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Presenter: Paul Cutrone

TAFE NSW Work Health & Safety (WHS) Laws Legal Briefing. Presenter: Paul Cutrone. INTRODUCTION. PURPOSE. SESSION 1. UNDERSTANDING DUE DILIGENCE – WHAT YOUR OBLIGATIONS ARE?. WHS Act health and safety duties. PRINCIPLES THAT APPLY TO HEALTH & SAFETY DUTIES .

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Presenter: Paul Cutrone

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  1. TAFE NSW Work Health & Safety (WHS) Laws Legal Briefing Presenter: Paul Cutrone

  2. INTRODUCTION PURPOSE

  3. SESSION 1 UNDERSTANDING DUE DILIGENCE – WHAT YOUR OBLIGATIONS ARE?

  4. WHS Act health and safety duties PRINCIPLES THAT APPLY TO HEALTH & SAFETY DUTIES INCIDENT NOTIFICATION WHAT IS REASONABLY PRACTICABLE OFFENCES & PENALTIES HEALTH & SAFETY DUTIES OTHER IMPORTANT TERMS, APPLICATION OF THE ACT OBJECT & INTERPRETATION OFFICERS, WORKERS & OTHER PERSONS PRIMARY DUTY OF CARE FURTHER DUTIES OF A PERSON CONDUCTING A BUSINESS OR UNDERTAKING (PCBU)

  5. Definition in focus worker Note: A PCBU is worker if an individual

  6. Other duty holders DESIGN PLANT, SUBSTANCES OR STRUCTURES MANUFACTUREPLANT, SUBSTANCES OR STRUCTURES MANUFACTUREPLANT, SUBSTANCES OR STRUCTURES PCBU REASONABLY PRACTICABLE INSTALL, CONSTRUCTOR COMMISSIONPLANT OR STRUCTURES IMPORT PLANT SUBSTANCES OR STRUCTURES IMPORT PLANT, SUBSTANCES OR STRUCTURES SUPPLY PLANT, SUBSTANCES OR STRUCTURES

  7. Health and safety duties reasonably practicable TIME LIKELIHOOD OF HAZARD OR RISK OCCURRING DEGREE OF HARM THAT MIGHT RESULT FROM THE HAZARD OR RISK WHAT PERSON KNOWS OR OUGHT REASONABLY TO KNOW ABOUT + + ACCOUNT + WEIGHT THE HAZARD OR RISK THE COSTS ASSOCIATED WITH AVAILABLE WAYS OF ELIMINATING OR MINIMISING THE RISK WAYS OF ELIMINATING OR MINIMISING THE RISK + + +

  8. Due diligence defined ACQUIRE & KEEP UP TO DATE KNOWLEDGE OF WORK H&S MATTERS GAIN AN UNDERSTANDING OF NATURE OF OPERATIONS OF BUSINESS OR UNDERTAKING AND GENERALLY OF HAZARDS & RISKS ASSOCIATED WITH THOSE OPERATIONS ENSURE HAS AVAILABLE FOR USE & USES APPROPRIATE RESOURCES & PROCESSES TO ENABLE HAZARDS ASSOCIATED WITH OPERATIONS TO BE IDENTIFIED & RISKS TO BE ELIMINATED OR MINIMISED ENSURE HAS APPROPRIATE PROCESSES FOR RECEIVING & CONSIDERING INFORMATION REGARDING INCIDENTS, HAZARDS & RISKS & RESPONDS IN A TIMELY WAY ENSURE HAS & IMPLEMENTS PROCESSES FOR COMPLYING WITH ACT VERIFY PROVISION & USE OF RESOURCES & PROCESSES Note: Use of examples in the definition, reasonable steps

  9. Duties of workers TAKE REASONABLE CARE FOR OWNH&S TAKE REASONABLE CARE THAT ACTS OR OMISSIONS DO NOT ADVERSELY AFFECT THE H&S OF OTHER PERSONS COMPLY WITH REASONABLE INSTRUCTION TO COMPLY WITH ACT BY PCBU COMPLY WITH ANY REASONABLE POLICY OR PROCEDURE OF PCBU RELATING TO WORKPLACE H&S THAT HAS BEEN NOTIFIED TO WORKERS Note: broad definition of ‘worker’

  10. Table of Penalties – WHS Act

  11. WHS Act consultation, representation & participation CONSULTATION, COOPERATION BETWEEN DUTY HOLDERS PROVISIONAL IMPROVEMENT NOTICES RIGHT TO CEASE OR DIRECT CESSATION OF UNSAFE WORK CONSULTATION WITH WORKERS CONSULTATION, REPRESENTATION & PARTICIPATION HEALTH & SAFETY REPRESENTATIVES (HSR) ISSUE RESOLUTION HEALTH & SAFETY COMMITTEES

  12. WHS Act workplace entry by WHS entry permit holder ENTRY TO INQUIRE INTO SUSPECTED CONTRAVENTIONS GENERAL ENTRY TO CONSULT & ADVISE WORKERS PROHIBITIONS WORKPLACE ENTRY BY WHS ENTRY PERMIT HOLDER REQUIREMENTS FOR WHS ENTRY PERMIT HOLDERS DEALING WITH DISPUTES WHS ENTRY PERMITS

  13. WHS Act enforcement measures REVIEW OF DECISIONS IMPROVEMENT NOTICES PROHIBITION NOTICES ENFORCEABLE UNDERTAKINGS ENFORCE-MENT MEASURES CONTINUOUS IMPROVEMENT PERFORMANCE AND CULTURE NON-DISTURBANCE NOTICES INJUNCTIONS GENERAL REQUIREMENTS APPLYING TO NOTICES REMEDIAL ACTION Note: Notification of Incident

  14. SESSION 2 Due diligence in practice – case studies?

  15. CASE STUDY Learning through a scenario

  16. Why is WHS important? ‘My parents were my best friends, they’re all I had. My life ended that day. BP ruined my life. It ended my life. That day I had to start all over.’

  17. The incident and the investigation Adapted Jim Reason

  18. Legal Regulatory Investigation • Hierarchy of WHS documents. • Supporting and assurance systems/practices. • Due diligence and your role.

  19. Legal Court Examination • Hierarchy of WHS documents. • Supporting and assurance systems/practices. • Due diligence and your role.

  20. Hierarchy of WHS documents ‘Consider the difference between what is written and what is real.’ Professor James Reason at a meeting with Paul Cutrone on 28 July 2006

  21. A risk based approach “I would also add that it would always be prudent to take even greater than usual care in a workplace where a majority of the employees are young people with little experience in the workplace, or indeed, in life”. Walton J (V-P) - WorkCover Authority of New South Wales (Inspector Ankucic) V Lyndhurst Trading Co Pty Ltd

  22. Supporting and assurance systems ‘When we asked senior management why they didn’t know about the many failings uncovered by the inquiry, one of them said: “I knew everything was alright because I never got any reports of things being wrong.” In my experience [Appleton said],…there is always news on safety and some of it will be bad news. Continuous good news – you worry.’ Quote from and regarding the Piper Alpha Disaster

  23. WHS leadership “…Management actions and actual day to day behaviour are generally much more important than simply changing written policies and procedures for effecting lasting cultural change. For senior managers, actions speak louder than words. If senior management only changes what it says, rather than what it does, then little progress will be made…” The Honourable Peter Aloysius McInerney, Special Commission of Inquiry in the Glenbrook Rail Accident, Final Report, April 2001, at 49

  24. “If eternal vigilance is the price of liberty, then chronic unease is the price of safety. Studies of high-reliability organisations – systems…indicate that people who operate and manage them tend to assume that each day will be a bad day and act accordingly. But this is not an easy state to sustain, particularly when the thing about which one is uneasy has either not happened, or happened a long time ago, and perhaps to another organisation.” WHS leadership James Reason

  25. WHS leadership GENERATIVE Safety is how we do business round here Increasing Informedness PROACTIVE We work on the problems that we still find CALCULATIVE We have systems in place to manage all hazards REACTIVE Safety is important, we do a lot every time we have an accident Increasing Trust & Accountability PATHOLOGICAL Who cares as long as we’re not caught Professor Patrick Hudson

  26. Covey’s approach and due diligence AREA OF AREA OF WHS INFLUENCE WHS CONCERN

  27. Activity • Highest risks • Risk controls • How effective are the risk controls? • How can we make them more effective?

  28. Questions?

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