Work Health and Safety (WHS) Act Awareness course for union members

1. Work Health and Safety (WHS) Act Awareness course for union members

2. I acknowledge the traditional custodians of the land we meet on today and pay my respects to the elders past and present.

3. Housekeeping • Emergency Procedures • Participant Notes – Pre-training quiz • Location of facilities etc. • Training rules - participation • Mobile phones • Breaks • Training Ergonomics • Evaluation questionnaire

4. Course Objectives To provide union members with information and knowledge on the Work Health & Safety (WHS) Act, to commence 1 January 2012 • New terminology of the WHS legislation • ‘Duty holders’ and their duties under the WHS Act • Consultation, representation and participation requirements • Role of Health & Safety Representatives (HSRs), Health & Safety Committees (HSCs) and other arrangements • Ceasing unsafe work & Provisional Improvement Notices (PINs) • Enforcement measures • Role of Unions and WHS entry permit holders

5. Group introduction • Your Name • Your Role • Questions about the new Work Health and Safety laws that you would like answered during this course.

6. IntroductionActivity • Please complete the pre-course quiz in the activities section of your participant notes. • We will review this quiz again at the end of the course to make sure that you have information you need on the WHS Act.

7. Work Health & Safety Framework and Terminology

8. See Fact Sheet 2 and NSW WHS Act for full definitions Work Health and Safety - covers the concept of the health, safety and welfare of all persons who may be impacted by work activities. Healthmeans 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. Work Health & Safety WHS Act s4

9. Work Health and Safety Framework • WHS Act • WHS Regulations ___________________ • Codes of Practice • Australian Standards • Industry Standards • Guidance Material

10. 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

11. Key changes in NSW OHS legislation • Changes in work safety terminology. • A broadening of health & 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.

12. Key changes in NSW OHS legislation (cont) • HSRs able to issue PINs & to direct unsafe work to cease if they have received the appropriate training • Authorised representatives now WHS permit holders • Positive duties introduced for ‘officers’ • Unions right to prosecute only in certain circumstances • Removal of ‘reverse onus of proof’ – prosecution must now prove a failure by a duty holder to do what is ‘reasonably practicable’ to ensure the health & safety of workers and others*

13. Employer Employee 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. WHS Act s4

14. 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 work’s premises under a different business owner? Important terms WHS Act s4

15. 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. Other terms- Import, Manufacture, Commission, Maintain As part of your work activities have you altered a piece of equipment or assembled a structure at work? Important terms - related to duties WHS Act s4

16. Workgroup A WHS Entry Permit Holder Provisional Improvement Notice (PIN) Notifiable Incident Serious Injury or Illness Dangerous Incident Structure Plant Substance Important terms WHS Act s4,6, s35-39, s51-59, s90-102

17. TerminologyActivity • Please complete the Module 2: Activity – WHS Act Terminology Table in your handouts. • You can use your participant notes to assist.

18. Work Health & Safety Duties and Enforcement

19. 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 Persons with health and safety duties Persons with duties under the WHS Act: • PCBUsincluding 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 WHS Act s4

20. 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

21. 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 Availability and suitability of ways to eliminate or minimise Whether the cost of eliminating or minimising the risk far exceeds the risk Where would you find information to assist in doing what would be considered to be ‘reasonably practicable? WHS Act s18

22. Health and Safety Duties • - PCBUs - PCBUs have a ‘primary duty of care’ to ensure, so far as is reasonably practicable, the health & safety of: • workers engaged directly or indirectly by the PCBU; • workers whose work activities are influencedordirected 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

23. 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. WHS Act s19

24. Health and Safety Duties • - Officers - • Officers of the PCBU are required to exercise ‘due diligence’ to ensure the PCBU complies with their duties and obligations. Officer includes a director or secretary of the corp., a person who makes, or participates in making, decisions that affect the whole or substantial part of the business of the corporation, receiver, administrator, liquidator or a trustee. Who are ‘officers’ in your workplace? What might they have to do to show they are using ‘due diligence’? WHS Act s27 & Corp Act 2001

25. Health and Safety Duties Duties of workers • Take reasonable care for their own health & safety • Take reasonable care to ensure acts/omissions do not adversely affect others health & 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

26. 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 & 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). What risks do you think may be immediate or imminent? WHS Act s84-85

27. 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? WHS Act s19(5)

28. Health and Safety Duties Other persons at the workplace (e.g. visitor, shopper) (an expanded duty under WHS Act) • take reasonable care for his or her own health & safety; • take reasonable care that his or her acts or omissions do not adversely affect the health & 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

29. 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

30. Health and Safety Duties- Activity - • The facilitator will divide the group into smaller groups to review the scenarios in the Activity. • The group will come back together to discuss the answers.

31. 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

32. 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

33. Penalties under the WHS Act WHS Act s30-34

34. Enforcement measures WHS Act s90 – 102, s191-222

35. Potential outcomes of legal proceedings WHS Act s230- 242

36. Potential outcomes of legal proceedings WHS Act s230-242

37. Offences by the Crown Officer of the Crown: A person who makes or participates in making decisions that affect the whole or a substantial part of the business or undertaking of the Crown. Officers of the Crown are now held accountable for contraventions of the WHS Act in the same way as officers of PCBUs are. This means they can be personally fined or imprisoned where a serious breach is proven. WHS Act s245-248

38. EnforcementActivity • The facilitator will divide the group into smaller groups to review the table and determine if the statements are true or false. • The group will come back together to discuss the answers.

39. Consultation, Representation and Participation

40. Resources WHS Act & Regulation Fact sheet 4? Code of Practice: How to consult on work health & safety practical guidance on the requirements for consultation, representation and participation. • duties for consultation • effective consultation • how& when to consult • consultation, co-operation and co-ordination with other duty holders www.safeworkaustralia.gov.au

41. Consultation, Representation and Participation • Consultation duties and requirements • Arrangements for consultation with workers • Consultation between duty holders • Determination of workgroups • Consultation between multiple business workgroups • Role & functions of HSCs and HSRs WHS Act Part 5

42. Duty to consult workers The PCBU is required, so far as is reasonably practicable, to consult with workers: • who work for the business or undertaking or • are likely to be directly affected by a work health & safety matter. Workers include contractors, subcontractors, labour hire and volunteers. When may it be considered not ‘reasonably practicable’ to consult? WHS Act s47 (1)

43. Duty to consult with other duty holders Each person who has a duty to ensure the health & safety of persons at a place of work must , so far as is reasonably practicable, • consult • co-operate and • co-ordinate activities with other duty holders to do so. This will help remove any gaps in work health & safety. How might duty holders meet this requirement to consult, co-operate and co-ordinate activities? WHS Act s46

44. Consultation between duty holders Co-operation e.g. management of interactions between workers Co-ordination e.g. planning and organising work activities Duty holder e.g. Business owner Duty holder e.g. Site controller Consultation e.g. sharing of information on potential hazards Consultation procedures & arrangements e.g. Emergency procedures, work arrangements Duty holder e.g. Labour hire company WHS Act s46

45. Duty to consult workers Consultation procedures are to be used: • where they have been agreed to by a PCBU and the workers; and • they are consistent with the required ‘nature’ of consultation. What items would you like to include in your ideal consultative procedure? WHS Act s48 and s49

46. Establishing Consultative Representation • Can be as HSC, HSRs or other agreed arrangements or combination of these • 1 worker can request that a PCBU facilitate an election for a HSR • The PCBU or multiple PCBUs must commence negotiations about the workgroup and nature of consultation within 14 days of the request • Union can assist • 5 workers or a HSR can request the formation of a HSC • The PCBU must establish a committee within 2 months

47. Determination of workgroups of a PCBU A worker requests a PCBU to facilitate the election of HSR/s and deputy HSR.  Negotiations are to commence within 14 days of request.  Unions can assist in the determination of workgroups and in the election process. The PCBU or PCBUs and workers negotiate the determination of one or more workgroups. Negotiations are to be conducted to determine: • the number and composition of workgroups • the number of HSRs and deputy HSRs to be elected • the workplace/s to which the workgroups apply • the businesses or undertakings to which the workgroups will apply  A workgroup may be determined for workers at one or more workplaces. The PCBU must notify workers of any variations.  If negotiations fail any involved party may request an inspector to assist. The PCBUs involved in negotiations must notify workers of the outcome and any workgroups determined. WHS Act s50-54

48. Multiple-business workgroups Workgroups may be determined for workers who carry out work • for two or more PCBUs; or • at one or more workplaces. • The determination of work groups is to be negotiated between each of the PCBUs and the workers. • These arrangements don’t affect any work groups already determined by the PCBU for their workers. WHS Act s55-59

49. Multiple-business arrangements for consultation Consultation Co-operation Co-ordination Consultation Co-operation Co-ordination PCBU duty holder e.g. Host company PCBU duty holder e.g. Site controller PCBU duty holder e.g. Labour hire company Consultation arrangements - policy and procedures - Shared workgroup (workers of the labour hire company are also workers of the host company)  A worker may represent a workgroup where the workers are engaged by different PCBUs.  Workers are to be informed of the outcomes of negotiations and of any workgroups. WHS Act s55-59

50. Consultative Arrangements-Activity 1- • The facilitator will divide the group into small groups to review the scenarios provided and determine the most effective consultation arrangements for each situation. • The group will come back together to discuss the answers.