WHS Act course summary and review for union members: Module 10

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Module 10 WHS Act Course Summary and Review
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Course review

• In this final module we will review key topics of
  the course including
• Model WHS harmonisation
• Work Health and Safety (WHS)Terminology
• WHS Duties
• Consultation, representation and participation
• Enforcement
• Union Role

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Key changes

• Review Question 1
• What are the key changes to current NSW OHS
  legislation resulting from the introduction of
  WHS legislation?

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Key changes in NSW OHS legislation

• Key changes to NSW legislation include
• Changes in work safety terminology.
• A broadening of health and safety duties.
• A move away from the employer/employee
  relationship to the broader definitions of PCBUs
  and workers.
• A requirement for all duty holders to consult.
• Changes in the names, role and functions of OHS
  representatives and OHS Committees to HSRs
  (deputy HSRs) and HSCs.

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Key changes in NSW OHS legislation (cont)

• Key changes to NSW legislation include
• The introduction of HSRs being able to issue PINs
  and to direct unsafe work to cease if they have
  received the appropriate training.
• A change from authorised representatives to WHS
  permit holders.
• The introduction of positive duties for
  officers.
• The right of unions to prosecute in certain
  circumstances.
• A change from the reverse onus of proof the
  prosecution must now prove a failure by a duty
  holder to do what is reasonably practicable to
  ensure the health and safety of workers and
  others.

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WHS Terminology

• Review Question 2
• Who is seen as a person conducting a business or
  undertaking (PCBU) and a worker under WHS
  legislation?

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WHS Terminology

• A person conducts a business or undertaking
  (PCBU)
• whether the person conducts the business or
  undertaking alone or with others and
• whether or not the business or undertaking is
  conducted for profit or gain.
• Duties of PCBUs extend to those involved in
• management or control of workplaces, fixtures,
  fittings or plant
• and PCBUs in relation to plant, substances and
  structures that
• design, manufacture, import, supply, install,
  commission or construct.
•  

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WHS Terminology

• A worker under the WHS Act is anyone carrying out
  work, in any capacity, for a PCBU. This includes
• Direct employees
• Contractors and subcontractors, and their
  employees
• Labour hire employees engaged to work in the
  business or undertaking
• Outworkers
• Apprentices, trainees and students on work
  experience
• Volunteers.

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Health and Safety Duties

• Review Question 3
• Who has health and safety duties at work and what
  are they required to do?

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Health and Safety Duties

• Persons with health and safety duties include
• PCBUs
• officers
• workers
• self-employed persons
• other persons at the workplace
• A person with a health and safety duty is
  required to
• Eliminate risks to health and safety so far as is
  reasonably practicable.
• Where elimination is not reasonably practicable,
  minimise those risks so far as is reasonably
  practicable

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Consultation, Representation and Participation

• Review Question 4
• Who has a duty to consult and how might this
  occur?

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Consultation, Representation and Participation

• The PCBU is required, as far as reasonably
  practicable, to consult with workers
• who work for the business or undertaking
• or
• are likely to be directly affected by a work
  health and safety matter.
• Workers include contractors, subcontractors,
  labour hire and volunteers.
• Each person who has a duty to ensure the health
  and safety of persons at a place of work must ,
  as far as reasonably practicable, consult
  co-operate and co-ordinate activities with other
  duty holders to do so.

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Consultation, Representation and Participation

• Consultation can occur through
• Health and safety representatives (HSRs)
• Deputy health and safety representatives (deputy
  HSRs)
• Health and safety committees (HSC)
• Other arrangements as agreed to between workers
  and PCBUs e.g. through toolbox talks, inclusion
  of work health and safety matters in staff
  meetings
• WHS entry permit holders

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Consultation, Representation and Participation

• Review Question 5
• What is the role and function of HSRs (and deputy
  HSRs) and HSCs?

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Consultation, Representation and Participation

• The powers and functions of a HSR are to
• Represent workers in relation to work health and
  safety
• Monitor the measures taken by the PCBU to meet
  their duties
• Investigate complaints from members of the
  workgroup
• Inquire into anything that appears to be a risk
  to the health and safety of workers
• Direct unsafe work to cease when necessary
• Issue provisional improvement notices when
  necessary

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Consultation, Representation and Participation

• Functions of the HSC are to
• Facilitate cooperation between the PCBU and
  workers in instigating, developing and carrying
  out measures to ensure workers health and
  safety.
• Assist in development of health and safety
  standards, rules and procedures to be used and
  complied with in the workplace.
• Any other functions as agreed to between the
  PCBU and the HSC.

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Consultation, Representation and Participation
Review Question 6 When can a worker cease unsafe
work?
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Consultation, Representation and Participation

• A worker has a right to cease or refuse to
  undertake work if
• they have a reasonable concern that doing the
  work would expose them to a serious risk to their
  health and safety from immediate or imminent
  exposure to a hazard.
• Or if directed to cease unsafe work by a trained
  HSR with concerns for worker health and safety
• who has been unable to resolve the matter with
  the PCBU through consultation (unless the matter
  is so serious as to impose an immediate risk, in
  which case consultation must occur as soon as
  practicable after work has ceased).

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Consultation, Representation and Participation
Review Question 7 Who can issue a Provisional
Improvement Notice (PIN) and why?
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Consultation, Representation and Participation

• A PIN can be issued by a suitably trained HSR if
  they believe a person
• is breaching a provision of the model WHS Act
• has breached a provision of the model WHS Act
  and is likely to continue to or to repeat this
  breach.
• A PIN issued by the HSR may require the person
  to
• resolve the breach
• prevent a likely breach from occurring
• fix the things or operations causing the
  breach/likely breach.

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Union activities
Review Question 8 What activities can union
representatives undertake in relation to work
health and safety?
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Union activities

• Your union representative is entitled to
• Perform the functions of a WHS entry permit
  holder if they are eligible, including consulting
  and advising workers.
• Negotiate agreements for work groups with the
  PCBU and for multiple businesses, including
  negotiating a variation of an agreement.
• Request the assistance of an inspector where
  these negotiations fail.
• Assist with the election of a HSR.
• Assist the HSR in their role when requested by
  the HSR.

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Consultation, Representation and Participation
Review Question 9 Who is eligible to be a WHS
permit holder and what is their role under WHS
legislation?
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Consultation, Representation and Participation

• An eligible person must
• be an official of the union
• have satisfactorily completed approved training
• hold or will hold an entry permit under the Fair
  Work Act 2009 (Cth) or relevant industrial law.
• A WHS permit holder can
• inquire into a suspected contravention of the
  model WHS Act that relates to relevant workers
  (as defined)
• consult and advise workers and
• consult with PCBUs about a suspected
  contravention.
• inspect any work, plant, substances, structure or
  relevant thing
• inspect and copy any relevant document
• warn any person who may be exposed to a serious
  and immediate health and safety risk.

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Enforcement measures
Review Question 10 What enforcement measures are
available under the WHS Act?
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Enforcement measures

• Enforcement measures include
• Provisional Improvement Notices PIN
• Improvement Notices
• Prohibition Notices
• Non-disturbance notices
• Enforceable (WHS) undertakings
• Court orders include
• Adverse publicity orders
• Orders for restoration
• Work Health and Safety (WHS) project orders
• Court ordered WHS undertakings
• Injunctions
• Training orders

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Course review

• Any questions

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Module 10- Activity -

• At the start of the course you completed a quick
  quiz on your understanding of new model WHS
  legislation.
• Redo the quick quiz on the handout.
• Check through your answers with the facilitator
  and the group.
• Are there any issues relating to changes
• brought about by the WHS Act where you
• require any further clarification?

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Evaluations

• Please complete the course evaluation
• and
• hand this form and your completed quick quiz to
  your facilitator.

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• for your participation