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Work Health and Safety Act Senior Managers . Senior Managers . 01 What is new for NSW under the WHS Act?. Summary. Summary. Summary. Summary. New Terminology. New Terminology. New Terminology. Definitions. ‘Person conducting a business or undertaking’ . Definitions. ‘Worker’ .

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Presentation Transcript
slide3

01

What is new for NSW under the

WHS Act?

slide11

Definitions

‘Person conducting a business or undertaking’

slide12

Definitions

‘Worker’

slide13

Definitions

‘Others’

‘A workplace’

slide14

Definitions

‘Officer’

slide16

Definitions

‘Designer’

slide17

Definitions

‘Manufacturer’

slide18

02

NSW Work Health & Safety Act-PCBU’s, the Primary Duty of Care & Other Duties

slide19

What is a business or undertaking?

  • Activities carried out by, or under the control of, a person
  • Whether alone or with others
  • Whether or not for profit or gain
  • Including activities conducted by:
  • A corporation, partnership,
  • Unincorporated association
  • Self employed person
  • Government agency
slide20

Who will be a PCBU?

The primary duty is owed by the operator of the business or undertaking; Examples are:

slide21

What WHS Act says PCBU’s must do:

Primary duty of Care:

A PCBU MUST so far as is reasonably practicable, ensure the health & safety of:

Workers engaged, or caused to be engaged by the PCBU

Workers whose activities are influenced or directed by the PCBU

Other persons who could be put at risk from work carried out by PCBU

slide23

Multiple PCBUs in respect of same activities

Several PCBUs may owe a duty of care to the same people concurrently:

  • Each PCBU MUST comply with their duty, so far as is reasonably practicable
  • Each PCBU must discharge their duty to the extent that they can influence or control the matter

Landlords & Site Owners

Sign Installation Companies

Advertising Companies

Billboard Production Companies

Electrical Companies

All duties are concurrent and non-transferrable

slide24

What are the major differences in the WHS Act?

Major difference is the application of Primary Duty of Care

slide25

What are the major differences in the WHS Act?

Major difference is the application of Primary Duty of Care

slide26

03

NSW Work Health & Safety Act- Duties of Officers, Workers & Others

slide27

OHS Amendment Act 2011

  • Recent amendments to the NSW OHS Act (The OHS Amendment Act 2011) have changed the provision of S26, effectively bringing forward the provision contained in the WHS Act which removes this attributed liability and introduces the positive duty of “Due Diligence”.
  • This provision commenced in June 2011
slide28

WHS Act specifies Duty of Care on Officers

  • Introduces a “duty of care” on officers - the duty is to the PCBU
  • This is a positive duty allocated to officers in their own right
  • An officer may be found guilty of an offence whether or not the PCBU has been found guilty or convicted of an offence
slide29

What WHS Act says about Officers Duties:

  • Duty of Officers s27
  • “If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation”

THIS DUTY CANNOT BE DELEGATED

slide30

Officers must exercise Due Diligence

What is Due Diligence?

Audit & review WHS processes and use of resources

Acquire safety knowledge and keep up to date

Ensure WHS legal compliance

Understand business health & safety risks

Due Diligence

Receive and consider business incidents, hazards & risks

Provide resources to identify and control risks

slide31

What are the major differences in the WHS Act?

Major difference is the introduction of a POSITIVE duty of Due Diligence

slide32

What do you have to do?

  • If you have existing systems to demonstrate management commitment and responsibility for WHS
  • review your systems in line with the legal elements of “due diligence”
  • make sure you have all elements covered and
  • make sure you can produce suitable records (evidence) to demonstrate compliance.
slide33

What do you have to do?

  • If you don’t have existing systems to demonstrate management commitment and responsibility
  • Identify who will have “officer” duties
  • Consider using the elements of “due diligence” to develop an officer Statement of Duty
  • Develop, implement, monitor, review WHS procedures and processes to include the active involvement of your officers
  • Provide training to officers to enable them to carry out these functions

COMMENSURATE WITH SIZE & NATURE OF YOUR OPERATIONS

slide35

Did the worker fail to take responsible care?

The assessment of a worker’s failure to take reasonable care is made relative to the PCBU’s actions to do what was reasonably practicable:

The systems of work in place at the time

The training, information, instruction, supervision provided

Whether the worker was working within their stated role

Whether any other worker was placed at risk, and

Whether the worker acted intentionally or recklessly

slide36

What is the likely impact of these changes?

  • Impact in relation to Duties of Workers
  • Makes responsibility to take care of own health & safety explicit
  • Extends to all workers –need to ensure employees as well as other workers are given the proper instruction and training about your policies and procedures and provided with adequate supervision
  • This will be a duty you may share with another PCBU
slide37

What is the likely impact of these changes?

  • Impact in relation to the Duty of Others
  • The new duty on others is about reasonable care NOT just recklessness
  • It may have the potential to apply to people who have been outside the jurisdiction of OHS Legislation – like home owners when work is being done, customers at shopping centre promotions or advertising displays, the public around billboards or bus shelters, rail platforms or other installation works etc.
slide38

Differing standards according to the duty holder and the nature of the activity

ACTIVITY

DUTIES

STANDARD

Primary Duty of Care

Other duties

Specific duty holders

REASONABLY PRACTICABLE

PCBU

Officers duty of care

Leadership & Governance

DUE DILIGENCE

OFFICER

Workers to take care of self and others

Includes supervisory role

REASONABLE CARE

WORKER

Other to take care of self and others

Follow instructions

REASONABLE CARE

OTHERS at workplace

slide40

04NSW Work Health & Safety Act

-Reasonably Practicable

slide41

What is the difference in WHS Act in the use of reasonably practicable?

  • Current NSW OHS Act includes reasonably practicable as a defence in any proceedings against a person for an offence
  • Under the WHS Act the prosecution will have to prove the case thus abolishing the current reverse onus of proof situation
  • Under the WHS Act the obligations of the PCBU will be qualified by reasonably practicable rather than the current absolute duty in the NSW Act
slide42

Overview of what WHS Act says about reasonably practicable

  • The PCBU has a duty to ensure, so far as is reasonably practicable, the health & safety of workers that are:
    • engaged to carry out work for their business or undertaking- this includes engaging subcontractors and consultants
    • placed with another person to carry out work for that person, such as labour hire or
    • influenced or directed in carrying out their work activities by the person, while the workers are at work in the business or undertaking-Such as an advertising company officer directing an installation company worker to perform works onsite
slide43

Likelihood, degree of harm, knowledge etc

Time, effort and cost

to eliminate or reduce risk

Reasonably practicable is the balance between risk and time, effort and cost

Reasonably Practicable: getting the balance

slide44

High level of time, effort

and cost to eliminate

or reduce risk

E.G little likelihood of risk occurring risk/minimal harm

Level of time, effort and cost way

out of proportion with benefits

in risk reduction

Reasonably practicable: Getting the balance

?

slide45

Reasonably Practicable in the workplace

  • For common hazards such as electricity, falls and manual handling there are regulations that define what has to be done to control risks. These common hazards also have supporting codes of practice to provide guidance on how to control risks.
  • For more complex or workplace specific risks a risk management approach can be used to establish what is reasonably practicable
  • The most common decisions about reasonably practicable relate to the type of risk control to be used (the hierarchy of control). In other words what is the highest level of protection that is reasonably practicable.
slide46

Reasonably Practicable: the Hierarchy of Control

  • The WHS Act advocates the highest level of protection as is reasonably practicable and the model regulations in many cases mandate a set of preferred controls consistent with the hierarchy of control- for example- the use of only PPE when working at heights a control in high risk situations may not be deemed as “reasonably practical” when other controls such as design and engineering are available
  • Consequently the level at which controls are applied is subject to decisions about reasonably practicable.
slide47

ELIMINATE RISKS (so far as is reasonably practicable)

STOP USING OR CHANGE THE PRODUCT, PROCESS, PLANT OR SUBSTANCE

STOP OR CHANGE THE ACTIVITY, PRACTICE OR PROCEDURE

MINIMISE RISKS (so far as is reasonably practicable)

SUBSTITUTE WITH SAFER ALTERNATIVE

MOST RELIABLE LEAST RELIABLE

Highest LEVEL OF PROTECTION Lowest

USE ENGINEERING CONTROLS

REDESIGN TO REDUCE RISK

ISOLATE PEOPLE FROM RISK

USE ADMINISTRATIVE PROCEDURES

USE PROTECTIVE CLOTHING / EQUIPMENT

Reasonably Practicable: the Hierarchy of Control

slide49

What is different in WHS Act about Enforcement and Penalties?

  • The WHS Act retains and builds on the enforcement framework found in the current legislation

A greater range of sanctions, higher penalties, restrictions on a Trade Unions right to prosecute and abolition of the reverse onus of proof are new to the NSW enforcement framework

slide50

Enforcement Measures

The WHS Act provides graduated enforcement regime with civil and criminal prosecutions the ultimate sanction

Penalty Notice

Enforceable Undertaking

Injunctions

Remedial

Action

Prohibition

Notice

Improvement

Injunctions, and enforceable undertaking are new in NSW

Notice

Notice

Non Disturbance

slide51

Enforceable Undertakings

Penalty Notice

Enforceable Undertaking

Injunctions

  • WorkCover may accept a WHS undertaking in connection with the matter giving rise to a contravention or an alleged contravention as an alternative to a prosecution
  • $$ to focus on positive prevention action

Remedial

Action

Prohibition

Notice

Improvement

Notice

Notice

NOT Available for Category 1 Offences

Non Disturbance

slide52

Enforceable Undertakings

Penalty Notice

Enforceable Undertaking

Injunctions

Remedial

Action

Prohibition

Notice

Improvement

Notice

Notice

Non Disturbance

slide53

The Right to Prosecute

The right to bring a prosecution under the WHS Act rests with WorkCover in NSW

Penalty Notice

A Trade Union can bring a prosecution under the WHS Act in NSW only if:

  • the offence concerned is a Category 3 or,
  • the offence concerned is a Category 1 or a Category 2 offence

and

WorkCover has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings

Enforceable Undertaking

Injunctions

Remedial

Action

Prohibition

Notice

Improvement

Notice

Notice

Non Disturbance

slide54

Power of HSR to issue PIN

Penalty Notice

Enforceable Undertaking

Injunctions

Remedial

Action

Prohibition

Notice

Improvement

Notice

Notice

Non Disturbance

slide55

Penalty Structure

Penalty Notice

Enforceable Undertaking

Injunctions

Remedial

Action

Prohibition

Notice

Improvement

Notice

Notice

Non Disturbance