Victorian OHS Legislation Overview

1. Victorian OHS Legislation Overview Required Reading for Case Management HPG 6042

2. Employer / Employee Duties Contractors - Due Diligence Consultative Arrangements SESSION OUTLINE LEGAL OBLIGATIONS OHS Act in Context Duty of Care Personal Liability & Penalties Inspector Powers OHS PERFORMANCE OHS Paradigms & Organisational Performance HAZARD MANAGEMENT Hazard Management Process Risk Control (Group) Exercise SUMMARY

3. No safety problems here….. we have no injuries! “…I’ve been sailing for 40 years….and have never been involved in a maritime incident that resulted in a serious injury or loss of life.” Capt. John Smith Captain First Class of the Titanic April 14, 1912 - 1500 Lives were lost

4. WORKCOVER AUTHORITY • VWA Inspectors visited 50,000 workplaces • 21% increase in prosecutions for H&S breaches (254 prosecutions) • Vic Claims Liabilities incurred 2001/02 = $5.93 Billion • Average claims lodged per year (excluding Self Insurers) = 34,000 • Reported Workplace Fatalities 2001/02 = 71

5. 1972 ROBENS COMMITTEE REPORT Prescriptive vs Performance based • Self-Regulatory Legislative Framework • Create tripartite structures to develop OHS requirements (Employers/Workers/Govt.) • General duties on employers, workers, & suppliers • Basic worker & representative rights • Employee consultation on matters of health and safety

6. Occupational Health & Safety Act 1985 (Vic) MAIN PRINCIPLES • Duty of Care – between employers, employees, contractors, the public. • Consultative Process – between employers, employees, & third parties. • Workplace Arrangements – e.g. OHS Committees, DWG’s, H&S Representatives

7. REGULATIONS CODE OF PRACTICE AUSTRALIAN STANDARDS LEGISLATION IN CONTEXT Law that provides H&S framework & explains duties. Not hazard specific, but enables Regulations. OHS Act (Vic.) 2004 Detailed duties, enforceable in law Guide to meet obligations under Reg’s & Act. Used as evidence of compliance. No legislative base but sometimes drawn upon by legislation (eg. DG Act), as the minimum standard.

9. Other Acts • Equipment (Public Safety) Act 1994 • Equipment (Public Safety) (General) Regulations 1995 (Amendment 1999) • Equipment (Public Safety) (incident Notification) Regulations 1997 • Dangerous Goods Act 1985 • Dangerous Goods (Storage & Handling) Regulations 1989 (Amendment 1999) • Dangerous Goods (Explosives) Regulations 1988 (Amendment 1997) • Dangerous Goods (Transport by Rail) Regulations 1998 • Road Transport (Dangerous Goods) Act 1995 • Road transport (Dangerous Goods) (License fees) Regulations 1998 • Road Transport Reform (Dangerous Goods) Act 1995 (Commonwealth) • Road Transport Reform (Dangerous Goods) Regulations 1997

10. Dangerous Goods (Explosives) Regs 2000 Dangerous Goods Storage and Handling) Regs 2000 Dangerous Goods (Transport by Rail) Regs 1998 Equipment (Public Safety) (Incident Notification) Regs 1997 Equipment (Public Safety) (General) Regs 1995 Asbestos Regs 1992 Certification of Plant Users and Operators Regs 1994 Confined Spaces Regs 1996 Hazardous Substances Regs 1999 Incident Notification Regs 1997 Issue Resolution Regs 1999 Major Hazard Facilities Regs 2000 Manual Handling Regs 1999 Noise Regs 1992 Plant Regs 1995 Lead Regs 2000 Road Transport (Dangerous Goods)(License Fees) Regs 1998 Road Transport Reform (Dangerous Goods) Regs 1997 Building and Construction Workplaces (No.13, 1990) Confined Spaces (No.20, 1996) Dangerous Goods Storage and Handling (No.27, 2000) Demolition (No. 14, 1991) Demolition (Amendment No. 1)(No.21, 1998) Electrical Installations on Construction Sites (Industry Standard, 2002) First Aid in the Workplace (No.18, 1995) Foundries (No. 2, 1988) Hazardous Substances (No. 24, June 2000) Lead (No.26, 2000) Manual Handling (No. 25, 2000) Noise (No. 17, 1992) Plant (No. 19, 1995) Plant (Amendment No. 1) (No. 23, 1998) Provision of Occupational Health and Safety Information in Languages Other Than English (No. 16, 1992) Safe Use of Cranes in the Building and Construction Industry (No. 11, 1990) Safe Work On Roofs (Excluding Villa Constructions) (No. 10, 1989) Safe Work On Roofs (Excluding Villa Constructions) (Amendment No. 1) (No. 22, 1998) Safety in Forest Operations (No. 12, 1990) Safety Precautions in Trenching Operations (No. 8, 1988) Tilt-Up Construction (Industry Standard, 2001) Workplaces ( No. 3, 1988) REGULATIONS CODES OF PRACTICE

11. WHO’S RESPONSIBLE FOR OHS IN THE WORKPLACE • Employers • Self-employed persons • Occupiers of workplaces • Designers of plant and equipment for workplace use • Manufacturers of plant, equipment and substances for workplace use • Importers and suppliers of plant, equipment, and substances for workplace use • Employees • Officers of a company

12. NEGLIGENCE - The Duty of Care “You must take reasonable care to avoid acts and omissions which you can reasonably foresee are likely to injure…persons who are so closely and directly affected by [your] act that [you] ought reasonably to have them in contemplation when [you] are directing [your] mind to the acts or omissions which are called in question.” Donaghue v Stevenson - Lord Atkins [1932]

13. DUTY OF CARE Paris v Stepney Borough Council [1951] • Garage worker with one good eye, known to employer. No eye protection provided – uncommon. • Hammering beneath car, metal flew into good eye. • Employer argued risk the same. Uncommon practice to provide eye protection for mechanics. • Court Decision – Employer knew of disability, therefore higher duty of care owed. Employer found guilty. Employer owes a duty of care in relation to the circumstances of the individual.

14. PERSONAL LIABILITY Section 52 - Deems persons concerned in the management or control of the company or body corporate in certain circumstances to also be guilty of the same offence as the company or body corporate. Provisions are: • if the corporation commits an offence • it’s proven to have been committed with the consent or connivance of, or to have been attributable to any wilful neglect on the part of an officer of the body corporate or a person purporting to act as an officer.

15. WILFUL NEGLECT • It’s necessary that the mind of the officer charged be directed to: • was there some risk, and • Had the officer made a conscious decision not to investigate further. Wilful neglect requires knowledge & intent

16. CONVICTIONS • Denbo Pty Ltd 1994 - Justice Teague “…there was criminal negligence as the part of the company in failing to establish an adequate system of maintenance for it’s plant and vehicles in failing to properly train its employees’, in permitting [the truck] to be put into use without proper maintenance….” COMPANY CONVICTED OF MANSLAUGHTER OF WORKER • Wilful Neglect “…he did not act responsibly. He was aware of the poor state on both trucks but directed that they be used. Moreover the training which he gave the deceased ….was quite inadequate.” OFFICER OF THE COMPANY CONVICTED UNDER THE OHS ACT

17. OHS Act 1985 (Vic.) - PENALTIES Serious Offences: • Obstructing an inspector, failing to comply with a prohibition notice or discrimination against employee(s) • Previous offender against the Act • $250,000 Companies & $50,000 Individual Fines & up to 5 years imprisonment Normal Offences: • $250,000 Companies & $50,000 Individual Fines

18. INSPECTOR POWERS Section 39 Include…. • Enter, inspect & examine workplaces & equipment & substances • Take equip, materials & samples of substances • Take photographs, sketches, recordings, measurements • Require the production of any document for examination or copying • Require the workplace be left undisturbed Any person who obstructs or induces others to obstruct an inspector shall be guilty of an offence.

19. INSPECTOR POWERS Section 43 Improvement Notices • Issued when contravening the Act or Regulations or has contravened & likely to again. (may include a Direction) Minimum 7 days given to remedy Prohibition Notices • Issued when the hazardous activity must cease until remedied (may include a Direction) Section 46 Appeals • To the Industrial Division of the Magistrates Court within 7 days

20. EMPLOYER DUTIES • Section 21 – Vic OHS Act 1985…….An employer shall provide and maintain so far as is practicable for employees, a working environment, plant, and systems of work that is safe and without risks to health. • Section 22 - Employers also have a duty to ensure that the health and safety of the public is not affected adversely by their business activities. • Section 23 - As occupier of a workplace, employers must ensure access & egress is safe & without risk

21. ‘PRACTICABLE’ Section 4. Having regard to…. • The severity of the hazard in question • The state of knowledge about that hazard or risk and any ways of removing or mitigating that hazard or risk • The availability and suitability of ways to remove that hazard or risk, and • The cost of removing or mitigating that hazard or risk (Cost having to do with the expense & inconvenience measured against the consequences. Not whether the employer can afford to do so.)

22. EMPLOYER DUTIES • Providing and maintaining safe plant and systems of work • Arranging safe systems of work in connection with the use, handling, storage, and transport of plant and substances • Providing a safe working environment • Providing adequate welfare facilities; and • Providing information on hazards, as well as instruction, training and supervision of employees, to enable them to work safely

23. EMPLOYER DUTIES Employers are also required, as far as practicable • Monitor the health of their employees, and workplace conditions • Keep information & records on the health & safety of their employees • Employ or engage suitably qualified persons to provide advice in relation to health & safety • Nominate employer/management health & safety representative • Provide information in such languages as appropriate, with respect to H&S at the workplace

24. EMPLOYEE DUTIES Section 25 Employees must… • Take reasonable care for their own H&S, and for the H&S of anyone else who may be affected by their acts or omissions at the workplace; and • Co-operate with their employer with respect to the employers actions taken to comply with the OHS Act • Shall not willfully or recklessly interfere with or misuse anything provided in the interests of H&S; or • Willfully place at risk the H&S of any person at the workplace

25. CONTRACTORS • Sub-Section 21 (3) - An employee is deemed by the Act to include an independent contractor engaged by an employer and any employee of the independent contractor. • The duties of the employer extend to the independent contractor and their employees to the extent that the employer has control. (Control is undefined – but need to consider the degree of control exercised, and that which is able to be exercised)

26. CONTRACTORS • The OHS Act requires due diligence on the part of the contract principal by ensuring so far as ‘practicable’, in providing safe premises that the Contractor and its employees carry out their work, using proper and safe plant and equipment, employing systems of work that are safe and in which there has been adequate instruction, training and supervision. The Act doesn’t require the employer (contract principal) to provide the plant, systems of work and training for a Contractor and its employees.

27. CONTRACTORS – DUE DILIGENCE E.g. Has the contractor ? : • a good understanding of the activities hazard(s); • established systems & procedures; • appropriate licences & competencies; • registered & maintained/inspected equipment; • conducted a contract specific risk assessment. Although the OHS obligations remain the same, practical issues To also consider include: • Level of Risk associated with the contracted work • Duration of the contract • Complexity of the contract • Value of the contract

28. S26 - DEALING WITH HEALTH & SAFETY ISSUES • Employer/Employer’s representative and H&S rep/employees shall attempt to resolve the issue in accordance with the agreed procedure • Issue Resolution Regulations • Refer P.I.N. notice flowchart

29. P.I.N. NOTICE FLOW CHART VWA Inspector decides to cancel PIN. Matter ceased. Agree and make the changes within the time frame VWA Inspector issues Prohibition Notice (process must cease until rectified) Safety Representative issues Provisional mprovement Notice PIN) to employer after consultation Within 7 Days appeal the notive, because employer can’t meet the rime frame given Within 7 days, Employer appeals in writing to Industrial Div of the Magistrates Court VWA inspector visits site Employer still decides to dispute EMPLOYER CAN…. VWA Inspector issues an Improvement Notice (gives compliance time frame) Appeal the notice, within 7 days, because employer doesn’t agree with the notice VWA Inspector affirms the PIN

30. S29 - DESIGNATED WORK GROUPS (D.W.G.’s) • Employee/employer may initiate negotiations to establish a DWG • Begin negotiation of composition of DWG within 14 days of request • Consider: no. employees; nature of work; DWG size; workplace area; nature of hazards; overtime & shift work arrangements • Composition can be changed by negotiation • Must ensure written, up-to-date DWG list is displayed

31. S30 - HEALTH & SAFETY REPRESENTATIVES • DWG may elect H&S Rep • H&S Rep may cease if: no longer employed; resigned as H&S rep; DWG change; not re-elected; disqualified under S36 (intended to cause harm) • Functions/Powers: inspect work area’s/incidents; accompany VWA inspectors & be present during interviews; request a H&S committee; gain access to hazard information; accompany consenting employees during OHS interviews

32. S31 - HEALTH & SAFETY REPRESENTATIVES Employer shall: • (if practicable), consult OHS rep on proposed workplace changes • provide paid time-off for performing functions & any OHS training And Employer may: • supply H&S rep’s with medical information if employee consents or is in a form which doesn’t identify the employee.

33. S37 - HEALTH & SAFETY COMMITTEES • Upon request by H&S rep - establish a H&S committee within 3 months of request • Employer to consult with H&S representative • Committee to consist of  50% employees Committee Functions: • facilitate cooperation between employer/employees to instigate, develop, carry out measures to ensure H&S at work • Formulate, review, and inform employees of the standard rules and procedures at the workplace • Meet at intervals  3 months

34. SAFETY – COMMON SENSE? To move the indicator down, which way would you move the lever? Which stove top burner belongs to which control?

35. SAFE PLACE BY DESIGN Stove tops aligned with controls. Lever action simulates direction of indicator.

36. OHS OHS OPERATIONS OPERATIONS ADMIN SALES/MKT ADMIN SALES/MKT OHS OHS OHS PARADIGMS

37. OHS PARADIGMS OHS OPERATIONS ADMIN SALES/MKT OHS …OHS can’t be treated as an afterthought, add-on, ….. to normal management and work activities……OHS must be integrated into “normal” management functions. …..OHS is fundamentally an organisational problem. Quinlan:Key Principals of Effective OHS Management

38. Management System Policies Organisational Environment / Culture Emergency Response Management Approach Well planned & layed-out physical work environment Suitable Procedures Risk Control Consultation & Feedback Design & Purchasing Policy Fit for purpose Equipment Competent People Training Resources & Budget Recruitment & HR Policies ORGANISATIONAL SYSTEMS MODELRISK CONTROL

39. Ownership Management Commitment Accountability ORGANISATIONAL OHS PERFORMANCE Consultation & Training Resources, Policies& Management Systems

40. H&S MANAGEMENT SYSTEM COMPONENTS Policy Design/ Planning Legislative Requirements Risk ID, Assessment & Control Strategies Review & Auditing Emergency Procedures Training & Consultation Procedures Records

41. HAZARD & RISK HAZARD • A source or a situation with a potential for harm.. RISK • The combination of the likelihood of occurrence, and consequence of a hazardous event.

42. 4 STEP HAZARD MANAGEMENT PROCESS Inspection & Reports/Audits JSA; Consultation Incident/Injury Records COP Checklists Hazard Identification consult Risk Assessment consult Measure & Prioritise Risk Risk Control Hierarchy of control – Short & Long Term consult Check for new hazards & control effectiveness Evaluation & Monitoring consult

43. RISK ASSESSMENT Purpose: • To prioritise by measuring the risk associated with a hazard (likelihood x severity) Depends upon: • Knowing how the hazard is currently controlled • The reliability of those controls • How the current controls could fail

44. EXAMPLE OF RISK MATRIX

45. RISK ASSESSMENT SUBJECTIVITY Purpose: • Risk assessments involve value judgments • Perception of risk varies between individuals • Closeness to the risk often alters risk perception • Risk subjectivity is decreased if team based approaches are used to assess risk

46. Short Term Medium Term Long Term RISK CONTROL SELECTION & PLANNING Elimination Substitution Engineering Administrative Personal Protective Equipment

47. RISK CONTROLSAFE PLACE vs SAFE PERSON HIERARCHY OF CONTROL SAFE PLACE • Design • Workplace Layout • Engineering Control SAFE PERSON • Behaviour modification • Procedures & Instruction • Training • Personal Protective Equipment • Elimination • Substitution • Engineering • Administrative • Personal Protective Equipment

48. Relies on the person to follow instruction Short term influence Requires stringent monitoring / behaviour reinforcement. Personal Protective Equipment (P.P.E.) provided but often not worn by workers. Focused on the person to avoid the hazard. Passive hazard control =  reliability Safer environment for new/ inexperienced worker,visitor, contractor. Minimises the likelihood of ‘Human Error’ element Long term benefit e.g.  Training costs Focused on the source of the hazard RISK CONTROL SAFE PERSON SAFE PLACE

49. RISK CONTROL EXERCISE Activity:- 1. Identify a safe place or safe person approach to prevent this kind of incident from re-occurring. Justify your decision. Room Pressure Control & indicator Panel Scenario- Within this chemical processing plant a maintenance worker opened a door to a pressurised room without waiting for the room to de-pressurise. Once the worker released the door, he was instantly killed as the door smashed him against a brick wall.

50. Place sign on door warning persons Re-training Write up new procedures Have two people present Introduce a work permit system Fit interlock to door so that it could not be physically opened until the pressure was vented. The door could be designed to only open inwards POSSIBLE RISK CONTROL SOLUTIONS SAFE PERSON SAFE PLACE • Less preferable Safe Place solutions include: • Introduce sliding door • Relocate control box / pressure gauge next to the door. • The handle for the door to be located away from the door itself.