Work Health and Safety

1
Work Health and Safety (WHS) Act SESSION 1
2
Housekeeping

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

3
Course Objectives

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

4
Course Objectives (cont)

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

5
Work Health and Safety Framework

• WHS Act
• WHS Regulations
• Codes of Practice
• Australian Standards
• Industry Standards
• Guidance Material

6
Work Health and Safety Framework
Model WHS Framework Model WHS Act and WHS
Regulations supported by Codes of Practice
Mirrored by
State WHS Act, WHS Regulations, Codes of Practice
Territory WHS Act, WHS Regulations, Codes of
Practice
Commonwealth WHS Act, WHS Regulations, Codes of
Practice
7
Model WHS Act - Object -
The main object of the model WHS Act is to
provide for a balanced and nationally consistent
framework to secure the health and safety of
workers and workplaces. How is the object of
the model WHS Act to be achieved?
WHS Act s3
8
Model WHS Act - How the object is to be achieved
-

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

WHS Act s3
9
Model WHS Act - How the object is to be achieved
-

• encouraging unions and employer organisations to
  take a constructive role and to assist in
  achieving a healthier and safe workplace
• promoting the provision of work health and safety
  advice, information, education and training
• effective and appropriate use of compliance and
  enforcement measures

WHS Act s3
10
Model WHS Act - How the object is to be achieved
-

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

WHS Act s3
11
Key changes

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

WHS Act s4-9, s13-29, s46
12
Key changes

• The introduction of deputy HSRs
• Risk management is focused more on the outcome
  than the process a risk assessment may not be
  required in all situations
• Authorised representatives become WHS entry
  permit holders with increased functions
• A positive duty for officers e.g. proactive
  safety activities
• Enforcement measures
• The removal of the reverse onus of proof
• Changes as to when unions can prosecute.

WHS Act Part 5 s124, Parts 10-13
13
Sources of information

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

14
Sources of information

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

15
Key changes in terms
Work Health and Safety (WHS) Person Conducting a
Business or Undertaking (PCBU) Worker
(includes contractors, volunteers) Health and
Safety Representative Health and Safety
Committee Officer

• Occupational Health and Safety (OHS)
• Employer
• Employee
• OHS Representative
• OHS Committee
• Managers and directors

WHS Act s4
16
Important terms

• See model WHS Act for full definitions and Fact
  Sheet 2.
• Work Health and Safety - covers the concept of
  the health, safety and welfare of all persons who
  may be impacted by work activities.
• Health means physical and psychological health.
• Safety requires the elimination or minimisation
  of hazards in the workplace that have the
  potential to cause harm.
• Welfare includes the provision of facilities,
  protective clothing or equipment, rescue
  equipment and accommodation.

WHS Act s4
17
Key changes in terms
Person Conducting a Business or Undertaking
(PCBU) - includes corporations, partnerships,
labour hire businesses, associations,
franchises. A PCBU does not need to employ
workers. Worker - includes employees,
contractors, volunteers, apprentices, outworkers,
trainees and work experience persons.

• Employer
• Employee

WHS Act s4
18
Important terms

• Key terms and definitions include
• Person conducting a business or undertaking
  (PCBU).
• Worker
• Workplace
• Health and Safety Representative (HSR)
• Health and Safety Committee
• Officer
• Reasonably practicable
• What is your normal place of work? Do you ever
  work away from your works premises under a
  different business owner?

WHS Act s4
19
Important terms

• Supply - includes a supply and a resupply of the
  thing by way of sale, exchange, lease, hire or
  hire-purchase, whether as principal or agent.
• Design - includes original design, redesign or
  modification
• Construct - includes assemble, erect,
  reconstruct, reassemble and re-erect.
• As part of your work activities have you altered
  a piece of equipment or assembled a structure at
  work?

WHS Act s4
20
Persons with health and safety duties

• Persons with duties under the
• WHS Act
• PCBUs including manufacturers, suppliers,
  importers or persons with management or control
  of workplaces, fixtures and fittings.
• PCBUs who install, commission or construct plant,
  structures or substances.
• Self-employed persons
• Workers
• Officers
• Others at the workplace

• Persons who currently have duties
• Employers
• Controllers of work premises, plant or substances
• Designers, suppliers and manufacturers of plant
  and substances
• Self-employed persons
• Employees
• Directors and managers

WHS Act s4
21
Health and Safety Duties

• A person with a duty to ensure health and safety
  under the WHS Act is required to
• Eliminate risks to health and safety so far as is
  reasonably practicable.
• Example Removing the chemicals and using other
  methods to clean, such as water blasting.
• Where elimination is not reasonably practicable,
  minimise those risks so far as is reasonably
  practicable.
• Example A cleaning chemical is still required
  but a safer substance is chosen for use.

WHS Act s17-18
22
Health and Safety Duties
Reasonably practicable is based on
Likelihood of the hazard or risk occurring
Level of harm from exposure to the hazard
What is known about the hazard or risk
What is known about how to eliminate or minimise
the risk
Whether the cost of eliminating or minimising
the risk far exceeds the risk
Availability and suitability of ways to eliminate
or minimise
Where would you find information to assist in
doing what would be considered to be reasonably
practicable?
WHS Act s18
23
Health and Safety Duties - PCBUs -

• PCBUs have a primary duty of care to ensure, so
  far as is reasonably practicable, the health and
  safety of
• workers engaged directly or indirectly by the
  PCBU
• workers whose work activities are influenced or
  directed by the PCBU and
• other persons present where work activities are
  being conducted.
• What might the PCBU have to do to meet this duty
  of care?

WHS Act s19
24
Health and Safety Duties - PCBUs -

• Duties of PCBUs to meet this primary duty of care
  are similar to current requirements and include
  provision of
• Safe work environments
• Safe systems of work
• Safe plant and structures
• Safe substances
• Facilities
• Information, instruction, training and
  supervision
• Monitoring of workers health and workplace
  conditions
• Workers accommodation (an additional
  requirement) where provided/required for work.
• See Fact Sheet 3 for other duties of PCBUs.

PCBUs
WHS Act s19
25
Health and Safety Duties - PCBU -

• PCBUs involved in the
• Management or control of workplaces including
  the means of entering and exiting the workplace
• Management or control of fixtures, fittings or
  plant
• have a duty to eliminate or minimise risks to
  health and safety (i.e. a primary duty of care)
  over the matters they control in relation to
  these workplaces, fixtures, fittings or plant.

WHS Act s20-21
26
Health and Safety Duties - PCBU -

• PCBUs also have a primary duty of care to
  ensure health and safety where they are involved
  in the
• Design
• Manufacture
• Import
• Supply
• Installation, commission or construction
• of plant, substances and structures.
• This includes assembly, use, handling, storage,
  disposal, provision of current relevant
  information etc.

Image removed
WHS Act s22-26
27
Health and Safety Duties - Officers -

• Duty of Officers
• Officers of the PCBU are required to exercise
  due diligence to ensure the PCBU complies with
  their duties and obligations.
• Who are officers in your workplace? What might
  they have to do to show they are using due
  diligence?

WHS Act s27
28
Health and Safety Duties

• Due diligence means taking reasonable steps
• to gain and update knowledge of work health and
  safety
• in understanding the operations and the general
  hazards/risks
• for appropriate resources to eliminate/minimise
  risks
• in managing information about incidents, hazards
  and risks
• to implement processes to comply with duties
  (e.g. reporting notifiable incidents,
  consultation, provision of training)
• to verify that resources and processes have been
  provided, and their use.

WHS Act s27(5)
29
Health and Safety Duties

• Duties of workers
• Workers, as defined under the WHS Act, are
  required to
• Take reasonable care for their own health and
  safety
• Take reasonable care to ensure acts/omissions do
  not adversely affect others health and safety
• Comply with reasonable instructions from the
  PCBU
• Co-operate with policy or procedures of the PCBU
• What might you have to do as a worker to meet
  these duties?

WHS Act s28
30
Health and Safety Duties

• Right to cease unsafe work
• Workers have the right to cease or refuse to
  carry out work if
• they have a reasonable concern that the work
  would expose them to a serious risk to health and
  safety from an immediate or imminent exposure to
  a hazard.
• ? A worker may also be directed to cease unsafe
  work by their Health and Safety Representative
  (HSR).

WHS Act s84-85
31
Health and Safety Duties

• Duties of self-employed persons
• Self-employed persons have
• a duty to ensure their own work health and
  safety
• health and safety duties as a PCBU
• How might a self-employed person ensure their own
  health and safety? For example, using electrical
  equipment that has been tested, tagged and
  checked before use.

WHS Act s19(5)
32
Health and Safety Duties

• Other persons at the workplace (an expanded duty
  under WHS Act)
• Other persons at a workplace (e.g. visitor,
  shopper) have a duty to
• take reasonable care for his or her own health
  and safety
• take reasonable care that his or her acts or
  omissions do not adversely affect the health and
  safety of other persons and
• comply, so far as reasonably able, with any
  reasonable instruction given by the PCBU to allow
  the PCBU to comply with their duties.

WHS Act s29
33
Health and Safety Duties

• Other key concepts of duties under the WHS Act
• A duty cannot be transferred to another person.
• Example A business owner cannot transfer duties
  to a supervisor.
• A person can have more than one duty.
• Example A person who conducts a business
  manufacturing and selling equipment for use at
  work.
• More than one person can have a duty.
• Example A contractor and the business owner of
  the workplace where the work is being done can
  have the same duties.

WHS Act s14-16
34
Health and Safety Duties

• Offences and penalties
• A person commits an offence against the WHS Act
  under the following categories.
• Category 1 - Reckless conduct
• A person commits a Category 1 offence if they
• have a health and safety duty and
• without reasonable excuse expose a person to a
  risk of death, serious injury or illness
• are reckless as to the risk of the individual of
  death or serious injury or illness.

WHS Act s31, s230-236
35
Health and Safety Duties

• Category 2 - Failure to comply with health and
  safety duty
• A person commits a Category 2 offence if
• the person has a duty, fails in that duty and
  exposes a person to
• death or serious injury or illness as a result of
  this failure.
• Category 3 - Failure to comply with health and
  safety duty
• A person commits a Category 3 offence if
• the person has a health and safety duty and they
  fail to comply with that duty.

WHS Act s32 and s33
36
Penalties under the WHS Act
Failure to comply with Health and Safety duty Individual Individual conducting a PCBU or Officer of a PCBU Body Corporate
Category 1 300,000 or 5 years imprisonment or both 600,000 or 5 years imprisonment or both. 3,000,000
Category 2 150,000 300,000 1,500,000
Category 3 50,000 100,000 500,000
WHS Act s30-34