Health and Safety Reform

Background Health and Safety at Work Act 2015: Based on the Australian Model Health and Safety Law 2011 Regulations: Codes of Practice Industry Guidelines Factsheets Commencement Date: 4 April 2016

Purpose (Object) … to provide for a “balanced framework” to secure the health and safety of workers and workplaces by: Elimination or minimisation of risks Fair and effective workplace representation Unions and employer organisations to take constructive role Promote advice, information, education and training Secure compliance and enforcement measures Ensure appropriate scrutiny and review of actions Framework for improvement and progressively higher standards Provide highest level of protection

PCBU (Duty Holder) Person Conducting a Business or Undertaking: Alone or with others Whether or not for profit or gain Note exclusions: Worker/Officer Statutory officer Occupier of a residential home Volunteer association

The Worker (Employee) A worker means an individual, who 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 A homeworker An apprentice or trainee A person gaining work experience (for example work trial) A volunteer worker (not a casual volunteer) A person of a prescribed class

Workplace (Place of Work) A workplace is defined as: A place where work is being carried out, or is customarily carried out, for a business or undertaking; and Includes any place where the worker goes, or is likely to be, while at work Includes a: vehicle vessel aircraft other mobile structure Includes any waters and any installation on land, on the bed of any waters or floating on any waters

Carried Out/Customarily Carried Out Places where work is: “being” carried out (for example, on a power pole) or is “customarily” carried out (for example, a workshop) This would make it clear that a workplace does not remain a workplace indefinitely, once work has been carried out there

Reasonably Practicable (All Practicable Steps) 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: The likelihood of the hazard or risk occurring The degree of harm that might result from the hazard or risk What the person knows, or ought reasonably to know, about the hazard or risk and ways of eliminating or minimising the risk The availability and suitability of ways to eliminate or minimise the risk After assessment, the costs associated with ways of eliminating or minimising the risk, whether this is grossly disproportionate

Notifiable (Notification) Notifiable event: Notifiable injury or illness: Injury/illness – usually requiring immediate (medical) treatment (examples provided) Hospitalisation – immediate (injury/illness) or 48 hours (substance) Serious infection – work is a significant contributing factor Notifiable incident: Unplanned or uncontrolled incident in workplace that exposes person to immediate or imminent risk Examples provided (escape, shock, fall, collision etc) Notify all notifiable events: Immediately (verbally) 48 hours (writing, if required)

Management of Risks (Hazard Management) Duty imposed on a person under the Act requires the person: To eliminate risk to health and safety, so far as is reasonably practicable If it is not reasonably practicable to eliminate risks to health and safety, to minimise risks so far as it is reasonably practicable

Other Key Principles (Hazard Management) Duty is not transferable A person may have more than one duty More than one person can have the same duty Duty to consult other PCBUs: Reasonably practicable; Co-operate; and Co-ordinate activities Comply other enactments

Consultation with Other PCBUs “Alpha” PCBU How often to consult? How to consult? Content of consultation Verification of consultation

Duties of PCBU (Other Duties) Primary duty of care (ensure health and safety): PCBU to workers: who work for the PCBU who in carrying out work are influenced by the PCBU PCBU to other persons not put at risk by work of PCBU

Duties of PCBU (Other Duties) PCBU must ensure, so far as is reasonably practicable: provision and maintenance of a work environment that is without risks to health and safety the provision and maintenance of safe plant and structures the provision and maintenance of safe systems of work safe use, handling, storage of plant, substances, and structures provision of adequate facilities for the welfare at work of workers provision of any information, training, instruction, or supervision health of workers and the conditions at the workplace are monitored

Duties of PCBU (Other Duties) Manages or controls workplace: Ensure without risk to “any person” Relates to the workplace: Entering; Exiting; and Arising from The duties should apply to PCBUs who manage or control workplaces rather than PCBUs who merely have an ability to manage workplaces. Note exclusion of unlawfully persons

Duties of PCBU (Other Duties) Fixtures/fittings/plant: Manages or Controls Plant/substances/structures: Designs, Manufactures, Imports, Supplies Plant/structures: Installs, Constructs, Commissions

Hazard v Risk Health and Safety in Employment Act 1992: Risk: 18A(5) – plant being sold as is 28A(5) – employee’s refusal to do work Health and Safety at Work Act 2015: Risk mentioned 138 times in 38 Sections Hazard = Defined to include a person’s behaviour Risk = Not defined, common law interpretation: “a situation involving exposure to danger”

Hazard (Hazard) Hazard: “Includes a person’s behaviour where that behaviour has the potential to cause death, injury, or illness to a person (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour)”

Officers – Who Are They? (Body Corporates) Company: “any person occupying the position of a director of the company…” Partnership: any partner Limited Partnership: general partner Body Corporate or Unincorporated Body: any person occupying a position in the Body that is comparable with that of a director of the company

Officers – Who Are They? (Body Corporates) Any person occupying a position in relation to the business or undertaking that allows the person to exercise significant influence over the management of the business or undertaking (e.g. CEO) Does not include a person who merely advises or makes recommendations to a person noted above (Directors and CEOs)

Officers – Due Diligence (Party to Offence) Officers of the PCBU must exercise due diligence, by taking reasonable steps to: Acquire/keep up-to-date knowledge of work health and safety Understand the nature of the operations, hazards and risks Ensure PCBU has appropriate resources and processes to eliminate or minimise risk to health and safety Ensure PCBU has appropriate processes for receiving and considering information Ensure PCBU implements processes for complying with their duties Verify the provision and use of the resources and processes required above

Duties of Workers (Duties of Employees) A worker must, while at work: 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 health and safety of other persons Comply, as far as the worker is reasonably able, with reasonable instructions of the PCBU Co-operate with any reasonable policy or procedure of the PCBU relating to health and safety

Other Persons at Workplaces A person at a workplace (whether or not they have another duty under this part of the Act) must: Take reasonable care for his or her own health and safety Take reasonable care that his or her acts or omissions do not adversely effect the health and safety of others Comply with any reasonable instructions from the PCBU

Reckless Conduct (Likely to Cause Serious Harm) Offence of reckless conduct in respect of health and safety: Corporate - $3 million fine Officer - $600,000 fine and/or five years imprisonment Individual - $300,000 fine and/or five years imprisonment Current Act: $500,000 fine plus 2 years

Expose to Risk of Death or Serious Illness/Injury (Other Offences) Failure to comply with health and safety duty that exposes individual to risk of death or serious illness or injury: Corporate - $1.5 million fine Officer - $300,000 fine Individual - $150,000 fine Current Act: $250,000 fine

Health and Safety Duties (Other Offences) Offence of failing to comply with health and safety duty: Corporate - $500,000 fine Officer - $100,000 fine Individual - $50,000 fine Current Act: $250,000 fine

Liability Strict liability: Except for reckless offence Health and Safety Insurance: Reparation and costs only, not fines Indemnity: Can not indemnify Statutory Liability: Can not contract out Contract liability: Can not seek waiver of obligations

Engagement, Participation and Representation (Employee Participation) Engagement With Workers: Duties of PCBU Worker Participation Practices: Reasonable opportunity Health and Safety Representative: Functions and powers v obligations Note low risk/SMEs (less than 20 employees) exemption Health and Safety Committees: Functions and powers v obligations Note low risk/SMEs (less than 20 employees) exemption