Work Health and Safety Act Senior Managers

1. Work Health and Safety Act Senior Managers

2. Senior Managers

3. 01 What is new for NSW under the WHS Act?

4. Summary

5. Summary

6. Summary

7. Summary

8. New Terminology

9. New Terminology

10. New Terminology

11. Definitions ‘Person conducting a business or undertaking’

12. Definitions ‘Worker’

13. Definitions ‘Others’ ‘A workplace’

14. Definitions ‘Officer’

15. Definitions

16. Definitions ‘Designer’

17. Definitions ‘Manufacturer’

18. 02 NSW Work Health & Safety Act-PCBU’s, the Primary Duty of Care & Other Duties

19. What is a business or undertaking? • Activities carried out by, or under the control of, a person • Whether alone or with others • Whether or not for profit or gain • Including activities conducted by: • A corporation, partnership, • Unincorporated association • Self employed person • Government agency

20. Who will be a PCBU? The primary duty is owed by the operator of the business or undertaking; Examples are:

21. What WHS Act says PCBU’s must do: Primary duty of Care: A PCBU MUST so far as is reasonably practicable, ensure the health & safety of: Workers engaged, or caused to be engaged by the PCBU Workers whose activities are influenced or directed by the PCBU Other persons who could be put at risk from work carried out by PCBU

22. Other PCBU Duties

23. Multiple PCBUs in respect of same activities Several PCBUs may owe a duty of care to the same people concurrently: • Each PCBU MUST comply with their duty, so far as is reasonably practicable • Each PCBU must discharge their duty to the extent that they can influence or control the matter Landlords & Site Owners Sign Installation Companies Advertising Companies Billboard Production Companies Electrical Companies All duties are concurrent and non-transferrable

24. What are the major differences in the WHS Act? Major difference is the application of Primary Duty of Care

25. What are the major differences in the WHS Act? Major difference is the application of Primary Duty of Care

26. 03 NSW Work Health & Safety Act- Duties of Officers, Workers & Others

27. OHS Amendment Act 2011 • Recent amendments to the NSW OHS Act (The OHS Amendment Act 2011) have changed the provision of S26, effectively bringing forward the provision contained in the WHS Act which removes this attributed liability and introduces the positive duty of “Due Diligence”. • This provision commenced in June 2011

28. WHS Act specifies Duty of Care on Officers • Introduces a “duty of care” on officers - the duty is to the PCBU • This is a positive duty allocated to officers in their own right • An officer may be found guilty of an offence whether or not the PCBU has been found guilty or convicted of an offence

29. What WHS Act says about Officers Duties: • Duty of Officers s27 • “If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation” THIS DUTY CANNOT BE DELEGATED

30. Officers must exercise Due Diligence What is Due Diligence? Audit & review WHS processes and use of resources Acquire safety knowledge and keep up to date Ensure WHS legal compliance Understand business health & safety risks Due Diligence Receive and consider business incidents, hazards & risks Provide resources to identify and control risks

31. What are the major differences in the WHS Act? Major difference is the introduction of a POSITIVE duty of Due Diligence

32. What do you have to do? • If you have existing systems to demonstrate management commitment and responsibility for WHS • review your systems in line with the legal elements of “due diligence” • make sure you have all elements covered and • make sure you can produce suitable records (evidence) to demonstrate compliance.

33. What do you have to do? • If you don’t have existing systems to demonstrate management commitment and responsibility • Identify who will have “officer” duties • Consider using the elements of “due diligence” to develop an officer Statement of Duty • Develop, implement, monitor, review WHS procedures and processes to include the active involvement of your officers • Provide training to officers to enable them to carry out these functions COMMENSURATE WITH SIZE & NATURE OF YOUR OPERATIONS

34. Duties

35. Did the worker fail to take responsible care? The assessment of a worker’s failure to take reasonable care is made relative to the PCBU’s actions to do what was reasonably practicable: The systems of work in place at the time The training, information, instruction, supervision provided Whether the worker was working within their stated role Whether any other worker was placed at risk, and Whether the worker acted intentionally or recklessly

36. What is the likely impact of these changes? • Impact in relation to Duties of Workers • Makes responsibility to take care of own health & safety explicit • Extends to all workers –need to ensure employees as well as other workers are given the proper instruction and training about your policies and procedures and provided with adequate supervision • This will be a duty you may share with another PCBU

37. What is the likely impact of these changes? • Impact in relation to the Duty of Others • The new duty on others is about reasonable care NOT just recklessness • It may have the potential to apply to people who have been outside the jurisdiction of OHS Legislation – like home owners when work is being done, customers at shopping centre promotions or advertising displays, the public around billboards or bus shelters, rail platforms or other installation works etc.

38. Differing standards according to the duty holder and the nature of the activity ACTIVITY DUTIES STANDARD Primary Duty of Care Other duties Specific duty holders REASONABLY PRACTICABLE PCBU Officers duty of care Leadership & Governance DUE DILIGENCE OFFICER Workers to take care of self and others Includes supervisory role REASONABLE CARE WORKER Other to take care of self and others Follow instructions REASONABLE CARE OTHERS at workplace

39. Summary

40. 04NSW Work Health & Safety Act -Reasonably Practicable

41. What is the difference in WHS Act in the use of reasonably practicable? • Current NSW OHS Act includes reasonably practicable as a defence in any proceedings against a person for an offence • Under the WHS Act the prosecution will have to prove the case thus abolishing the current reverse onus of proof situation • Under the WHS Act the obligations of the PCBU will be qualified by reasonably practicable rather than the current absolute duty in the NSW Act

42. Overview of what WHS Act says about reasonably practicable • The PCBU has a duty to ensure, so far as is reasonably practicable, the health & safety of workers that are: • engaged to carry out work for their business or undertaking- this includes engaging subcontractors and consultants • placed with another person to carry out work for that person, such as labour hire or • influenced or directed in carrying out their work activities by the person, while the workers are at work in the business or undertaking-Such as an advertising company officer directing an installation company worker to perform works onsite

43. Likelihood, degree of harm, knowledge etc Time, effort and cost to eliminate or reduce risk Reasonably practicable is the balance between risk and time, effort and cost Reasonably Practicable: getting the balance

44. High level of time, effort and cost to eliminate or reduce risk E.G little likelihood of risk occurring risk/minimal harm Level of time, effort and cost way out of proportion with benefits in risk reduction Reasonably practicable: Getting the balance ?

45. Reasonably Practicable in the workplace • For common hazards such as electricity, falls and manual handling there are regulations that define what has to be done to control risks. These common hazards also have supporting codes of practice to provide guidance on how to control risks. • For more complex or workplace specific risks a risk management approach can be used to establish what is reasonably practicable • The most common decisions about reasonably practicable relate to the type of risk control to be used (the hierarchy of control). In other words what is the highest level of protection that is reasonably practicable.

46. Reasonably Practicable: the Hierarchy of Control • The WHS Act advocates the highest level of protection as is reasonably practicable and the model regulations in many cases mandate a set of preferred controls consistent with the hierarchy of control- for example- the use of only PPE when working at heights a control in high risk situations may not be deemed as “reasonably practical” when other controls such as design and engineering are available • Consequently the level at which controls are applied is subject to decisions about reasonably practicable.

47. ELIMINATE RISKS (so far as is reasonably practicable) STOP USING OR CHANGE THE PRODUCT, PROCESS, PLANT OR SUBSTANCE STOP OR CHANGE THE ACTIVITY, PRACTICE OR PROCEDURE MINIMISE RISKS (so far as is reasonably practicable) SUBSTITUTE WITH SAFER ALTERNATIVE MOST RELIABLE LEAST RELIABLE Highest LEVEL OF PROTECTION Lowest USE ENGINEERING CONTROLS REDESIGN TO REDUCE RISK ISOLATE PEOPLE FROM RISK USE ADMINISTRATIVE PROCEDURES USE PROTECTIVE CLOTHING / EQUIPMENT Reasonably Practicable: the Hierarchy of Control

48. 10NSW Work Health & Safety Act -Enforcement

49. What is different in WHS Act about Enforcement and Penalties? • The WHS Act retains and builds on the enforcement framework found in the current legislation A greater range of sanctions, higher penalties, restrictions on a Trade Unions right to prosecute and abolition of the reverse onus of proof are new to the NSW enforcement framework

50. Enforcement Measures The WHS Act provides graduated enforcement regime with civil and criminal prosecutions the ultimate sanction Penalty Notice Enforceable Undertaking Injunctions Remedial Action Prohibition Notice Improvement Injunctions, and enforceable undertaking are new in NSW Notice Notice Non Disturbance