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Work Health and Safety (WHS) Act

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1 Work Health and Safety (WHS) Act
SESSION 1 Key points This course aims to assist unions provide current information to their members on the Work Health and Safety (WHS) Act that will commence on January 1, 2012 and how current NSW OHS legislation will change to reflect the new requirements. Note the key change from ‘OHS’ to ‘WHS’ (Work Health and Safety). The purpose of harmonisation of WHS laws nationally is to provide ‘a balanced and nationally consistent framework to secure the health and safety of workers and workplaces’ . The course covers the impact these changes will have on work health and safety for all persons impacted by work activities or undertakings including union members in NSW. Background references Safe Work Australia (Federal Government) website – provides various reference material on the model WHS Act and other supporting material including current and draft model WHS legislation, codes of practice etc. NSW WorkCover authority website – provides regular updates on the implementation of WHS laws. Union information includes the following websites: Unions Police Association Australian Manufacturing Workers Construction, Forestry, Mining and Energy Union LHMU (now called united Transport Workers Health Services The National Safety Council of Australia (NSCA), a not-for-profit organisation providing leadership and support in work health and safety.

2 Housekeeping Emergency Procedures Participant Notes - content
Breaks, location of facilities etc. Participation in the course Parking, mobile phones, smoking Evaluation questionnaire Key Points Emergency Procedures: Familiarise yourself with the location’s emergency procedures and key personnel prior to training. Housekeeping: Discuss housekeeping issues such as breaks (see timetable), facilities and administration. Participant Notes include: PPP with space for participants to take their own notes; Activity sheets for completion; and Fact sheets and additional resources. Participation: Encourage positive participation and respect for other views as you would in any training. If you are unsure of answers, refer participants to the information sources listed at the back of their participant notes and their union representative. Evaluation: Facilitators are required to have participants answer a short quiz at the end of the course for NSCA and WorkCover evaluation purposes. Suggested questions and/or examples Check if any participant’s are fire wardens, first aiders etc. so they are easily recognised by others in the group. Clarify emergency procedures with participants. Check if any persons have any special needs that haven’t been addressed prior to the course e.g. dietary, mobility, language/literacy issues (discuss during a break and address issues where possible). Background References Location Evacuation plan and procedures.

3 Course Objectives This course is designed to provide union members with information and knowledge on the Work Health and Safety (WHS) Act, to commence 1 January 2012, that includes: The harmonisation model for work health and safety and key changes; New terminology of the WHS legislation; Sources of information to assist in understanding the changes; ‘Duty holders’ and their duties under the WHS Act; Key points Harmonisation is desirable for both businesses and enterprises and workers for various reasons (see Fact Sheet 1) Areas such as: the nature of the workplace (anywhere where work activities are being undertaken); employment arrangements (e.g. contractors, labour hire, casual and part time arrangements); the tools used to undertake our work activities (e.g. use of technology); and community expectations and the business and economic environment have undergone significant changes in recent times. This has necessitated the updating of work health and safety legislation to reflect these changes and allow for any future changes. Terminology that we are accustomed to has changed (e.g. ‘work health and safety (WHS)’ in place of OHS), the definition of employees (included as workers along with volunteers etc.) and the employer, manufacturers, suppliers etc. (person conducting a business or undertaking – PCBU). The focus has shifted from the employer/employee relationship to being inclusive of all persons involved in work activities and is now focused on the broader relationship between the Persons Conducting a Business or Undertaking (PCBU) and workers (including employees, contractors, visitors etc.) The duties imposed on persons under the WHS Act, intend to capture any person who can impact on work health and safety and these persons and their duties have been expanded. Suggested questions and/or examples (possible answers/examples are in italics) You can use all or some of these or provide your own examples. How has your workplace changed in recent years? Examples: use of temporary staff, updated equipment, casual employees. Why do you think harmonisation would be a good thing? Examples: Same laws across all states, duties for all persons in the workplace. Where would you go to find information on what’s currently happening in relation to WHS and how it might affect you? Examples: your union representative and website, WorkCover NSW and Safe Work Australia Background references Fact Sheet 1: WHS Harmonisation and Model WHS Act Part 1 - Division 3 s4–9; Part 2 Division 1 – 4 s

4 Course Objectives (cont)
Consultation, representation and participation requirements; The role of Health and Safety Representatives (HSRs), Health and Safety Committees (HSCs) and other arrangements; Ceasing unsafe work and Provisional Improvement Notices (PINs); Enforcement measures available to WHS authorities to ensure compliance with WHS legislation; and The role of Unions and WHS entry permit holders under WHS legislation. Key points The requirements for consultation have been extended to all parties that can have an impact on health and safety in the workplace. OHS Representatives have changed to be Health and Safety Representatives (HSR’s) with changed role and functions . OHS Committees have changed to Health and Safety Committees (HSCs) with changed roles. Deputy HSRs are a new role under model WHS legislation. Existing enforcement measures will be extended within the national framework in line with other states and territories. Areas of issue resolution, the right to cease unsafe work and Provisional Improvement Notices (PINs) will be covered throughout the course. In NSW, unions are still permitted to bring a prosecution under the WHS Act in certain circumstances and there are also provisions for unions to request the regulator to take action. Suggested questions and/or examples What are the current consultation arrangements in your workplace? Have participants previously had experience with an enforcement notice? How does your union representative currently play a role in WHS? Background references Model WHS Act: Part 5 s46–49 (Consultation, representation and participation ) Model WHS Act: Part 5 s51–59 (Work Groups ) Model WHS Act: Part 5 s50–74 (The role of Health and Safety Representatives (HSRs) ) Model WHS Act: Part 5 s75–79 (The role of Health and Safety Committees (HSCs)) Model WHS Act: Part 7 s116–151 (The role of other arrangements, WHS entry permit holders ) Model WHS Act: Part 5 s80–103 (Enforcement matters including issue resolution, right to cease work, PINS ) Model WHS Act: Part 10 s91–215, Part 11 s216–222 (Enforcement measures of work safety authority) Model WHS Act: Part 12 s191 – 222 (Review of decisions) Model WHS Act: Part 13 Legal proceedings

5 Work Health and Safety Framework
WHS Act WHS Regulations Codes of Practice Australian Standards Industry Standards Guidance Material Key points The WHS Act is legislation passed by the NSW parliament and the parliaments in other states, territories and the Commonwealth. The WHS laws take a preventative and proactive approach but also have provision for where a breach of the law does occur. Penalties exist where these laws are breached including both fines and gaol terms. Supporting materials, such as Codes of Practice, may be utilised as a statement of knowledge to meet the requirements of the WHS laws. Industry standards may also be utilised e.g. mining, transport standards. Suggested questions and/or examples What are the current relevant OHS laws in NSW? See WorkCover NSW Can you think of a Code of Practice that is used in your workplace? Examples responses: Safe work at heights, consultation. Are Codes of Practice law? Example responses: Codes can be used as evidence as to how a duty is met (see facilitator resources for model WHS Act extract - WHS Act Part 14 s275) Where can you find information on codes of practice and guidance notes? See background references below. Where do you find information on Australian Standards (AS)? See background references below Can you think of any AS that are currently used in your workplace in to comply with the law? E.g. AS for electrical testing and tagging . Background references (Federal WHS laws, codes of practice and guidance material) (NSW OHS laws, codes of practice and guidance material) (For current AS - require purchase) See also union and industry specific groups.

6 Work Health and Safety Framework
Model WHS Framework Model WHS Act and WHS Regulations supported by Codes of Practice Mirrored by State WHS Act, WHS Regulations, Codes of Practice Territory WHS Act, WHS Regulations, Codes of Practice Commonwealth WHS Act, WHS Regulations, Codes of Practice Key points The model WHS legislation is designed to establish a national framework for the states, territories and the Commonwealth. The states, territories and the commonwealth are required to develop and implement their own WHS legislation to commence at the same time as the model WHS laws. Currently: The WHS Act is due to commence January 1, 2012. WHS Regulations have been developed and are currently being reviewed. National Codes of Practice that have been developed include:  How to Manage Work Health and Safety Risks  How to Consult on Work Health and Safety  Managing the Work Environment and Facilities  Facilities for Construction Sites  Managing Noise and Preventing Hearing Loss at Work  Hazardous Manual Tasks  Confined Spaces How to Manage and Control Asbestos in the Workplace  How to Prevent Falls at Workplaces  How to Safely Remove Asbestos Labelling of Workplace Hazardous Chemicals  Preparation of Safety Data Sheets for Hazardous Chemicals Additional National Codes of Practice are under development . Background references Fact Sheet 1: WHS Harmonisation (national model WHS legislation, codes of practice and guidance material) (current NSW OHS laws, codes of practice and guidance material)

7 Model WHS Act - Object - The main object of the model WHS Act is:
‘to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces’. How is the object of the model WHS Act to be achieved? Key points Discuss information contained in Fact Sheet 1 on the need for the harmonisation process and a consistent approach (both in terms of continuous improvement and higher standards in WHS, changes in business organisation and activity). Note terms that will be discussed in the next section covering terminology i.e. health, safety and welfare; workers and workplaces. Discuss the concepts of balanced (e.g. meeting the needs of all parties involved in the workplace and balancing the difficult issue of managing safety in a business environment) and consistent (cross-border activities working under different laws and specific requirements). Suggested questions and/or examples Why do you think we need to change OHS laws and make them similar nationally? Example responses: effectiveness of work health and safety management, sharing of valuable experience and learnings without recreating similar requirements in each state/territory, costs to business to meet different requirements and reducing their ability to employ more staff, expand their business etc. What are some of the potential benefits? Example responses: Involvement and duties for all persons who can improve WHS in the workplace, reduced costs to business, consistency across the country. What could be some of the potential difficulties? Example responses: Having everyone understand and meet their duties, understanding the requirements imposed by changes to model WHS legislation, getting used to the new terminology, communicating when there are shared duties. Background references Model WHS Act: Part 1 Division 2 WHS Act s3

8 - How the object is to be achieved -
Model WHS Act - How the object is to be achieved - The object of the model WHS Act is to be achieved by: protecting workers and others from harm to their health, safety and welfare by elimination or minimisation of risks arising from work (or specified substances or plant); providing for fair and effective workplace representation (e.g. HSRs), consultation, co-operation and issue resolution on work health and safety; Key points The model WHS Act provides guidance on how the intention of the model WHS Act will be achieved. Note the reference to ‘workers’ and ‘others’ – new definitions that are discussed in the next section. The WHS Act takes a positive approach to resolving work health and safety related issued through a spirit of consultation, co-operation and issue resolution processes. Suggested questions and/or examples Who are ‘others’? Example responses: Considered to be any person that is not covered specifically under the definition of the WHS Act including those defined as a worker, PCBU, or officers who may be affected by work activities Example: a visitor that is not a worker. The WHS Act includes specific duties for ‘others’ Division 4 Duty of officers, workers and other persons. What is meant by health? Safety? Welfare? Example responses: Explain both physical and psychological health, creating and maintaining a safe work environment including safe work activities. Welfare incorporates provision of personal protective equipment PPE and rescue equipment, facilities, accommodation where provided. Background references Model WHS Act: Part 1 Division 2 WHS Act s3

9 - How the object is to be achieved -
Model WHS Act - How the object is to be achieved - encouraging unions and employer organisations to take a constructive role and to assist in achieving a healthier and safe workplace; promoting the provision of work health and safety advice, information, education and training; effective and appropriate use of compliance and enforcement measures; Key points The intention of the harmonisation process is to engage all stakeholders to improve work health and safety including unions and employer organisations. Safe Work Australia, WorkCover NSW, unions and other organisations will continue their role in providing health and safety advice, information etc conveyed through a variety of means e.g. seminars, publications, web based information and the means to further education and training for all persons involved in work health and safety. Where breaches do occur a variety of means have been included in the legislation to enforce required improvements. Provisions are also in place for significantly increased fines and possible imprisonment of individuals who fail in their health and safety duties. Maximum penalties under the WHS Act are $600,000 and 5 years imprisonment for an individual and $3 million for a PCBU. Suggested questions and/or examples How can unions and employers organisations work together to improve health and safety in the workplace? Example response: In the development of standards, training packages etc. How might information be provided in your workplace? Example response: Through Safe Work Australia & WorkCover materials and participation in the promotional activities, training and inductions. How might an authority use an enforcement process to improve WHS at a workplace? Example response: Impose an improvement notice on a piece of equipment or a system of work. Background references Model WHS Act: Part 1 Division 2 WHS Act s3

10 - How the object is to be achieved -
Model WHS Act - How the object is to be achieved - monitoring and review of persons with functions and powers under the model WHS Act; providing a framework that ensures continuous improvement and higher standards for work health and safety; and maintaining and strengthening of the national harmonisation laws and facilitating a consistent national approach to work health and safety. Key points Persons with duties under the WHS Act will need to demonstrate a proactive approach in adhering to their duties. Safe Work Australia has a responsibility to maintain and further enhance the national framework and continue the process of harmonisation. Suggested questions and/or examples How could a person with duties e.g. workers demonstrate they are meeting their duties? Example responses: Participating in consultation arrangements e.g. toolbox talks; participating in inspections; providing and using safe work procedures or maintaining a safe workplace. Background references Safe Work Australia Act 2008 Model WHS Act: Part 1 Division 2 WHS Act s3

11 Key changes Key changes to current NSW OHS legislation includes:
Work health and safety (WHS) terminology; The relationship between the employer and employee to the broader relationship of ‘a person conducting a business or undertaking’ (PCBU) and a worker; A broadening of health and safety duties; Consultation requirements for all duty holders; OHS Representatives and OHS Committees change to Health and Safety Representatives (HSRs) and Health and Safety Committees (HSCs) with changed roles and functions; Key points Key changes are discussed in detail in modules throughout the course. Changes in terminology and broadening of definitions include those for employers, employees, officers, OHS Representatives and OHS Committees and are covered in detail in the course. Activities other than business activities, including not-for profit activities, are covered in the term persons in control of a business or undertaking (PCBU). If more than one person has a duty in respect of the same matter under the WHS Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. For example, contractors working on site with other contractors where the site is owned by someone other than the business owner will need to co-ordinate emergency response procedures. Background references Model WHS Act: Part 1 - Division 3 s4–9 (New terminology) Model WHS Act: Part 2 Division 1–4; s13–29 (Health and Safety Duties) Model WHS Act: Part 5 Division 1 Consultation, co-operation and co-ordination between duty holders Model WHS Act: s46 (Consultation with all duty holders) WHS Act s4-9, s13-29, s46

12 Key changes The introduction of deputy HSRs;
Risk management is focused more on the outcome than the process – a risk assessment may not be required in all situations; Authorised representatives become WHS entry permit holders with increased functions; A positive duty for ‘officers’ e.g. proactive safety activities; Enforcement measures; The removal of the reverse onus of proof; Changes as to when unions can prosecute. Key points The roles and functions of existing OHS Committees and OHS Representatives change under the WHS Act. Unions may act on behalf of workers as representatives and as WHS entry permit holders. A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act (or the relevant State or Territory industrial law). A broader range of enforcement measures are available before proceeding to prosecution. Under current NSW OHS legislation, the onus of proving that a person had a reasonable excuse (as referred to in the provision) lies with the defendant (reverse onus of proof). Under the model WHS Act, the prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. Use and provide an explanation of terminology ‘reasonably practicable’ (explained in more detail later). In NSW, unions will retain the right to prosecute in certain circumstances as well as having other means available to pursue a prosecution (discussed later in the course). Background references Model WHS Act: Part 5 Consultation, representation and participation. Model WHS Act: Division 4 s124 WHS entry permit holder must also hold permit under other law. WHS Act Part 5 s124, Parts 10-13

13 Sources of information
Safe Work Australia - WorkCover NSW - National Safety Council of Australia - Course Fact Sheets Encourage participants to check these sites for information on work health and safety issues that are of interest or concern to them and to keep up-to-date with changes.

14 Sources of information
Union organisations including: IEU – Unions NSW - Police Association NSW - Australian Manufacturing Workers Union - Construction, Forestry, Mining and Energy Union (CFMEU) - LHMU (United Voice) - Transport Workers Union – Health Services Union – Other union web sites may be nominated depending on the group receiving training.

15 Key changes in terms Occupational Health and Safety (OHS)
Employer Employee OHS Representative OHS Committee Managers and directors Work Health and Safety (WHS) Person Conducting a Business or Undertaking (PCBU) Worker (includes contractors, volunteers) Health and Safety Representative Health and Safety Committee Officer Key points This slide shows some of the key changes in terminology that we are familiar with under current NSW OHS legislation and the new terms. There may be some confusion around the change from OHS to work health and safety (WHS).The legislation takes the focus away from health and safety related to occupation and extends the concept to encompass all forms of work e.g. volunteer work. There is a significant move away from the basic employer/employee relationship to the broader concept of a person conducting a business or undertaking (PCBU), workers and ‘other persons’. The term officer is a new concept with specific duties under WHS legislation although director/manager under the Corporations Act is not. A positive duty is imposed on the officer to ensure they are proactively managing WHS in the workplace. Suggested questions and/or examples What issues are associated with work health and safety? Example responses: plant and equipment used, hours work, training required emergencies. Who might be officers in your workplace? Example responses: The CEO, managing director. Background references Model WHS in particular Part 1 Division 3 s4 – 9 WHS Act s4

16 Important terms See model WHS Act for full definitions and Fact Sheet 2. Work Health and Safety - covers the concept of the health, safety and welfare of all persons who may be impacted by work activities. Health means physical and psychological health. Safety requires the elimination or minimisation of hazards in the workplace that have the potential to cause harm. Welfare includes the provision of facilities, protective clothing or equipment, rescue equipment and accommodation. Key points More detailed definitions can be found in the course Fact Sheet 2: WHS Act Terminology and in the WHS Act. The WHS legislation covers health, safety and welfare of all persons (workers and others), not just employees. Health includes both physical and psychological well-being. The WHS Act focuses on elimination or minimisation of risk (the outcome) more than on the risk assessment (process) to improve work health and safety in the workplace. Reference to welfare in the WHS Act includes the provision of facilities, protective clothing or equipment, rescue equipment and accommodation where required for work. Specific requirements are detailed in the WHS Regulations. Suggested questions and/or examples What do you understand as the meaning of health? Safety? Welfare? Background references Model WHS Act Part 1 s4-9 Model WHS Act Schedule 3—Regulation - making powers s4 Protection and welfare of workers WHS Act s4

17 Key changes in terms Employer Employee Person Conducting a Business or Undertaking (PCBU) - includes corporations, partnerships, labour hire businesses, associations, franchises. A PCBU does not need to employ workers. Worker - includes employees, contractors, volunteers, apprentices, outworkers, trainees and work experience persons. Key points This slide shows one of the key changes in the new WHS legislation where the employer/employee relationship is broadened to the much wider definition of a Person Conducting a Business or Undertaking (PCBU) and a worker. This training explores the significance of the broadened relationship for duty holders in the workplace and consultation requirements. Suggested questions and/or examples Who do you think PCBUs might be? Example responses: Not for profit organisations, government departments, small business owners such as retailers and self-employer persons. Who might be workers in a workplace? Example responses: employees, contractors, labour hire, apprentices. Background references Model WHS in particular Part 1 Division 3 s4 – 9 WHS Act s4

18 Important terms Key terms and definitions include:
Person conducting a business or undertaking (PCBU). Worker Workplace Health and Safety Representative (HSR) Health and Safety Committee Officer ‘Reasonably practicable’ What is your ‘normal’ place of work? Do you ever work away from your work’s premises under a different business owner? Key points The previous requirements for employers have been expanded and duties are imposed on a broader category that impacts the workplace i.e. a PCBU whether the work is being done for profit or gain or not. A worker is considered to be anyone carrying out a work activity for a PCBU and includes contractors, labour hire employees, volunteers. A workplace can be anywhere that work is being undertaken e.g. working from home, travelling as part of work. A HSR is the person elected by members of a work group within the business or undertaking, or across a number of businesses (e.g. multiple workplaces) to represent that work group on work health and safety issues including consultation. A Health and Safety Committee may be established at the request of the HSR or a minimum of 5 workers; or by the PCBU for the purpose of facilitating co-operation in the workplace on work health and safety issues and developing work health and safety related standards, rules and procedures. While HSRs and HSCs are discussed in more detail later in the course briefly explain: the change from OHS Representative to HSR, OHS Committee with elected members to the HSC and that there are changes to their role and function An officer of a PCBU may be convicted or found guilty of an offence where they have failed in their duty. Officers will be required to show due diligence (discussed under Module 3: Health and Safety Duties) Suggested questions and/or examples What places could be considered as your workplace? E.g. vehicle used for delivery, another workplace where you undertake your work activities e.g. construction site. Background references Model WHS Act Part 1 s4-9 Model WHS in particular Part 5 Division 3: s50–74, s80–103 (HSR’s) Model WHS in particular Part 5 Division 3: s75–79 (HSC’s) Model WHS in particular Part 5 Division 3: s51–59 (Work Groups ) Fact Sheet 2: WHS Terminology WHS Act s4

19 Important terms Supply - includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent. Design - includes original design, redesign or modification Construct - includes assemble, erect, reconstruct, reassemble and re-erect. As part of your work activities have you altered a piece of equipment or assembled a structure at work? Key points Products that are regularly re-supplied are covered under the definition of ‘supply’ e.g. machinery parts, chemicals. The duties pertaining to the provision of these is then covered under duties of relevant PCBUs. Consider ways in which plant, substances, structures and work activities can be re-designed or modified in the workplace. Can this change the effectiveness of control measures? ‘Construct’ can include the installation and assembly of equipment and structures in the workplace. Suggested questions and/or examples What would be considered supplies in your workplace? E.g. materials for production, chemicals. Do work related items get ‘re-invented’ or modified in your workplace? What impact can this have on work health and safety in the workplace? For example modification to equipment, changes to a work activity or workspace. Background references WHS Act s4 and s6 WHS Act s4

20 Persons with health and safety duties
Persons who currently have duties: Employers Controllers of work premises, plant or substances Designers, suppliers and manufacturers of plant and substances Self-employed persons Employees Directors and managers Persons with duties under the WHS Act: PCBUs including manufacturers, suppliers, importers or persons with management or control of workplaces, fixtures and fittings. PCBUs who install, commission or construct plant, structures or substances. Self-employed persons Workers Officers Others at the workplace Key points This slide shows one of the key changes in the new WHS legislation where the employer/employee relationship is broadened to the much wider definition of a Person Conducting a Business or Undertaking (PCBU) and a worker. This training explores the significance of the broadened relationship for duty holders in the workplace and consultation requirements. Suggested questions and/or examples Who do you think PCBUs might be? Example responses: Not for profit organisations, government departments, small business owners. Who might be workers in a workplace? Example responses: employees, contractors, labour hire, apprentices. Background references Model WHS in particular Part 1 Division 3 s4 – 9 WHS Act s4

21 Health and Safety Duties
A person with a duty to ensure health and safety under the WHS Act is required to: Eliminate risks to health and safety so far as is ‘reasonably practicable’. Example: Removing the chemicals and using other methods to clean, such as water blasting. Where elimination is not reasonably practicable, minimise those risks so far as is reasonably practicable. Example: A cleaning chemical is still required but a safer substance is chosen for use. Key points The focus to ensure health and safety in the workplace is in eliminating hazards/risks at best, and if not, then minimising as far as is reasonably practicable. The process of elimination or minimisation is based on what is considered to be ‘reasonably practicable’ – see next slide. The hierarchy of controls that is currently applied to risk management under existing NSW OHS legislation (OHS Regulation 2001) is not specifically spelt out in the WHS Act but will be applied under the WHS Regulations. Suggested Questions/Examples Refer to hazards the group may be familiar with e.g. manual handling tasks – ask them if they could be entirely eliminated. If not, how could they be minimised (e.g. Automated process, smaller and less heavy loads). What would participants consider to be ‘reasonably practicable’ measures? How would they find out the best way to minimise a risk? Is an expensive solution always required? e.g. the weight of packaging could be reduced. Background References Model WHS Act: Part 2 s17-18 WHS Act s17-18

22 Health and Safety Duties ‘Reasonably practicable’ is based on:
Likelihood of the hazard or risk occurring Level of harm from exposure to the hazard What is known about the hazard or risk What is known about how to eliminate or minimise the risk Availability and suitability of ways to eliminate or minimise Whether the cost of eliminating or minimising the risk far exceeds the risk Key points NSW OHS legislation currently doesn’t qualify the concept of ‘reasonably practicable’ within the primary duty of care. This may have created some uncertainty around what is expected. The concept of ‘reasonably practicable’ in the WHS Act doesn’t specifically address the hierarchy of controls as is included in current NSW OHS legislation. The WHS Act requires the PCBU to utilise information and current knowledge that exists about a particular hazard and on the controls currently and reasonably available. This requires the person with the primary duty of care to be familiar with the hazards and risks in the workplace and source current information on potential ways to eliminate (e.g. use of micro fibre cloths instead of chemicals for cleaning) or minimise those risks (e.g. more efficient manual handling aids for lifting and moving tasks or new designs for processing lines). Cost may only be looked at as a last option (after assessing the extent of the risk and what’s available to eliminate or minimise the risk) but this provision does provide for some practicality in instances where the cost of minimising a risk marginally, far outweighs/exceeds the benefits. Suggested Questions/Examples Consider some equipment that may be in use overseas whose new design eliminates exposure to moving parts. The technology is not currently available here in Australia and would be prohibitively expensive. There have never been any serious injuries with the equipment but it does have the potential to cause serious harm. Discuss with the group what could be considered as reasonably practicable in this situation and how the risk may be minimised. Discuss where you could find information on hazards e.g. manufacturer’s information, MSDS, operations manuals, Codes of Practice, information from government and regulators, trade seminars and expos providing international information, statistics, consultation with workers about their experience etc. Background References Model WHS Act: Part 2 s18. Where would you find information to assist in doing what would be considered to be ‘reasonably practicable? WHS Act s18

23 Health and Safety Duties
- PCBUs - PCBUs have a ‘primary duty of care’ to ensure, so far as is reasonably practicable, the health and safety of: workers engaged directly or indirectly by the PCBU; workers whose work activities are influenced or directed by the PCBU; and other persons present where work activities are being conducted. What might the PCBU have to do to meet this duty of care? Key points: The introduction of the primary duty of care is seen as a positive duty imposed on persons who may impact on health and safety in the workplace. This duty is qualified by what is ‘reasonably practicable’. Review the definition of a PCBU i.e. a person conducting a business or undertaking whether alone or with others; and whether or not it is conducted for profit or gain. This includes manufacturers, suppliers, persons in control of workplaces, fixtures, plant, etc. Review the definition of a worker i.e. agency staff, contractors. Contractors who work under another PCBU for example may be affected by the work activities of other PCBUs. A PCBU 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 e.g. use of barriers to create exclusion zones around work activities where others passing near the work area may be exposed to harm. Discuss how persons other than those working at the workplace may be impacted by work activities e.g. the general public exposed when fumes or dust are produced during work activities. Ways in which the PCBU might meet this primary duty of care are described under the WHS Act and covered in the next slide. Suggested Questions/Examples Who could be a worker whose activities are influenced or directed by a PCBU? e.g. principal contractor, manufacturer. Who would be considered ‘other persons’? e.g. visitors, general public. Background references Model WHS Act: Part 2 s19. WHS Act s19

24 Health and Safety Duties
- PCBUs - Duties of PCBUs to meet this primary duty of care are similar to current requirements and include provision of: Safe work environments Safe systems of work Safe plant and structures Safe substances Facilities Information, instruction, training and supervision Monitoring of workers’ health and workplace conditions Workers’ accommodation (an additional requirement) where provided/required for work. See Fact Sheet 3 for other duties of PCBUs. PCBUs Key points: The duties of PCBUs are generally consistent with those currently in place for employers under NSW OHS legislation. There is a more focused approach on a positive duty encompassing all persons likely to impact on the workplace and on workers. For example, those in control of the management of a workplace, fixtures and designers, suppliers, importers etc. Consultation and co-operation will be important in managing those duties as each PCBU retains their duty. These duties cannot be transferred. The WHS Act s19 covers the requirements where a worker occupies accommodation that is owned or under the management of a PCBU, requiring the PCBU to maintain the accommodation to a satisfactory standard. Suggested Questions/Examples What types of work environment do you work in? e.g. Factory, varied locations, workplace of others What are “systems of work”? e.g. SWMS, SOPs What conditions in your workplace require monitoring? e.g. Housekeeping, dust, noise Discuss facilities – note some situations may exist where accommodation is provided by the PCBU. What information may be required to ensure health and safety? e.g. Operating manuals, MSDS, training and instruction in SWPs. Background references Model WHS Act: Part 2 s19(3) WHS Act s19

25 Health and Safety Duties
- PCBU - PCBUs involved in the: Management or control of workplaces – including the means of entering and exiting the workplace Management or control of fixtures, fittings or plant have a duty to eliminate or minimise risks to health and safety (i.e. a primary duty of care) over the matters they control in relation to these workplaces, fixtures, fittings or plant. Key points For the purposes of this section (20–21), a PCBU does not include the occupier of a residence, unless the residence is occupied for the purposes, or as part of, the conduct of a business or undertaking; or a prescribed person (e.g. consider persons working from home and how this might apply). Where a PCBU has a duty in the management or control of fixtures, fittings or plant they are responsible only to the extent the PCBU is involved in the management or control of fixtures, fittings or plant. The PCBU may for example use a property management service to manage to the day to day issues of a property. As an example, a PCBU with control of a workplace and who is the owner of the building maintains access and exit to the premises through a car park and road way and maintains lifts (plant) providing access to different tenants in the building. The PCBU retains a duty of care in relation to these matters. Under leasing arrangements there is likely to be agreement over items within a building that are considered ‘base building’ and are maintained by the building owner or someone engaged on their behalf. The agreement may require that other items that are controlled by the tenant (another PCBU) be maintained by the tenant. New duties for consultation require discussion and cooperation between duty holders. Suggested Questions/Examples Who controls your workplace’? e.g. Business owner, landlord. Do you enter via an area that is owned by a landlord? e.g. through a common car-park and thoroughfare. Do others? e.g. visitors, general public. What fixtures may a PCBU have under control? e.g. Fire systems, stairs and lifts. Background references Model WHS Act: Part 2 s20-21 WHS Act s20-21

26 Health and Safety Duties
- PCBU - PCBUs also have a ‘primary duty of care’ to ensure health and safety where they are involved in the: Design Manufacture Import Supply Installation, commission or construction of plant, substances and structures. This includes assembly, use, handling, storage, disposal, provision of current relevant information etc. Image removed Key points In identifying PCBUs involved in various aspects of plant, substances and structures a primary duty of care is imposed on all those persons who potentially can have an impact on workers and others in the workplace. This includes for example in the design (fit for purpose), manufacture (quality of materials used and fit for use) and provision of information on the use and care of plant. A positive duty is imposed that requires consideration of the whole life cycle of plant, substances and structures. This includes pre-purchase considerations, storage, use and disposal. Further guidance may be provided over time in the WHS Regulations, Codes of Practice etc as to how a PCBU may meet these duties. Background references Model WHS Act: Part 2 s22–26 Fact Sheet 3: Health and Safety Duties WHS Act s22-26

27 Health and Safety Duties
- Officers - Duty of Officers Officers of the PCBU are required to exercise ‘due diligence’ to ensure the PCBU complies with their duties and obligations. Who are ‘officers’ in your workplace? What might they have to do to show they are using ‘due diligence’? Key points Refresh with participants the definition of an ‘officer’ under the WHS Act as someone who manages and has significant control of the business or undertaking. See Facilitators Guide – Resources Section for an extract from the Corporations Act 2001 that provides the definition of an officer for the purposes of the WHS Act An officer of the Crown (s247) and an officer of a public authority (s252) who are also considered to be an ‘officer’ under the WHS Act nor nor is a partner of a partnership. An elected member of a local authority e.g. an elected councillor of a local government acting in that role is not deemed to be an officer under the WHS Act. ‘Officers’ of the PCBU must demonstrate ‘due diligence’ in addressing work health and safety matters as a means to ensuring that the PCBU meets their duties under the WHS legislation. The WHS Act defines what the expectation for ‘due diligence’ involves (next slide). Discuss with participants what their understanding of the term ‘due diligence’ (see hidden slide following and fact sheet). Suggested questions and/or examples Who might be considered officers in your workplace? This is an issue that will need to be determined by all PCBUs. Background references Model WHS Act: Part 2 s27, s247, s252. WHS Act s27

28 Health and Safety Duties
‘Due diligence’ means taking reasonable steps: to gain and update knowledge of work health and safety in understanding the operations and the general hazards/risks for appropriate resources to eliminate/minimise risks in managing information about incidents, hazards and risks to implement processes to comply with duties (e.g. reporting notifiable incidents, consultation, provision of training) to verify that resources and processes have been provided, and their use. Key points The requirements for achieving ‘due diligence’ are defined in the WHS Act. ‘Due diligence’ means taking all reasonable steps to maintain work health and safety by eliminating or minimising hazards. This may be achieved and maintained through: Gaining an understanding of the business or undertakings’ operations and general hazards/risks associated with these e.g. through inspections, audits, consultation, research, use of codes and standards, job safety analysis. Ensuring sufficient and appropriate resources are available and used to eliminate/minimise risks. This requires consideration of what the best and most appropriate measures might be to eliminate or control hazards and risk. Controls may include personnel, training, equipment etc. Ensuring appropriate processes are in place for receiving, considering and responding to information about incidents, hazards and risks. This requires reporting mechanisms and systems for analysis to be implemented, understood and utilised. Ensuring the implementation of processes to comply with duties (such as reporting notifiable incidents, consultation, provision of training). Verifying that resources and processes have been provided and used. Systems must be in place to ensure that controls are utilised and effective. This requires ongoing monitoring through observations, reporting etc. Officers will be required to proactively maintain and increase their knowledge in relation to work health and safety – record keeping of activities will be important in demonstrating compliance. Suggested questions and/or examples How might officers make themselves familiar with the hazards/risk associated with the business? E.g. inspections, through consultation, risk assessments etc. How can ‘officers’ keep up to date on work health and safety matters? E.g. industry groups, seminars, authorities websites etc. Background references Model WHS Act: Part 2 s27(5) WHS Act s27(5)

29 Health and Safety Duties
Duties of workers Workers, as defined under the WHS Act, are required to: Take reasonable care for their own health and safety Take reasonable care to ensure acts/omissions do not adversely affect others health and safety Comply with reasonable instructions from the PCBU Co-operate with policy or procedures of the PCBU What might you have to do as a worker to meet these duties? Key points Workers, including contractors, labour hire etc., are required to take care of the health and safety of themselves and others. This requires consideration of work activities or undertakings and what the worker will need to perform these activities in a safe manner e.g. correct procedures, appropriate equipment, training etc. A worker is owed specific duties and has specific duties. The duty for workers applies to both acts (e.g. poor housekeeping, such as leaving waste material around after completion of work, that may pose a trip hazard) and omissions (e.g. not replacing a guard on equipment, failing to visually check equipment pre-start). These acts or omissions can have an impact on the worker or ‘other persons’ that may be exposed e.g. contract workers, visitors. Workers, and this includes contractors, volunteers etc., are required to comply with procedures that have been put in place to ensure work health and safety e.g. safe work procedures, reporting procedures and maintenance procedures. Suggested questions and/or examples What does taking ‘reasonable care’ mean? E.g. using general safety awareness; consideration of how the housekeeping in their work area may impact on others, such as fellow workers or the general public, when working in public areas; and using the right equipment for the job. What would be considered ‘reasonable instruction’s? E.g. cleaning up of work areas, moving equipment in accordance with safe manual handling procedures. What policy and procedures can you think of that are currently in place that you would have to ‘co-operate with? E.g. SWPs, reporting and consultation procedures. Background references Model WHS Act: s28 WHS Act s28

30 Health and Safety Duties
Right to cease unsafe work Workers have the right to cease or refuse to carry out work if: they have a reasonable concern that the work would expose them to a serious risk to health and safety from an immediate or imminent exposure to a hazard.  A worker may also be directed to cease unsafe work by their Health and Safety Representative (HSR). Key points Workers, including contractors, may determine that it is unsafe to start or proceed with work and are entitled to take such actions with the protection of the law against discriminatory behaviour for doing so. Protection for workers in being discriminated against for exercising this right exists under the WHS Act Division 8:Part 6. The threat to health and safety must be immediate or imminent, meaning that any attempt to proceed may result in serious consequences. A HSR that has serious concerns in regards to an immediate and serious risk to work health and safety is also entitled, if they have received approved training, to direct workers to cease unsafe work. The HSR must consult with the PCBU as far as is reasonably practicable and must comply with other work direction by PCBU. This is covered in more detail in another module. Suggested questions and/or examples In what situations might you have considerable concern for work health and safety and utilise the right to cease work? Can you be dismissed for taking such actions? No, where such actions comply with the requirement of the WHS Act i.e. a reasonable concern exists that the work would expose the worker to a serious risk to health and safety from an immediate or imminent exposure to a hazard. Background references Model WHS: Act s84-85 Model WHS: Act s WHS Act s84-85

31 Health and Safety Duties
Duties of self-employed persons Self-employed persons have: a duty to ensure their own work health and safety health and safety duties as a PCBU How might a self-employed person ensure their own health and safety? For example, using electrical equipment that has been tested, tagged and checked before use. Key points The requirements for self-employed persons remains similar to current provisions under NSW OHS laws. Self-employed persons includes persons such as individual contractors. There are additional requirements for self-employed persons as a PCBU. As a PCBU, self-employed persons have a primary duty of care to others i.e. to eliminate or where, not reasonably practicable, minimise risks to the work health and safety of others. Suggested questions and/or examples How might self-employed persons meet their duties? e.g. doing pre-start checks, having well maintained equipment, safe use of chemicals. Would their duties as a PCBU be similar? As a PCBU they need to ensure the health and safety of others they may impact on through the work activities they undertake. Does your organisation engage self-employed persons and how do they manage their duty to ensure their own health and safety? e.g. electricians, maintenance personnel e.g. submit Safety Management Plans (SMP) or as a minimum, a SWMS, conduct pre-start checks. Background references Model WHS Act: s19(5) WHS Act s19(5)

32 Health and Safety Duties
Other persons at the workplace (an expanded duty under WHS Act) Other persons at a workplace (e.g. visitor, shopper) have a duty to: take reasonable care for his or her own health and safety; take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and comply, so far as reasonably able, with any reasonable instruction given by the PCBU to allow the PCBU to comply with their duties. Key points The section of the WHS Act relating to ‘other persons at the workplace’ encompasses persons not captured directly under current OHS legislation in NSW. It requires persons deemed ‘other persons’ to take reasonable care for the health and safety of themselves and others and co-operate with the PCBU. Examples may include completing inductions, reporting incidents e.g. spills, following instructions in an emergency, adhering to exclusion zones etc. Suggested questions and/or examples Can you think of examples where visitors may impact on health and safety in your workplace? E.g. leaving materials in access paths, not reporting a hazard they sighted What types of instructions may they be required to follow? Access restrictions, procedures for use of PPE. Background references Model WHS Act: s29 WHS Act s29

33 Health and Safety Duties
Other key concepts of duties under the WHS Act: A duty cannot be transferred to another person. Example: A business owner cannot transfer duties to a supervisor. A person can have more than one duty. Example: A person who conducts a business manufacturing and selling equipment for use at work. More than one person can have a duty. Example: A contractor and the business owner of the workplace where the work is being done can have the same duties. Key points Any person who is a duty holder under the WHS Act cannot transfer those responsibilities. For example, a PCBU cannot transfer their duty to ensure safe work activities are being conducted to a supervisor but they can demonstrate their compliance by providing support to a supervisor in undertaking activities related to those duties. A PCBU cannot engage a contractor to undertake work in the belief that in so doing they have transferred their duties. The PCBU retains responsibility for those matters over which they have control and must meet these duties. Provision have been put in place for consultation between duty holders to assist in this process. Duties may apply to a person acting in a variety of roles e.g. as controller of work premises, as the employer of persons and as a manufacturer. At any given workplace, several people may have a primary duty to ensure work health and safety, for example, the building owner, contractors, PCBU etc. Each duty holder must comply even if another duty holder has the same duties. Where more than one person has a duty for the same matter each person: retains responsibility of that matter must fulfil that duty to the extent that have the ability to influence and control the matter except where it has been agreed otherwise. Suggested Questions/Examples A principal contractor on a construction site may not own the site but has their own employees, engages other contractors on site and supplies equipment for use by contractors. They have duties to workers in regards to provision of a safe workplace (in matters over which they have control), safe equipment, safe work activities etc. In a commercial building various people share a primary duty e.g. the building owner, tenants. Who else may have duties? Background References Model WHS Act: Part 2 s13-16 WHS Act s14-16

34 Health and Safety Duties
Offences and penalties A person commits an offence against the WHS Act under the following categories. Category 1 - Reckless conduct A person commits a Category 1 offence if they: have a health and safety duty; and without reasonable excuse expose a person to a risk of death, serious injury or illness; are reckless as to the risk of the individual of death or serious injury or illness. Key points A person commits a Category 1 offence if: (a) the person has a health and safety duty; and (b) the person, without reasonable excuse engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and (c) the person is reckless as to the risk to an individual of death or serious injury or illness. A Category 1 offence can apply to any person who has a health and safety duty under the WHS Act .i.e. PCBUs, workers, officers, self-employed persons, other persons at the workplace. A Category 1 offence applies where a person with health and safety duties knows of a serious threat to health and safety that could potentially result in death or serious injury or illness and acts in a way that exposes others to the risk. As an example, a person with health and safety duties knows that exposure to a highly hazardous substance could have serious consequences and: fails to take appropriate measures to protect others e.g. continue to use the substance without controls; or fails to escalate information about the substances when there is no further action they can take to control the risk knowing that it could have serious consequences; or fails to inform persons that they are exposed to a serious risk and the required controls; or fails to provide information, training and supervision; or fails to monitor workers health resulting in a person becoming seriously ill. Under WHS legislation, when determining ‘reasonable excuse’ the prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse and was reckless (as opposed to current NSW OHS legislative requirements for the defendant to prove their innocence). Suggested questions and/or examples What do you think may be considered reckless conduct? See example above and look for similar responses. Background references Model WHS Act: s30–34 Model WHS Act: Part 13 s230–266 (legal proceedings) WHS Act s31, s

35 Health and Safety Duties
Category 2 - Failure to comply with health and safety duty A person commits a Category 2 offence if: the person has a duty, fails in that duty and exposes a person to death or serious injury or illness as a result of this failure. Category 3 - Failure to comply with health and safety duty A person commits a Category 3 offence if: the person has a health and safety duty and they fail to comply with that duty. Key points A Category 2 offence is committed where a person has a health and safety duty under the WHS Act, they fail to comply with that duty i.e. fail to eliminate or minimise a risk, consult or report a notifiable incident and as a result a person is exposed to a potential risk of death, serious injury or illness. A Category 3 offence refers to where someone has a health and safety duty and they fail in that duty e.g. failing to ensure safe plant without exposing someone to a serious risk. For example, a worker may fail to cooperate with procedures; a PCBU may fail to consult on a work health and safety issue; a self-employed person may fail in ensuring their own health and safety; and ‘others’ in the workplace may fail to report a hazard. A Category 2 offence would be where these actions or inactions resulted in exposure of a person to potentially serious consequences. As an example, a worker could commit a Category 1 or 2 offence if they deliberately and willfully failed to co-operate with a reasonable instruction knowing of potentially serious consequences and as a result a person was exposed to a serious risk of injury or even death. Suggested questions and/or examples How could a person fail in their health and safety duties and expose a person, to whom they owe a duty, to death or serious injury or illness? E.g. Using a chemical incorrectly that spills and causes serious illness. How could a person fail in their duties? E.g. not participating in an emergency drill, not following a SWP, altering PPE or not wearing it when required. Background references Model WHS Act: s30–34 Model WHS Act: Part 13 s WHS Act s32 and s33

36 Penalties under the WHS Act
Failure to comply with Health and Safety duty Individual Individual conducting a PCBU or Officer of a PCBU Body Corporate Category 1 $300,000 or 5 years imprisonment or both $600,000 or 5 years imprisonment or both. $3,000,000 Category 2 $ 150,000 $300,000 $1,500,000 Category 3 $50,000 $100,000 $500,000 Key points Note that fines have significantly increased from those of the current NSW OHS legislation. Health and safety duty is a duty imposed under Part 2: Division 2 (Primary duty of care), Division 3 (Further duties of PCBUs) or Division 4 (Duties of officers, workers and other persons) of the model WHS Act. The failure to comply with health and safety duties includes the duty of workers and it therefore follows that workers can be fined accordingly. Suggested questions and/or examples Who is an ‘individual’ that owes a health and safety duty? E.g. worker, officer, ‘other person’ Who would be considered to be an ‘officer’ under the WHS Act at your workplace? What actions might they have made or failed to make where they could be prosecuted for a Category 1 offence? Background references Model WHS Act: s30 (Health and safety duty) Model WHS Act: s30–34 Model WHS Act: Part 13 s WHS Act s30-34


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