WHS Act – Awareness Course for Union Members WHS Act Summary of Main Changes (Lunch and Learn)

 Emergency Procedures  Participant Notes  Location of facilities etc.  Training rules - Participation  Mobile phones  Training Ergonomics  Evaluation questionnaire Housekeeping

Understand Key Changes:  Model WHS harmonisation  Work Health & Safety (WHS)Terminology  WHS Duties  Consultation, representation & participation  Enforcement  Union’s Role Module Objectives

 Changes in work safety terminology.  A broadening of health & safety duties.  A move away from the employer/employee relationship to the broader definitions of PCBUs and workers.  A requirement for all duty holders to consult.  Changes in the names, role and functions of OHS representatives & OHS Committees to HSRs (deputy HSRs) & HSCs.  Increased max. penalties (up to $3mill /up to 5 years gaol) for breaches of the Act* Key changes in NSW OHS legislation

 HSRs able to issue PINs & to direct unsafe work to cease if they have received the appropriate training  Authorised representatives NOW WHS permit holders  Positive duties introduced for ‘officers’  Unions right to prosecute only in certain circumstances  Removal of ‘reverse onus of proof’ – prosecution must now prove a failure by a duty holder to do what is ‘reasonably practicable’ to ensure the health & safety of workers and others* Key changes in NSW OHS legislation (cont)

A person conducts a business or undertaking (PCBU):  whether the person conducts the business or undertaking alone or with others; and  whether or not the business or undertaking is conducted for profit or gain. Duties of PCBUs extend to those involved in:  management, maintain or control of workplaces, fixtures, fittings or plant and PCBUs in relation to plant, substances and structures that:  design, manufacture, import, supply, install, commission or construct. All PCBU’s have a “primary duty of care” WHS Terminology

A worker under the WHS Act is anyone carrying out work, in any capacity, for a PCBU. This includes:  Direct employees  Contractors and subcontractors, and their employees  Labour hire employees engaged to work in the business or undertaking  Outworkers  Apprentices, trainees and students on work experience  Volunteers WHS Terminology

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 WHS Act s4 New duty holders  Construct  Commission  Maintain  Import  Designer (more explicit duties and apply to plant, substances and facilities)

 Health and Safety Duties  - PCBUs - PCBUs have a ‘primary duty of care’ to ensure, so far as is reasonably practicable, the health & 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. WHS Act s19

 Health and Safety Duties Duties of workers  Take reasonable care for their own health & safety  Take reasonable care to ensure acts/omissions do not adversely affect others health & safety  Comply with reasonable instructions from the PCBU  Co-operate with policy or procedures of the PCBU WHS Act s28

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 WHS Act s30-34

PCBU to consult with workers, as far as reasonably practicable,  who work for the business or undertaking or  are likely to be directly affected by a work health & safety matter. Workers include contractors, subcontractors, labour hire and volunteers. Each person who has a duty to ensure the health & safety of persons at a place of work must, as far as reasonably practicable, consult, co-operate and co-ordinate activities with other duty holders to do so. Consultation, Representation and Participation

Consultation can occur through:  Health & safety representatives (HSRs)  Deputy health & safety representatives (deputy HSRs)  Health & safety committees (HSC)  Other arrangements as agreed to between workers and PCBUs e.g. through toolbox talks, inclusion of work health & safety matters in staff meetings Consultation, Representation and Participation

Establishing HSC/HSRs:  WHS entry permit holders can assist  1 worker can request HSR election (14 days)  5 workers or HSR can request a HSC be formed (within 2 mths)  PCBU must train HSR within 3 months of request  Training provider chosen by HSRs  No requirement to train HSCs unless agreed  Union can assist negotiate workgroups and run elections Consultation, Representation and Participation

Functions of the HSC are to:  Facilitate cooperation between the PCBU and workers in instigating, developing and carrying out measures to ensure workers’ health & safety.  Assist in development of health & safety standards, rules and procedures to be used and complied with in the workplace.  Any other functions as agreed to between the PCBU and the HSC. Consultation, Representation and Participation

Powers & functions of a HSR  Represent workers in relation to work health & safety  Monitor the measures taken by the PCBU to meet their duties  Investigate complaints from members of the workgroup  Inquire into anything that appears to be a risk to the health & safety of workers  Direct unsafe work to cease when necessary  Issue provisional improvement notices when necessary Consultation, Representation and Participation

Consultation, Representation and Participation A PIN can be issued by a suitably trained HSR if they believe a person:  is breaching a provision of the model WHS Act  has breached a provision of the model WHS Act and is likely to continue to or to repeat this breach. A PIN issued by the HSR may require the person to:  resolve the breach  prevent a likely breach from occurring  fix the things or operations causing the breach/likely breach.

Consultation, Representation and Participation A worker has a right to cease or refuse to undertake work if:  they have a reasonable concern that doing the work would expose them to a serious risk to their health and safety from immediate or imminent exposure to a hazard. Or if directed to cease unsafe work by a trained HSR with concerns for worker health and safety :  who has been unable to resolve the matter with the PCBU through consultation (unless the matter is so serious as to impose an immediate risk, in which case consultation must occur as soon as practicable after work has ceased).

Union activities Your union representative is entitled to:  Perform the functions of a WHS entry permit holder if they are eligible, including consulting and advising workers.  Negotiate agreements for work groups with the PCBU and for multiple businesses, including negotiating a variation of an agreement.  Request the assistance of an inspector where these negotiations fail.  Assist with the election of a HSR.  Assist the HSR in their role when requested by the HSR.

Consultation, Representation and Participation – WHS Entry Permit An eligible person must:  be an official of the union  have satisfactorily completed approved training  hold or will hold an entry permit under the Fair Work Act 2009 (Cth) or relevant industrial law. A WHS permit holder can:  inquire into a suspected contravention of the model WHS Act that relates to relevant workers (as defined)  consult and advise workers and  consult with PCBUs about a suspected contravention.  inspect any work, plant, substances, structure or relevant thing  inspect and copy any relevant document  warn any person who may be exposed to a serious and immediate health and safety risk.

Enforcement measures Under WHS Act  Provisional Improvement Notices PIN*  Cease Work*  Improvement Notices  Prohibition Notices  Non-disturbance notices  Enforceable (WHS) undertakings Court orders include: **  Adverse publicity orders  Orders for restoration  Work Health and Safety (WHS) project orders  Court ordered WHS undertakings  Injunctions  Training orders  Penalties

 Do the quick quiz on the handout.  Check through your answers with the facilitator and the group. Are there any issues relating to changes brought about by the WHS Act where you require any further clarification? Q&A Module - Activity -

Evaluations Please complete course evaluation and hand the evaluation and your completed ‘quick quiz’ to your facilitator. Sources of Information See handouts