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TAFE NSW Work Health & Safety (WHS) Laws Legal Briefing. Presenter: Paul Cutrone. INTRODUCTION. PURPOSE. SESSION 1. UNDERSTANDING DUE DILIGENCE – WHAT YOUR OBLIGATIONS ARE?. WHS Act health and safety duties. PRINCIPLES THAT APPLY TO HEALTH & SAFETY DUTIES .

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Presentation Transcript
slide1

TAFE NSW

Work Health & Safety (WHS) Laws

Legal Briefing

Presenter: Paul Cutrone

slide3

SESSION 1

UNDERSTANDING DUE DILIGENCE – WHAT YOUR OBLIGATIONS ARE?

whs act health and safety duties
WHS Act health and safety duties

PRINCIPLES THAT APPLY TO HEALTH & SAFETY DUTIES

INCIDENT NOTIFICATION

WHAT IS REASONABLY PRACTICABLE

OFFENCES & PENALTIES

HEALTH & SAFETY DUTIES

OTHER IMPORTANT TERMS, APPLICATION OF THE ACT

OBJECT & INTERPRETATION

OFFICERS, WORKERS & OTHER PERSONS

PRIMARY DUTY OF CARE

FURTHER DUTIES OF A PERSON CONDUCTING A BUSINESS OR UNDERTAKING (PCBU)

definition in focus worker
Definition in focus worker

Note: A PCBU is worker

if an individual

slide6

Other duty holders

DESIGN PLANT, SUBSTANCES OR STRUCTURES

MANUFACTUREPLANT, SUBSTANCES OR STRUCTURES

MANUFACTUREPLANT, SUBSTANCES OR STRUCTURES

PCBU

REASONABLY PRACTICABLE

INSTALL, CONSTRUCTOR COMMISSIONPLANT OR STRUCTURES

IMPORT PLANT SUBSTANCES OR STRUCTURES

IMPORT PLANT, SUBSTANCES OR STRUCTURES

SUPPLY PLANT, SUBSTANCES OR STRUCTURES

health and safety duties reasonably practicable
Health and safety duties reasonably practicable

TIME

LIKELIHOOD OF HAZARD OR RISK OCCURRING

DEGREE OF HARM THAT MIGHT RESULT FROM THE HAZARD OR RISK

WHAT PERSON KNOWS OR OUGHT REASONABLY TO KNOW ABOUT

+

+

ACCOUNT

+

WEIGHT

THE HAZARD OR RISK

THE COSTS ASSOCIATED WITH AVAILABLE WAYS OF ELIMINATING OR MINIMISING THE RISK

WAYS OF ELIMINATING OR MINIMISING THE RISK

+

+

+

due diligence defined
Due diligence defined

ACQUIRE & KEEP UP TO DATE KNOWLEDGE OF WORK H&S MATTERS

GAIN AN UNDERSTANDING OF NATURE OF OPERATIONS OF BUSINESS OR UNDERTAKING AND GENERALLY OF HAZARDS & RISKS ASSOCIATED WITH THOSE OPERATIONS

ENSURE HAS AVAILABLE FOR USE & USES APPROPRIATE RESOURCES & PROCESSES TO ENABLE HAZARDS ASSOCIATED WITH OPERATIONS TO BE IDENTIFIED & RISKS TO BE ELIMINATED OR MINIMISED

ENSURE HAS APPROPRIATE PROCESSES FOR RECEIVING & CONSIDERING INFORMATION REGARDING INCIDENTS, HAZARDS & RISKS & RESPONDS IN A TIMELY WAY

ENSURE HAS & IMPLEMENTS PROCESSES FOR COMPLYING WITH ACT

VERIFY PROVISION & USE OF RESOURCES & PROCESSES

Note: Use of examples in the definition, reasonable steps

duties of workers
Duties of workers

TAKE REASONABLE CARE FOR OWNH&S

TAKE REASONABLE CARE THAT ACTS OR OMISSIONS DO NOT ADVERSELY AFFECT THE H&S OF OTHER PERSONS

COMPLY WITH REASONABLE INSTRUCTION TO COMPLY WITH ACT BY PCBU

COMPLY WITH ANY REASONABLE POLICY OR PROCEDURE OF PCBU RELATING TO WORKPLACE H&S THAT HAS BEEN NOTIFIED TO WORKERS

Note: broad definition of ‘worker’

whs act consultation representation participation
WHS Act consultation, representation & participation

CONSULTATION, COOPERATION BETWEEN DUTY HOLDERS

PROVISIONAL IMPROVEMENT NOTICES

RIGHT TO CEASE OR DIRECT CESSATION OF UNSAFE WORK

CONSULTATION WITH WORKERS

CONSULTATION, REPRESENTATION & PARTICIPATION

HEALTH & SAFETY REPRESENTATIVES (HSR)

ISSUE RESOLUTION

HEALTH & SAFETY COMMITTEES

whs act workplace entry by whs entry permit holder
WHS Act workplace entry by WHS entry permit holder

ENTRY TO INQUIRE INTO SUSPECTED CONTRAVENTIONS

GENERAL

ENTRY TO CONSULT & ADVISE WORKERS

PROHIBITIONS

WORKPLACE ENTRY BY WHS ENTRY PERMIT HOLDER

REQUIREMENTS FOR WHS ENTRY PERMIT HOLDERS

DEALING WITH DISPUTES

WHS ENTRY PERMITS

whs act enforcement measures
WHS Act enforcement measures

REVIEW OF DECISIONS

IMPROVEMENT NOTICES

PROHIBITION NOTICES

ENFORCEABLE UNDERTAKINGS

ENFORCE-MENT MEASURES

CONTINUOUS

IMPROVEMENT

PERFORMANCE AND CULTURE

NON-DISTURBANCE NOTICES

INJUNCTIONS

GENERAL REQUIREMENTS APPLYING TO NOTICES

REMEDIAL ACTION

Note: Notification of Incident

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SESSION 2

Due diligence in practice – case studies?

slide15

CASE STUDY

Learning through a scenario

slide16

Why is WHS important?

‘My parents were my best friends, they’re all I had. My life ended that day. BP ruined my life. It ended my life. That day I had to start all over.’

slide18

Legal

Regulatory Investigation

  • Hierarchy of WHS documents.
  • Supporting and assurance systems/practices.
  • Due diligence and your role.
slide19

Legal

Court Examination

  • Hierarchy of WHS documents.
  • Supporting and assurance systems/practices.
  • Due diligence and your role.
slide20

Hierarchy of WHS documents

‘Consider the difference between what is written and what is real.’

Professor James Reason at a meeting with Paul Cutrone

on 28 July 2006

slide21

A risk based approach

“I would also add that it would always be prudent to take even greater than usual care in a workplace where a majority of the employees are young people with little experience in the workplace, or indeed, in life”.

Walton J (V-P) - WorkCover Authority of New South Wales (Inspector Ankucic) V Lyndhurst Trading Co Pty Ltd

slide22

Supporting and assurance systems

‘When we asked senior management why they didn’t know about the many failings uncovered by the inquiry, one of them said: “I knew everything was alright because I never got any reports of things being wrong.” In my experience [Appleton said],…there is always news on safety and some of it will be bad news. Continuous good news – you worry.’

Quote from and regarding the Piper Alpha Disaster

slide23

WHS leadership

“…Management actions and actual day to day behaviour are generally much more important than simply changing written policies and procedures for effecting lasting cultural change. For senior managers, actions speak louder than words. If senior management only changes what it says, rather than what it does, then little progress will be made…”

The Honourable Peter Aloysius McInerney, Special Commission of Inquiry in the Glenbrook Rail Accident, Final Report, April 2001, at 49

slide24
“If eternal vigilance is the price of liberty, then chronic unease is the price of safety. Studies of high-reliability organisations – systems…indicate that people who operate and manage them tend to assume that each day will be a bad day and act accordingly. But this is not an easy state to sustain, particularly when the thing about which one is uneasy has either not happened, or happened a long time ago, and perhaps to another organisation.”

WHS leadership

James Reason

slide25

WHS leadership

GENERATIVE

Safety is how we do business round here

Increasing Informedness

PROACTIVE

We work on the problems that we still find

CALCULATIVE

We have systems in place to manage all hazards

REACTIVE

Safety is important, we do a lot every time we have an accident

Increasing Trust & Accountability

PATHOLOGICAL

Who cares as long as we’re not caught

Professor Patrick Hudson

covey s approach and due diligence
Covey’s approach and due diligence

AREA OF

AREA OF WHS INFLUENCE

WHS CONCERN

activity
Activity
  • Highest risks
  • Risk controls
  • How effective are the risk controls?
  • How can we make them more effective?