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SESSION 2

SESSION 2. Key changes from current NSW OHS legislation. Wider duties for consultation and greater powers are given under consultation arrangements in the WHS Act. Key changes include:

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SESSION 2

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  1. SESSION 2

  2. Key changes from current NSW OHS legislation Wider duties for consultation and greater powers are given under consultation arrangements in the WHS Act. Key changes include: • Health and Safety Representatives (HSRs) and deputy HSRs with their role focused on resolving specific work health and safety issues for their workgroup; • Health and Safety Committees – a change in their current role to one as the forum for consultation on the management of health and safety across the whole workforce; • Consultation, co-operation and co-ordination between duty holders; WHS Act Part 5, 7

  3. Key changes from current NSW OHS legislation • Consultation involving multiple-business work groups; • The role of WHS entry permit holders (union representatives); • Resolution process requirements; • Issuing of Provisional Improvement Notices (PINs) and directingunsafe work tocease by trained HSRs; • Ceasing unsafe work by workers; and • Terms of office and training for HSRs, HSC members and WHS entry permit holders. WHS Act Part 5

  4. 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 and safety matter. Workers include contractors, subcontractors, labour hire and volunteers. When may it be considered not ‘reasonably practicable’ to consult? WHS Act s47 (1)

  5. Duty to consult workers The WHS Act requires that the views of workers and Health and Safety Representatives mustbe taken into account before making a decision on a health and safety issue. The nature of consultation and when consultation is to occur remain the same as current requirements. 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. WHS Act s48 and s49

  6. Nature of consultation Consultation requires: • sharing of health and safety information • providing workers with a reasonable opportunity to: • Express their views • Raisework health and safety issues • Contribute to the decision making process • taking the views of workers into account • advising workers on the outcome in a timely manner. An elected HSR of the workers must also be involved in consultation. How and when can workers be provided with opportunities for consultation on health and safety issues? WHS Act s48

  7. When consultation is required Consultation is required when : • identifying and assessing risks to health and safety • deciding ways to eliminate or minimise those risks • deciding on the adequacy of facilities for worker welfare • proposing changes that may affect the health and safety of workers How can workers be involved in identifying and assessing risks and the ways in which they are to be eliminated or minimised? WHS Act s49

  8. When consultation is required • when deciding on procedures for: • consulting with workers • resolving work health and safety issues • monitoring workers’ health • monitoring conditions at any workplace under the management or control of the PCBU • providing information or training for workers • other activities as described under the regulations. WHS Act s49

  9. Duty to consult workers Consultation is a two way process that should occur in a ‘timely’ manner and involves: • Talking to all involved parties about health and safety issues • Listening to others’ concerns and raising your own • Seeking and sharing others’ views and relevant information • Considering what workers and relevant others say before making a decision. How would you describe ‘timely’? Consultation Code of Practice: Chapter 2

  10. Arrangements for consultation Options available for consultation as agreed to between PCBUs and workers include: • Health and Safety Representatives (HSRs) and Deputy HSRs to represent various workgroups; • Health and Safety Committee (HSC) – HSR and deputies must be members (unless they choose not to be on the Committee); and • Other arrangements e.g. direct consultation through regular team meetings. WHS entry permit holders can assist in establishing consultation arrangements and consult with members/eligible members on health and safety issues. WHS Act Parts 5 and 7

  11. Duty to consult with other duty holders Each person who has a duty to ensure the health and 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 and safety. How might duty holders meet this requirement to consult, co-operate and co-ordinate activities? WHS Act s46

  12. 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 and arrangements e.g. Emergency procedures, work arrangements Duty holder e.g. Labour hire company WHS Act s46

  13. 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

  14. 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

  15. 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

  16. Health and Safety Representatives (HSRs) Health and 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. See Fact Sheet 4 for further detail. WHS Act s60 - 64

  17. Deputy Health and Safety Representatives (Deputy HSRs) Deputy Health and Safety Representatives: • 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 • have a term of office of 3 years and are eligible for re-election • can cease to hold office for various reasons e.g. improper use of powers and using or disclosing information • are not personally liablewhen acting in ‘good faith’ in their role as a deputy HSR (immunity) • are entitled to receive training upon request See Fact Sheet 4 for further detail. WHS Act s67 and s64-66,72-73

  18. Powers and functions of HSRs The functions of HSRs are similar to current functions of OHS Representatives and OHS Committee members i.e. they: • Represent workers in relation to work health and 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 and functions include (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

  19. Activities of HSRs Activities may include: • 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 and 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. WHS Act s68

  20. Activities of HSRs • Requesting the establishment of a Health and Safety Committee. • Receiving information on the heath and 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

  21. Limitation of HSRs’ Powers The 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 and 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

  22. Obligations of PCBUs to HSRs A PCBU must, in respect to HSRs, on work health and safety matters: • Consult so far as is reasonably practicable • Confer whenever reasonably requested • Allow access to information on hazards and the health and safety of workers • Provide resources • 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. WHS Act s70 -74

  23. 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 Health and Safety Committee 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 and Safety Committees (HSCs) WHS Act s75,76,78

  24. Functions of the HSC are to: Facilitate cooperation between the PCBU and workers in instigating, developing and carrying out measures to ensure workers’ health and 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

  25. Obligations of PCBUs to the HSC A PCBU must allow a member of the HSC, with respect to work health and safety matters: • Reasonable time to: • attend HSC meetings • carry out functions as a member of the HSC • Access to information on: • hazards (including associated risks)and • the health and safety of workers of the workgroup with the workers consent (information must not contain any information that may allow identification) 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 s79

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