Act states: due diligence includes taking reasonable steps:
to acquire and keep up-to-date knowledge of work health and safety matters; and
(b) to gain an understanding of the nature of the operations of the business or undertaking and of the hazards and risks associated with those operations; and
to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and
(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and
to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and
To verify the provision and use of these resources and processes
NOTE: The next six slides have been noted as optional – you may wish to use the slides or simply use the examples of what an offer need to do to demonstrate each element of due diligence while presenting this slide.
Understand business health & safety risks
Due Diligence
Receive and consider business incidents, hazards & risks
Provide resources to identify and control risks

31. What are the major differences in the WHS Act?
Major difference is the introduction of a POSITIVE duty of Due Diligence
OFFICERS have a duty to ensure the entity acts appropriately & complies with WHS legislation
NOW OFFICERS are defined and include internal and external persons of control and influence
NOW DUE DILIGENCE is clearly defined and officers know exactly what they are expected to do
Trainers Notes: Duties
 Explain
How is the new Act different?
The major difference in the WHS Act from the amended NSW OHS Act 2000 lies in the change from directors and managers of a corporation to a broader definition of officer.
“Officers” have a duty to ensure the entity (PCBU) acts appropriately and complies with the legislation
NOW who is an officer has been clearly defined by reference to existing legal constructs and it includes internal and external persons who influence or control the entity.
NOW due diligence has been defined and officers know exactly what they have to do to fulfil their duty and to be able to provide evidence that they have they fulfilled their duty in the event of an investigation or prosecution against the entity.

32. What do you have to do?
If you have existing systems to demonstrate management commitment and responsibility for WHS
review your systems in line with the legal elements of “due diligence”
make sure you have all elements covered and
make sure you can produce suitable records (evidence) to demonstrate compliance.
Trainers Notes: DUTIES
 Explain
 What is the likely impact of the changes?
 Organisations that have OHS Management Systems (policies and procedures) in place usually have to some extend covered this requirement by having a procedure on Management Commitment and Responsibilities.
If you have existing systems to demonstrate management commitment and responsibility for OHS, (which many organisation who have OHS Management Systems in place will have),
To ensure full compliance you may need to review your existing system (Policies, procedure) and then you will need to review the various operational procedures concerned with things like hazard reporting, risk management, incident reporting, workplace inspection, audit and review etc.
make sure that your identified officers have an appropriate level of responsibility and accountability and will be able to actively demonstrate due diligence as defined in the WHS Act.
Make sure you can produce suitable records which show that this is the usual activity of the “officers” in your organisation

33. COMMENSURATE WITH SIZE & NATURE OF YOUR OPERATIONS
What do you have to do?
If you don’t have existing systems to demonstrate management commitment and responsibility
Identify who will have “officer” duties
Consider using the elements of “due diligence” to develop an officer Statement of Duty
Develop, implement, monitor, review WHS procedures and processes to include the active involvement of your officers
Provide training to officers to enable them to carry out these functions
Trainers Notes: DUTIES
 Explain
 What is the likely impact of the changes?
If you don’t have existing arrangements for contractor management and the management of others in the workplace then then you need to:
Identify who will have officer duties in your organisation;
Consider using the Elements of “due diligence” as prescribed in the WHS Act to develop an Officers Statement of Duty
Develop, implement, monitor and review WHS Procedures and processes to include the active involvement of identified officers
Provide the necessary training to enable them to carry out these functions effectively
And remember your “reasonable steps” to take should be commensurate to the size, nature of your operations.
COMMENSURATE WITH SIZE & NATURE OF YOUR OPERATIONS

34. Duties Must take reasonable care of own health & safety
Must take reasonable care that conduct does not adversely affect others
Must comply, so far as he/she is reasonably able, with instructions
Must cooperate with reasonable notified policies and procedures
Trainers Notes: Duties:
Explain:
What the WHS Act says ?
Workers are required to take reasonable care for their own health and safety at work and to make sure that what they do, or fail to do, does not put others are risk.
Workers are also required to follow all reasonable instructions that are given to them at the workplace and must also the follow all policies and procedures the PCBU has in place and that they have been made aware of. These duties are really the common law duty of care made as a statutory duty under the WHS Act.
Others at the workplace have exactly the same duty as workers to take care of themselves and others and to follow any reasonable direction given BUT ARE NOT required to follow detailed organisational policies and procedures as they would likely be unaware of such policies and procedures.
So what do we mean by reasonable care. Well in legal terms the concept of reasonableness is about considering what a reasonable person would have done in the given circumstances.

35. Whether any other worker was placed at risk, and
Did the worker fail to take responsible care?
The assessment of a worker’s failure to take reasonable care is made relative to the PCBU’s actions to do what was reasonably practicable:
The systems of work in place at the time
The training, information, instruction, supervision provided
Trainers Notes: Duties
Explain:
The assessment of a worker’s failure to take reasonable care is made relative to the PCBU’s actions to do what was reasonably practicable,
Remember a worker’s duty is not issued in isolation, it is imposed and assessed in the context of the PCBU’s duty, including the duty to provide the workers with safe systems of work, safe equipment etc, and all necessary information, training and instruction to work safely.
The assessment of whether a worker failed to take reasonable care is therefore made relative to the PCBU’s actions to do what was reasonably practicable to ensure their health and safety. If the PCBU failed to meet their duty of care to the extent that was reasonably practicable then the worker’s ability to take reasonable care will be diminished.
Therefore in determining if a worker has failed to take reasonable care the Court will take taken into account the worker’s actions or omissions in the context of the following:
The systems of work in place at the time
The training, information, instruction and supervision provided to the worker
Whether the worker was working within their stated role
Whether any other worker was placed at risk, and
Whether the worker acted intentionally or recklessly
You need to make sure you can provide evidence of all the conditions listed above.
Whether the worker was working within their stated role
Whether any other worker was placed at risk, and
Whether the worker acted intentionally or recklessly

36. What is the likely impact of these changes?
Impact in relation to Duties of Workers
Makes responsibility to take care of own health & safety explicit
Extends to all workers –need to ensure employees as well as other workers are given the proper instruction and training about your policies and procedures and provided with adequate supervision
This will be a duty you may share with another PCBU
Trainers Notes
 Explain
 What is the likely impact of the changes?
Impact in relation to Duties of Workers:
The impact of these changes on your business may be minimal as the newly expressed duties of workers in the WHS Act are very similar to the existing duties of employees ( only the WHS Act will explicitly state that a worker has a duty to take reasonable care of themselves, which is not explicit in the OHS Act 2000).
The major change is that this duty is imposed on all workers whether they are your employees or not; they may be contractors, labour hire personnel or even volunteers.
Even though some of these would have been caught by the existing duty imposed on persons at the workplace, that duty concerned recklessness not reasonableness. The significance of this change for your business is that you need to look closely at the induction and training you give other workers and ensure that you are providing them with sufficient information and instruction and supervision to enable them to be able to take reasonable care while at your workplace.
This may be a duty you share with the person employing or controlling them but you still have a responsibility and you will see when we cover the requirement for consultation that you may need to cooperate, consult and coordinate such activities with the other PCBUs concerned.

37. What is the likely impact of these changes?
Impact in relation to the Duty of Others
The new duty on others is about reasonable care NOT just recklessness
It may have the potential to apply to people who have been outside the jurisdiction of OHS Legislation – like home owners when work is being done, customers at shopping centre promotions or advertising displays, the public around billboards or bus shelters, rail platforms or other installation works etc.
Trainers Notes
 Explain
 What is the likely impact of the changes?
Impact in relation to Duties of Others:
The new duty on others in a workplace is about reasonable care NOT just recklessness
It may have the potential to apply to people who have been outside the jurisdiction of OHS Legislation – like home owners when work is being done, customers at shopping centres etc.

38. Differing standards according to the duty holder and the nature of the activity
DUTIES
STANDARD
Primary Duty of Care
Other duties
Specific duty holders
REASONABLY PRACTICABLE
PCBU
Officers duty of care
Leadership & Governance
DUE DILIGENCE
Trainers Notes
 Explain
 In Summary:
In considering the previous session on PCBU and this session on Duties of Officers, workers and others we are now in a position to summarise the duties imposed by the WHS legislation.
This diagram summarises the duties associated with the various activities that take place within an organisation.
The activity is associated with the duty holder on the left hand side:
The PCBU controls the business or undertaking
Officers influence and govern the business or undertaking
Workers do the work and supervise the work
Others have an incidental reason for being at the workplace.
The respective duties of these duty holders are listed in the middle
The standard of compliance applied by the WHS Act is listed on the right hand side.
OFFICER
Workers to take care of self and others
Includes supervisory role
REASONABLE CARE
WORKER
Other to take care of self and others
Follow instructions
REASONABLE CARE
OTHERS at workplace

39. Summary Officer must ensure the PCBU complies with its duties
Officer’s duty discharged with due diligence
This duty can not be delegated or transferred
Workers to take care of themself & others at workplace
Worker’s duty discharged with reasonable care
Others at workplace to take care of themselves
Other’s duty discharged with reasonable care
Trainers Notes
 Explain
 In Summary:
Officer must ensure the PCBU complies with its duties
Officer’s duty discharged with due diligence
This duty can not be delegated or transferred
Workers to take care of themself & others at workplace
Worker’s duty discharged with reasonable care
Others at workplace to take care of themselves
Other’s duty discharged with reasonable care

40. 04 NSW Work Health & Safety Act - Reasonably Practicable
Trainers Notes: Reasonably practicable
Explain
This session covers the obligations imposed by the Work Health Safety Act in relation to determining what is reasonably practicable.
It should be covered after the Module on PCBUs.

41. What is the difference in WHS Act in the use of reasonably practicable?
Current NSW OHS Act includes reasonably practicable as a defence in any proceedings against a person for an offence
Under the WHS Act the prosecution will have to prove the case thus abolishing the current reverse onus of proof situation
Under the WHS Act the obligations of the PCBU will be qualified by reasonably practicable rather than the current absolute duty in the NSW Act
Trainers Notes: Reasonably practicable
Explain
The use of reasonably practicable to qualify the duties of PCBUs rather than the absolute or unqualified duty currently found in the NSW Act represents a significant change. Instead of only being thought about when defending a charge that the law has been breached the use of reasonably practicable to qualify the duty of PCBUs casts the duty in a more positive light. Instead of being a defence it is a positive duty to ensure that persons are protected at work.
In this new use the concept of reasonably practicable is consistent with practice in most other states that have operated under this positive duty for many years.
In relation to any alleged breach of duty it becomes the job of the prosecution to prove the case.
In normal interactions with inspectors who administer the OHS law notice are often written requiring employers to ensure a particular hazard is minimised so far as is reasonably practicable.

42. Overview of what WHS Act says about reasonably practicable
The PCBU has a duty to ensure, so far as is reasonably practicable, the health & safety of workers that are:
engaged to carry out work for their business or undertaking- this includes engaging subcontractors and consultants
placed with another person to carry out work for that person, such as labour hire or
influenced or directed in carrying out their work activities by the person, while the workers are at work in the business or undertaking-Such as an advertising company officer directing an installation company worker to perform works onsite
Trainers Notes: Reasonably practicable
Explain
The WHS Act outlines the duties of PCBUs (covered in detail in the PCBU module) and qualifies their obligation by the expression so far as is reasonably practicable..
How the Act defines Reasonably Practicable
18 What is reasonably practicable in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

43. Reasonably Practicable: getting the balance
Reasonably practicable is the balance between risk and time, effort and cost
Likelihood, degree of harm, knowledge etc
Time, effort and cost
to eliminate or reduce risk
Trainers Notes: Reasonably Practicable
 Explain
Balance point
The balance point is where the time, effort and cost is proportionate to the benefit in risk reduction.

44. ? Level of time, effort and cost way
Reasonably practicable: Getting the balance
Level of time, effort and cost way
out of proportion with benefits
in risk reduction
E.G little likelihood of risk occurring risk/minimal harm
High level of time, effort
and cost to eliminate
or reduce risk ?
Trainers Notes: Reasonably Practicable
 Explain
Balance point
The concept of reasonably practicable means that where this balance is out of kilter (i.e. where the costs are “grossly disproportionate” to the benefits of risk reduction) the employer is entitled to introduce prevention measures that are more appropriate to the likely benefits
Reasonably practicable also means that the higher the level of risk the greater the time, effort and cost must be taken to eliminate it or reduce it.
Ask
Are there examples in your workplace where you have to achieve this balance?
Discuss with a view to what would be reasonably practicable.

45. Reasonably Practicable in the workplace
For common hazards such as electricity, falls and manual handling there are regulations that define what has to be done to control risks. These common hazards also have supporting codes of practice to provide guidance on how to control risks.
For more complex or workplace specific risks a risk management approach can be used to establish what is reasonably practicable
The most common decisions about reasonably practicable relate to the type of risk control to be used (the hierarchy of control). In other words what is the highest level of protection that is reasonably practicable.
Trainers Notes: Reasonably Practicable
 Explain
Facilitate: Group exercise
To highlight the fact that most hazards and risks are already well covered by risk controls ask the group to nominate three hazards found in their workplace.
For each hazard draw a circle and by working through questions such as:
Do existing regulations prescribe what has to be done?
Are there approved codes that recommend risk controls?
Are there industry guides available?
Are there well accepted industry practices used?
Positive answers to these questions mean that the circle should be shaded in as there is little uncertainty or need for a definition of what is reasonably practicable?
Where there are uncertainty gaps see how a standard risk assessment would provide a guide to what is reasonably practicable.

46. Reasonably Practicable: the Hierarchy of Control
The WHS Act advocates the highest level of protection as is reasonably practicable and the model regulations in many cases mandate a set of preferred controls consistent with the hierarchy of control- for example- the use of only PPE when working at heights a control in high risk situations may not be deemed as “reasonably practical” when other controls such as design and engineering are available
Consequently the level at which controls are applied is subject to decisions about reasonably practicable.
Trainers Notes: Reasonably Practicable
 Explain
Hierarchy of control
 What is meant by the highest level of protection is best described by the concept of the hierarchy of control.
The following questions can guide you through the hierarchy:
Can the risk be removed by ceasing the use of substances or stopping particular activities? – ELIMINATION.
Can materials, equipment or processes be replaced with less hazardous ones?-SUBSTITUTION.
Can the source of risk be isolated by barriers or enclosures? - ISOLATION
Can the source of risk be reduced by engineering controls? – ENGINEERING
Can the risk be reduced by redesign of the materials, equipment and work process? – DESIGN
Can the risk be reduced by using safe work practices? - ADMINISTRATIVE
Can the risk be reduced by using Personal Protective Equipment? - PPE

47. Reasonably Practicable: the Hierarchy of Control
STOP OR CHANGE THE ACTIVITY, PRACTICE OR PROCEDURE
ELIMINATE RISKS (so far as is reasonably practicable)
MINIMISE RISKS (so far as is reasonably practicable)
SUBSTITUTE WITH SAFER ALTERNATIVE
REDESIGN TO REDUCE RISK
ISOLATE PEOPLE FROM RISK
STOP USING OR CHANGE THE PRODUCT, PROCESS, PLANT OR SUBSTANCE
USE ENGINEERING CONTROLS
USE ADMINISTRATIVE PROCEDURES
USE PROTECTIVE CLOTHING / EQUIPMENT
MOST RELIABLE LEAST RELIABLE
Highest LEVEL OF PROTECTION Lowest
 Trainers Notes: Reasonably practicable
NOTE:THIS SLIDE IS OPTIONAL (unhide if you want to use)
Explain
Diagram illustrates hierarchy and highlights that level of protection and the reliability of the prevention measures. Measures that depend solely on individual awareness (e.g. signage “keep clear of edge”) are less reliable than engineering or design measures (e.g. edge protection, safety barriers).
The exercise that follows also illustrates the hierarchy in deciding what is reasonably practicable.

48. 10 NSW Work Health & Safety Act - Enforcement
Trainers Notes: Enforcement
 Explain
This session covers the details related to range of enforcement & penalty options available to ensure compliance & to penalise non compliance with work health and safety laws.
10 NSW Work Health & Safety Act
- Enforcement

49. What is different in WHS Act about Enforcement and Penalties?
The WHS Act retains and builds on the enforcement framework found in the current legislation
Trainers Notes: Enforcement 
Explain
How is the new Act different?
The WHS Act retains and builds on the enforcement framework found in the current NSW Act. Therefore a considerable part of the enforcement and compliance strategy in the WHS Act is the same or very similar to what we already have.
The major changes concern:
A wider range of sanctions for beaches of possible breaches
Much greater penalties for breaches
Restrictions on a unions right to bring a prosecution, and
Abolition of the reverse onus of proof in prosecutions
A greater range of sanctions, higher penalties, restrictions on a Trade Unions right to prosecute and abolition of the reverse onus of proof are new to the NSW enforcement framework

50. Enforceable Undertaking
Enforcement Measures
The WHS Act provides graduated enforcement regime with civil and criminal prosecutions the ultimate sanction
Penalty Notice
Enforceable Undertaking
Injunctions
Trainers Notes: Enforcement
Explain
The WHS Act encourages voluntary compliance by providing for the functions of the Regulator to include the provision of advice to and education of duty holders. Nevertheless an obligation is meaningless if it is not appropriately enforced.
To achieve this the WHS Act provides a graduated regime of enforcement strategies with civil and criminal prosecution being the ultimate sanction. In addition to fines and custodial sentences there will be further options such as: remedial orders, injunctions or enforceable undertakings
While NSW has an existing regime of graduated sanctions similar to that in the WHS Act – enforceable undertakings is an alternative that has not previously been available to businesses in NSW. (Category 2 and 3 offences only)
Remedial
Action
Prohibition
Notice
Injunctions, and enforceable undertaking are new in NSW
Improvement
Notice
Notice
Non Disturbance

51. Enforceable Undertaking
Enforceable Undertakings
WorkCover may accept a WHS undertaking in connection with the matter giving rise to a contravention or an alleged contravention as an alternative to a prosecution $$ to focus on positive prevention action
Penalty Notice
Enforceable Undertaking
Injunctions
Trainers Notes: Enforcement
Explain
As an alternative to prosecution the WHS Act introduces the ability for Regulator (WorkCover NSW) to accept a work health and safety undertaking in connection with the matter which has given rise to the non compliance or alleged non compliance with the Act.
If administered appropriately this imitative has the potential to be much more effective in achieving the objectives of the Act as the money is diverted away from punitive actions and associated legal expenses towards proactive compliance actions aimed at improving work health and safety.
ASK:
What do you think would be some examples of enforceable undertakings businesses would be prepared to make?
2 EXAMPLES of Undertakings agreed to by Workplace Health and Safety Queensland where Enforceable undertaking have been operating for some years are listed here:
Activities XYZ Contractors Pty Ltd will undertake include:
conducting third party audits of the occupational health and safety management system in accordance with the requirements of AS/NZS 4801:2001 at least three times over the life of the undertaking with audit recommendations to be implemented
developing a scaffold specific inspection tool for use by company site supervisors and undertake an inspection of all company sites in Queensland that have scaffold, using the inspection tool
development and delivery of a training program for company foremen and supervisors on the management of scaffolding on construction sites
development and circulation of an industry alert on the risks associated with the interface between formwork and scaffolding trades on construction sites
preparation and presentation of a case study at specified industry forums regarding the risks associated with the interface between formwork and scaffolding trades at construction sites
providing support to the Occupational Stress Prevention Program to deliver a number of construction specific outcomes
donation of a specified amount to a nominated charity whose aim is improving mental health and wellbeing for workers in the construction industry.
This undertaking has a total minimum expenditure of $ (including recoverable departmental costs).
Remedial
Action
Prohibition
Notice
Improvement
Notice
NOT Available for Category 1 Offences
Notice
Non Disturbance

52. Enforceable Undertaking
Enforceable Undertakings
Once accepted no proceedings can be brought in relation to the contravention
Giving an undertaking is not an admission of guilt
Decision must be given in writing & notice of decision published on WorkCover’s website
Undertaking is enforceable when the decision to accept the undertaking is given
It is an offence to contravene – and can result in proceedings and/or an order to carry out
Penalty Notice
Enforceable Undertaking
Injunctions
Trainers Notes: Enforcement
Explain
The following criteria apply to enforceable undertakings:
Once accepted , no proceedings can be brought against the person in relation to the contravention giving rise to the undertaking
Giving an undertaking does not constitute an admission of guilt by the person who gives the undertaking.
The Regulator must give the person who is seeking the undertaking written notice of its decision to accept or reject the undertaking and the reasons for the decision. In addition the Regulator MUST publish on its web site the notice and its decision to accept an undertaking and its reasons why . THIS IS TO ENSURE TRANSPARENCY AND ACCOUNTABILITY in the system
The undertaking becomes enforceable when the regulators decision to accept the undertaking is given to the person who made the undertaking or at a date specified by the Regulator.
It is an offence for a person to contravene an undertaking. If this occurs, the Regulator may commence proceedings for a breach of the Act and apply to the Court for orders requiring the specific performance of the undertaking.
Remedial
Action
Prohibition
Notice
Improvement
Notice
Notice
Non Disturbance

53. Enforceable Undertaking
The Right to Prosecute
The right to bring a prosecution under the WHS Act rests with WorkCover in NSW
Penalty Notice
A Trade Union can bring a prosecution under the WHS Act in NSW only if:
the offence concerned is a Category 3 or,
the offence concerned is a Category 1 or a Category 2 offence
and
WorkCover has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings
Enforceable Undertaking
Injunctions
Trainers Notes: Enforcement
Explain:
The State Regulator responsible for HSW has the power to bring a prosecution under the WHS Act. In NSW this remains WorkCover.
The Unions right to bring a prosecution under the WHS Act in NSW as been qualified as follows:
The secretary of an industrial organisation can bring proceeding for a breach of the WHS Act in NSW only if:
The offence concerned is a category 3 offence
the offence concerned is a Category 1 offence or a Category 2 offence,
and
WorkCover has (after referral of the matter to the regulator and the Director of Public Prosecutions) declined to follow the advice of the Director of Public Prosecutions to bring the proceedings
Currently a Registered Trade Union can bring a prosecution against a breach of the legislation and if they are successful in that prosecution the Union is allowed to retain half of the penalty applied for the offence.
DO SOMETHIMNG WITH THIS SLIDE!!!!!!!
Remedial
Action
Prohibition
Notice
Improvement
Notice
Notice
Non Disturbance

54. Enforceable Undertaking
Power of HSR to issue PIN
Then only if
the representative reasonably believes that a person is contravening a provision of the Act, has contravened a provision of the Act in circumstances that make it likely that the contravention will continue or be repeated
Can only act if
Completed initial training
Consulted with the person to whom the notice is issued
And
Must be in writing and may recommend measures to remedy issue
PCBU can seek review within 7 days. Inspector may cancel, confirm or confirm with modification
Penalty Notice
Enforceable Undertaking
Injunctions
Trainers Notes: Enforcement
 Explain
 Under the WHS Act HSRs have powers to issue Provisional Improvement Notices but only issues that affect the work group.
  A HSR can only exercise the powers under this provision if the HSR has:
completed initial HSR training as set out under the regulations,
consult with the alleged contravener or likely contravener before issuing a provisional improvement notice.
Only if the HSR believes that there is, has or will be a contravention of the Act
This is a new provision in NSW but has been operating in some other jurisdictions for some time.
Remedial
Action
Prohibition
Notice
Improvement
Notice
Notice
Non Disturbance

55. Category 2 Breach High Risk Category 1 Reckless Conduct
Penalty Structure
Category 2 Breach High Risk
Corporations: $1.5m
Individuals as a PCBU or Officers of a PCBU: $300k
Other Individuals : $150k
Category 1 Reckless Conduct
Corporations: $3m
Individuals as a PCBU or Officers of a PCBU: $600k / 5 years jail
Other Individuals : $300k / 5 years jail
Category 3 Duty Breach
Corporations: $500k
Individuals as a PCBU or Officers of a PCBU: $100k
Other Individuals : $50k
Penalty Notice
Enforceable Undertaking
Injunctions
Trainers Notes: Enforcement
 Explain
 Under the WHS Act HSRs have powers to issue Provisional Improvement Notices but only issues that affect the work group.
  A HSR can only exercise the powers under this provision if the HSR has:
completed initial HSR training as set out under the regulations,
consult with the alleged contravener or likely contravener before issuing a provisional improvement notice.
Only if the HSR believes that there is, has or will be a contravention of the Act
This is a new provision in NSW but has been operating in some other jurisdictions for some time.
Remedial
Action
Prohibition
Notice
Improvement
Notice
Notice
Non Disturbance