Work Health and Safety (WHS) Act SESSION 1

Work Health and Safety (WHS) Act SESSION 1

Housekeeping • Emergency Procedures • Participant Notes - content • Breaks, location of facilities etc. • Participation in the course • Parking, mobile phones, smoking • Evaluation questionnaire

Course Objectives This course is designed to provide union members with information and knowledge on the Work Health and Safety (WHS) Act, to commence 1 January 2012, that includes: • The harmonisation model for work health and safety and key changes; • New terminology of the WHS legislation; • Sources of information to assist in understanding the changes; • ‘Duty holders’ and their duties under the WHS Act;

Course Objectives (cont) • Consultation, representation and participation requirements; • The role of Health and Safety Representatives (HSRs), Health and Safety Committees (HSCs) and other arrangements; • Ceasing unsafe work and Provisional Improvement Notices (PINs); • Enforcement measures available to WHS authorities to ensure compliance with WHS legislation; and • The role of Unions and WHS entry permit holders under WHS legislation.

Work Health and Safety Framework • WHS Act • WHS Regulations • Codes of Practice • Australian Standards • Industry Standards • Guidance Material

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

Model WHS Act - Object - The main object of the model WHS Act is: ‘to provide for a balanced and nationallyconsistent framework to secure the health and safety of workers and workplaces’. How is the object of the model WHS Act to be achieved? WHS Act s3

Model WHS Act - How the object is to be achieved - The object of the model WHS Act is to be achieved by: • protecting workers and others from harm to their health, safety and welfare by elimination or minimisation of risks arising from work (or specified substances or plant); • providing for fair and effective workplace representation (e.g. HSRs), consultation, co-operation and issue resolution on work health and safety; WHS Act s3

Model WHS Act - How the object is to be achieved - • encouraging unions and employer organisations to take a constructive role and to assist in achieving a healthier and safe workplace; • promoting the provision of work health and safety advice, information, education and training; • effective and appropriate use of compliance and enforcement measures; WHS Act s3

Model WHS Act - How the object is to be achieved - • monitoring and review of persons with functions and powers under the model WHS Act; • providing a framework that ensures continuous improvement and higher standards for work health and safety; and • maintaining and strengthening of the national harmonisation laws and facilitating a consistent national approach to work health and safety. WHS Act s3

Key changes to current NSW OHS legislation includes: Work health and safety (WHS) terminology; The relationship between the employer and employee to the broader relationship of ‘a person conducting a business or undertaking’ (PCBU) and a worker; A broadening of health and safety duties; Consultation requirements for all duty holders; OHS Representatives and OHS Committees change to Health and Safety Representatives (HSRs) and Health and Safety Committees (HSCs) with changed roles and functions; Key changes WHS Act s4-9, s13-29, s46

The introduction of deputy HSRs; Risk management is focused more on the outcome than the process – a risk assessment may not be required in all situations; Authorised representatives become WHS entry permit holders with increased functions; Apositive duty for ‘officers’ e.g. proactive safety activities; Enforcement measures; The removal of the reverse onus of proof; Changes as to when unions can prosecute. Key changes WHS Act Part 5 s124, Parts 10-13

Safe Work Australia - www.safeworkaustralia.gov.au WorkCover NSW - www.workcover.nsw.gov.au National Safety Council of Australia - www.nsca.org.au Course Fact Sheets Sources of information

Union organisations including: IEU –www.ieu.asn.au Unions NSW - www.council.labor.net.au Police Association NSW - www.pansw.org.au Australian Manufacturing Workers Union - www.amwu.org.au Construction, Forestry, Mining and Energy Union (CFMEU) - www.cfmeu.asn.au LHMU (United Voice) - www.lhmu.org.au Transport Workers Union – www.twu.nsw.org.au Health Services Union – www.hsu.net.au Sources of information

Occupational Health and Safety (OHS) Employer Employee OHS Representative OHS Committee Managers and directors Key changes in terms Work Health and Safety (WHS) Person Conducting a Business or Undertaking (PCBU) Worker (includes contractors, volunteers) Health and Safety Representative Health and Safety Committee Officer WHS Act s4

See model WHS Act for full definitions and Fact Sheet 2. Work Health and Safety - covers the concept of the health, safety and welfare of all persons who may be impacted by work activities. Healthmeans 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. Important terms WHS Act s4

Employer Employee Key changes in terms 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. WHS Act s4

Key terms and definitions include: 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? Important terms WHS Act s4

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. As part of your work activities have you altered a piece of equipment or assembled a structure at work? Important terms WHS Act s4

Persons who currently have duties: Employers Controllers of work premises, plant or substances Designers, suppliers and manufacturers of plant and substances Self-employed persons Employees Directors and managers Persons with health and safety duties • Persons with duties under the • WHS Act: • PCBUsincluding manufacturers, suppliers, importers or persons with management or control of workplaces, fixtures and fittings. • PCBUs who install, commission or construct plant, structures or substances. • Self-employed persons • Workers • Officers • Others at the workplace WHS Act s4

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. WHS Act s17-18

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 Where would you find information to assist in doing what would be considered to be ‘reasonably practicable? WHS Act s18

Health and Safety Duties - PCBUs - PCBUs have a ‘primary duty of care’ to ensure, so far as is reasonably practicable, the health and safety of: • workers engaged directly or indirectly by the PCBU; • workers whose work activities are influencedordirected 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? WHS Act s19

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. PCBUs WHS Act s19

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. WHS Act s20-21

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. Image removed WHS Act s22-26

Health and Safety Duties - Officers - Duty of Officers • Officers of the PCBU are required to exercise ‘due diligence’ to ensure the PCBU complies with their duties and obligations. Who are ‘officers’ in your workplace? What might they have to do to show they are using ‘due diligence’? WHS Act s27

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. WHS Act s27(5)

Health and Safety Duties Duties of workers Workers, as defined under the WHS Act, are required to: • Take reasonable care for their own health and safety • Take reasonable care to ensure acts/omissions do not adversely affect others health and 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? WHS Act s28

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 and 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). WHS Act s84-85

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? For example, using electrical equipment that has been tested, tagged and checked before use. WHS Act s19(5)

Health and Safety Duties Other persons at the workplace (an expanded duty under WHS Act) Other persons at a workplace (e.g. visitor, shopper) have a duty to: • take reasonable care for his or her own health and safety; • take reasonable care that his or her acts or omissions do not adversely affect the health and 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. WHS Act s29

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. WHS Act s14-16

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. WHS Act s31, s230-236

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. WHS Act s32 and s33

Penalties under the WHS Act WHS Act s30-34

Work Health and Safety (WHS) Act SESSION 1