WORK HEALTH AND SAFETY ACT IMPLICATIONS FOR SMALL BUSINESS INTRODUCTION TO THE WORK HEALTH AND SAFETY ACT IMPLICATIONS FOR SMALL BUSINESS Trainers Notes This package provides a brief overview of the major issues likely to impact on small businesses. For each slide there is more detailed information available in a topic module found in the full trainers version.

WHAT CHANGES? A new Work Health & Safety Act will replace the current NSW OHS Act A new set of Work Health & Safety Regulations will replace the current NSW OHS regulations Trainers Notes On 11 December 2009, the Workplace Relations Ministers’ Council endorsed the Work Health and Safety (WHS) Act. The intention is that the Commonwealth and each state and territory government will enact a workplace health and safety Bill to commence on 1 January 2012. This is consistent with the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, signed by the Council of Australian Governments. A WHS Regulation and associated priority codes of practice will also be introduced on 1 January 2012

THE KEY CHANGES IN SUMMARY The concept of the employer with responsibility for WHS has been broadened by using the term person conducting a business or undertaking (PCBU) The concept of the worker also has been broadened to someone who carries out work for a PCBU in any capacity Small business owners or employers will have to consult more directly and widely with both workers and other PCBUs on related work activities Trainers Notes Explain: The review of existing Australian legislation conducted by a Panel of experts who relied on extensive public comment, concluded that new model legislation needed to: Extend the duty of care beyond the traditional employer and employee arrangements Provide for new and evolving work arrangements Impose duties on all persons who by their conduct may cause, or contribute to risks to health and safety of any person from the conduct of their undertaking. Include broad duties of care which could address changing circumstances into the future

THE KEY CHANGES IN SUMMARY Under the WHS Act the prosecution will have to prove the case thus abolishing the current reverse onus of proof situation Officers of a PCBU now have a duty to exercise due diligence to ensure compliance obligations are met Trainers Notes The new Act changes the reverse onus of proof found in NSW and Queensland and replaces it with the more conventional duty where the prosecution will bear the obligation of proving what was reasonably practicable for the defendant to have done to meet their WHS duties. In addition the current absolute duty of care is replaced by a duty qualified by what is reasonably practicable. The new Act also introduces a due diligence test for officers of a PCBU. This is also a positive duty and not one only tested during a prosecution. This icon indicates more information can be found in a specific training module on this topic

WHAT IS A PCBU? A PCBU is a person or duty holder such as a company or partnership that operates the business Examples of PCBUs would be companies, franchisees, self employed, contractors and sub contractors PCBUs are not persons employed solely as workers, or volunteer associations who do not employ anyone Trainers Notes Explain The model WHS legislation introduces of the concept of a Person Conducting a Business or Undertaking (PCBU) on whom the Primary Duty of Care is imposed. The reasoning behind this approach is that anyone who conducts a business or undertaking influences one or more elements that go to the performance of work, and therefore may affect the health and safety of those undertaking the work or others affected by the work undertaken. You do not necessarily have to employ people to be in a position to influence the way work is done or to have an effect on the health and safety of the people doing the work. The employment relationship is not the basis of the duty of care nor is the workplace. 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

WHO ARE PCBUs RESPONSIBLE FOR? PCBUs are responsible for the health and safety of: Workers - but more than just employees. The new Act does not rely on the employment relationship Workers could be direct employees, labour hire workers, employees of contractors, apprentices or a student on work experience Others who could be affected by the business’s activities such as visitors, customers or members of the public Trainers Notes Explain: 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 emphasis at this point that the obligation is to fulfil this duty to the extent that it is reasonably practicable.

WHO OWES DUTIES TO YOU? Workers and Others 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 In addition workers must cooperate with reasonable notified policies and procedures Other PCBUs need to ensure their operations do not create a risk for your workplace or workers Trainers Notes Explain:   What the WHS Act says ? Workers are required to take reasonable care for their own health and safety at work and to take reasonable care 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 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 into 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 be unaware of such policies and procedures and these are likely not to be relevant to their presence in the workplace. In legal terms the concept of reasonableness is about considering what a reasonable person would have done in the given circumstances.

WHAT ARE PCBUs RESPONSIBLE FOR? Ensuring the health and safety of workers (and others) so far as is reasonably practicable including all the common general duties such as a safe work environment, safe plant, adequate facilities, information, instruction and training and more specific responsibilities such as: Consultation with workers and other PCBUs Resolving WHS issues Ensuring the health and safety of others Complying with specific regulations that apply to the business Notifying incidents Trainers Notes Explain: S19 (3) of the WHS Act explains the specific things that PCBUs must do in order to meet their primary duty of care. These specific duties include: (a) the provision and maintenance of a work environment without risks to health and safety; and (b) the provision and maintenance of safe plant and structures; and (c) the provision and maintenance of safe systems of work; and (d) the safe use, handling and storage of plant, structures and substances; and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and (g) monitor the health of workers and the conditions at the workplace for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking

WHAT IS MEANT BY REASONABLY PRACTICABLE? Reasonably practicable represents what can reasonably be done in the circumstances. It takes into account : The likelihood of the hazard or risk occurring The degree of harm or possible consequences The state of knowledge about the risk and the availability and suitability of ways of eliminating or minimising it Finally, only after consideration of the above points, reasonably practicable takes into account the cost of eliminating hazards or risks Trainers Notes Explain The standard of ‘reasonably practicable’ has been generally accepted for many decades as an appropriate qualifier of the duties of care in most Australian jurisdictions. The core concept of reasonably practicable has not changed in the new Act but the context in which it operates is different. 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. ‘Reasonably practicable’ represents what can reasonably be done in the circumstances. It is an objective standard based on what a reasonable person could be expected to do in the circumstances..   Reasonably practicable takes into account the level or magnitude of risk. The greater is the risk, the greater is the effort that may be needed to eliminate it or minimise it. Similarly the degree of harm or possible consequences need to be considered. Reasonably practicable also takes into account the state of knowledge about the risk and the availability and suitability of ways of eliminating or minimising it. Finally, reasonably practicable takes into account the cost of eliminating hazards or risks. This does not mean risks should only be controlled if you can afford it but rather that risks must be controlled unless the cost is grossly disproportionate to the benefits of risk elimination or minimisation.

RESPONSIBILITIES: CONSULTATION You have to consult with all workers who carry out work or who may be directly affected by a WHS matter in accordance with the Act on certain matters with HSR – if workers represented by that HSR And also consult, cooperate & coordinate activities with other duty holders who share WHS responsibilities Trainers Notes  Explain  What the WHS Act says about Consultation The Obligation on PCBUs to consult can be summarised as follows: The PCBU must: MUST consult with workers who may be directly affected by a WHS matter (not just employees) MUST consult in an effective way (which is detailed in the Act) MUST consult on certain matters, at certain times (which are also detailed in the Act) If the workforce has requested Health and Safety Representatives then the consultation is to taken place via the HSR’s IN ADDITION: There in now a new obligation on duty holders to consult, cooperate and coordinate activities with each other (duty holders) Your responsibility to consult is so far as is reasonably practicable or what is reasonable (e.g. how big an issue it is) in the circumstances at the time (e.g. how easy is it to contact and speak to staff). What is reasonably practicable in relation to consultation will depend on: The size and structure of your business The nature of the work being carried out and the seriousness of the risk The nature of the particular decision or action, including the urgency of the need for you to make a decision or to act. The work arrangements, and the availability of the workers – e.g. shift work, remote work The characteristics of the workers, including language and literacy levels. You are not expected to do the impossible but you are expected to take an active and sensible approach to consultation.

RESPONSIBILITIES: CONSULTATION You have to consult when: identifying hazards, assessing risks and making decisions about how to eliminate or minimise risks making decisions about facilities for welfare of workers proposing changes that affect WHS of workers making decisions about the procedures for resolving WHS and other issues and monitoring of the work environment Trainers Notes  Explain   What the WHS Act says about Consultation The WHS Act prescribes exactly when consultation is to take place. In effect this is the same as the existing NSW provision except that the duty to consult extends to a wider group of persons as we have previously discussed. Section 49: Consultation is required: WHEN identifying hazards and assessing risks arising from WHS matters arising from work carried out by PCBU WHEN making decisions about ways to eliminate or minimise those risks WHEN making decisions about the adequacy of facilities for the welfare of workers WHEN proposing changes that may affect the health and safety of workers WHEN making decisions about procedures for: Consultation Resolving WHS issues Monitoring health of workers Monitoring conditions at the workplace under the management of the PCBU Providing information or training for workers WHEN carrying out any other activity prescribed by the Regulations.

RESPONSIBILITIES: ISSUE RESOLUTION If you have made reasonable efforts to resolve an WHS issue but there is still no agreement you must: Follow an agreed procedure if there is one in place If no agreed procedure then follow the process set out in regulations Set out the agreed procedure in writing and communicate it to all workers You may call in an inspector to assist if issue cannot be resolved Trainers Notes Explain: What the WHS Act says about issue resolution  The new legislation mandates (you must) make reasonable efforts to resolve a WHS issue between workplace parties.   Who are the parties?  PCBU or PCBUs involved or their representative (e.g. employer association) If the worker or workers affected are in a work group, their HSR or representative The worker or workers affected (if not in a work group) or their representative (e.g. Union)  If the workplace already has an agreed procedure then the Act requirements have effectively been met. Nevertheless, it would be sensible to review the agreed procedure to ensure it reflects the new laws. Parties to the issue are required to make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed by the model WHS Regulations. It is beneficial to set out the agreed procedure in writing and communicate it to all workers. If the issue remains unresolved after reasonable efforts have been made, it may be referred to an inspector to assist in resolving the issue.

RESPONSIBILITIES: INCIDENT NOTIFICATION If you have a notifiable incident in your workplace you must: Notify WorkCover immediately after becoming aware of it (by phone or in writing- quickest means possible) Take reasonable steps to ensure that the incident site is preserved until an inspector arrives or until such earlier time as directed by an inspector. Keep a record of notifiable incidents for 5 years Trainers Notes Explain: Notifiable incidents are death of a person, serious illness or injury of a person or dangerous incidents (i.e. incidents in relation to a workplace that expose persons to serious risks to their health or safety) and must be reported to the regulator by the person who conducts the business or undertaking out of which the incident arose. Persons with management or control of the workplace must ensure, so far as is reasonably practicable, that the site of the incident is not disturbed until an inspector arrives at the site or as otherwise directed by an inspector. There are exceptions to this duty including any action taken to assist an injured person. A ‘notifiable incident’ is an incident involving the death of a person, ‘serious injury or illness’ of a person or a ‘dangerous incident’. A serious injury or illness is an injury or illness requiring for example, immediate treatment as an in-patient in a hospital or medical treatment within 48 hours of exposure to a substance at a workplace A dangerous incident is an incident that exposes a person to serious risk to their health or safety arising from an immediate or imminent exposure to matters such as an uncontrolled escape, spillage or leakage of a substance, an uncontrolled implosion, explosion or fire and an uncontrolled escape of gas or steam.

RESPONSIBILITIES: SAFETY OF OTHERS You must also take into account the safety of others who may be affected by your business operations such as visitors, customers and members of the public More specific public safety responsibilities apply if you use or store dangerous goods or use high risk plant regardless of whether this takes place at your place of work Workers and even “others” also have similar duties not to put you or anyone else at risk Trainers Notes Explain: The WHS Act continues the requirement to not put at risk others who might be impacted by the operations of the PCBU. “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”. Basically any health and safety risk created as a result of work or work-related activities can be considered under the public safety scope of the Act.  The WHS Act adds some specific duties about entering and exiting the workplace. Dangerous goods and high risk plant have a public safety element regardless of whether they are used in a workplace or not. The WHS Act says any person has a duty to any other person at a workplace. This is really a restatement of the common law duty of reasonable care for others. It also makes it clear that others need to follow instructions given by a PCBU designed to ensure they comply with the Act or regulations.

RESPONSIBILITIES: COMPLYING WITH REGULATIONS The new Act will be supported by specific regulations covering similar hazards (e.g. manual handling, noise, chemicals) to the current NSW regulations Employers will need to comply with these regulations The regulations in many cases use the term so far as is reasonably practicable to guide the use of prevention measures The regulations include many of the administrative aspects of licences and permits Trainers Notes Explain: The WHS Act establishes a framework for authorisations that will be established under the model WHS Regulations (e.g. licences for high-risk work). As with current regulations PCBUs will be expected to comply with the requirements that apply to their businesses.

RESPONSIBILITIES: OFFICER DUTIES The WHS Act states that if a PCBU has a duty or obligation under the Act, an officer of the PCBU must exercise due diligence to ensure that the PCBU complies with the duty or obligation An officer is primarily defined by the Corporations Act This is a positive duty imposed on officers to ensure the organisation is complying Trainers Notes Explain S27 of the WHS Act introduces a duty of Care for Officers. Officers of companies or other bodies now have a duty to make sure that the organisation 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 is primarily defined by the Corporations Act. 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. 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, not that of the PCBU. The onus of proving a failure to meet the standard of due diligence is on the prosecution. The WHS Act clearly defines what officers are expected to do in order to show 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

RESPONSIBILITIES: OFFICER DUTIES To exercise due diligence an officer must take reasonable steps to: Acquire health and safety knowledge relevant to the business and keep up to date Understand the health and safety risks in the business Provide resources to identify and control risks Receive and consider information about hazards, risks and incidents Ensure the PCBU has process to comply with the WHS Act Verify the provision and use of the above resources and processes Trainers Notes Explain The WHS Act clearly defines what officers are expected to do in order to show 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

PREPARATION FOR CHANGES Think about the WHS issues you will need to coordinate with other PCBUs such as contractors and how to manage them Ensure you have arrangements to enable you to consult with workers and other PCBUs If you have no existing way of resolving issues establish a simple process Make sure you take into account the public safety aspect of others who might be put at risk by your operations Trainers Notes Ask participants about the ways they think the new Act may affect them and work out a basic plan to prepare for it.

PREPARATION FOR CHANGES Make sure you are able to able to show due diligence for WHS in your organisation Check your current incident reporting system to make sure it will apply to the new Act Check any specific compliance requirements in the new regulations Trainers Notes Ask participants about the ways they think the new Act may affect them and work out a basic plan to prepare for it.