introduction what this seminar will cover

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Introduction What this seminar will cover. Crystal ball gazing - regulations not finalised The WHS laws decision making processThe regulations in context Selected issues from individual regulationsPreparing for changeNext steps. National Model WHS Laws Setting the scene

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3. National Model WHS Laws Setting the scene – the decision process

4. 4 Structure of Model WHS Laws As outlined in this diagram, the Act establishes the general duty to provide, so far as is reasonably practicable, a workplace that is safe and without risks to health. It also establishes obligations on workers and officers, establishes processes for consultation and representation and outlines the way in which the laws will be enforced by the regulator. Regulations establish specific obligations that assist in meeting that general duty of care; codes of practice provide more detailed practical information about how to comply with the Act and/or Regulations. Guidance material is then developed to provide practical advice on how to fix a particular problem, or deal with a specific issue. As outlined in this diagram, the Act establishes the general duty to provide, so far as is reasonably practicable, a workplace that is safe and without risks to health. It also establishes obligations on workers and officers, establishes processes for consultation and representation and outlines the way in which the laws will be enforced by the regulator. Regulations establish specific obligations that assist in meeting that general duty of care; codes of practice provide more detailed practical information about how to comply with the Act and/or Regulations. Guidance material is then developed to provide practical advice on how to fix a particular problem, or deal with a specific issue.

5. 5 An Example - Noise A worked example of how the laws sit togetherA worked example of how the laws sit together

6. Duties Under the National WHS Laws Duty holders will be innocent until proven guilty – as is the case in other criminal law There is now a positive duty of the person conducting a business or undertaking – qualified by what is SFARP. And in all cases, the prosecution should bear the onus of proving beyond reasonable doubt all elements of an offence. This is now in line with criminal law, therefore, innocent until proven guilty. “Persons (Employers – duty holders) conducting a business or undertaking” is the terminology proposed by the reports, should be required to do all that is reasonably practicable to provide a safe and healthy workplace. Law has been ‘stretched’ to cover other arrangements i.e. contractors, labour hire, and franchisees. Senior officers will have a positive duty to exercise due diligence and ensure the business is safe and healthy – it is proposed that this section of the Act be brought “Up front” to give it greater prominence – we may end up with employer duties, then officer then employee. It is also important to note that it is recommended a definition be included of Due Diligence, or provide guidance around this. Ai Group have proposed this in the submission. This was initially rejected, based on the argument that Due Diligence would be qualified by case law. “Workers” and “other persons” in the workplace (visitors, contractors etc) will be required to take reasonable care for themselves and others. This is different to NSW, where there is no obligation for a worker to take reasonable care for own health and safety – This is important for educating workers to take care of themselves. The model laws are basically prioritised by duty of PCBU, officers, workers and other persons.Duty holders will be innocent until proven guilty – as is the case in other criminal law There is now a positive duty of the person conducting a business or undertaking – qualified by what is SFARP. And in all cases, the prosecution should bear the onus of proving beyond reasonable doubt all elements of an offence. This is now in line with criminal law, therefore, innocent until proven guilty. “Persons (Employers – duty holders) conducting a business or undertaking” is the terminology proposed by the reports, should be required to do all that is reasonably practicable to provide a safe and healthy workplace. Law has been ‘stretched’ to cover other arrangements i.e. contractors, labour hire, and franchisees. Senior officers will have a positive duty to exercise due diligence and ensure the business is safe and healthy – it is proposed that this section of the Act be brought “Up front” to give it greater prominence – we may end up with employer duties, then officer then employee. It is also important to note that it is recommended a definition be included of Due Diligence, or provide guidance around this. Ai Group have proposed this in the submission. This was initially rejected, based on the argument that Due Diligence would be qualified by case law. “Workers” and “other persons” in the workplace (visitors, contractors etc) will be required to take reasonable care for themselves and others. This is different to NSW, where there is no obligation for a worker to take reasonable care for own health and safety – This is important for educating workers to take care of themselves. The model laws are basically prioritised by duty of PCBU, officers, workers and other persons.

7. Worker Duty – Take Reasonable Care Whilst officer due diligence is defined all workers also have a duty to take reasonable care of themselves or others. As a person becomes more senior in an organisation their ability to influence the safety of others in the organisation. From this we can see a continuum of responsibility.Whilst officer due diligence is defined all workers also have a duty to take reasonable care of themselves or others. As a person becomes more senior in an organisation their ability to influence the safety of others in the organisation. From this we can see a continuum of responsibility.

8. The Proposed WHS Regulations Currently 10 chapters; 554 pages including Schedules and Appendices Important. Regs must be read in conjunction with the Act as they do not make sense as stand alone. If you are looking at what the regs are telling me to do can’t look in isolation with the Act. For example the regs do not restate the upstream duties as written in the Act. Also read with Codes of Practice e.g. noise Chapter 1. Definitions of terms used in the regulations are found in the first 40 pages of Chapter 1 – (like a glossary) rather than in individual regulations, although some exceptions e.g. hazardous manual task, electrical equipment which are defined at the beginning of the relevant individual regulation. Chapter 2. Includes information on workgroups, election of HSRs, training of HSRs, issue resolution and WHS entry permits Chapter 3. Similar to familiar employer obligations i.e. provision of facilities but also includes PPE, First Aid and Emergency Plans Chapter 4. Extensive set of 8 regulations covering: Noise Hazardous manual tasks Confined spaces Falls High risk work licensing Abrasive blasting Electrical work Diving work Chapters 5 to 9. Self explanatory by their titles Chapter 10. Administrative matters such as review of regulator decisions and exemptions. Followed by: Schedules e.g. Prohibited and restricted chemicals and Appendices e.g.jurisdictional notes Currently 10 chapters; 554 pages including Schedules and Appendices Important. Regs must be read in conjunction with the Act as they do not make sense as stand alone. If you are looking at what the regs are telling me to do can’t look in isolation with the Act. For example the regs do not restate the upstream duties as written in the Act. Also read with Codes of Practice e.g. noise Chapter 1. Definitions of terms used in the regulations are found in the first 40 pages of Chapter 1 – (like a glossary) rather than in individual regulations, although some exceptions e.g. hazardous manual task, electrical equipment which are defined at the beginning of the relevant individual regulation. Chapter 2. Includes information on workgroups, election of HSRs, training of HSRs, issue resolution and WHS entry permits Chapter 3. Similar to familiar employer obligations i.e. provision of facilities but also includes PPE, First Aid and Emergency Plans Chapter 4. Extensive set of 8 regulations covering: Noise Hazardous manual tasks Confined spaces Falls High risk work licensing Abrasive blasting Electrical work Diving work Chapters 5 to 9. Self explanatory by their titles Chapter 10. Administrative matters such as review of regulator decisions and exemptions. Followed by: Schedules e.g. Prohibited and restricted chemicals and Appendices e.g.jurisdictional notes

9. Some General Comments All regulations Process is about ‘harmonisation’ not creating new requirements Some inconsistencies across the regulations – mostly drafting issues Too much detail that should be in a code or guidance material – some technical detail will possibly be relocated Non mandating of risk assessment Comments from submissions to SWA Mandatory risk assessment 1.Confined spaced entry 2.Diving work 3. Asbestos (where this has been identified in a workplace) Other mandated assessments 4. High risk construction work “safe work method statement” (SWMS) 5. Major Hazard Facilities “safety assessment” as part of the safety case Non mandating of risk assess. No real change for Victoria as currently don’t have mandated risk assessment. Other jurisdictions will now have to adopt Vic’s approach and this will be a significant change for them. Good for Vic to share the rationale and help them see how non mandated risk assessment has not adversely affected Victoria. Comments from submissions to SWA Mandatory risk assessment 1.Confined spaced entry 2.Diving work 3. Asbestos (where this has been identified in a workplace) Other mandated assessments 4. High risk construction work “safe work method statement” (SWMS) 5. Major Hazard Facilities “safety assessment” as part of the safety case Non mandating of risk assess. No real change for Victoria as currently don’t have mandated risk assessment. Other jurisdictions will now have to adopt Vic’s approach and this will be a significant change for them. Good for Vic to share the rationale and help them see how non mandated risk assessment has not adversely affected Victoria.

10. Some Key Considerations Specific regulations

11. Representation and Consultation Regulations Chapter 2 and Code of Practice Health and safety representatives (HSR) elections – display notice of election removal – by majority of members of a workgroup training entitlement initial 5 day course 1 day refresher each year WHS entry permit suspected contravention of Act consult and advise workers Issue resolution, including default procedure

12. Representation and Consultation Regulations Chapter 2 and Code of Practice Issue resolution agreed procedure or default procedure in regulations (steps) Issue resolution, including default procedure

13. Representation and Consultation Action – start preparing HSRs review and/or develop current consultation processes for: HSR elections entry permit holders Issue resolution ensure consultation of an agreed procedure

14. General Workplace Management Regulations Chapter 3 and Code of Practice General working environment layout (entry, exit, space), flooring, lighting, ventilation, temperature adequate facilities (toilets, drinking water, washing and eating facilities) Personal protective equipment (PPE) First aid Emergency plans Review of general workplace measures Regulations are in 5 parts and contain the following provisions: General working environment Personal protective equipment including air supplied respiratory equipment First aid Emergency plans Review of general workplace measures New for Victoria although similar to employers obligations, also in Victoria currently have a compliance code covering most of these provisionsRegulations are in 5 parts and contain the following provisions: General working environment Personal protective equipment including air supplied respiratory equipment First aid Emergency plans Review of general workplace measures New for Victoria although similar to employers obligations, also in Victoria currently have a compliance code covering most of these provisions

15. General Workplace Management Regulations Chapter 3 and Code of Practice Remote or isolated work definition – isolated from assistance (other than co-workers) due to location, time, nature of work communication – effective measures Issue resolution, including default procedure

16. General Workplace Management Regulations Chapter 3 and Code of Practice First Aid equipment; facilities; trained first aiders

17. General Workplace Management Action – start preparing Remote or isolated work review current work arrangement review and/or develop communication processes consider multiple duty holders First aid review potential first aid requirements consider size and location of workplace nature of work

18. Hazardous Work Regulations Chapter 4 and Codes of Practice Three separate regulations are considered from this chapter: Noise Falls and falling objects Electrical work

19. Noise Regulations Chapter 4.1 and Code of Practice exposure standard - limit to noise is below: 8 hour exposure 85dB(A); peak exposure 140 dB(C) eliminate noise “at source” Noise Audiometric testing triggered by exposure to noise not supply of PPE as was previously the case in Victoria. Audiometric testing in that case was every 2 years. Audiometric testing comes under WHS Act primary duty of PCBU to monitor health of workers Noise Audiometric testing triggered by exposure to noise not supply of PPE as was previously the case in Victoria. Audiometric testing in that case was every 2 years. Audiometric testing comes under WHS Act primary duty of PCBU to monitor health of workers

20. Falls (and Falling Objects) Regulations Chapter 4.4 and Code of Practice applies to all industries and all heights i.e. no longer a height limitation hierarchy to minimise risks of falling objects

21. Electrical Work Regulations Chapter 4.7 Electrical equipment testing and tagging prohibition of work on energised electrical equipment – some exceptions Residual current devices (RCDs); also known as safety switches

22. Hazardous Work Action – start preparing Noise review current work practices identify and control noise sources develop process for audiometric testing Falls and falling objects review potential fall hazards and current controls consider process for updating controls according to controls hierarchy

23. Hazardous Work Action – start preparing Electrical work review processes for testing and tagging of electrical equipment: consider ‘hostile’ environments where equipment is exposed to moisture, heat, vibration, mechanical damage, corrosive chemicals or dust review process for working on de-energised electrical equipment identify and plan for fitting/retro-fitting RCDs

24. Plant and Structures – General Regulations Chapter 5 and Code of Practice (TBD) This part does not apply to plant that: relies exclusively on manual power for its operation; and is designed to be primarily supported by hand Therefore, excludes hammers, spanners etc. includes manually operated bench guillotines; and hand held drills, polishers etc.

25. Plant and Structures – General Regulations Chapter 5 and Code of Practice (TBD) Obligations of designers, manufacturers, importers and suppliers Must be read in conjunction with the Act; may be misinterpreted if read on their own

26. Plant and Structures Action – start preparing Plant and structures review applicable plant for currency with regulations review risk controls e.g. guarding Duties understand ‘upstream’ duties e.g. designers, suppliers review consultation, co-operation, co-ordination processes with other duty holders

27. Next Steps

28. How Ai Group Can Assist Upcoming events

29. How Ai Group Can Assist Upcoming events Events open to members and non-members Safeguarding of Machinery – 15 April Forklift Safety & Traffic Management - 12 May WHS Leading for the Future – June and July For further information visit us at stand T3

30. Questions

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