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Awareness course for union members

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1 Awareness course for union members
Work Health and Safety (WHS) Act Awareness course for union members Key points Module 10 provides for a course review and summary of key points. The facilitator should use this time to clarify any issues or questions that may not have been addressed during the course or to clarify any misunderstandings identified in responses. Slides with review questions are followed with an answer slide. The facilitator can record participant’s answers on a white board ( where available) before proceeding to the next slide with answers (time permitting). At the end of the questions section, participants are required to complete the handout provided that is a repeat of the activity from Module 1. The group can then go through and compare their answers. These sheets are to be taken up by the facilitator for review. Participants are requested to complete evaluations form/s. Certificates of attendance can be issued if available. Background References Model WHS Act WHS Regulation Facilitator’s notes Fact sheets

2 I acknowledge the traditional custodians of the land we meet on today and pay my respects to the elders past and present. For maps of nsw aboriginal nations go to

3 Participant Notes – Pre-training quiz Location of facilities etc.
Housekeeping Emergency Procedures Participant Notes – Pre-training quiz Location of facilities etc. Training rules - participation Mobile phones Breaks Training Ergonomics 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.

4 Course Objectives New terminology of the WHS legislation
To provide union members with information and knowledge on the Work Health & Safety (WHS) Act, to commence 1 January 2012 New terminology of the WHS legislation ‘Duty holders’ and their duties under the WHS Act Consultation, representation and participation requirements Role of Health & Safety Representatives (HSRs), Health & Safety Committees (HSCs) and other arrangements Ceasing unsafe work & Provisional Improvement Notices (PINs) Enforcement measures Role of Unions and WHS entry permit holders 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

5 Group introduction Your Name Your Role
Questions about the new Work Health and Safety laws that you would like answered during this course. Key points Where possible have individual introductions (see below). For larger groups, ask general questions and have a number of individuals contribute. As a facilitator your aim in this exercise is to ensure that you identify participant’s concerns and interests on work health and safety issues related to this course. Where issues are raised outside the scope of this course you should refer participants to their supervisor and/or union representative where relevant. Encourage participants to utilise additional resources included in their course materials and other information sources identified. Suggested questions and/or examples Focus participants on issues that relate to issues of concern and interest that they may have associated with the introduction of the model WHS laws. For smaller groups: Ask participants to take a couple of minutes to: introduce themselves to the person next to them (if they don’t already know each other); ask what their main work activities are; and ask if they have any particular safety issues relating to changes in legislation they would like answered during this course. Have the participants respond briefly on behalf of the person they spoke to and record the issues (and display if possible) so they can be checked throughout and at the end of the day. Time allocated for this activity will depend on the size of the group For larger groups: Ask several participants to contribute their thoughts on work health and safety concerns and interests Record this for reference throughout the day. Background references The facilitator should familiarise themselves, as far as possible, on the work health and safety issues of the industry and, where possible, the particular workplace they are presenting training to.

6 Introduction Activity
Please complete the pre-course quiz in the activities section of your participant notes. We will review this quiz again at the end of the course to make sure that you have information you need on the WHS Act. Key points The short quiz reflects issues covered throughout the course and is to be revisited at the end of the course. Suggested questions and/or examples Participants are to complete the quiz, recording their own understanding for review later. Explain to participants how the quiz questions will be covered throughout the training and any outstanding items will addressed at the end of the course when the quiz is revisited. Background references. Fact Sheet 1: WHS Harmonisation Model WHS Act Sources of information – see Section Additional Resources included in participant notes.

7 Work Health & Safety Framework and Terminology

8 Work Health & Safety See Fact Sheet 2 and NSW WHS Act for full definitions 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

9 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.

10 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)

11 Key changes in NSW OHS legislation
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 and OHS Committees to HSRs (deputy HSRs) and HSCs. Key points Changes in terminology and broadening of definitions include those for employers, employees, officers and are covered in detail in Module 2. Risk assessment is not mandated in all situations as it currently is in NSW. 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. The roles and function of existing OHS Committees and OHS Representatives changes 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). Background references New terminology – Model WHS Act: Part 1 - Division 3 – Section 4 – 9 Health and Safety Duties – Part 2 Division 1 – 4 Sections 13 – 29 Consultation with all duty holders - Part 5 Division 1 Consultation, co-operation and co-ordination between duty holders S46 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.

12 OHS legislation (cont)
Key changes in NSW OHS legislation (cont) 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 points The introduction of HSRs being able to issue PINs and direct unsafe work to cease, is a major change for NSW. Functions that currently exist for authorised representatives have been expanded in the new role of WHS entry permit holder. Officers e.g. senior managers will have to show active due diligence in managing work health and safety. Unions in NSW have retained the right of to prosecute in certain circumstances. A person will be considered not guilty of an offence until proven rather than the current situation in NSW of being presumed guilty of failing in a duty of care under the OHS legislation and having to prove otherwise. * Reverse onus of proof is an incorrect term. In explanation what was involved previously was that the prosecution needed to prove the elements of the offence beyond reasonable doubt. Ie for section 8 1 1) That the defendant was an employer 2)that the employee was exposed to risks to their H & S 3)That the risks arose from the employers undertaking 4) that there was a causal nexus between the defendant’s breach and the employee’s H & S. The defendant had to prove as per Section 28 (repealed) that the breach was not in their control or they did what was reasonably practicable to prevent it on the lesser standard of balance of probabilities. Now the prosecution needs to prove the defendant did not do all that was reasonably practicable. Kirk Group Holdings (HCA)- There may be some people that may ask about Kirk. This simply added a further aspect to the causal nexus element in that the prosecutor was required to prove the act or omission that caused the risk. Background references Model WHS Act Model WHS Act:

13 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

14 Important terms 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

15 Important terms - related to duties
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. Other terms- Import, Manufacture, Commission, Maintain 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

16 Important terms Workgroup A WHS Entry Permit Holder
Provisional Improvement Notice (PIN) Notifiable Incident Serious Injury or Illness Dangerous Incident Structure Plant Substance Key points Workgroups, WHS entry permit holders and the issuing of PINS are covered later in the course. It is important that participants gain a general understanding of the concepts of notifiable incidents, serious injury or illness and a dangerous incident as defined under the WHS Act. These definitions will now be consistent with other states and territories. See Fact Sheet 2 for definitions that you can discuss with the group. Requirements and the duties of persons involved in the design, manufacture, supply, installation etc of plant, structures and substances as PCBUs are covered under the WHS Act. Suggested questions and/or examples Who makes up the workgroups in your workplace? What do you understand a dangerous incident to be? What do you think would be considered a notifiable incident? Background references WHS Act: Part 5 s51–59 Workgroups WHS Act: Part 7 Workplace entry by WHS entry permit holders WHS Act: Part 5 Division 7 Provisional Improvement Notices s90-102 WHS Act: Part 3 Incident notification s35–39 WHS Act: s4 and s6 Fact Sheet 2: WHS Act Terminology. WHS Act s4,6, s35-39, s51-59, s90-102

17 Terminology Activity Please complete the Module 2: Activity – WHS Act Terminology Table in your handouts. You can use your participant notes to assist. Suggested Activity Participants are to use the course materials available to assist in completing the Module 2 Activity: WHS Act Terminology Table. The activity can be completed in small groups to ensure all persons participate. Someone in the group may read the information out. The intent of this activity is to have participants read and utilise the text so as not to be intimidated by it. The group as a whole with the guidance of the facilitator is to discuss the answers. The facilitator is to go through the selection and clarify any issues.

18 Work Health & Safety Duties
and Enforcement

19 Persons with health and safety duties
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 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 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

20 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

21 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

22 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. 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

23 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. 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

24 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

25 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. 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

26 Health and Safety Duties
- Officers - Officers of the PCBU are required to exercise ‘due diligence’ to ensure the PCBU complies with their duties and obligations. Officer includes a director or secretary of the corp., a person who makes, or participates in making, decisions that affect the whole or substantial part of the business of the corporation, receiver, administrator, liquidator or a trustee. 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 & Corp Act 2001

27 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)

28 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 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

29 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 & 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 What risks do you think may be immediate or imminent? WHS Act s84-85

30 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? 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)

31 Health and Safety Duties
Other persons at the workplace (e.g. visitor, shopper) (an expanded duty under WHS Act) take reasonable care for his or her own health & safety; take reasonable care that his or her acts or omissions do not adversely affect the health & 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

32 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

33 Health and Safety Duties - Activity -
The facilitator will divide the group into smaller groups to review the scenarios in the Activity. The group will come back together to discuss the answers. Activity The facilitator is to divide the participants into small groups. The group is to discuss the scenarios and determine their answers. The group can select a spokesperson to respond to the whole group discussion. The facilitator will have the whole group discuss their answers. The facilitator is to go through the selection and clarify any issues. The facilitator may wish to add in scenarios that relate particularly to the group they are training.

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

37 Enforcement measures Provisional Improvement Notices (PIN)
A notice issued by a HSR to address a contravention of a provision of the WHS Act. The notice may be reviewed by an inspector and can be applied, altered or removed. Improvement Notices A notice issued to a person by an inspector to address a contravention of a provision of the WHS Act. Prohibition Notices A direction from an inspector prohibiting the person in control from carrying on an activity until the risk is remedied. Non-disturbance notices A notice issued by an inspector to the person with management or control of a workplace to facilitate the exercising of the inspector’s compliance powers. Key Points - see Fact Sheet 8 for further information. Provisional Improvement Notices A PIN is to be issued where a contravention of the WHS Act is occurring; or has occurred and it is reasonably assumed that the breach is likely to be continued or repeated. In a situation where an inspector has already reviewed the issue and has either decided to: issue an improvement or prohibition notice or proceed to another form of enforcement available under the WHS Act or has decided to take no further action the HSR cannot issue a PIN for the same matter. Where a PIN has been issued and the regulator decides that an inspector is not required to attend the workplace, the person issued the PIN must comply with the notice within the timeframe specified. A person may request a review of the PIN. Improvement Notices Require the person to remedy the breach, prevent a likely breach from happening, or fix the things or operations causing the breach. Will include details of the breach and the date this needs to be remedied by and may also include directions on what measures the person needs to take to correct the breach. Fines of up to $50,000 for an individual and $250,000 for a body corporate can be imposed for failing to comply with an improvement notice in the time specified. Prohibition Notices Issued by an inspector if they believe an activity is either happening, or will happen at a workplace that will involve a serious risk to the health and safety of a person from exposure to a hazard. A prohibition notice may specify the workplace (or part of) where the activity is not to be carried out; any item not to be used (e.g. machinery); and/or any procedure that is not to be followed, and may also include directions on what measures are to be taken to remedy the risk. Non-disturbance Notices A direction to the person with management or control of a workplace requiring them to preserve the site where a notifiable incident has taken place, or to prevent any disturbance of a particular site. This includes preventing plant from operating. These can be issued for a maximum of seven days, although subsequent notices can be issued if required. Non-disturbance notices do not prevent assisting an injured person, removing a deceased person or making the site safe and preventing further incidents. WHS Act s90 – 102, s

38 Potential outcomes of legal proceedings
Court Order Requirement Enforceable (WHS) undertakings A written undertaking given by a person in relation to a contravention (or alleged contravention) of the WHS Act (excepting Category 1 offences). Adverse publicity orders Publicising of the offence, its consequences, the penalty and any other related matter. Orders for Restoration Actions are required by the offender to remedy any matter caused by the offence that is within the offender’s power to remedy. Work Health and Safety (WHS) project orders A specified project for the general improvement of health and safety that the offender is required to undertake within the specified period. Key points Enforceable (WHS) Undertakings May be used where a breach of the WHS Act has occurred that is not a Category 1 offence. A prosecution cannot be brought for an offence under the WHS Act once enforceable undertakings have been accepted. The purpose of the undertaking is to allow businesses to implement initiatives and improve work safety as an alternative to prosecution. Court orders are the result of a prosecution, and are part of the range of sentencing options. Orders may also be made in addition to another penalty (e.g. a fine). Additional information is provided in Fact Sheet 8. Background References Model WHS Act s Fact Sheet 8 WHS Act s

39 Potential outcomes of legal proceedings
Court Order Requirement Court ordered WHS undertakings The court may adjourn proceedings for up to two (2) years and make an order for the release of an offender on the basis the offender gives an undertaking with specified conditions. Injunctions The offender is required to cease contravening the WHS Act. Training Order The person guilty of an offence is required to undertake or arrange for workers to undertake a specified training course. Key points Court ordered WHS undertakings and Injunctions are the subject of different penalties for non-compliance than for other orders under this Part of the WHS Act . Court ordered WHS undertakings provide an opportunity for an offender to comply over a maximum two year period and conditions are specified that must be adhered to. Injunctions are available for serious offences under the WHS Act and any breach of the requirements set out under the injunction may result in severe penalties. Background References Model WHS Act s Fact sheet 8 WHS Act s

40 Offences by the Crown Officer of the Crown: A person who makes or participates in making decisions that affect the whole or a substantial part of the business or undertaking of the Crown. Officers of the Crown are now held accountable for contraventions of the WHS Act in the same way as officers of PCBUs are. This means they can be personally fined or imprisoned where a serious breach is proven. Key points Examples of organisations that represent the Crown include State Government Departments, Police, Health Services etc. This section of the WHS act differs from existing OHS legislation in NSW in that senior managers deemed ‘officers’ of the Crown are no longer offered the protection of the Crown and will be subject to the same health and safety duties as officers under the WHS Act. Background References Model WHS Act s WHS Act s

41 Enforcement Activity The facilitator will divide the group into smaller groups to review the table and determine if the statements are true or false. The group will come back together to discuss the answers. Activity The facilitator is to divide the participants into small groups. The groups are to review the Table and determine whether the statements are true or false. The facilitator is to go through the answers and clarify any issues. The facilitator may wish to add in scenarios that relate particularly to the group/industry being trained.

42 Consultation, Representation and Participation

43 Resources WHS Act & Regulation Fact sheet 4?
Code of Practice: How to consult on work health & safety practical guidance on the requirements for consultation, representation and participation. duties for consultation effective consultation how & when to consult consultation, co-operation and co-ordination with other duty holders Key points The facilitator should familiarise themselves with the content of the Code of Practice: How to consult on work health and safety (once the Code has been endorsed) as the Code is likely to be relied on in part by PCBUs and unions in meeting and understanding the requirements for consultation, participation and representation under the WHS Act. Background References Model WHS Part 5, 6 and 7 How to consult on workplace health and safety: Code of Practice

44 Consultation, Representation
and Participation Consultation duties and requirements Arrangements for consultation with workers Consultation between duty holders Determination of workgroups Consultation between multiple business workgroups Role & functions of HSCs and HSRs Key points Key requirements highlighted in this module will include: Changes in consultation requirements Determination of workgroups and arrangements for consultation with workgroups Requirements for consultation, co-operation and co-ordination between duty holders in relation to health and safety issues in the workplace, situations where this may be required and how this might be achieved. Requirements for determining workgroups is covered under the model WHS Regulations. Unions can be requested in determining workgroups either within a separate enterprise or involving multiple-business work groups if requested by a worker. The requirements for consultation where multiple workgroups operate e.g. construction sites, business centres. Background References Model WHS Act: Part 5, Part 6 Model WHS Regulations: Chapter 2 How to consult on work health and safety: Code of Practice WHS Act Part 5

45 Duty to consult workers
The PCBU is required, so far as is reasonably practicable, to consult with workers: 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. When may it be considered not ‘reasonably practicable’ to consult? Key points The law expects a ‘sensible and proactive approach’ to consultation. Safe Work Australia is developing further guidance around what is considered to be ‘reasonably practicable’ e.g. draft Code of Practice for Consultation . There is already some guidance in the WHS Act s18 as to matters that should be considered when determining what is ‘reasonably practicable’ in ensuring health and safety. The draft Code of Practice for Consultation also gives some guidance and examples. The PCBU is required to consult with all workers that are likely to be directly affected by their work activities. This includes establishing arrangements that include contractors, temporary staff, volunteers, work experience students etc. Persons with special needs, such as young or isolated workers, workers with limited English etc. must also be considered. Some situations may arise where it is not practicable to consult e.g. where a hazard imposes an immediate and serious risk, and the PCBU may be required to take immediate action e.g. replacing equipment. Discuss other times when this may occur e.g. workers away on long service leave when work activities are going to be changed that may directly impact on their health and safety on their return. The Consultation Code of Practice (see below) provides practical guidance on how some of these situations may be addressed. Other Codes of Practice also provide practical advice (see below) with additional Codes and guidance material currently being developed. Background References Model WHS Act Part 5, Part 6 How to consult on work health and safety: Code of Practice Worker Representation Handbook (under development) How to manage Work Health and Safety Risks: Code of Practice Work Environment and Facilities: Code of Practice WHS Act s47 (1)

46 Duty to consult with other duty holders
Each person who has a duty to ensure the health & safety of persons at a place of work must , so far as is reasonably practicable, consult co-operate and co-ordinate activities with other duty holders to do so. This will help remove any gaps in work health & safety. How might duty holders meet this requirement to consult, co-operate and co-ordinate activities? Key points In workplaces where more than one person holds a health and safety duty (e.g. a situation where a building owner, the business owner, the supplier of chemicals or plant are all involved in work activities and the workplace), each duty holder is now required to consult, cooperate and coordinate activities with other duty holders. The intention of this requirement is to ensure that activities are coordinated and planned in such a way that gaps in health and safety management across all aspects of a business or undertaking will be eliminated or minimised. The duty to consult with other duty holders requires each duty holder to cooperate e.g. share information on the potential hazard such as substances to be used; coordinate e.g. undertaking planning for the installation and commissioning of new plant and consult e.g. discuss ways in which to minimise hazards in the particular workplace. Examples could include: Consultation is required between a labour hire company and the business engaging the worker. The labour hire workers are now considered to be workers of the host PCBU. Therefore both PCBUs are required to consult, cooperate and coordinate activities. Where a worker is required to enter another PCBUs’ workplace, consultation between the PCBUs regarding information on potential hazards, inductions and emergency information can be undertaken. Background References Model WHS Act: s46 How to consult on work health and safety: Code of Practice WHS Act s46

47 Consultation procedures & arrangements
Consultation between duty holders Duty holder e.g. Site controller Duty holder e.g. Business owner Duty holder e.g. Labour hire company Consultation procedures & arrangements e.g. Emergency procedures, work arrangements Key points Duty holders are required to exchange information in an open manner to ensure that all areas of health and safety are addressed in a workplace. Each PCBU is required to consult with their workers. In situations where more than one person has a duty, each person is required to consult to ensure that they meet those duties. Consultation could involve sharing of information about hazards of the work environment and work activities such as plant movements, work arrangements, substances used and how the associated risk are to be minimised. Cooperation and coordination could involve the planning and coordination of activities to minimise the risks associated with planned and unplanned interactions. It could, for example, be a planned and coordinated approach to managing emergency situations. Background References Model WHS Act: Part 5, Part 6 How to consult on work health and safety: Code of Practice Consultation e.g. sharing of information on potential hazards Co-operation e.g. management of interactions between workers Co-ordination e.g. planning and organising work activities WHS Act s46

48 Duty to consult workers
Consultation procedures are to be used: where they have been agreed to by a PCBU and the workers; and they are consistent with the required ‘nature’ of consultation. What items would you like to include in your ideal consultative procedure? Key points Discuss the benefits of sharing information – previous experiences both good and bad, potential issues and situations that could be considered. While consultation does not require consensus or agreement it does allow workers to contribute to decisions on health and safety issues. A PCBU doesn’t have to agree to solutions or perceived risks regarding issues raised by workers in the consultation process. But they are required to ensure that workers are provided with the opportunity to contribute and consider the information provided. Discuss how a PCBU can demonstrate that they have taken the views of workers into account e.g. by providing feedback, explaining why a particular solution is selected, discussing short and long term solutions. Background References Model WHS Act Part 5, Part 6 s48 and s 49 How to consult on work health and safety: Code of Practice WHS Act s48 and s49

49 Nature of consultation
Consultation requires: sharing of health & safety information providing workers with a reasonable opportunity to: Express their views Raise work health & safety issues Contribute to the decision making process views of workers and HSRs must be taken into account before making a decision on a health & safety issue advising workers on the outcome in a timely manner. An elected HSR of the workers must also be involved in consultation. How and when can workers be provided with opportunities for consultation on health and safety issues? Key points Discuss the type of information to be shared e.g. changes in products, work methods, equipment or substances to be used, monitoring methods. Discuss times when opportunities could be provided for worker participation e.g. pre-purchase assessments, development of Safe Work Method Statements (SWMS), changes in work processes or activities, during reviews. Discuss times when health and safety issues can be raised e.g. team meetings, with HSRs, toolbox talks. A PCBU can ensure that the best decision is made by taking the views of workers into consideration as part of the process. The PCBU is now required to advise workers of the outcome of a decision within a relevant timeframe – this timeframe will be dependent on such things as the level of expertise required in making a decision, the level of risk associated with the matter etc. Note: The relevant HSR must be involved in consultation – this should occur through the agreed consultation procedures. Background References Model WHS Act Part 5, Part 6 s48 and s 49 How to consult on work health and safety: Code of Practice Worker Representation Handbook (under development) How to manage Work Health and Safety Risks: Code of Practice Work Environment and Facilities: Code of Practice WHS Act s48

50 Consultation is required when
Deciding on procedures for: consulting with workers resolving work health & safety issues monitoring workers’ health monitoring conditions at any workplace under the management or control of the PCBU providing information or training for workers Or other activities as described under the regulations. Key points Procedures should be in writing and readily accessible to all workers. The procedures are to be agreed to between the PCBU and the workers of the PCBU. The times when workers will be consulted and how this will occur should be included in the organisation’s consultation procedures. Review is required to ensure that consultation is occurring and is effective. A PCBU is required to establish procedures for resolution of health and safety issues. Where these are not put in place there is provision for a default procedure in the model WHS Regulations (discussed in a later module). Procedures should clearly indicate the role of HSRs, deputy HSR and HSCs where they are selected and any other parties involved. Background References Model WHS Act Part 5, Part 6 How to consult on work health and safety: Code of Practice WHS Act s49

51 Consultation is required when
identifying and assessing risks to health & safety deciding ways to eliminate or minimise those risks deciding on the adequacy of facilities for worker welfare proposing changes that may affect the health & safety of workers How can workers be involved in identifying & assessing risks and the ways in which they are to be eliminated or minimised? Key points Discuss times when risks are identified and assessed e.g. Job Safety Analysis (JSAs), development of SWMS, pre-purchase assessments, during consultation meetings, inspections and incident investigations and how consultation can occur at these times. Consultation when determining how a risk is to be eliminated or minimised is important as workers can contribute their knowledge and experience, help anticipate potential issues and indicate how these could be addressed. Facilities for workers are addressed in the model WHS Regulations and a draft Code of Practice (see below). Changes in the workplace that can impact on the health and safety of workers include changes in work layout, work organisation, work procedures, plant and substances used, the way in which workers are engaged e.g. temporary staff etc. Background References Model WHS Act Part 5, Part 6 How to consult on work health and safety: Code of Practice Worker Representation Handbook (under development) How to manage Work Health and Safety Risks: Code of Practice Work Environment and Facilities: Code of Practice WHS Act s49

52 Establishing Consultative Representation
Can be as HSC, HSRs or other agreed arrangements or combination of these 1 worker can request that a PCBU facilitate an election for a HSR The PCBU or multiple PCBUs must commence negotiations about the workgroup and nature of consultation within 14 days of the request Union can assist 5 workers or a HSR can request the formation of a HSC The PCBU must establish a committee within 2 months

53 Determination of workgroups of a PCBU
A worker requests a PCBU to facilitate the election of HSR/s and deputy HSR.  Negotiations are to commence within 14 days of request.  Unions can assist in the determination of workgroups and in the election process. The PCBU or PCBUs and workers negotiate the determination of one or more workgroups. Negotiations are to be conducted to determine: the number and composition of workgroups the number of HSRs and deputy HSRs to be elected the workplace/s to which the workgroups apply the businesses or undertakings to which the workgroups will apply  A workgroup may be determined for workers at one or more workplaces. Key points The slide represents situations where there is only one PCBU. Where there are multiple PCBUs then negotiation of workgroups would involve multiple PCBUs and the workers. The criteria for determining workgroups is outlined in WHS Regulations and is similar to the current criteria used to establish workgroups with some additional considerations. Discuss with participants matters to consider in determining workgroups and how this might apply in their workplace e.g. with changes to the definition of workers and requirements for consultation between duty holders (see Fact Sheet). Discuss with participants where they currently have OHS Representatives and an existing OHS Committee how they already represent workgroups and the arrangements can be easily adapted to the new requirements. Situations that will require review are those where other persons now considered workers such as labour hire employees, volunteers and contractors work. In these circumstances, workgroups may need to be modified or additional workgroups may need to be considered. Notification of the outcomes of negotiations must occur as soon as reasonably practicable. Background References Model WHS Act Part 5, Part 6 WHS Regulations 2.1. How to consult on work health and safety: Code of Practice The PCBU must notify workers of any variations.  If negotiations fail any involved party may request an inspector to assist. The PCBUs involved in negotiations must notify workers of the outcome and any workgroups determined. WHS Act s50-54

54 Multiple-business workgroups
Workgroups may be determined for workers who carry out work for two or more PCBUs; or at one or more workplaces. The determination of work groups is to be negotiated between each of the PCBUs and the workers. These arrangements don’t affect any work groups already determined by the PCBU for their workers. Key points A PCBU needs to identify all workplaces where their workers are likely to interact with workers of another PCBU and where workers are working at different workplaces. Workers of the PCBU could potentially become part of a workgroup working under a different PCBU and may have additional representation. In situations where there are multiple duty holders, PCBUs need to negotiate suitable arrangements for consultation. These arrangements don’t need to affect existing consultation arrangements. Variations to any agreement can be negotiated as required. Matters to be considered in any negotiations include: the number and composition of work groups to be represented by health and safety representatives; the number of health and safety representatives and deputy health and safety representatives (if any) for each work group; the workplace or workplaces to which the work groups will apply; the businesses or undertakings to which the work groups will apply. Background References Model WHS Act s55-59 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s55-59

55 Multiple-business arrangements
for consultation PCBU duty holder e.g. Host company PCBU duty holder e.g. Labour hire company PCBU duty holder e.g. Site controller Consultation Co-operation Co-ordination Consultation Co-operation Co-ordination  A worker may represent a workgroup where the workers are engaged by different PCBUs. Shared workgroup (workers of the labour hire company are also workers of the host company) Consultation arrangements - policy and procedures -  Workers are to be informed of the outcomes of negotiations and of any workgroups. Key points With the introduction of the broad definition of a worker, a PCBU with consultation duties may have a contractor, being a ‘worker’ under the law, represent a workgroup if elected by workers of the workgroup. For example, where a number of electrical contractors work at the premises a subcontractor may be elected to represent all the various electrical contractors. Negotiations are required to determine the composition of workgroups where multiple businesses operate. Where negotiations fail any involved party can make a request to the regulator for an inspector to assist with the negotiations. The PCBUs are required to notify workers of the outcomes of any negotiations and where any workgroups are determined as soon as practicable after the negotiations are complete. A party to the negotiations is entitled to withdraw from the negotiations at any time provided they give reasonable notice leaving the remaining parties to negotiate. Note: Facilitators can use this flow chart to describe an example from their own industry. Background References Model WHS Act s55-59 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s55-59

56 Consultative Arrangements - Activity 1-
The facilitator will divide the group into small groups to review the scenarios provided and determine the most effective consultation arrangements for each situation. The group will come back together to discuss the answers. Activity The facilitator is to divide the participants into small groups The group is to discuss the scenarios and determine their answers. The group can select a spokesperson to respond to the whole group discussion. The facilitator will have the whole group discuss their answers. The facilitator is to go through the selection and clarify any issues. The facilitator may wish to add in scenarios that relate particularly to the group they are training.

57 HSR and HSC - Activity 1 - The facilitator will divide the group into two teams to review the selected sections of the WHS Act and develop questions for a group quiz. Team A – Develop questions using the WHS Act s46-49 (duties to consult) and s75-79 (HSCs). Team B – Develop questions using the WHS Act s50-74 (Workgroups, HSR’s and deputy HSR’s). The facilitator will run a short quiz between the two teams. Key points The aim of this activity is to familiarise participants with the structure and language of the WHS Act and the particular sections on consultation. The participants will be required to briefly read through relevant sections. The actual quiz will provide an opportunity for the facilitator to clarify any issues. The following power points will then reinforce what participants have already read and discussed. Activity The facilitator is to divide the participants into two teams Team A and Team B Each team is to review the relevant sections of the WHS Act they are allocated and develop 6 questions they will put to the other team under the direction of the facilitator. Team A – Develop questions using WHS Act s46-49 (duties to consult) and s75-79. Team B – Develop questions using WHS Act s50-74 (Workgroups, HSR’s and deputy HSR’s) The teams will be given a short time prior to the quiz to review the sections the other team has reviewed. The group will come together and the facilitator will run the short quiz between the teams.

58 Health & Safety Committees
(HSCs) The PCBU must establish a HSC within 2 months of a request by: a HSR for a workgroup carrying out work at the workplace; or 5 or more workers at the workplace; or as required by the regulations; or on their own initiative. A HSC under the WHS Act can: continue the functions of an existing OHS Committee; be a consultation mechanism; assist and support the HSR in their role and represent all workers at the workplace not just the workgroup the HSR represents. While current OHS Committees meet the requirements for HSCs under the WHS Act, the composition of a HSC can now be different. Key points A HSR or 5 or more workers can request the establishment of a HSC. A HSR or HSRs can choose whether or not they want to be members of a HSC. Point out to participants that current OHS Committees meet the requirements of HSC under the WHS Act however the composition of a HSC under the WHS Act can be different than that of a current OHS Committee. See Fact Sheet 4 for additional information. A PCBU can establish a HSC – this may be an option where workers are reluctant to take on the role of HSR . Note: The membership and constitution of the HSC is to be agreed to by the PCBU and the workers. At least half of the HSC must be workers not nominated by management. Where there are HSRs and HSC/s in the workplace, workers must understand the clear distinction in their roles. This information should be contained in procedures. If a workplace has a HSC and not a HSR, the draft Code of Practice for consultation suggests that the HSC consider the issues that would normally be dealt with by a HSR. The Worker Representation Handbook currently under development by Safe Work Australia will provide additional guidance for HSRs and HSCs. Background References Model WHS Act: s75,76,78 Model WHS Regulations: Chapter 2 How to consult on work health and safety: Code of Practice The Worker Representation Handbook (Safe Work Australia – under development) WHS Act s75,76,78

59 Health and Safety Committees
(HSCs)  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 the development of health and 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. Do these functions differ much from current activities of OHS Committees? Key points The HSC’s main focus is to provide a forum where workers and management can work together to improve health and safety in the workplace. HSC’s functions are similar to existing functions of OHS Committee. The current functions of OHS Representative and OHS Committees are to: keep under review the measures taken to ensure the health, safety and welfare of persons at the workplace; to investigate any matter that may be a risk to health and safety; and attempt to resolve any matter but if unable to do so request an investigation by a inspector. An OHS committee and an OHS representative have the following additional functions under the current OHS Regulations: (a)  to request to accompany an inspector as an observer on an inspection that affects the workgroup that the committee or representative represents, (b)  to be an observer during any formal report by an inspector to the employer in connection with any OHS matter concerning the workgroup that the committee or representative represents, (c)  to accompany an employee of the workgroup that the committee or representative represents, at the request of the employee, during any interview by the employer on any OHS issue, (d)  to be an observer during any formal in-house investigation of a notifiable incident (e)  to assist in the development of arrangements for recording workplace hazards and accidents to promote improved workplace health and safety, (f)  to make recommendations on the training for OHS committees, OHS representatives and employees. While HSRs are entitled to carry out similar functions to those of current OHS Representatives new HSCs will only be able to do so if agreed to with the PCBU. Note that the PCBU and HSC can agree to additional functions that may be applicable to the specific workplace, workgroup or industry e.g. development of SWMS, risk assessments. Background References Model WHS Act: s70-74 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s77

60 Obligations of PCBUs to the HSC
A PCBU must allow a member of the HSC, with respect to work health and safety matters: Reasonable time to: attend HSC meetings carry out functions as a member of the HSC Access to information on: hazards (including associated risks)and the health & safety of workers of the workgroup with the workers consent (information must not contain any information that may allow identification) Meetings of the HSC are to be held at least once every 3 months and any other reasonable time at the request of at least half the HSC. Key points In workplaces where HSCs are established, the model WHS Act requires that they meet at least every 3 months. A HSC can meet more often upon agreement between the HSC and the PCBU. The matters which the HSC are to be involved is subject to agreement between the PCBU and the HSC. Once this has been agreed to the PCBU is then required to allow HSC members reasonable time to undertake these duties. For example, if the HSC is to be involved in workplace inspections they must be allowed sufficient time to prepare, carry out the inspection and then to report back. While any HSR members are entitled to training, training for other HSC members will be a matter for agreement between the PCBU and the HSC. HSC members including management representatives will need sufficient knowledge and skills to participate in the role they undertake as HSC members involved in improving health and safety in the workplace. It is expected that additional guidance will be provided from Safe Work Australia and WorkCover on possible training for HSC members. PCBUs have the same requirements as imposed for HSRs when providing information on the health and safety of workgroups that it in no way identifies or could be used to identify individuals without the individual’s consent. Background References Model WHS Act: s79 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s79

61 Health & Safety Representatives (HSRs)
are to be elected from the workgroup they are to represent have a term of office of 3 years (previously 2 years) can cease to hold office for various reasons are not personally liable for anything either done or omitted in their role as a HSR if done in ‘good faith’ (immunity) are eligible for re-election (unchanged) are entitled to receive training upon request - certain functions cannot be performed unless trained e.g. issuing of Provisional Improvement Notices (PINs) and directing unsafe work to cease Can choose training provider in consultation with PCBU See Fact Sheet 4 for further detail. Key points The facilitator should expand on the key points mentioned in this slide. HSRs are eligible to be elected for a work group only if they are a member of that workgroup. Persons are not eligible if they have been disqualified under the WHS Act s65 e.g. for inappropriate behaviour with respect to their role. Procedures for the election process may be determined by the workers. If the workers so choose, the election can be conducted with the assistance of the union (other persons or organisation can also assist). All workers of a workgroup are entitled to vote e.g. contractors, labour hire that have been negotiated to be part of a workgroup. Note the term of office is now 3 years – re-election is permitted. HSRs are able to request training to which they are then entitled to receive. HSRs cannot issue PINS or direct work to cease unless they are the elected HSR and have undertaken the approved training. A HSR ceases to hold office if they: resign as the HSR (submitted in writing to the PCBU) cease to be a worker of the workgroup are disqualified (see Fact Sheet 4 and WHS Act s65) or are removed as the HSR by majority of workgroup A HSR is not personally liable for anything they have done or not done in their role as a HSR if it has been done in ‘good faith’. While there is no standard definition under NSW law, ‘good faith’ is generally considered to be any necessary actions taken with the right intent under the given circumstances. (i.e. carrying out their duty to the best of their ability with the given resources and with honest intention). For example, if a Provisional Improvement Notice (PIN) is issued by a HSR, and it is done because of serious concerns for health and safety and other attempts to resolve the matter have failed. Background References Model WHS Act s60-64 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s

62 Deputy Health & Safety Representatives (Deputy HSRs)
can use the powers and perform the functions of a HSR if the HSR no longer holds office or is unable to fulfil their role have same roles. powers & functions as HSR See Fact Sheet 4 for further detail. Key points The facilitator should expand on the key points mentioned in this slide. Deputy HSRs are eligible to be elected for a work group only if they are a member of that workgroup and are to be elected in the same manner as for the HSRs. They are not eligible if they have been disqualified under the WHS Act s65. The election can be conducted with the assistance of the union, if the workers so choose (other persons or organisations can also assist). The term of office is 3 years – re-election is allowed. Deputy HSRs are entitled to training they have requested. Training is only required if the deputy HSRs wish to exercise their right of issuing PINs or directing unsafe work to cease. Deputy HSRs cannot issue PINs or direct work to cease unless they are the elected deputy HSR, the HSR is unavailable and they have undertaken the approved training. A deputy HSR is also not personally liable for anything they have done or not done in their role as the deputy HSR if it has been done in ‘good faith’. A deputy HSR is entitled to perform the same functions and has the same powers as a HSR, when the HSR is not available or unable to perform their role. The WHS Act s64 (term), s65 (disqualification), s66 (immunity), s72 (training) and s73 (sharing of costs for multiple businesses) applies in the same way to Deputy HSRs as it does to HSRs. Background References Model WHS Act: s67, 64-66, 72-73 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s67 and s64-66,72-73

63 Powers and functions of HSRs
Functions of HSRs similar to current functions of OHS Representatives and OHS Committee members 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 risk to the health and safety of relevant workers Additional powers & functions (where trained to do so): Directing unsafe work to cease when necessary Issuing of provisional improvement notices when necessary How might HSRs monitor the measures taken by the PCBU? Key points Even when workers don’t make a request for HSRs, the PCBU can suggest to workers that they consider having a HSR to assist in reviewing, investigating and resolving health and safety issues on behalf of the workers. Note: The role of HSRs is very similar to the current role of OHS representatives. The HSR only represents the interests of the workgroup they have been elected from. The HSR can request the establishment of a HSC to assist in them in their role and to represent the interests of other workers. An elected HSR must always be included in any consultation on health and safety issues that may affect the workgroup they represent. Monitoring conditions in the workplace could include review of reports, undertaking workplace inspections, consultation with their workgroup. Directing work to cease and the issuing of PINs is covered in more detail in the following Module. Background References Model WHS Act s68, Part 5 Division 6 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s68

64 Activities of HSRs Inspecting all or part of the workplace:
at any time after giving notice at any time without notice after an incident or where there is a serious and immediate or imminent risk to the health & safety of a person. Accompanying an inspector during an inspection. Being present at an interview between a worker or a group of workers (with their consent) and an inspector or the PCBU. Key points HSRs are required to give reasonable notice to the PCBU before undertaking an inspection of the workplace or part of the workplace unless there is a serious threat to a workers’ health and safety . The HSR for the workgroup is entitled to accompany an inspector where an inspector is undertaking an inspection as part of issue resolution, after an incident or due to a report of a work health and safety issue. A HSR can only be present at interview between worker/s and an inspector or the PCBU in relation to work health and safety with the consent of the worker/s. Background References Model WHS Act: s68 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s68

65 Activities of HSRs Requesting the establishment of a Health & Safety Committee. Receiving information on the heath & safety of workers except personal or medical information (without the consent of the worker) unless the information cannot be used to identify the worker. Requesting the assistance of another person where necessary e.g. union representative. When might a HSR request assistance from another person? Key points Discuss why a HSR might request the establishment of a HSC e.g. to enable a more organisational wide focus on health and safety issues and be representative of all workers, to share information between workgroups and with management to provide support and assistance to the HSR. A HSR is not entitled to receive any information on health and safety of workers that may in any way identify a worker or lead to the identification of a worker. Discuss when a HSR might request assistance e.g. for particular expertise, for union support. The PCBU is not required to finance any person brought into provide assistance requested by the HSR unless agreed to by the PCBU. Safe Work Australia is currently developing a Handbook to assist worker representatives in their role. Background References Model WHS Act: s68 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s68

66 Limitation of HSRs’ Powers
HSR’s powers are limited to matters that affect/may affect workers they represent except: where there is a serious and immediate/imminent risk to the health & safety of members of another workgroup a member of another workgroup asks for assistance and the HSR for that workgroup (upon reasonable inquiry) is not available. HSRs are only permitted to issue PINs and direct unsafe work to cease if they have completed approved training. Key points Discuss situations where a HSR might become aware of another worker being exposed to a serious and imminent threat to health and safety e.g. in a workplace where other workgroups are present, an imminent danger exists and their HSR is not readily available. Inquiries must be made prior to any intervention being undertaken e.g. the relevant HSR might be elsewhere on site and could be called in. Reiterate that HSRs and deputy HSRs cannot undertake all their functions unless appropriately trained e.g. issue PINs or direct unsafe work to cease. Background References Model WHS Act: s69, Part 5 Division 6 Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s69

67 Obligations of PCBUs to HSRs
A PCBU must, in respect to HSRs, on work health and safety matters: Consult so far as is reasonably practicable Confer whenever reasonably requested Allow access to information on hazards and the health and safety of workers* Provide resources, time and facilities Allow access to the workplace to a person assisting the HSR Compile, keep up-to-date and display a list of HSRs and deputy HSRs (if any) and provide a copy to WorkCover. Key points A PCBU must consult with workers and with other duty holders. On some occasions, as previously discussed, consultation may not be possible but workers should be consulted at the first available opportunity after an action is taken. HSRs are required to raise concerns on behalf of their workgroup and are to be provided with all relevant information on hazards e.g. health effects in chemical data sheets, incident reports and investigations, general health reports for workers. Adequate resources must be provided for the HSR to perform their role including facilities, time to undertake functions and assistance as far as is reasonably practical. The PCBU must allow the HSR to attend interviews (with the worker’s consent) and accompany an inspector. HSRs are to be paid at the same rate they would otherwise be paid while undertaking their duties as a HSR. Where a worker has requested assistance from another person, the PCBU must allow that person to access the workplace (unless in some other way they are not entitled e.g. disqualified). A PCBU may deny access on reasonable grounds. The HSR may then ask for the decision to be reviewed by an inspector. PCBUs, after HSRs and deputy HSRs have been elected, must display a current list in areas where workers can see the notice e.g. main workplace and any other workplace that is appropriate. The PCBU is also required to forward a copy of this list as soon as possible after it is compiled to WorkCover. Background References Model WHS Act: s70-74 Model WHS Regulations: How to consult on work health and safety: Code of Practice WHS Act s70 -74

68 HSC and HSRs - Activity 2-
The facilitator will divide the group into smaller groups to review the scenarios in the Activity. The group will come back together to discuss the answers. Activity The facilitator is to divide the participants into small groups The group is to discuss the scenarios and determine their answers. The group can select a spokesperson to respond to the whole group discussion. The facilitator will have the whole group discuss their answers. The facilitator is to go through the selection and clarify any issues. The facilitator may wish to add in scenarios that relate particularly to the group they are training.

69 Provisional Improvement
Notices (PINs) A PIN can be issued by a suitably trained HSR if they believe a person: is breaching a provision of the WHS Act has breached a provision of the WHS Act and is likely to continue to or to repeat this breach. A PIN issued by the HSR may require the person to: remedy the breach prevent a likely breach from occurring remedy the things or operations causing the breach/likely breach. See Fact Sheet 5 for additional information. Key points The power to issue a PIN is a new concept under NSW WHS laws. The only person who can issue a PIN is a HSR who has been elected for a workgroup (or the deputy HSR) and who has received training prescribed under WHS legislation or that is equivalent to that training under a corresponding WHS law and approved by the regulator e.g. NSW WHS laws. This training provides HSR and deputy HSRs with the knowledge and skills needed to determine if and when a PIN is to be issued, the process for issuing a PIN and the information that must and may be included in the PIN. PINs are only permitted to be issued after the HSR has consulted with the PCBU on the matter. A PIN is to be issued where a contravention of the WHS Act is occurring; or has occurred and it is reasonably assumed that the breach is likely to be continued or repeated. The PIN must be issued in writing. An example of a situation where a HSR might issue a PIN is as follows: Training is not being provided to workers of the HSR’s workgroup for new work activities they are expected to undertake other than in a short, informal and ad hoc manner; there is no proposed schedule for training; and the PCBU has indicated in discussions that training is not likely to occur in the near future as no allowances have been made for this in budgets or in work scheduling. The HSR is entitled to issue a PIN for the purpose of helping to resolve the matter, indicating the part of the WHS Act that has been breached, the circumstances around the breach and to suggest remedies to prevent the breach from continuing or recurring at a later date. Background References Model WHS Act s90 Model WHS Regulation Fact Sheet 5: Issuing of PINS WHS Act s90

70 Cease Work and PINs - Activity 1 -
The facilitator will divide the group into smaller groups to review the scenarios to determine what actions are required and who has responsibilities in relation to these actions. The group will come back together to discuss the answers. Activity The facilitator is to divide the participants into small groups. The groups are to discuss and review the scenarios and determine what actions they would take. The facilitator is to go through the answers with the participants and clarify any issues. The facilitator may wish to add in scenarios that relate particularly to the group/industry being trained.

71 Provisional Improvement
Notices (PINs) A PIN cannot be issued to a person if: the HSR has not received the required training; the HSR has not firstly consulted with the person; or an inspector has already issued (or decided not to issue) an improvement or prohibition notice for the same matter. Note: HSR training provides the knowledge and skills required to issue a PIN and to direct unsafe work to cease. What information is required to be contained in a PIN? Key points Reference in the WHS Act to issuing of a PIN is to a person. This can be the PCBU or any other person such as a worker (remembering the wider definitions of workers to include contractors, labour hire etc.) that is breaching or, has breached and is likely to do so again, a provision of the WHS Act. As mentioned previously, the HSR must be suitably trained. The HSR is required to consult with the person before they can issue a PIN. This may involve consultation with a worker, a PCBU for a different workplace or other workers. For example, where a worker is working at a workplace controlled by another PCBU and an issue arises with other contract workers, the HSR would need to consult with the relevant PCBUs and the other workers. In a situation where an inspector has already reviewed the issue and has either decided to: issue an improvement or prohibition notice or proceed to another form of enforcement available under the WHS Act or has decided to take no further action the HSR cannot issue a PIN for the same matter. Discuss with the group what sort of information they think must be included and anything else that could be included when issuing a PIN. Remind participants that a PIN is issued to provide an opportunity for a health and safety issue to be resolved before any harm to workers can occur. Background References Model WHS Act s90 Model WHS Regulations Fact Sheet 5: Issuing of PINS WHS Act s90

72 Provisional Improvement
Notices (PINs) A PIN must be in writing and state: the HSR believes a person is in breach of the WHS Act, or is likely to continue or repeat the breach; what that provision is and how it is being breached; and a date as to when the breach is to be remedied. A PIN may also state: directions on what is required to remedy or prevent the breach (this may include a reference to a Code of Practice); the cause or likely cause of the breach; and/or a choice of ways in which the breach could be remedied. Key points The intent of issuing a PIN to a person is to provide that person with a clear indication of what the HSR believes the person is contravening in regard to the requirements of the WHS Act and a timeframe in which the situation is to be remedied. The date as to when the breach is to be remedied is to be at least 8 days after issue of the notice. The PIN must describe how this provision is being breached. For example, the WHS Act requires a PCBU to provide training and information (what is being breached) and at a new workplace, there has been no training in specific work activities and or no site inductions (how the breach is occurring). The PIN must include a date, no less than 8 days from the issue of the PIN, to allow the breach to be rectified. Whilst it is not mandatory for inclusion in the written PIN, the WHS Act has provision to allow HSRs to include in the PIN information on: What the HSR believes to be the likely cause of the breach. Using the example from above, inductions haven’t been updated and are therefore are not applicable to the new site. No individual has been allocated responsibility to maintain the inductions. Directions on how the contravention is to be remedied. For example, if the workplace had inadequate facilities the HSR may direct the person to utilise the Code of Practice: Managing the Work Environment and Facilities and Code of Practice: Facilities for construction sites for guidance. Based on consultation with various parties, including union representatives with wide experience across many workplaces in a given industry, the HSR may suggest a number of ways in which a breach could be remedied. Background References Model WHS Act s91-99 Model WHS Regulations Fact Sheet 5: Issuing of PINS WHS Act s91-99

73 Provisional Improvement Notices (PINs) - requirements
Issuing a PIN A notice can be delivered personally or by post, fax or electronically. Display A person who is issued a PIN must display it, as soon as practicable upon receipt, in a prominent place at or near the workplace or work areas affected by the PIN. Cancellation A HSR can at any time cancel a PIN in writing to the person issued the PIN. Irregularities A notice is not invalid because of a formal defect or irregularity (e.g. in the wording, section breach or name of the person identified in the PIN) unless it is likely to cause a substantial injustice. Compliance A PIN must be complied with, within the time specified on the PIN. Key points The requirements for delivery of notices including the issuing of PINs are addressed in s209 of the WHS Act (additional information to this slide is also provided in Fact Sheet 6). As soon as practicable after being issued, a PIN must be displayed in a prominent place at or near the workplace or in the part of the workplace where work is being carried out that is affected by the notice. A displayed notice, while in force, must not intentionally be removed, destroyed, damaged or defaced by any person. A HSR may at any time, provided they do so in writing, cancel a PIN. Discuss with participants why this might occur e.g. the person to whom the PIN was issued has remedied the issue; or a chemical that was the subject of a PIN has been removed from site and is not to be used again. A PIN does not become invalid because of a formal defect such as reference to the wrong section of the WHS Act or an irregularity (e.g. minor detail in the wording of the breach, incorrect address, incorrect spelling of a name) unless the information is likely to cause a substantial injustice. A HSR may make minor changes to a PIN for the purposes of: clarification e.g. how the breach is actually occurring providing more detail correcting errors or references reflecting changes of address or other changed circumstances. Where a PIN has been issued and the regulator decides that an inspector is not required to attend the workplace, the person issued the PIN must comply with the notice within the timeframe specified. This provision is intended to streamline activities to remedy health and safety issues in the workplace, given there are only a limited number of inspectors available to attend site and the issue may readily be resolved without their attendance. Background References Model WHS Act s209, Model WHS Regulations Fact Sheet 5: Issuing of PINS WHS Act s209, 97-99

74 Improvement Notices (PINs)
Review of Provisional Improvement Notices (PINs) Requirements under the WHS Act relating to a PIN include: request for review by the person to whom the PIN was issued; inspector’s review; and possible outcomes of a review by an inspector. Fact Sheet 6 provides a flowchart for the issuing of PINs and some additional information on the requirements for PINs. Key points The person issued a PIN may, within 7 days of being issued the notice, request the authority for a review of the PIN. Where a PIN is issued to a worker, the PCBU in control of the workplace where the worker is carrying out their activities can request a review. The request is to be made to WorkCover to appoint an inspector. WorkCover is then required (under the WHS Act) to ensure that an inspector attends the workplace as soon as practicable after the notice is issued. The inspector will then review the PIN and make inquiries into the circumstances involved in the issuing of the PIN. The inspector is still permitted to review the PIN when the period for compliance with the notice as recorded on the PIN has expired. Outcomes of review: The WorkCover inspector must after reviewing the suspected breach and investigating either: Confirm the PIN, Confirm the PIN with changes; or Cancel the PIN. A PIN that is confirmed (with or without changes) by an inspector is taken to be an Improvement Notice issued by an inspector under the WHS Act and must be complied with. Background References Model WHS Act s209, Model WHS Regulations Fact Sheet 5: Issuing of PINS WHS Act s

75 Ceasing unsafe work There may be times when work is unsafe and serious actions may need to be taken. Can you think of such a situation? New provisions under the WHS Act for situations considered to involve unsafe work include: Rights to cease unsafe work or be directed by a HSR to cease unsafe work; and HSRs (and deputy HSRs) having the power to issue a Provisional Improvement Notice (PIN). HSRs can only exercise these powers if they are trained to do so. Key points The WHS Act gives very clear definition around the rights of workers to stop work (without penalty) that they consider to be unsafe and poses an immediate or imminent risk. HSRs (and deputy HSRs, when the usual HSR is unavailable or unable) are entitled to direct workers to cease work that they consider to be unsafe and that poses an imminent or immediate risk but only if trained to do so. Appropriately trained HSRs (and trained deputy HSRs when the usual HSR is unavailable or unable) where the risk is not immediate have the option of issuing a PIN. There are stipulations as to how this is to occur and this is discussed in detail in this module. HSC members, unless they are also elected and trained HSRs or trained deputy HSRs do not have the power to issue PINs or direct the cessation of work. Background References Model WHS Act Part 5 s83-103 Model WHS Regulations WHS Act s83-103

76 Workers’ right to cease work
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 & safety from immediate or imminent exposure to a hazard. Have you previously experienced situations where you needed to stop work? Would you refuse to work if you had serious concerns about a risk to health and safety? What actions would you take immediately after stopping or refusing to undertake unsafe work? Key points Discuss the following with participants: A key component for the existence of a strong safety culture in the workplace is for workers to feel secure in being able to stop or not proceed with work that poses a serious and immediate/imminent risk to health and safety without repercussions. While the right to cease or not proceed with work has always existed under common law, the right to do so is now clearly spelt out in the WHS Act. The WHS Act secures this right by also providing protection for workers from being adversely affected or ‘punished’ for taking such actions. While it is expected that mechanisms for consultation are utilised in relation to concerns for workers’ health and safety, there may be situations where the risk is so serious and imminent that immediate action is required and consultation is not possible. For example, workers may be working off site and a supervisor is not immediately available to discuss and resolve a serious and immediate risk. Workers must have reasonable grounds for taking actions to cease or not proceed with work as there can be significant consequences and inconvenience to others for taking such actions. For example, costs for the PCBU when work is halted for prolonged periods or other workers who cannot proceed with their activities. There may be situations where an inspector has been requested to resolve an issue, but the threat remains so serious and immediate/imminent that the law permits the worker to cease work if considered necessary (s82(3)(a)) before the inspector has reviewed or inspected the matter. Background References Model WHS Act s84 Model WHS Regulations WHS Act s84

77 Requirements when ceasing unsafe work
When a worker ceases unsafe work they must: notify the PCBU, as soon as practicable, unless directed to stop work by a HSR (in which case the HSR notifies the PCBU); remain available to undertake alternative work. Alternative work A PCBU can direct a worker to do other safe, suitable work at the same or another workplace until normal duties can be resumed. The worker in doing so retains continuity of engagement. An inspector may be requested by the worker, PCBU or the HSR to assist in resolving the issue. Key points Where a worker has taken action to cease work because of safety concerns, they are required to inform the PCBU as soon as practicable (e.g. they may be working at an isolated site with limited communication). Where the worker has been directed by a HSR (or a deputy HSR acting when the HSR is unable) to cease work, it is the responsibility of the HSR to inform the PCBU. Workers are not entitled to leave the work area (unless unsafe) and must remain available to undertake other work as requested by the PCBU. The alternative work must be suitable, safe and appropriate for the workers. Workers cannot be requested to undertake work that they may not be trained or qualified to do or, that is not suitable in its’ nature. The PCBU is entitled to request the worker to undertake suitable work at another work site if necessary. If a worker ceases work, the worker cannot be penalised in the continuity of engagement for doing so, as long as they have not unreasonably failed to undertake alternative work that is safe and suitable at the workplace or another workplace. The worker who has ceased work, the HSR who has directed the cessation or the relevant PCBU is entitled to request WorkCover to appoint an inspector to assist in resolving the issue. Background References Model WHS Act s82-89 Model WHS Regulations WHS Act s83-89

78 Right of HSRs to direct workers
to cease unsafe work A HSR (if trained) may direct a worker of their workgroup to cease unsafe work: if they have a reasonable concern that doing the work would expose workers to a serious risk to their health & safety from immediate or imminent exposure to a hazard; and only after attempting to consult and resolve the matter with the PCBU, unless there is a serious risk to a worker’s health & safety emanating from an immediate or imminent exposure to a hazard (in which case consultation must occur as soon as practicable after the unsafe work has ceased). The HSR must inform the PCBU of any direction to cease unsafe work. Key points The HSR is not entitled to give a direction to cease unsafe work unless they have completed the required training that has been prescribed under WHS legislation or equivalent approved training under a corresponding WHS law e.g. NSW WHS laws. A HSR, if trained, is then entitled to direct workers of the workgroup they represent to cease work if they have serious concerns for their immediate health and safety. They are only permitted to do so after: they have consulted on the matter with the relevant PCBU for who the workers are undertaking the work (e.g. a PCBU at another workplace where the worker is a contractor);and they have attempted to resolve the matter in accordance with the WHS Act’s requirements for issue resolution. The HSR is, however, entitled to direct unsafe work to cease without consultation if the risk is so serious and immediate that it is unreasonable to consult. In this instance, consultation with the PCBU must occur as soon as practicable after directing the cessation of work. The HSR must inform the PCBU of any direction they have given to cease work. A HSC member, if not a trained HSR or deputy HSR, is not entitled to direct unsafe work to cease. Background References Model WHS Act: s85-89 Model WHS Regulations WHS Act s85-89

79 Cease work and PINs - Activity 2 -
The facilitator will divide the group into smaller groups to review the scenarios and determine what information the HSR would include in the sample PIN. The group will come back together to discuss the answers. Activity The facilitator is to divide the participants into small groups. Each group is to review the scenarios provided and determine what information they would include, both mandatory and other information in a PIN to be issued by the HSR for the breach. The group can select a spokesperson to respond to the whole group discussion. The facilitator will have the whole group discuss their answers. The facilitator is to go through the selection and clarify any issues. The facilitator may wish to add in scenarios that relate particularly to the group they are training.

80 Resolution of health & safety issues
The issue resolution process applies where a work health and safety issue remains unresolved. PCBUs are expected to establish and utilise issue resolution procedures in consultation with workers and other relevant parties. Where an issue resolution procedure is not in place, the WHS Regulation provides a default procedure. See Fact Sheet 7 for the issue resolution requirements and flowchart See Fact Sheet 5 for the issue resolution requirements and flowchart Key points The issue resolution process of the WHS Act applies where an issue about work health and safety at the workplace or arising from the activities of a business or undertaking remains unresolved after reasonable attempts to resolve the matter. Fact sheet 7 presents a flow chart where an issue is unresolved. All parties must firstly make a reasonable attempt to achieve a solution that is timely, final and effective. Any interim measures need to be based on a final solution being implemented within a reasonable time. It is important that workplaces aim to establish a written issue resolution procedure (an agreed procedures) prior to this type of situation arising. The procedure may cover all of the steps of the default issue resolution procedure outlined in the WHS Regulation. Where there is no established procedure the resolution process is to occur in accordance with the default procedure stipulated in the WHS Regulations. Background References Model WHS Act: s Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s

81 Resolution of health & safety issues
Under the WHS Act ‘parties’ involved in relation to an issue include: A PCBU or their representative; Where more than one business or undertaking is involved, the PCBU for each or their representative; Where workers of a workgroup are affected, their HSR or their representative; Where the worker/s are not in a workgroup, the worker/s or their representative (this can be a union representative). The person representing the PCBU must: Have a level of seniority and competency to act as the PCBUs’ representative. Not be a HSR. Key points A person representing any of the parties (e.g. union rep, officer of the PCBU, HSR of another PCBU) involved in the issue resolution process is entitled to enter the workplace for the purpose of attending discussions intended to resolve the issue. Note that a union representative is able to participate in the issue resolution and is entitled to enter the workplace for discussions to help resolve the issue. Note that the person representing the PCBU must be of a seniority and competency that allows them to act on behalf of the PCBU. This will help ensure the streamlining and effectiveness of the process. Background References Model WHS Act: s Model WHS Regulations How to consult on work health and safety: Code of Practice WHS Act s

82 Issue Resolution - Activity 1 -
The facilitator will divide the group into small teams groups to review the scenario and determine steps in the issue resolution process. The group will come back together to discuss their responses. Activity The facilitator is to divide the participants into small groups The group is to discuss the statements and determine if they are true or false. The group can select a spokesperson to respond to the whole group discussion. The facilitator will have the whole group discuss their answers. The facilitator is to go through the selection and clarify any issues. The facilitator may wish to add in scenarios that relate particularly to the group they are training.

83 Conduct in relation to health
and safety matters With the new powers and duties of various persons under the WHS Act, provisions have been made to protect anyone acting in good faith for the purpose of ensuring health and safety in the workplace. What type of conduct do you think may occur that requires protection under the law? Key points As discussed previously, all persons having duties under the WHS Act, require the protection of the law to enable an open safety culture where people are not afraid to report or raise concerns with respect to health and safety in the workplace. The provisions of the WHS Act prohibit any conduct which will deter people from active involvement in various activities associated with the management of health and safety e.g. risk management, consultation, issue resolution, investigations, issuing of PINs. The WHS Act provides that a person who engages in unlawful discrimination towards another person for the prohibited reasons (i.e. for the purposes of ensuring health and safety in the workplace) can face significant penalties e.g. an individual $100,000 and a body corporate $500,000. Discuss with participants the type of conduct that may be the subject of unlawful discrimination. Again the broadening of duties to include all workers and PCBUs ensures that persons such as contractors are not penalised where they have taken actions to ensure work health and safety e.g. cease unsafe work, issuing of a PIN. Background References Model WHS Act s Model WHS Regulations WHS Act s

84 Conduct in relation to health
and safety matters Persons that are protected under the WHS Act Act, perform/or not perform their functions or exercise their powers (where applicable ) as HSRs, deputy HSR, HSC members, WHS entry permit holders or any other role in accordance with the WHS Act. Assist or give information to persons using a power or performing a function under the WHS Act. Raise an issue or concern about work health & safety with PCBU/s, other workers, persons with roles and functions or an inspector. Be involved in resolving a work health and safety issue. Take action to seek compliance with WHS duties and obligations. Key points The conduct that is protected from discriminatory behaviour under the WHS Act includes the activities of persons who are undertaking their role under the WHS Act e.g. a HSR directing unsafe work to cease or a person who cooperates or assists with this direction; a worker providing information to a person who is undertaking activities permitted under their role. Discuss with participants examples of each of the actions covered that may be particular to their workplace. Background References Model WHS Act s106 Model WHS Regulations WHS Act s106

85 Conduct in relation to health
and safety matters Provisions are also in place to ensure that persons with powers do not abuse them. What type of behaviours may be considered as: Discriminatory? Coercive? Misleading? See Fact Sheet 7 for information on discriminatory, coercive or misleading behaviour. Key points Provide and seek examples from participants in relation to the following points. A person only commits an offence under the WHS Act if the dominant reason for the discriminatory behaviour is conduct by a person in relation to health and safety activities. Discriminatory conduct is considered to be if a person does, organises or threatens to: In regards to a worker: dismiss or terminate a contract for services with a worker; or alter the position of a worker to the worker's detriment; or In regards to a prospective worker: refuse or fail to offer to engage a prospective worker; or treat a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement; or Terminates, refuses or fails to enter into a commercial arrangement with another person. The WHS Act also makes it clear that is illegal for a person to request, instruct, induce, encourage, authorise or assist a person in discriminatory behaviour. Coercion or inducement: A person must also not organise or threaten to take actions against another person with the intent of coercing or inducing them in relation to performing (or not performing) their role; exercising or not their powers; or from taking or continuing in a role under the WHS Act e.g. a person attempting to persuade individuals not to take a role as a HSR or to cease unsafe work. Misrepresentation: To support the prohibition of coercion or inducement under the WHS Act, a person can be fined for knowingly or recklessly making false or misleading representation to another person about the other person’s: rights or responsibilities; or ability to initiate or participate in a process or proceedings e.g. request the election of a HSR or the establishment of a HSC, cease unsafe work; and/or ability to make a complaint or inquiry to a person or other body e.g. WorkCover, that has the power to seek compliance with the WHS Act. Background References Model WHS Act s WHS Act s

86 Issue Resolution - Activity 2 -
The facilitator will divide the group into small teams groups to review the statements in the table and determine if they are true or false. The group will come back together to discuss the answers. Activity The facilitator is to divide the participants into small groups The group is to discuss the statements and determine if they are true or false. The group can select a spokesperson to respond to the whole group discussion. The facilitator will have the whole group discuss their answers. The facilitator is to go through the selection and clarify any issues. The facilitator may wish to add in scenarios that relate particularly to the group they are training.

87 Role of the Inspector

88 Functions and Powers of
Inspectors WorkCover NSW inspectors have a greater role under the WHS Act in advising and supporting workplaces and can: Provide advice about work health and safety matters; Assist in the negotiation of consultation arrangements; Assist in resolving work health and safety issues and relevant access/right of entry issues including anonymous complaints; Require compliance with the WHS Act through issuing notices; Review of Provisional Improvement Notices (PINs); and Investigate breaches of the law and assist in prosecutions. Key points Discuss the following with participants: Inspectors are appointed by WorkCover to provide advice to duty holders under the WHS Act, assist to resolve work health and safety issues and to monitor compliance. Inspectors have been given a greater role in advising and supporting workplaces in meeting the requirements of the WHS Act. They will be involved in helping establish consultation arrangements where negotiations falter and in helping resolve work health and safety issues. They have a varied range of functions (as above) to achieve these objectives. Inspectors are also able to instigate proceedings against an alleged offender with the written permission of the regulator. Inspectors can also be required to attend coronial inquests with respect to work related deaths and to examine witnesses. Background References Model WHS Act s160 WHS Act s160

89 Additional Powers of Inspectors
Workplace Entry Inspectors: may enter workplaces at any time without prior notice; and are required to take all reasonable steps to notify the PCBU of their entry in that workplace, the person in control or managing the workplace and any relevant HSR (except where to notify would defeat the purpose for entry or cause unreasonable delay). What things might inspectors do while in the workplace that may impact on you? Key points Inspectors have the power to enter a workplace, or suspected workplace, at any time and for any reason. Once they have entered a workplace, inspectors have a broad range of powers – some examples include: Inspect and examine the workplace and any item or document at the workplace; Bring to, and use equipment or other materials at the workplace; Take measurements and samples, conduct tests, and make recordings or sketches (including photos, video and audio recordings); and Require any person at the workplace to assist them to carry out their enquiries. An inspector may apply to a magistrate for a search warrant to assist the inspector in obtaining evidence. Background References Model WHS Act s WHS Act s

90 Inspector’s Powers An inspector can require a person to give assistance, answer questions and provide information or documents. This must be complied with even if it means the person incriminates them self, or may be liable to a penalty. However, the answers, information and documents provided are not admissible in either criminal or civil proceedings (except where the answers are false or misleading). A person may be required by an inspector to provide their name and residential address. Key points Discuss the following with participants: Inspectors have the power to require that people in the workplace provide them with information, including answering questions or providing documents. The person is not allowed to refuse to provide information on the grounds that this would tend to incriminate them in a breach of the WHS Act, or expose them to a penalty. The WHS Act provides protection against self-incrimination – the answers, information and documents obtained cannot be used in court, in either civil or criminal proceedings (unless the person has provided false or misleading information). The purpose of this protective provision is to allow the inspector to gather the necessary information they require to complete their enquiries while protecting the legal rights of the individual. A further exception is where a document is subject to legal privilege – i.e. where a document has been prepared for the main purpose of providing legal advice, or for legal proceedings – a person can decline to produce it. An inspector has the power to demand a person at a workplace provide their name and residential address under certain circumstances, and the person may be prosecuted if they provide false details. Background References Model WHS Act s165, 172, 185 WHS Act s165, 172, 185

91 Offences against Inspectors
Inspectors are protected by the law in performing their functions. A person must not: Intentionally hinder or obstruct (or encourage anyone else to do so) an inspector in exercising their powers. (Fines of up to $10,000 for an individual and $50,000 for a body corporate may apply) Directly/indirectly assault, threaten or intimidate or attempt to do so to an inspector or any person assisting an inspector. (Fines of up to $50,000; 2 years imprisonment or both may apply to an individual and fines of up to $250,000 may apply to a body corporate) Fines of up to $10,000 apply to any person falsely claiming to be an inspector Key points Discuss the following with participants: Inspectors are afforded additional protection under the WHS Act in performing their functions. Discuss ways in which a person may hinder the activities of the inspector e.g. not providing relevant information, making it difficult to access a work area or equipment. Significant fines have been put in place under the WHS Act to protect inspectors from any attempts to threaten, intimidate or assault the inspector while performing their functions. Individuals can, if convicted, face a jail sentence along with significant fines. Background References Model WHS Act s WHS Act s

92 Your Union’s Role in Work Health & Safety *
Explain that the role encompasses part of the old framework of right of entry and also a changed supportive framework and consultation role.

93 Definitions relating to
WHS entry Official of a union: a person who holds an office or is an employee of the union Relevant union: the union that the WHS entry permit holder represents Relevant worker: a worker: who is a member or eligible to be a member of a relevant union; and whose industrial interests the relevant union is entitled to represent; and who works at the workplace. Key points Some additional definitions have been included in section 116 of the WHS Act to clarify the requirements for unions and their representatives. Note that a worker does not have to be a member of the union but must be eligible to be a member of that particular union or be a worker whose industrial interests the union is entitled to represent. With the broader definition of workers (as qualified above), union representatives from industries that may not usually be represented at a workplace may be entitled to enter as WHS entry permit holders. Background References Model WHS Act: s116 Model WHS Regulation WHS Act s116

94 WHS entry permits A WHS entry permit is issued to an eligible person for the purpose of: inquiring into a reasonably suspected contravention of the WHS Act that has or is occurring that relates to/affects a relevant worker. consulting and advising on work health & safety matters to one or more relevant workers who wish to participate in the discussions. Term: A WHS entry permit is valid for 3 years from the date of issue*. Key points A WHS entry permit holder is the new terminology for an eligible representative of a relevant union for workers at a workplace (currently referred to as an authorised representative). To enter a workplace a WHS entry permit holder must have reasonable grounds to suspect that a contravention of the WHS Act is occurring or has already occurred and that a recurrence is likely. The matter must relate or directly affect a relevant worker. WHS entry permit holders are also entitled to enter a workplace to hold discussions with persons they represent and advise on work health and safety issues. They may also enter at the request of the HSR to assist. A WHS entry permit has a limited term of 3 years and can be terminated for various reasons (discussed later). There are eligibility criteria for persons to be issued a WHS entry permit that are stated in the legislation. *Although the Regulations are not finalised WHS entry permit holders should be aware that the Fair Work Act carries a $6000 fine for not returning your entry permit within 7 days of its expiry or cancellation, and a similar rule may apply to WHS entry permits in the regs. Background References Model WHS Act: s117,121 Model WHS Regulations Fact Sheet 6: WHS entry permit WHS Act s117, 121

95 Requirements for WHS entry permit holders
A WHS entry permit holder (union representative) is required to: Complete approved training Exercise their rights only in the areas relevant to or directly affecting the relevant workers. Exercise their rights only during usual working hours. Notify the PCBU of their entry in relation to a suspected contravention after entering, except where this would defeat or hinder the purpose. Notify the PCBU 24 hours prior to entering to consult and advise workers. A WHS entry permit holder: Is not required to disclose to the PCBU the name of any worker at the workplace without the worker’s consent. Must not enter residential premises.* Key points To be a WHS entry permit holder the union must apply on behalf on that individual person for a WHS entry permit. The permit may be issued with conditions attached. The permit, if approved, is only a permit for that individual for entry to a workplace on a WHS matter. The individual whose name appears on the application must also hold an entry permit under the Fair Work Act 2009 s Many of the requirements for the right to entry under this legislation are mirrored in the WHS Act e.g. notification, access to records, inspections etc. 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. Another key requirement of being granted a WHS entry permit is that the individual has satisfactorily completed training prescribed under the WHS legislation and approved by WorkCover. Clarification around the content of training will be provided by Safe Work Australia and WorkCover in the coming months. Entry without notice: WHS entry permit holders can enter the workplace if there is a suspected contravention without prior notice to the PCBU but must notify the PCBU as soon as possible after entering unless to do so would defeat the purpose e.g. cause something to be altered, removed or replaced prior to entry. Prior notice of entry: With the newly introduced right to enter to advise and consult on WHS issues, the WHS entry permit holder is required to give the PCBU 24 hours prior notice, an approach that can encourage cooperation and consultation between the PCBU, workers and their union representatives. Remind participants that WHS entry permit holders are entitled to exercise their rights under WHS legislation e.g. inspect plant, documentation etc. only in the relevant areas. They are not entitled to apply these rights in areas that do not directly affect the workers they represent. Protection of identity: Workers can feel assured of confidentiality when requesting assistance and advice from a WHS entry permit holder as they are afforded protection under the WHS legislation that the WHS entry permit holder is not required to provide names without the worker’s consent. * WHS entry permit holder cannot enter any part of a workplace that is only used for residential purposes. Background References Model WHS Act s WHS Act s

96 requirements for PCBUs
WHS entry permits requirements for PCBUs A PCBU: is not required to allow a WHS entry permit holder to inspect or copy documents if to do so would contravene any law e.g. Privacy Act 1988 Persons must not however, without reasonable excuse, refuse entry to the relevant workplace refuse or allow inspection or copying of relevant documentation. Note: Where employee records e.g. training records, or other relevant documentation is held by someone other than the PCBU, 24 hours notice to inspect and copy is required. Key points A PCBU is protected from having to provide information that may infringe on other state and Commonwealth laws. A request may also be made by a worker to the PCBU not to disclose certain information e.g. based on privacy concerns and the PCBU may then reasonably refuse the request from the WHS entry permit holder. In some instances, records pertaining to the suspected breach or work health and safety issues may be held by another organisation. For example training records, certificates and training content may be held by a Registered Training Organisation (RTO); or worker health records may be held offsite at a medical facility. If it is determined that the information directly related to the suspected breach is required and permitted to be inspected and/or copied, the WHS entry permit holder is required to give 24 hours notice of the request to the relevant organisation. Background References Model WHS Act: s118 Model WHS Regulation Fact Sheet 6: WHS entry permits WHS Act s118

97 WHS entry permit holder
As a WHS entry permit holder, the union representative is entitled to: Inquire into a suspected contravention of the WHS Act that relates to relevant workers (as defined); Inspect any work, plant, substances, structure or relevant thing at the workplace in relation to the contravention; Inspect and copy any document directly related to the suspected breach; Consult and advise with relevant workers on work health & safety; Consult with the PCBU about the suspected contravention; Warn any person who may be exposed to a serious and immediate health & safety risk. Key points Once the WHS entry permit holder has entered the workplace in relation to a suspected contravention to do with relevant workers, they are then entitled to inspect any relevant thing in relation to the suspected contravention or about which workers have health and safety concerns. The WHS legislation requires that the PCBU must not, without reasonable excuse, refuse or fail to comply with the requirement to permit inspection and copying of relevant documentation. This includes documentation that may be held either at the workplace or be accessible from a computer at the workplace e.g. through the organisation's server. WHS entry permit holders have additional rights under the WHS Act (not previously available under current NSW OHS legislation) to: consult with relevant workers (i.e. workers that the union represents or is entitled to represent) and warn any person (that is any worker or other person at the workplace and not just those from the union the workers belong to) when the WHS entry permit holder reasonably believes there is a potentially serious and immediate or imminent threat to health and safety of those persons. Background References Model WHS Act s WHS Act s

98 Actions not permitted in relation to WHS entry permits
A person must not: Refuse or unduly delay entry of a WHS permit holder into a workplace they are entitled to enter, without reasonable cause Intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or exercising their rights. A person must also not: Give the impression they are doing something under the WHS Act, that is not authorised (unless they believe otherwise) Use or disclose information/documentation obtained in an inquiry, unrelated to the inquiry except in certain circumstances e.g. illegal activities are suspected, serious risk could be reduced. Key points A person, whether they be a representative of a PCBU, a worker or other person at the workplace, must not hinder or delay access by the WHS permit holder to the workplace or in any way hinder them exercising their rights. This might include delaying access to an area of concern; or hindering and delaying access to relevant information or access to relevant workers who may be involved. A person, for example, WHS entry permit holder, HSR, HSC member is prohibited from taking any action and giving the impression that it is their right or function to do so if any action is not authorised under their role or duties in the WHS legislation. The only time this prohibition does not apply is if the person mistakenly believes the action they are taking is authorised in their role. This highlights the importance of people being trained in prescribed training and in keeping up to date with information pertaining to the rights and responsibilities of their role under WHS legislation. If a dispute arises regarding a WHS permit holder exercising a right of entry, the authorising authority: can be requested by any party to the dispute for appointment of an inspector to attend the workplace and assist in resolving the dispute; deal with the issue how it sees fits including through mediation, conciliation or arbitration; if dealing with the dispute through arbitration, may make one or more orders (See Fact Sheet 7) Any party to a dispute regarding the right of entry of a WHS entry permit holder is entitled to request WorkCover to appoint an inspector to attend the workplace and assist in the resolution of the dispute. An application to the authorising authority to assist in resolving a dispute about a right of entry can also be made by the WHS entry permit holder or the relevant union; the relevant PCBU; any other person in relation to whom the WHS entry permit holder has exercised their rights or person affected by the exercise of those rights. For example, a worker, another PCBU or worker engaged by another PCBU; or WorkCover. Background References Model WHS Act: s Model WHS Regulations Fact Sheet 6: WHS entry permits WHS Act s ,

99 Your Union’s Role - Activity 1-
The facilitator will divide the group into small teams to review the Activity. The group will come back together to discuss the answers with the facilitator. Activity The facilitator is to divide the participants into small groups. The group is to discuss the scenarios and determine their answers. The group can select a spokesperson to respond to the whole group discussion. The facilitator will have the whole group discuss their answers. The facilitator is to go through the responses and clarify any issues. The facilitator may wish to add in scenarios that relate particularly to the group they are training.

100 Other functions under the WHS Act
A worker’s representative (e.g. union representative) is entitled to: Negotiate on an agreement for work groups on behalf of a worker with the PCBU and for multiple businesses including negotiating for 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 – the PCBU is required to allow a person assisting a HSR to have access to the workplace where necessary. Key points A union representative is also entitled to assist workers in areas other than those that are functions of the WHS entry permit holders. This includes the following: s52 Negotiation for agreement for work group: These provisions allow for a ‘worker’s representative’, at the worker’s request, to negotiate with a PCBU to determine work groups from which HSR/s will be elected. The ‘workers’ representative’ is also entitled to be party to any negotiations for a variation in any agreements made on workgroups. The PCBU is prohibited from excluding the ‘workers’ representative’ from any of these negotiations once the request has been made by the worker. s54 Failure of Negotiations: Where these negotiations fail, any party to the negotiations including the ‘workers representative‘ is entitled request the assistance of an inspector in the negotiations. s56 Negotiation for agreement for work groups of multiple businesses: These provisions allow for a ‘workers’ representative’ at the workers’ request to negotiate with the PCBUs to determine workgroups from which HSR/s will be elected. The ‘workers’ representative’ is also entitled to be party to any negotiations for a variation in any agreements made on workgroups. The PCBUs are prohibited from excluding the ‘workers’ representative’ from any of these negotiations once the request has been made by the worker. Where these negotiations fail, any party to the negotiations including the ‘workers’ representative is entitled to request the assistance of an inspector in the negotiations. s61 Procedure for election of HSRs: Where the majority of workers in a workgroup agree, the union can provide assistance in conducting the election. s68 Powers and functions of HSRs: Whenever necessary, the HSR can request the assistance of any person e.g. a union representative. The PCBU is not required to finance this request. Background References Model WHS Act s52,54,56,61,68 WHS Act s52,54,56,61,68

101 Roles of unions under the WHS Act
Participate in the issue resolution process on behalf of a workgroup or worker if requested, and enter the workplace to participate in discussions aimed at resolving the issue. Request the assistance of an inspector if the issue resolution process fails. In NSW, under the WHS Act the unions may: Prosecute Category 1 and Category 2 offences where WorkCover elects not to prosecute a breach identified by the Department of Public Prosecutions (DPP). Prosecute Category 3 offences. Key points Facilitators should continue to discuss the following activities the unions may undertake in representing their members or potential members. s80 Parties to an issue: Where a worker or workers affected by a work health and safety issue are not part of a work group, they are entitled to have a representative (e.g. Union representative) to participate in the issue resolution process on their behalf. s81 Resolution of health and safety issues: A person representing any of the parties (e.g. union representative, officer of the PCBU, HSR of another PCBU) involved in the issue resolution process is entitled to enter the workplace for the purpose of attending discussions intended to resolve the issue. s82 Referral of issue to regulator for resolution by inspector: After attempts to resolve an issue have failed, any party to the matter can request an inspector to attend the workplace and assist in resolving the matter. s Prosecutions: The unions have retained the right to prosecute in NSW in certain circumstances. Union are entitled to prosecute Category 3 offences. Provision exists for a person who considers a Category 1 or 2 offence has been committed to make a written request to the regulator for the prosecution to be brought. If WorkCover advises the person that a prosecution will not be brought that person is then entitled to request the regulator to refer the matter to the DPP for consideration. If WorkCover does not follow up on a breach identified by the DPP for a Category 1 or Category 2 offence ,the union may proceed with a prosecution themselves. Background References Model WHS Act s80-82, s WHS Act s

102 Prosecutions and unions
Unions have retained the right to prosecute certain WHS offences in NSW. Proceedings for an offence against the WHS Act in NSW can be brought by: WorkCover; or an inspector with the written authorisation of the WorkCover; or the unions for a Category 3 offence; or a Category 1 or Category 2 offence where the Director of Public Prosecutions (DPP) has identified a breach and WorkCover has elected not to commence proceedings. Key Points Currently NSW and Tasmania are the only states where unions can initiate prosecutions. Under the WHS Act in NSW, WorkCover, as the regulator, is able to prosecute and the Director of Public Prosecutions (DPP) can recommend WorkCover prosecute. The unions have retained the right to prosecute Category 3 offences; and Category 1 and 2 offences where the DPP has identified a breach of the WHS Act and WorkCover has elected not to proceed with a prosecution. Unions (and others) are able to request that WorkCover commences proceedings against a duty holder for both Category 1 and 2 offences. WorkCover must decide whether they will prosecute, and if they elect not to do so, provide reasons why. The matter may also be referred to the DPP for review. Background References Model WHS Act s WHS Act

103 Prosecutions and unions
A person (e.g. a union) is entitled to make a written request to WorkCover to bring a prosecution where: the person reasonably considers a Category 1 or 2 offence has occurred; and a prosecution is not brought after 6 months but no longer than 12 months after the occurrence. If WorkCover reviews the matter and decides not to proceed with a prosecution they must: advise the person they are able to request referral of the matter to the DPP for consideration. Key points The WHS Act allows for individuals who believe a serious offence has not been adequately addressed to pursue the matter. The person may make a written request to WorkCover to bring a prosecution against an alleged offender. WorkCover is required, within 3 months of having received the request, to advise the applicant and the person whom the applicant believes has committed the offence: whether the investigation has been completed and if the investigation is complete, whether a prosecution has been or will be brought, or give reasons why a prosecution will not be brought Where a person requests WorkCover to refer the matter to the DPP, WorkCover must do so within one month of the request. Background References Model WHS Act s WHS Act s

104 Prosecutions and unions
The DPP is then required to provide WorkCover with advice in relation to the alleged offence within one month of receiving the request. WorkCover may reject the DPP’s advice and not proceed. However, if WorkCover doesn’t proceed they are required to provide reasons for the decision in writing to the person making the request (e.g. a union) and the person accused of the offence. The union may then elect to commence proceedings. Key points The DPP has a month in which to determine if a prosecution should be brought against an alleged offender and to advise WorkCover. A copy of the advice from the DPP must be provided to both the applicant and the person whom the applicant believes committed the offence. If WorkCover chooses not to follow the advice of the DPP, they are required to provide written reasons for the decision to the person who has been given advice in relation to the offence i.e. the applicant and the accused. In the case of NSW, unions may then commence proceedings for Category 1 and 2 offences. Background References Model WHS Act s WHS Act s

105 Your Union’s Role - Activity 2 -
The facilitator will hold a discussion with the group to assist in completing the Table in the handbooks. The facilitator may provide additional material from the union they represent. Activity This activity is designed to present the roles unions can and do play in WHS and how they are either currently undertaking these or could do so in the future. The facilitator is to divide the participants into small groups The group is to discuss the roles in the table and determine what is currently being done or could be done. The facilitator will have the whole group discuss their answers. The facilitator is to go through the selection and clarify any issues. The facilitator can contribute their own knowledge about the unions’ activities now and in the future relevant to the group they are training.

106 Sources of information
Safe Work Australia - WorkCover NSW - Course Fact Sheets Unions NSW - UnionSafe - Police Association NSW - Public Service Association of NSW- Australian Manufacturing Workers Union - Construction, Forestry, Mining and Energy Union (CFMEU) - United Voice (former LHMU) - Transport Workers Union – Health Services Union – ACTU- Other union web sites may be nominated depending on the group receiving training.

107 - Activity - At the start of the course you completed a quick quiz on your understanding of new model WHS legislation. Redo 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? Activity This activity is a repeat of the activity undertaken at the start of the course. The facilitator is to provide the handout to participants and give them time to answer the questions. Participants can refer back to their course notes. The facilitator is to go through the responses and clarify any issues. The facilitator can then ask the group if there are any other issues relating to changes brought about by the WHS legislation that require any further clarification. The facilitator can refer participants on to current information sources.


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