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

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

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

3. 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

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

5. 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.

6. Work Health & Safety Framework and Terminology

7. See Fact Sheet 2 (p. 23) 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

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

9. 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

10. 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.

11. 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*

12. 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

13. Workgroup A WHS Entry Permit Holder Provisional Improvement Notice (PIN) Notifiable Incident Serious Injury or Illness Dangerous Incident Structure Plant Substance Supply Construct Commission Maintain Manufacture Import Design Officer Reasonably Practicable Health and Safety Rep Health and Safety Committee Workplace Person Conducting a Business or Undertaking (PCBU) Important terms WHS Act s4,6, s35-39, s51-59, s90-102

14. TerminologyActivity • Please complete the Module 2: Activity – WHS Act Terminology Table in your handouts. (page 22) • You can use your participant notes to assist.

15. Work Health & Safety Duties and Enforcement

16. 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 New duty holders • Construct • Commission • Maintain • Import • Designer (more explicit duties and apply to plant, substances and facilities) WHS Act s4

17. 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

18. 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

19. 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

20. 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 (p. 40) for other duties of PCBUs. WHS Act s19

21. 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

22. 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

23. 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

24. 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

25. Health and Safety DutiesActivity p. 38-39 • 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.

26. 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. • Individual $300,000 or5 years imprisonment or both* • Individual conducting a PCBU or Officer of a PCBU $600,000 or 5 years imprisonment or both. • Body Corporate $3,000,000 WHS Act s31, s230-236

27. 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. • Individual $150,000 • Individual conducting a PCBU or Officer of a PCBU $300,000 • Body Corporate $1,500,000 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. • Individual $50,000 • Individual conducting a PCBU or Officer of a PCBU $100,000 • Body Corporate $500,000 WHS Act s32 and s33

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

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

30. 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

31. EnforcementActivity (page 109) • 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.

32. Consultation, Representation and Participation Resources WHS Act & Regulation, Fact sheet 4 Safe Work Australia Website- Code of Practice: How to consult on work health & safety practical guidance on the requirements for consultation, representation and participation including duties for consultation, effective consultation, how & when to consult, consultation, co-operation and co-ordination with other duty holders

33. 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

34. Duty to consult workers and other duty holders • 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? Each personwho 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 s47 (1)

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. Consultative ArrangementsActivity 1 p.53 • 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.

42. The PCBU must establish a HSC within 2 months of a request by: a HSR for a workgroup carrying out work at the workplace; or 5 or more workers at the workplace; or as required by the regulations; or on their own initiative. A HSC under the WHS Act can: continue the functions of an existing OHS Committee; be a consultation mechanism; assist and support the HSR in their role and represent all workers at the workplace not just the workgroup the HSR represents. While current OHS Committees meet the requirements for HSCs under the WHS Act, the composition of a HSC can now be different. Health & Safety Committees (HSCs) WHS Act s75,76,78

43. Functions of the HSC are to: Facilitate cooperation between the PCBU and workers in instigating, developing and carrying out measures to ensure workers’ health & safety. Assist in the development of health and safety standards, rules and procedures to be used and complied with in the workplace. Any other functions as agreed to between the PCBU and the HSC. Do these functions differ much from current activities of OHS Committees? Health and Safety Committees (HSCs) WHS Act s77

44. Health & Safety Representatives (HSRs) Appointment of Health & Safety Representatives: • are to be elected from the workgroup they are to represent • have a term of office of3 years (previously 2 years) • can cease to hold office for various reasons • are not personally liable for anything either done or omitted in their role as a HSR if done in ‘good faith’ (immunity) • are eligible for re-election (unchanged) • are entitled to receive training upon request - certain functions cannot be performed unless trained e.g. issuing of Provisional Improvement Notices (PINs) and directing unsafe work to cease • Can choose training provider in consultation with PCBU Deputy Health & Safety Representatives (same powers): • can use the powers and perform the functions of a HSR if the HSR no longer holds office or is unable to fulfil their role WHS Act s60 - 64

45. Powers and functions of HSRs Functions of HSRs similar to current functions of OHS Representatives and OHS Committee members • Represent workers in relation to work health & safety • Monitor the measures taken by the PCBU to meet their duties • Investigatecomplaints from members of the workgroup • Inquire into risk to the health and safety of relevant workers Additional powers & functions (where trained to do so): • Directing unsafe work to cease when necessary • Issuing of provisional improvement notices when necessary How might HSRs monitor the measures taken by the PCBU? WHS Act s68

46. Activities of HSRs • Inspecting all or part of the workplace: • at any time after giving notice • at any time without notice after an incident or where there is a serious and immediate or imminent risk to the health & safety of a person. • Accompanying an inspector during an inspection. • Being present at an interview between a worker or a group of workers (with their consent) and an inspector or the PCBU. • Requesting the establishment of a Health & Safety Committee. • Receiving information on the heath & safety of workers • except personal or medical information (without the consent of the worker) unless the information cannot be used to identify the worker. • Requesting the assistance of another person where necessary e.g. union representative. When might a HSR request assistance from another person? WHS Act s68

47. Limitation of HSRs’ Powers HSR’s powers are limited to matters that affect/may affect workers they represent except: • where there is a serious and immediate/imminent risk to the health & safety of members of another workgroup • a member of another workgroup asks for assistance and the HSR for that workgroup (upon reasonable inquiry) is not available. HSRs are only permitted to issue PINs and direct unsafe work to cease if they have completed approved training. WHS Act s69

48. Obligations of PCBUs to HSRs & HSC A PCBU must, in respect to HSRs, members of HSCs on work health and safety matters: • Consult so far as is reasonably practicable • Confer whenever reasonably requested • Access to information on: • hazards (including associated risks)and the health & safety of workers of the workgroup with the workers consent * • Provide resources, facilities and reasonable time to attend meetings (incl. HSC) carry out functions as a member of the HSC • Allow access to the workplace to a person assisting the HSR • Compile, keep up-to-date and display a list of HSRs and deputy HSRs (if any) and provide a copy to WorkCover. Meetings of the HSC are to be held at least once every 3 months and any other reasonable time at the request of at least half the HSC. WHS Act s70 -74

49. HSC and HSRs-Activity- p 65 • 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.

50. A PIN can be issued by a suitably trained HSR if they believe a person: is breaching a provision of the WHS Act has breached a provision of the WHS Act and is likely to continue to or to repeat this breach. A PIN issued by the HSR may require the person to: remedy the breach prevent a likely breach from occurring remedy the things or operations causing the breach/likely breach. See Fact Sheet 5 for additional information. Provisional Improvement Notices (PINs) WHS Act s90