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Model Work Health and Safety WHS Laws Laurene Hull NT WorkSafe

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Model Work Health and Safety WHS Laws Laurene Hull NT WorkSafe

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    1. Model Work Health and Safety (WHS) Laws Laurene Hull NT WorkSafe

    2. Overview – Part 1 Development of model work health and safety laws Overview of model Work Health Safety Bill Health and Safety Duties: Primary duty PCBUs with management or control of workplace Upstream duties of PCBUs Officers’ duty of due diligence Workers and other persons at a workplace Categories of Offences

    3. Overview – Part 2 Consultation obligations Process of determining worker representation Powers of HSRs, WHS entry permit holders and inspectors Prohibitions on discriminatory, coercive and misleading conduct WHS undertakings and other sentencing options Legal proceedings Where to next?

    4. Development of model work health and safety laws Model WHS Bill Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA) National Review into Model OHS Laws WRMC Response to Recommendations Model WHS Regulations & Codes of Practice Consultation with Technical Advisory Groups Agreement of jurisdictions, industry and labour COAG committed through an IGA to the harmonisation of work health and safety laws in July 2008, as part of the “Seamless Economy” initiatives The model work health and safety laws will consist of model WHS Act, model WHS Regulations, and model Codes of Practice. Model Bill developed in accordance with the WRMC’s response to the 232 recommendations made by the National Review Panel 7 month turn around Model Bill has now been signed off by WRMC subject to the making of minor technical changes – latest version 11 May 2010 now available on SWA website Model Regulations and Codes now being developed through consultation with subject-specific TAGs (consist of technical experts in relevant field) and by agreement between representatives from each State and Territory and the Commonwealth, and from industry and labour (SIG-OHS) Model Regulations and some codes of practice will be released for public comment later this year The IGA commits the Commonwealth, states and territories to adopt model work health and safety laws by the end of 2011. COAG committed through an IGA to the harmonisation of work health and safety laws in July 2008, as part of the “Seamless Economy” initiatives The model work health and safety laws will consist of model WHS Act, model WHS Regulations, and model Codes of Practice. Model Bill developed in accordance with the WRMC’s response to the 232 recommendations made by the National Review Panel 7 month turn around Model Bill has now been signed off by WRMC subject to the making of minor technical changes – latest version 11 May 2010 now available on SWA website Model Regulations and Codes now being developed through consultation with subject-specific TAGs (consist of technical experts in relevant field) and by agreement between representatives from each State and Territory and the Commonwealth, and from industry and labour (SIG-OHS) Model Regulations and some codes of practice will be released for public comment later this year The IGA commits the Commonwealth, states and territories to adopt model work health and safety laws by the end of 2011.

    5. Overview of model WHS Bill Part 1 Preliminary Part 2 Health and safety duties Part 3 Incident notification Part 4 Authorisations Part 5 Consultation, representation & participation Part 6 Discriminatory, coercive & misleading conduct Part 7 Workplace entry by WHS entry permit holders Part 8 The regulator Part 9 Securing compliance Part 10 Enforcement measures Part 11 Enforceable undertakings Part 12 Review of decisions Part 13 Legal proceedings Part 14 General Part 1 – objects, definitions, important terms [PCBU, worker, workplace, supply, application] Part 2 - This is the key operative component of the model Bill. It establishes: principles that apply to duties (not transferable, one person may have multiple duties, many people may have single duty, management of risks) and the meaning of ‘reasonably practicable’, duties of care primary duty of care, further duties of PCBUs (PCBUs with management or control of a workplace, with management or control of fixtures & fittings etc and PCBUs that design, manufacture, import or supply plant, substances or structures and PCBUs that install, construct or commission plant or structures) duty of officers duties of workers duties other persons at the workplace offences exceptions Part 3 - Duty to notify the regulator in the event of a death, serious injury or illness or dangerous incidents (and the duty to preserve the incident site) Part 4 - Prohibitions on conducting work or using plant or substances where the workplace, work or person, or the plant or substance, is not authorised in accordance with the regulations Part 5 – establishes the parties rights and responsibilities with respect to worker consultation, representation & participation Part 6 - prohibits discriminatory, coercive & misleading conduct in relation to OHS matters Part 7 - Right of Entry Parts 8 - 10 - establishes the functions and powers of the regulator & the inspectorate; offences against inspectors; and, enforcement measures available to inspectors Part 11 - Enforceable undertakings – now referred to as ‘WHS undertakings’ Part 12 - Sets out reviewable decisions and stays of all decisions other than prohibition & non-disturbance notices during review Part 13 - Legal proceedings - procedural matters and sentencing options Part 14 - General – confidential information, approval and use of codes of practice, regulation making power Part 1 – objects, definitions, important terms [PCBU, worker, workplace, supply, application] Part 2 - This is the key operative component of the model Bill. It establishes: principles that apply to duties (not transferable, one person may have multiple duties, many people may have single duty, management of risks) and the meaning of ‘reasonably practicable’, duties of care primary duty of care, further duties of PCBUs (PCBUs with management or control of a workplace, with management or control of fixtures & fittings etc and PCBUs that design, manufacture, import or supply plant, substances or structures and PCBUs that install, construct or commission plant or structures) duty of officers duties of workers duties other persons at the workplace offences exceptions Part 3 - Duty to notify the regulator in the event of a death, serious injury or illness or dangerous incidents (and the duty to preserve the incident site) Part 4 - Prohibitions on conducting work or using plant or substances where the workplace, work or person, or the plant or substance, is not authorised in accordance with the regulations Part 5 – establishes the parties rights and responsibilities with respect to worker consultation, representation & participation Part 6 - prohibits discriminatory, coercive & misleading conduct in relation to OHS matters Part 7 - Right of Entry Parts 8 - 10 - establishes the functions and powers of the regulator & the inspectorate; offences against inspectors; and, enforcement measures available to inspectors Part 11 - Enforceable undertakings – now referred to as ‘WHS undertakings’ Part 12 - Sets out reviewable decisions and stays of all decisions other than prohibition & non-disturbance notices during review Part 13 - Legal proceedings - procedural matters and sentencing options Part 14 - General – confidential information, approval and use of codes of practice, regulation making power

    6. Person conducting a business or undertaking (PCBU) One of the most key changes for most jurisdictions is introduction of the ‘person conducting a business or undertaking’ (PCBU) as the primary duty holder Aimed at ensuring model WHS Bill coverage extends beyond traditional employer / employee relationship to new and evolving work arrangements PCBU defined by s5 to include any person who / that conducts a business or undertaking: whether alone or with others, and whether or not for profit or gain. includes unincorporated associations - although the association itself cannot be held liable, its officers and members can be Includes partnerships – and each partner will be considered to be a PCBU Does not include volunteer associations (i.e. groups working together for a community purpose where none of the volunteers employs anyone to carry out work for the association) [but engaging contractors does not preclude org from being va?] The PCBU concept is relied on throughout the model Bill: it limits the duties pertaining to the management or control of a workplace or fittings / fixtures / plant at a workplace to persons who manage or control the workplace in the course of conducting a business or undertaking [i.e. homeowners are not caught] Similarly, the duties of designers, manufacturers, importers, suppliers and installers of plant / structures / substances only apply to persons to undertake those tasks in the course of conducting a business or undertaking On the other hand, the incident notification, authorisation and consultation requirements all now extend beyond employers to any person conducting a business or undertaking One of the most key changes for most jurisdictions is introduction of the ‘person conducting a business or undertaking’ (PCBU) as the primary duty holder Aimed at ensuring model WHS Bill coverage extends beyond traditional employer / employee relationship to new and evolving work arrangements PCBU defined by s5 to include any person who / that conducts a business or undertaking: whether alone or with others, and whether or not for profit or gain. includes unincorporated associations - although the association itself cannot be held liable, its officers and members can be Includes partnerships – and each partner will be considered to be a PCBU Does not include volunteer associations (i.e. groups working together for a community purpose where none of the volunteers employs anyone to carry out work for the association) [but engaging contractors does not preclude org from being va?] The PCBU concept is relied on throughout the model Bill: it limits the duties pertaining to the management or control of a workplace or fittings / fixtures / plant at a workplace to persons who manage or control the workplace in the course of conducting a business or undertaking [i.e. homeowners are not caught] Similarly, the duties of designers, manufacturers, importers, suppliers and installers of plant / structures / substances only apply to persons to undertake those tasks in the course of conducting a business or undertaking On the other hand, the incident notification, authorisation and consultation requirements all now extend beyond employers to any person conducting a business or undertaking

    7. PCBUs’ primary health & safety duty (s19) The PCBU must ensure, so far as is reasonably practicable: the health and safety of workers engaged, caused to be engaged or influenced / directed by the PCBU while at work in the business or undertaking; and 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. Taking a more detailed look at the PCBU’s health and safety duties: Duty owed to workers (s19(1)): Very broad – covers all workers engaged by or caused to be engaged by PCBU AND all workers whose activities are influenced or directed by the PCBU – so captures all sub-contractors and their employees, franchise arrangements and any commercial arrangement where a PCBU requires work to be carried out in a certain way – eg consignor and truck driver – provided there is sufficient connection between the PCBU’s business or undertaking and the work being carried out by the worker. Temporal limitation – while at work at the business or undertaking. So far as is reasonably practicable – elements set out in s18 - likelihood of hazard or risk occurring, degree of harm that might result from hazard or risk, what person knows or ought reasonably to know about hazard or risk and ways of eliminating or minimising the risk and the available and suitability of ways to eliminate or minimise the risk. After assessing the extent of the risk and available ways of eliminating or minimising the risk, the PCBU can take account of the cost associated with available ways of eliminating or minimising the risk including whether the cost is grossly disproportionate to the risk. (2) Duty to other persons (s19(2)) – So far as is reasonably practicable Limited to risks arising from work carried out as part of the conduct of the business or undertaking – broader than the geographical limitation “while they are at the employer’s place of work” (as currently applies to duty to non-employees in NSW) but narrower than any risk ‘arising from conduct of the business or undertaking’ (which is used in Victorian Act and in relation to worker duty in s19(1)) – must be from work carried out (3) Without limiting either duty to workers or other persons, the PCBU must ensure sfairp: provision and maintenance of work environment without risks to health and safety; provision and maintenance of safe plant and structures; provision and maintenance of safe systems; Safe use, handling, storage and transport of plant, structures and substances; Provision of adequate facilities for worker’s welfare at work; Provision of any information, training, instruction or supervision necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; That the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking; That any accommodation owned, managed or controlled by the PCBU and occupied by the worker because alternative accommodation is no reasonably available. Taking a more detailed look at the PCBU’s health and safety duties: Duty owed to workers (s19(1)): Very broad – covers all workers engaged by or caused to be engaged by PCBU AND all workers whose activities are influenced or directed by the PCBU – so captures all sub-contractors and their employees, franchise arrangements and any commercial arrangement where a PCBU requires work to be carried out in a certain way – eg consignor and truck driver – provided there is sufficient connection between the PCBU’s business or undertaking and the work being carried out by the worker. Temporal limitation – while at work at the business or undertaking. So far as is reasonably practicable – elements set out in s18 - likelihood of hazard or risk occurring, degree of harm that might result from hazard or risk, what person knows or ought reasonably to know about hazard or risk and ways of eliminating or minimising the risk and the available and suitability of ways to eliminate or minimise the risk. After assessing the extent of the risk and available ways of eliminating or minimising the risk, the PCBU can take account of the cost associated with available ways of eliminating or minimising the risk including whether the cost is grossly disproportionate to the risk. (2) Duty to other persons (s19(2)) – So far as is reasonably practicable Limited to risks arising from work carried out as part of the conduct of the business or undertaking – broader than the geographical limitation “while they are at the employer’s place of work” (as currently applies to duty to non-employees in NSW) but narrower than any risk ‘arising from conduct of the business or undertaking’ (which is used in Victorian Act and in relation to worker duty in s19(1)) – must be from work carried out (3) Without limiting either duty to workers or other persons, the PCBU must ensure sfairp: provision and maintenance of work environment without risks to health and safety; provision and maintenance of safe plant and structures; provision and maintenance of safe systems; Safe use, handling, storage and transport of plant, structures and substances; Provision of adequate facilities for worker’s welfare at work; Provision of any information, training, instruction or supervision necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; That the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking; That any accommodation owned, managed or controlled by the PCBU and occupied by the worker because alternative accommodation is no reasonably available.

    8. PCBUs’ with management or control of workplaces or fixtures, fittings or plant at a workplace (ss20-21) To ensure, so far as is reasonably practicable, that: the workplace, fixtures, fittings and/or plant; the means of entry and exit to the workplace; and anything arising from the workplace, are without risks to the health and safety of any person. Duty on PCBU’s with management or control of a workplace – or fixtures, fittings or plant at a workplace (ss20-21): Duty is to ensure that there are no risks to the health and safety of any person arising from: The workplace or the fixtures, fitting or plant at the workplace; The means or entering and exiting the workplace; or Anything arising from the workplace. Limited by both: Extent to which the business or undertaking involves, in whole or in part, the management or control of the workplace, fixtures, fitting or plant; and What is reasonably practicable. Workplace is defined (in s8) to include any place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work Includes mobile structures and plant – eg vehicles, vessels, aircraft Includes waters and any installation on land or on sea or on the seabed Also applies to high risk plant affecting public safety and any place where such plant is situated or used - eg amusement rides at fetes - and any place where dangerous goods are stored, whether or not at a workplace Does not apply to residential premises, unless the residence is occupied for the purposes of or as a part of the conduct of the business or undertaking. Duty on PCBU’s with management or control of a workplace – or fixtures, fittings or plant at a workplace (ss20-21): Duty is to ensure that there are no risks to the health and safety of any person arising from: The workplace or the fixtures, fitting or plant at the workplace; The means or entering and exiting the workplace; or Anything arising from the workplace. Limited by both: Extent to which the business or undertaking involves, in whole or in part, the management or control of the workplace, fixtures, fitting or plant; and What is reasonably practicable. Workplace is defined (in s8) to include any place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work Includes mobile structures and plant – eg vehicles, vessels, aircraft Includes waters and any installation on land or on sea or on the seabed Also applies to high risk plant affecting public safety and any place where such plant is situated or used - eg amusement rides at fetes - and any place where dangerous goods are stored, whether or not at a workplace Does not apply to residential premises, unless the residence is occupied for the purposes of or as a part of the conduct of the business or undertaking.

    9. PCBUs’ upstream health & safety duties (s22-26) PCBUs that design, manufacture, import, supply or install: plant, substances or structures for use as or at a workplace; dangerous goods; or high risk plant affecting public safety, must ensure, so far as is reasonably practicable, it can be used, stored, handled, constructed or otherwise treated in another reasonably foreseeable way without risks to health and safety of persons at or in vicinity of a workplace; must carry out or arrange the carrying out of necessary tests (or ensure carried out); give adequate information to persons provided with design/item; SFAIRP, give information to others on request. PCBUs that design, manufacture, import, supply or install/construct/commission plant, substances or structures that are to be used, or could reasonably be expected to be used, as or at a workplace have specific duties under the model Bill. First, under a duty to ensure, so far as is reasonably practicable, that the plant, substance or structure is designed or manufactured to be without risks to the health and safety of persons who - while at a workplace - : use the plant, substance or structure for a purpose for which it was intended; handle the substance, store the plant or substance; construct the structure; carry out any reasonably foreseeable activity at a workplace in relation to the assembly or intended use of the plant, substance or structure, or its proper storage, decommissioning, dismantling, demolition or disposal. Second, the PCBU must carry out all testing, calculations, analysis or examination necessary for the PCBU to ensure the plant, substance or structure is without risks to health and safety (Although importer and suppliers need only ensure that the tests have been carried out – can be before plant, substance or structure is brought into the country). Third, must provide adequate information to the person who is provided with the design or item of plant, quantity of substance or the structure concerning: Intended use; Results of testing; and Conditions necessary to ensure that the plant, substance or structure is without risks to health and safety. Finally, the PCBU must – so far as is reasonably practicable – and only when requested – give information to others who carry out reasonably foreseeable activities with respect to the plant, substance or structure at a workplace. Equivalent duties may apply to PCBUs that design, manufacture, import or supply dangerous goods or design, manufacture, import, supply or install, construct or commission high risk plant affecting public safety – even where the dangerous goods or high risk plant are not at a workplace or used for carrying out work. Schedule 1 to the model WHS Bill extends application of all duties under the Act by providing that : the term ‘carrying out work’ = the use or operation of HRPAPS and the handling and storage of dangerous goods; The term ‘workplace’ = places where dangerous goods are stored or HRPAPS is situated or used; and A reference to work health and safety (however formulated) = public health and safety. **Schedule 1 is optional – jurisdictions may choose not to include it. However, if it is maintained, duties will be owed with respect to dangerous goods and HRPAPS by PCBUs under all of the PCBU’s health and safety duties (ie ss19-26) and by officers, workers and other persons at places where dangerous goods are stored or HRPAPS is situated or used. PCBUs that design, manufacture, import, supply or install/construct/commission plant, substances or structures that are to be used, or could reasonably be expected to be used, as or at a workplace have specific duties under the model Bill. First, under a duty to ensure, so far as is reasonably practicable, that the plant, substance or structure is designed or manufactured to be without risks to the health and safety of persons who - while at a workplace - : use the plant, substance or structure for a purpose for which it was intended; handle the substance, store the plant or substance; construct the structure; carry out any reasonably foreseeable activity at a workplace in relation to the assembly or intended use of the plant, substance or structure, or its proper storage, decommissioning, dismantling, demolition or disposal. Second, the PCBU must carry out all testing, calculations, analysis or examination necessary for the PCBU to ensure the plant, substance or structure is without risks to health and safety (Although importer and suppliers need only ensure that the tests have been carried out – can be before plant, substance or structure is brought into the country). Third, must provide adequate information to the person who is provided with the design or item of plant, quantity of substance or the structure concerning: Intended use; Results of testing; and Conditions necessary to ensure that the plant, substance or structure is without risks to health and safety. Finally, the PCBU must – so far as is reasonably practicable – and only when requested – give information to others who carry out reasonably foreseeable activities with respect to the plant, substance or structure at a workplace. Equivalent duties may apply to PCBUs that design, manufacture, import or supply dangerous goods or design, manufacture, import, supply or install, construct or commission high risk plant affecting public safety – even where the dangerous goods or high risk plant are not at a workplace or used for carrying out work. Schedule 1 to the model WHS Bill extends application of all duties under the Act by providing that : the term ‘carrying out work’ = the use or operation of HRPAPS and the handling and storage of dangerous goods; The term ‘workplace’ = places where dangerous goods are stored or HRPAPS is situated or used; and A reference to work health and safety (however formulated) = public health and safety. **Schedule 1 is optional – jurisdictions may choose not to include it. However, if it is maintained, duties will be owed with respect to dangerous goods and HRPAPS by PCBUs under all of the PCBU’s health and safety duties (ie ss19-26) and by officers, workers and other persons at places where dangerous goods are stored or HRPAPS is situated or used.

    10. Officers’ duty of due diligence (s27) One of the most talked about aspects of the model WHS Bill. If a PCBU owes a health and safety duty, all officers of the PCBU must exercise due diligence to ensure that the PCBU complies with that duty. Although it requires that the PCBU has a duty – and the officer’s duty is directed at ensuring that the PCBU complies with that duty as opposed to establishing a separate duty of care between the officer and workers or other persons, the officer’s duty is a positive obligation. The officer’s responsibility is independent of PCBU’s liability – i.e. does not require PCBU to have been convicted or found guilty of a breach of that duty. Officer is defined to include all persons covered by the definition of officer under s9 of the Corporations Act 2001 (Cth), except for partners (as partners are treated as individual PCBUs under the model Bill), and includes officers of the Crown and of public authorities (although it does not include elected members of local authorities acting in that capacity). Elements required of due diligence now set out in model WHS Bill. S27(5) explains that the duty of dd requires officers to take reasonable steps to: Acquire & keep up-to-date knowledge of work health and safety matters Gain an understanding of the nature of the business or undertaking’s operations and generally of the hazards and risks associated with those operations Ensure the PCBU has and uses appropriate resources and processes to eliminate or minimise risks Ensure the PCBU has appropriate processes for receiving and considering information about incidents, hazards and risks and responding in a timely way (consultation and representation arrangements, incident / near miss notification processes). Ensure the PCBU has and implements processes for complying with any duty or obligation of the PCBU under the WHS Act (e.g. incident notification and consultation duties, compliance with notices and training obligations) Verify that any resources and processes allocated for WHS are provided and used as intended. Ultimately, the duty is aimed at ensuring that directors and other officers provide strong leadership on work health and safety matters and that WHS is built into the corporate governance mechanisms so that it becomes a substantive consideration when making financial, structural and organisational decisions about the business or undertaking. NB Unpaid (volunteer) officers have a duty of care but cannot be prosecuted for a breach However, officers of unincorporated associations who are paid may be liable for failure to comply with officer’s duty of dd. One of the most talked about aspects of the model WHS Bill. If a PCBU owes a health and safety duty, all officers of the PCBU must exercise due diligence to ensure that the PCBU complies with that duty. Although it requires that the PCBU has a duty – and the officer’s duty is directed at ensuring that the PCBU complies with that duty as opposed to establishing a separate duty of care between the officer and workers or other persons, the officer’s duty is a positive obligation. The officer’s responsibility is independent of PCBU’s liability – i.e. does not require PCBU to have been convicted or found guilty of a breach of that duty. Officer is defined to include all persons covered by the definition of officer under s9 of the Corporations Act 2001 (Cth), except for partners (as partners are treated as individual PCBUs under the model Bill), and includes officers of the Crown and of public authorities (although it does not include elected members of local authorities acting in that capacity). Elements required of due diligence now set out in model WHS Bill. S27(5) explains that the duty of dd requires officers to take reasonable steps to: Acquire & keep up-to-date knowledge of work health and safety matters Gain an understanding of the nature of the business or undertaking’s operations and generally of the hazards and risks associated with those operations Ensure the PCBU has and uses appropriate resources and processes to eliminate or minimise risks Ensure the PCBU has appropriate processes for receiving and considering information about incidents, hazards and risks and responding in a timely way (consultation and representation arrangements, incident / near miss notification processes). Ensure the PCBU has and implements processes for complying with any duty or obligation of the PCBU under the WHS Act (e.g. incident notification and consultation duties, compliance with notices and training obligations) Verify that any resources and processes allocated for WHS are provided and used as intended. Ultimately, the duty is aimed at ensuring that directors and other officers provide strong leadership on work health and safety matters and that WHS is built into the corporate governance mechanisms so that it becomes a substantive consideration when making financial, structural and organisational decisions about the business or undertaking. NB Unpaid (volunteer) officers have a duty of care but cannot be prosecuted for a breach However, officers of unincorporated associations who are paid may be liable for failure to comply with officer’s duty of dd.

    11. Health & safety duties of workers and other persons (ss28 & 29) Duties owed by workers and other persons are similar Worker duties owed by any person who “carries out work in any capacity for a PCBU” including as an employee, contractor or subcontractor, employee of a contractor or subcontractor, labour hire employee assigned to the PCBU, outworker, apprentice or trainee, work experience student, police officer or the PCBU him- or herself Volunteers also owe duty under s28 Standard of general duty to self and others = ‘reasonable care’ Owe duty to take reasonable care of own health and safety while at work The worker’s duty to others is expressed as a duty to take reasonable care that the acts or omissions of the worker do not adversely affect the health and safety of any other person – whether or not the person is at the workplace Must comply - so far as worker is reasonably able – with instructions given by the PCBU to allow the PCBU to comply with the Act Since Exposure Draft, model Bill been amended to expressly require workers to cooperate with any reasonable policy or procedure notified to workers Duty to cooperate with policies and procedures not limited There is no express requirement that the policy or procedure be notified in writing or to the individual worker directly Other persons who attend a workplace owe duty of reasonable care to self and others in same terms as workers – and must also comply so far as he or she is reasonably able with instructions given by the PCBU to allow the PCBU to comply with the Act. Not required to cooperate with the PCBU’s policies and procedures (unless directly instructed). Members of unincorporated associations will be covered by this provision Also, the carve out for persons with other duties under the Act has been removed. That is, a person may now owe a duty under s29 even if they owe a duty under another provision of the Act. Duties owed by workers and other persons are similar Worker duties owed by any person who “carries out work in any capacity for a PCBU” including as an employee, contractor or subcontractor, employee of a contractor or subcontractor, labour hire employee assigned to the PCBU, outworker, apprentice or trainee, work experience student, police officer or the PCBU him- or herself Volunteers also owe duty under s28 Standard of general duty to self and others = ‘reasonable care’ Owe duty to take reasonable care of own health and safety while at work The worker’s duty to others is expressed as a duty to take reasonable care that the acts or omissions of the worker do not adversely affect the health and safety of any other person – whether or not the person is at the workplace Must comply - so far as worker is reasonably able – with instructions given by the PCBU to allow the PCBU to comply with the Act Since Exposure Draft, model Bill been amended to expressly require workers to cooperate with any reasonable policy or procedure notified to workers Duty to cooperate with policies and procedures not limited There is no express requirement that the policy or procedure be notified in writing or to the individual worker directly Other persons who attend a workplace owe duty of reasonable care to self and others in same terms as workers – and must also comply so far as he or she is reasonably able with instructions given by the PCBU to allow the PCBU to comply with the Act. Not required to cooperate with the PCBU’s policies and procedures (unless directly instructed). Members of unincorporated associations will be covered by this provision Also, the carve out for persons with other duties under the Act has been removed. That is, a person may now owe a duty under s29 even if they owe a duty under another provision of the Act.

    12. Categories of Offences Failure to comply with any of the health and safety duties is an offence The division into 3 categories offences and the penalties applicable to each have not changed since Exposure Draft – but the elements of Category 1 have been tightened significantly Category 1 now requires that the accused person: Has a health and safety duty; and Engages in conduct, without reasonable excuse, that exposes a person to whom duty is owed to risk of death or serious illness or injury Is reckless as to risk of death or serious illness or injury to any individual That is, the phrase ‘fails to comply with a health and safety duty’ (which was in Category 1 in Exposure Draft and remains in Category 2) has been replaced by a requirement that accused have “engaged in conduct” Reference to occurrence of death or serious illness or injury has been removed – in line with principle that commission of an offence arising at exposure to risk and is not reliant on their having a been an accident However the risk of death or serious illness or injury need not be a “high risk” (as initially proposed) Person will avoid category 1 offence if they have a reasonable excuse for the conduct Gross negligence concept that was originally proposed in the reports has been removed (out of concern about overlap with criminal neg under common law) Category 2 – the person exposed to a risk of death or serious illness or injury as a result of the duty holder’s failure to comply with a duty need not be a person to whom the relevant duty was owed Category 3 – covers all non-compliance with health and safety duties Maximum penalties included in model Bill in dollar amounts not penalty units to avoid discrepancies between jurisdictions Also, maximum does not change according to whether accused has been convicted under Act previously Failure to comply with any of the health and safety duties is an offence The division into 3 categories offences and the penalties applicable to each have not changed since Exposure Draft – but the elements of Category 1 have been tightened significantly Category 1 now requires that the accused person: Has a health and safety duty; and Engages in conduct, without reasonable excuse, that exposes a person to whom duty is owed to risk of death or serious illness or injury Is reckless as to risk of death or serious illness or injury to any individual That is, the phrase ‘fails to comply with a health and safety duty’ (which was in Category 1 in Exposure Draft and remains in Category 2) has been replaced by a requirement that accused have “engaged in conduct” Reference to occurrence of death or serious illness or injury has been removed – in line with principle that commission of an offence arising at exposure to risk and is not reliant on their having a been an accident However the risk of death or serious illness or injury need not be a “high risk” (as initially proposed) Person will avoid category 1 offence if they have a reasonable excuse for the conduct Gross negligence concept that was originally proposed in the reports has been removed (out of concern about overlap with criminal neg under common law) Category 2 – the person exposed to a risk of death or serious illness or injury as a result of the duty holder’s failure to comply with a duty need not be a person to whom the relevant duty was owed Category 3 – covers all non-compliance with health and safety duties Maximum penalties included in model Bill in dollar amounts not penalty units to avoid discrepancies between jurisdictions Also, maximum does not change according to whether accused has been convicted under Act previously

    13. Overview – Part 2 Consultation obligations Process of determining worker representation Powers of HSRs, WHS entry permit holders and inspectors Prohibitions on discriminatory, coercive and misleading conduct WHS undertakings and other sentencing options Legal proceedings Where to next?

    14. Consultation Obligations so far as is reasonably practicable Section 46 If >1 person has the same duty concurrently under this Act, each person must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty with respect to the same matter Not limited to PCBUs - duty extends to workers to consult / cooperate / coordinate between themselves as far as is reasonably practicable Applies as between PCBUs and workers - and as between PCBUs where PCBU is also a worker for the purposes of s19 primary duty [hence the overlap represented in slide] Obvious example is PCBUs at a construction site – have multiple persons with same duty owed concurrently (eg multiple PCBUs with primary duties to workers and subcontractors). A PCBU at the construction site will need to consult, cooperate and coordinate in relation to the WHS policies and procedures implemented at the site with all others at the site which relate to matters of concern to all of them . Not limited to PCBUs at the same workplace – covers all circumstances where a person owes a duty with respect to the same matter. So, taking the same construction site example, a PCBU that buys an item of plant may have a duty to consult, cooperate and coordinate activities with all other persons that owe a health and safety duty with respect to the item of plant – so far as is reasonably practicable. Limited by what is reasonably practicable Considered necessary component to complying with primary duty Failure is offence - $20k for individual and $100k for body corporate S47 duty to consult with workers Duty owed to all workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety Situations in which PCBU must consult workers is set out in s49 (hazard identification, risk assessment, decisions as to risk controls, changes that may affect WHS) 2 key changes = scope of the obligation and prescription as to what the obligation requires Scope of obligation: Much broader consultation obligation than most are currently used to – not limited to employees or even workers engaged by PCBU The workers to whom the duty is owed is narrowed only by the requirement that the worker be directly affected by a WHS matter Includes self-employed subcontractors and may include employees of subcontractors Includes volunteers Section 46 If >1 person has the same duty concurrently under this Act, each person must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty with respect to the same matter Not limited to PCBUs - duty extends to workers to consult / cooperate / coordinate between themselves as far as is reasonably practicable Applies as between PCBUs and workers - and as between PCBUs where PCBU is also a worker for the purposes of s19 primary duty [hence the overlap represented in slide] Obvious example is PCBUs at a construction site – have multiple persons with same duty owed concurrently (eg multiple PCBUs with primary duties to workers and subcontractors). A PCBU at the construction site will need to consult, cooperate and coordinate in relation to the WHS policies and procedures implemented at the site with all others at the site which relate to matters of concern to all of them . Not limited to PCBUs at the same workplace – covers all circumstances where a person owes a duty with respect to the same matter. So, taking the same construction site example, a PCBU that buys an item of plant may have a duty to consult, cooperate and coordinate activities with all other persons that owe a health and safety duty with respect to the item of plant – so far as is reasonably practicable. Limited by what is reasonably practicable Considered necessary component to complying with primary duty Failure is offence - $20k for individual and $100k for body corporate S47 duty to consult with workers Duty owed to all workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety Situations in which PCBU must consult workers is set out in s49 (hazard identification, risk assessment, decisions as to risk controls, changes that may affect WHS) 2 key changes = scope of the obligation and prescription as to what the obligation requires Scope of obligation: Much broader consultation obligation than most are currently used to – not limited to employees or even workers engaged by PCBU The workers to whom the duty is owed is narrowed only by the requirement that the worker be directly affected by a WHS matter Includes self-employed subcontractors and may include employees of subcontractors Includes volunteers

    15. Nature of consultation with workers Accord with any agreed procedure Share relevant information Provide workers with reasonable opportunity to: express views raise issues contribute to the decision making process Take workers’ views into account Advise of outcome in a timely manner Involve any relevant HSRs Nature of consultation: Must be in accordance with any procedures for consultation agreed to by the parties S48 sets out “nature of consultation” required to satisfy duty to consult workers. Requires PCBUs to: Share information relevant to the WHS matter with workers; Give workers a reasonable opportunity to express their views and raise relevant WHS issues; Give workers a reasonable opportunity to contribute to the decision making process; Take the workers’ views into account; and Advise the workers of the outcome in a timely manner; and Involve any of the workers’ health and safety representative. Failure to consult in prescribed circumstances - $20k for individual and $100k for body corporateNature of consultation: Must be in accordance with any procedures for consultation agreed to by the parties S48 sets out “nature of consultation” required to satisfy duty to consult workers. Requires PCBUs to: Share information relevant to the WHS matter with workers; Give workers a reasonable opportunity to express their views and raise relevant WHS issues; Give workers a reasonable opportunity to contribute to the decision making process; Take the workers’ views into account; and Advise the workers of the outcome in a timely manner; and Involve any of the workers’ health and safety representative. Failure to consult in prescribed circumstances - $20k for individual and $100k for body corporate

    16. Section 50 request: for HSR (not workgroup) Request may be made of a PCBU by any worker who carries out work for the PCBU The request enlivens an obligation on the PCBU to “facilitate the determination of one or more work groups of workers” for the purpose of “facilitating the representation of workers in the work group by one or more HSRs” Work groups must be determined by negotiation and agreement between the PCBU and the workers who will form the work group – or their representatives Must take all reasonable steps to commence negotiations within 14 days The Administrative Provisions Regulations require that the negotiations be directed at ensuring the workers are grouped in a way that: Most effectively and conveniently enables the interests of the workers to be represented and safeguarded; and Takes account of the need for a HSR which is accessible to each worker in the work group. The regulations also list a number of matters which must be taken into account in negotiations [eg number of workers, nature of work carried out and similarity between workers, places work carried out, movement of workers, diversity of workers and nature of risks] Work groups can be determined across multiple businesses – whether the business or undertakings are at one or multiple workplaces If the PCBU is asked by a worker to negotiate with the worker’s representative, it is an offence to exclude a worker’s representative from these negotiations If agreement is not reached within a reasonable time, a party to the negotiations can request that the regulator appoints an inspector to make the relevant decisions (or decides that there will no work groups at all) Once agreement is reached, or matter decided by an inspector, the PCBU must notify the workers of the outcome as soon as practicable after the negotiations are completed (failure to do so is an offence - $2k / $10k) The workers in the work group can then go on to elect one or more HSRs and deputy HSRs: Procedure to be determined by the workers – May seek assistance of union or another person or organisation PCBU must provide any resources, facilities and assistance reasonably necessary All workers in the work group are entitled to vote HSR term = 3 years (unless terminated earlier due to resignation as HSR, disqualification, majority vote of the work group or the HSR ceases to work in the work group he or she represents) May be disqualified by court order if use HSR powers for an improper purpose or discloses information acquired through HSR role for a purpose other than in connection with that role Section 50 request: for HSR (not workgroup) Request may be made of a PCBU by any worker who carries out work for the PCBU The request enlivens an obligation on the PCBU to “facilitate the determination of one or more work groups of workers” for the purpose of “facilitating the representation of workers in the work group by one or more HSRs” Work groups must be determined by negotiation and agreement between the PCBU and the workers who will form the work group – or their representatives Must take all reasonable steps to commence negotiations within 14 days The Administrative Provisions Regulations require that the negotiations be directed at ensuring the workers are grouped in a way that: Most effectively and conveniently enables the interests of the workers to be represented and safeguarded; and Takes account of the need for a HSR which is accessible to each worker in the work group. The regulations also list a number of matters which must be taken into account in negotiations [eg number of workers, nature of work carried out and similarity between workers, places work carried out, movement of workers, diversity of workers and nature of risks] Work groups can be determined across multiple businesses – whether the business or undertakings are at one or multiple workplaces If the PCBU is asked by a worker to negotiate with the worker’s representative, it is an offence to exclude a worker’s representative from these negotiations If agreement is not reached within a reasonable time, a party to the negotiations can request that the regulator appoints an inspector to make the relevant decisions (or decides that there will no work groups at all) Once agreement is reached, or matter decided by an inspector, the PCBU must notify the workers of the outcome as soon as practicable after the negotiations are completed (failure to do so is an offence - $2k / $10k) The workers in the work group can then go on to elect one or more HSRs and deputy HSRs: Procedure to be determined by the workers – May seek assistance of union or another person or organisation PCBU must provide any resources, facilities and assistance reasonably necessary All workers in the work group are entitled to vote HSR term = 3 years (unless terminated earlier due to resignation as HSR, disqualification, majority vote of the work group or the HSR ceases to work in the work group he or she represents) May be disqualified by court order if use HSR powers for an improper purpose or discloses information acquired through HSR role for a purpose other than in connection with that role

    17. S68(1) sets out general powers and functions of HSR The HSR’s power to represent, monitor, investigate and inquire are limited to matters or places relevant to workers in the workgroup which the HSR represents The only times an HSR can act on behalf of another work group are when: there is a serious risk arising from an immediate or imminent exposure to a hazard affecting a member of another work group, or a member of another work group requests the HSR’s assistance, and the HSR of the relevant workgroup is found – after reasonable inquiry – to be unavailable. Specific powers – and restrictions on them - are contained in s68(2) Most notable of these is the right to request assistance of any person (ie inspector or union official or another body or individual) PCBU is obliged to allow that person access to the workplace – unless has reasonable grounds for refusing access (in which case the HSR may ask the regulator to appoint an inspector to assist resolve the matter – without going through full issue resolution procedure) Where assistant is a union official, no requirement that he or she have a WHS entry permit – but if the official has had his or her permit revoked or suspended, or is disqualified from holding one, the PCBU is not required to allow the person access The PCBU’s corresponding obligations are set out in ss70-72 – these include obligation to: Consult / confer with HSR Allow HSR access to information re WHS matters (other than personal or medical information) Allow and pay for HSR to attend accredited training Allow HSR to attend interviews with workers re WHS matters (with inspector or PCBU) Prove all reasonably necessary assistance and resources and pay HSR for time spent exercising his or her functions and attending training S68(1) sets out general powers and functions of HSR The HSR’s power to represent, monitor, investigate and inquire are limited to matters or places relevant to workers in the workgroup which the HSR represents The only times an HSR can act on behalf of another work group are when: there is a serious risk arising from an immediate or imminent exposure to a hazard affecting a member of another work group, or a member of another work group requests the HSR’s assistance, and the HSR of the relevant workgroup is found – after reasonable inquiry – to be unavailable. Specific powers – and restrictions on them - are contained in s68(2) Most notable of these is the right to request assistance of any person (ie inspector or union official or another body or individual) PCBU is obliged to allow that person access to the workplace – unless has reasonable grounds for refusing access (in which case the HSR may ask the regulator to appoint an inspector to assist resolve the matter – without going through full issue resolution procedure) Where assistant is a union official, no requirement that he or she have a WHS entry permit – but if the official has had his or her permit revoked or suspended, or is disqualified from holding one, the PCBU is not required to allow the person access The PCBU’s corresponding obligations are set out in ss70-72 – these include obligation to: Consult / confer with HSR Allow HSR access to information re WHS matters (other than personal or medical information) Allow and pay for HSR to attend accredited training Allow HSR to attend interviews with workers re WHS matters (with inspector or PCBU) Prove all reasonably necessary assistance and resources and pay HSR for time spent exercising his or her functions and attending training

    18. WHS Entry Permit Holders – Part 6 of model WHS Bill You will notice a number of similarities with Fair Work Act both re right of entry and penalties for obstruction or other breach by a PCBU Entering a workplace to inquire into a suspected contravention of the model WHS Act: A WHS entry permit holder is not required to give prior notice when entering a workplace to inquire into a reasonably suspected contravention of the model Act – unless giving notice would defeat purpose / cause unreasonable delay in urgent matter This is similar to the requirement found in the Fair Work Act 2009 (FW Act) in relation to the exercise of rights under State and Territory OHS legislation. WHS entry permit holder must have reasonable grounds for suspecting a contravention Contravention must relate to a worker: who is a member or eligible to be a member of the PH’s union and whose interests the PH is entitled to represent and who works at that workplace If pre-requisites met, PCBU must allow access to workplace and to any document that is kept at the workplace or that is accessible from a computer that is kept at the workplace (unless have reasonable excuse to refuse or fail to comply with the requirement) Entry to inspect or take copies of employees records or documents not held by the PCBU: Where PH has reasonable suspicion of breach and wishes to inspect documents relevant to that breach but which are not at the relevant workplace, the PH must give 24 hours notice to the PCBU and the person from whom documents or records are sought . If notice is given, the PH is entitled to enter any workplace provided it is to inspect or take copies of: - employee records that are directly relevant to a suspected contravention of the model Act, - records or documents that are directly relevant to a suspected contravention of the model Act that are not held by the PCBU. Entry to consult with and advise workers A WHS entry permit holder is required to give at least 24 hours notice to the PCBU before entering a workplace to consult on WHS matters and provide advice on those matters to relevant workers. While at a workplace to consult with and advise workers, a WHS entry permit holder may warn any person of a risk to their health and safety. May only exercise right of entry: In relation to a workplace or area of a workplace where relevant workers work or that directly affects the health & safety of relevant workers During usual working hours of the workplace Can no longer require PH to use certain rooms – but can require them to following WHS requirements Must have permit under FWA (or relevant State or Territory industrial law where relevant) Cannot be required to disclose names of union membersWHS Entry Permit Holders – Part 6 of model WHS Bill You will notice a number of similarities with Fair Work Act both re right of entry and penalties for obstruction or other breach by a PCBU Entering a workplace to inquire into a suspected contravention of the model WHS Act: A WHS entry permit holder is not required to give prior notice when entering a workplace to inquire into a reasonably suspected contravention of the model Act – unless giving notice would defeat purpose / cause unreasonable delay in urgent matter This is similar to the requirement found in the Fair Work Act 2009 (FW Act) in relation to the exercise of rights under State and Territory OHS legislation. WHS entry permit holder must have reasonable grounds for suspecting a contravention Contravention must relate to a worker: who is a member or eligible to be a member of the PH’s union and whose interests the PH is entitled to represent and who works at that workplace If pre-requisites met, PCBU must allow access to workplace and to any document that is kept at the workplace or that is accessible from a computer that is kept at the workplace (unless have reasonable excuse to refuse or fail to comply with the requirement) Entry to inspect or take copies of employees records or documents not held by the PCBU: Where PH has reasonable suspicion of breach and wishes to inspect documents relevant to that breach but which are not at the relevant workplace, the PH must give 24 hours notice to the PCBU and the person from whom documents or records are sought . If notice is given, the PH is entitled to enter any workplace provided it is to inspect or take copies of: - employee records that are directly relevant to a suspected contravention of the model Act, - records or documents that are directly relevant to a suspected contravention of the model Act that are not held by the PCBU. Entry to consult with and advise workers A WHS entry permit holder is required to give at least 24 hours notice to the PCBU before entering a workplace to consult on WHS matters and provide advice on those matters to relevant workers. While at a workplace to consult with and advise workers, a WHS entry permit holder may warn any person of a risk to their health and safety. May only exercise right of entry: In relation to a workplace or area of a workplace where relevant workers work or that directly affects the health & safety of relevant workers During usual working hours of the workplace Can no longer require PH to use certain rooms – but can require them to following WHS requirements Must have permit under FWA (or relevant State or Territory industrial law where relevant) Cannot be required to disclose names of union members

    19. S163 – inspectors have the power to enter a place that is, or that the inspector reasonably suspects is, a workplace May enter without prior notice – and need only give notice to PCBU if doing so will not defeat the purpose for which the inspector enters or cause unreasonable delay Powers on entry (s165) – inspect, examine anything, & make inquires, at a workplace; take measurements and conduct tests; take & remove samples for analysis; require a person to provide reasonable help to inspector in exercise of duties; exercise any compliance powers reasonably necessary for purposes of the Act S167 - May seek a search warrant for any place where there are reasonable grounds for suspecting that there is (or will be in the next 72 hours) particular evidence at the place that may go to proving offence under the Act S170 – restrictions on entering residential premises Specific powers (s171) – may require: a person to tell the inspector who has custody of a document, the person with custody to produce the document, and any person at the workplace to answer questions put by the inspector But Inspector must give warning before requiring a person to do any of these things (s173). Specifically, the inspector must: identify him or herself; warn person that, without a reasonable excuse, failure to comply will constitute an offence; and warn of the effect of ss172 and 269. s172 – No right to privilege against self-incrimination - not excused from answering questions or providing information on the ground that you would incriminate yourself. Failure to answer will be an offence, unless the inspector has not warned you that the you don’t enjoy the protection of the privilege against self-incrimination. However, where you are required to give self-incriminating evidence, that evidence cannot be used against you (unless it was false or misleading). Inspectors are free to use any information given voluntarily. S269 - Legal professional privilege – does apply – cannot be compelled to produce a document or provide information that is the subject of LPP. Interviews are to be conducted in private – but legal (or union) representative not prevented from being present Ss174-177 – power to copy and retain documents, seize evidence and seize dangerous workplaces and things (and supporting powers) New for Vic & WA – model Bill contains an obligation on inspectors to minimise damage to property – and a right for PCBUs to seek compensation for any loss or damage incurred as a consequence of an exercise of an inspector’s powers (Div 5 - Power to require name and address and take affidavits) Div 6 - Offences in relation to inspectors – max penalty for assault, threaten or intimidate $50,000 / $250,000; max penalty for offence of hindering or obstructing or impersonating an inspector $10,000 / $50,000; Also, offences of coercion & misleading conduct apply to dealings with inspectors Enforcement measures – Part 10 – Improvement notices, prohibition notices and non-disturbance notices, right to take remedial action and seek injunctionsS163 – inspectors have the power to enter a place that is, or that the inspector reasonably suspects is, a workplace May enter without prior notice – and need only give notice to PCBU if doing so will not defeat the purpose for which the inspector enters or cause unreasonable delay Powers on entry (s165) – inspect, examine anything, & make inquires, at a workplace; take measurements and conduct tests; take & remove samples for analysis; require a person to provide reasonable help to inspector in exercise of duties; exercise any compliance powers reasonably necessary for purposes of the Act S167 - May seek a search warrant for any place where there are reasonable grounds for suspecting that there is (or will be in the next 72 hours) particular evidence at the place that may go to proving offence under the Act S170 – restrictions on entering residential premises Specific powers (s171) – may require: a person to tell the inspector who has custody of a document, the person with custody to produce the document, and any person at the workplace to answer questions put by the inspector But Inspector must give warning before requiring a person to do any of these things (s173). Specifically, the inspector must: identify him or herself; warn person that, without a reasonable excuse, failure to comply will constitute an offence; and warn of the effect of ss172 and 269. s172 – No right to privilege against self-incrimination - not excused from answering questions or providing information on the ground that you would incriminate yourself. Failure to answer will be an offence, unless the inspector has not warned you that the you don’t enjoy the protection of the privilege against self-incrimination. However, where you are required to give self-incriminating evidence, that evidence cannot be used against you (unless it was false or misleading). Inspectors are free to use any information given voluntarily. S269 - Legal professional privilege – does apply – cannot be compelled to produce a document or provide information that is the subject of LPP. Interviews are to be conducted in private – but legal (or union) representative not prevented from being present Ss174-177 – power to copy and retain documents, seize evidence and seize dangerous workplaces and things (and supporting powers) New for Vic & WA – model Bill contains an obligation on inspectors to minimise damage to property – and a right for PCBUs to seek compensation for any loss or damage incurred as a consequence of an exercise of an inspector’s powers (Div 5 - Power to require name and address and take affidavits) Div 6 - Offences in relation to inspectors – max penalty for assault, threaten or intimidate $50,000 / $250,000; max penalty for offence of hindering or obstructing or impersonating an inspector $10,000 / $50,000; Also, offences of coercion & misleading conduct apply to dealings with inspectors Enforcement measures – Part 10 – Improvement notices, prohibition notices and non-disturbance notices, right to take remedial action and seek injunctions

    20. The model Bill prohibits discriminatory, coercive and misleading conduct in relation to WHS matters And establishes both criminal and civil causes of action in the event of discriminatory or coercive conduct – so the person affected by the alleged conduct has standing to enforce the prohibitions and seek remedies equivalent to those found under the FWA and anti-discrimination laws (including reinstatement or reemployment, compensation, injunctions etc) Criminal proceedings and civil action can be brought in relation to the same matter (but civil complainants cannot bring multiple complaints in different forums) Discriminatory conduct: s104 prohibits discriminatory conduct for prohibited reasons – set up in similar way to the adverse action provisions in the FWA / anti-discrimination laws Covers discriminatory conduct in relation to people and other organisations – s105 expressly includes terminating or refusing or failing to enter into commercial arrangements Prohibition includes aiding & abetting discriminatory conduct prohibited reason must be dominant reason for a criminal offence to be established (in which case max penalty will be $100k / $500k – and court may make orders for reinstatement or compensation as well) For civil action, need only establish that the prohibited reason was a substantial reason – and it will be a defence if the conduct complained of was reasonable in the circumstances and taken in furtherance of the WHS Act Coercive conduct: S108 prohibits a person organising or taking (or threatening to organise or take) action against another person with the intent to coerce or induce that person or a 3rd person to in relation to exercising a power or function under the Act, or seeking or continuing to undertake a role under the Act. it will be a defence to civil complaint if the conduct complained of was reasonable in the circumstances and taken in furtherance of the WHS Act Misrepresentation: Finally, s109 the model WHS Bill prohibits persons from knowingly or recklessly making a false or misleading representation to another person about that others person’s: rights or obligations under the Act, ability to initiate or participate in a process or proceeding under the Act or ability to make a complaint or inquiry to an inspector or the regulator. (Section 268 also establishes an offence in relation to giving false or misleading information in compliance or purported compliance of the Act) Maximum penalty for both coercive conduct and misrepresentation = $100k / $500k The model Bill prohibits discriminatory, coercive and misleading conduct in relation to WHS matters And establishes both criminal and civil causes of action in the event of discriminatory or coercive conduct – so the person affected by the alleged conduct has standing to enforce the prohibitions and seek remedies equivalent to those found under the FWA and anti-discrimination laws (including reinstatement or reemployment, compensation, injunctions etc) Criminal proceedings and civil action can be brought in relation to the same matter (but civil complainants cannot bring multiple complaints in different forums) Discriminatory conduct: s104 prohibits discriminatory conduct for prohibited reasons – set up in similar way to the adverse action provisions in the FWA / anti-discrimination laws Covers discriminatory conduct in relation to people and other organisations – s105 expressly includes terminating or refusing or failing to enter into commercial arrangements Prohibition includes aiding & abetting discriminatory conduct prohibited reason must be dominant reason for a criminal offence to be established (in which case max penalty will be $100k / $500k – and court may make orders for reinstatement or compensation as well) For civil action, need only establish that the prohibited reason was a substantial reason – and it will be a defence if the conduct complained of was reasonable in the circumstances and taken in furtherance of the WHS Act Coercive conduct: S108 prohibits a person organising or taking (or threatening to organise or take) action against another person with the intent to coerce or induce that person or a 3rd person to in relation to exercising a power or function under the Act, or seeking or continuing to undertake a role under the Act. it will be a defence to civil complaint if the conduct complained of was reasonable in the circumstances and taken in furtherance of the WHS Act Misrepresentation: Finally, s109 the model WHS Bill prohibits persons from knowingly or recklessly making a false or misleading representation to another person about that others person’s: rights or obligations under the Act, ability to initiate or participate in a process or proceeding under the Act or ability to make a complaint or inquiry to an inspector or the regulator. (Section 268 also establishes an offence in relation to giving false or misleading information in compliance or purported compliance of the Act) Maximum penalty for both coercive conduct and misrepresentation = $100k / $500k

    21. Part 11: S216: WHS Undertakings Regulator may accept a written undertaking from a person in connection with a matter relation to a contravention or alleged contravention by that person of the Act Currently known as ‘enforceable undertakings’, these are referred to as WHS undertakings in model WHS Bill Guidelines will be published by the regulators with respect to the acceptance of WHS undertakings But model Bill precludes them from being accepted re Category 1 offence Can offer a WHS undertaking at any time before proceedings in respect of a contravention have been finalised And giving a WHS undertaking does not constitute an admission of guilt in relation to the contravention or alleged contravention While in effect, and when completely discharged, the regulator is precluded from prosecuting the person in relation to the contravention to which the WHS undertaking relates But where person contravenes the WHS undertaking, regulator may apply to the court for a penalty and an order directing the person to comply or discharging the undertaking - and regulator is not prevented from bringing proceedings re initial (alleged) contravention of Act (ie the one to which the WHS undertaking relates) Other sentencing options: Where prosecution brought and breach found, the court has the following sentencing options available to it (in addition to financial penalties): Adverse publicity orders – s236 Restoration orders – s237 Work health and safety project orders – s238 – require the offender to undertake specified project for the general improvement of work health and safety Court-ordered WHS undertaking (s239) – may adjourn proceedings for up to 2 years with or without recording a conviction and instead order the accused to give an undertaking with specified conditions. The conditions include a requirement that the accused : appear before the court whenever called on during the adjournment period, Does not commit an offence during the adjournment period, and Complies with any other orders made by the court. Injunctions – may issue an injunction re ongoing offence under s240 or re noncompliance with an enforcement notice under s215 Training orders – s241 – orders requiring persons to undertake or arrange for worker(s) to undertake a specific training course Infringement scheme – to be established by the jurisdictions re offences under the model regulations Part 11: S216: WHS Undertakings Regulator may accept a written undertaking from a person in connection with a matter relation to a contravention or alleged contravention by that person of the Act Currently known as ‘enforceable undertakings’, these are referred to as WHS undertakings in model WHS Bill Guidelines will be published by the regulators with respect to the acceptance of WHS undertakings But model Bill precludes them from being accepted re Category 1 offence Can offer a WHS undertaking at any time before proceedings in respect of a contravention have been finalised And giving a WHS undertaking does not constitute an admission of guilt in relation to the contravention or alleged contravention While in effect, and when completely discharged, the regulator is precluded from prosecuting the person in relation to the contravention to which the WHS undertaking relates But where person contravenes the WHS undertaking, regulator may apply to the court for a penalty and an order directing the person to comply or discharging the undertaking - and regulator is not prevented from bringing proceedings re initial (alleged) contravention of Act (ie the one to which the WHS undertaking relates) Other sentencing options: Where prosecution brought and breach found, the court has the following sentencing options available to it (in addition to financial penalties): Adverse publicity orders – s236 Restoration orders – s237 Work health and safety project orders – s238 – require the offender to undertake specified project for the general improvement of work health and safety Court-ordered WHS undertaking (s239) – may adjourn proceedings for up to 2 years with or without recording a conviction and instead order the accused to give an undertaking with specified conditions. The conditions include a requirement that the accused : appear before the court whenever called on during the adjournment period, Does not commit an offence during the adjournment period, and Complies with any other orders made by the court. Injunctions – may issue an injunction re ongoing offence under s240 or re noncompliance with an enforcement notice under s215 Training orders – s241 – orders requiring persons to undertake or arrange for worker(s) to undertake a specific training course Infringement scheme – to be established by the jurisdictions re offences under the model regulations

    22. Limitation periods on legal proceedings Criminal proceedings: 2 years after offence comes to notice of regulator 1 year from outcome of coronial inquest or official inquiry 6 months from contravention or withdrawal of a WHS undertaking later date if fresh evidence of Cat 1 offence Civil penalty proceedings: 2 years after offence comes to notice of regulator Civil proceedings: 1 year after applicant becomes aware that COA accrued Limitation period for criminal proceedings – 2 years from date offence first comes to notice of the regulator; within 1 year after a finding in a coronial inquiry or official inquiry that the offence has occurred; or within 6 months of a WHS undertaking being contravened or withdrawn Limitation period for civil proceedings (ie re alleged discriminatory or coercive conduct) – 1 year from date applicant knew or ought to have known that the cause of action accrued Multiple contraventions of a health and safety duty: S233 - Where the ‘the same factual circumstance’ give rise to 2 or more contraventions of the same health and safety duty, the duty holder may be charged with a single offence or with several offences (Although of course, contraventions of different health and safety duties must be brought as separate offences – and where charged with a single offence, can only be fined with single penalty) Model Bill protects against civil double jeopardy – cannot be penalised for same conduct under both the FWA and the WHS laws Civil penalty provision proceedings will be stayed where criminal proceedings brought re same matter Evidence - Codes of practice s275 – Codes of Practice are admissible in proceedings as evidence of whether or not a duty or obligation has been complied with, but are not decisive. The Court may have regard to the code as evidence of what is known about a hazard or risk / risk assessment / risk control and rely on the code in determining what is reasonably practicable in the circumstances to which the code relates But the duty holder may present evidence of alternative means of compliance that achieves an equivalent or higher standard of health and safety s231 – sets out request procedure to follow in the event that prosecution not brought in relation to a matter reasonably considered to be a Category 1 or 2 offence Limitation period for criminal proceedings – 2 years from date offence first comes to notice of the regulator; within 1 year after a finding in a coronial inquiry or official inquiry that the offence has occurred; or within 6 months of a WHS undertaking being contravened or withdrawn Limitation period for civil proceedings (ie re alleged discriminatory or coercive conduct) – 1 year from date applicant knew or ought to have known that the cause of action accrued Multiple contraventions of a health and safety duty: S233 - Where the ‘the same factual circumstance’ give rise to 2 or more contraventions of the same health and safety duty, the duty holder may be charged with a single offence or with several offences (Although of course, contraventions of different health and safety duties must be brought as separate offences – and where charged with a single offence, can only be fined with single penalty) Model Bill protects against civil double jeopardy – cannot be penalised for same conduct under both the FWA and the WHS laws Civil penalty provision proceedings will be stayed where criminal proceedings brought re same matter Evidence - Codes of practice s275 – Codes of Practice are admissible in proceedings as evidence of whether or not a duty or obligation has been complied with, but are not decisive. The Court may have regard to the code as evidence of what is known about a hazard or risk / risk assessment / risk control and rely on the code in determining what is reasonably practicable in the circumstances to which the code relates But the duty holder may present evidence of alternative means of compliance that achieves an equivalent or higher standard of health and safety s231 – sets out request procedure to follow in the event that prosecution not brought in relation to a matter reasonably considered to be a Category 1 or 2 offence

    23. Where to next? Model WHS Regulations and Codes of Practice are Currently being developed Safe Work Australia will be releasing an exposure draft of the model WHS Regulations, model Codes of Practice, Issues Paper and Regulation Impact Statement (if required) for public comment in late 2010 for a period of four months. This is an important opportunity for all Australians to actively participate in the development of model workplace health and safety laws. Model WHS Regulations and Codes of Practice are Currently being developed Safe Work Australia will be releasing an exposure draft of the model WHS Regulations, model Codes of Practice, Issues Paper and Regulation Impact Statement (if required) for public comment in late 2010 for a period of four months. This is an important opportunity for all Australians to actively participate in the development of model workplace health and safety laws.

    24. Key changes for the Northern Territory Officers Duty Requirement to exercise due diligence Requirement to consult Workers comply with instructions and co-operate with reasonable policies and procedures HSR No minimum cap on workgroup size No limit on HSRs for a workgroup Only qualified HSRs have powers No minimum cap for health and safety committees Psychosocial hazards covered Different penalty structure Change to prosecution timeframe New positive duty for officers of bodies to exercise due diligence New stand alone duty that requires duty holders to consult with others who have a health and safety duty in relation to the same matter Workers duty includes to comply with instructions and co-operate with reasonable policies and procedures. No cap on minimum number of workers in a work group No limit on numbers of HSRs elected to represent a work group Only qualified HSRs will have power to issue provisional improvement notices and issue directions that unsafe work cease No minimum cap to establish a health and safety committee Coverage for psychosocial hazards Different penalty structure for offences and higher penalties Reduction in time to prosecute – 2 yearsNew positive duty for officers of bodies to exercise due diligence New stand alone duty that requires duty holders to consult with others who have a health and safety duty in relation to the same matter Workers duty includes to comply with instructions and co-operate with reasonable policies and procedures. No cap on minimum number of workers in a work group No limit on numbers of HSRs elected to represent a work group Only qualified HSRs will have power to issue provisional improvement notices and issue directions that unsafe work cease No minimum cap to establish a health and safety committee Coverage for psychosocial hazards Different penalty structure for offences and higher penalties Reduction in time to prosecute – 2 years

    25. Northern Territory 20/30 Strategy Achieve the national target of 40% reduction in workplace injuries in the Northern Territory by 2012. Victoria, South Australia, New South Wales, SeaCare and ComCare have achieved the target. The Northern Territory has recorded a 1.9% reduction to date. The jurisdictions who have achieved the interim target attribute the improvement to a number of key strategies: Wide community education and awareness through television campaigns Inspectorate focus on education and awareness in workplaces including HSR networking Strong links between insurance premium and OHS outcomes The National Occupational Health and Safety Strategy establishes a framework for collective efforts to improve Australia’s workplace health and safety outcomes. The National OHS Strategy sets national targets to reduce fatalities by 20% and injuries by 40% by 30 June 2012. Interim targets for 2007 were 10% reduction in fatalities and 20% reduction in injury.The interim deaths target was reached. To be on target, all jurisdictions needed to achieve 24% reduction in injuries from the baseline (set in 2002/03). All other jurisdictions showed improvement but have yet to reach the target. The national achievement for 2007/08 was 18.2%, just short of the interim target of 20%. NT WorkSafe has included these strategies in our business plan.The National Occupational Health and Safety Strategy establishes a framework for collective efforts to improve Australia’s workplace health and safety outcomes. The National OHS Strategy sets national targets to reduce fatalities by 20% and injuries by 40% by 30 June 2012. Interim targets for 2007 were 10% reduction in fatalities and 20% reduction in injury.The interim deaths target was reached. To be on target, all jurisdictions needed to achieve 24% reduction in injuries from the baseline (set in 2002/03). All other jurisdictions showed improvement but have yet to reach the target. The national achievement for 2007/08 was 18.2%, just short of the interim target of 20%. NT WorkSafe has included these strategies in our business plan.

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