NSW Work Health & Safety Legislation

Transcription

1 NSW Work Health & Safety Legislation Participant Handbook Assistance and funding for this material has been provided by NSW through the Assist Program 1

2 Why Change? The Federal Government is committed to developing a seamless economy 9 separate OHS Acts 1 Model Work Health Safety Act OHS identified as regulatory hot spot Regulatory burden, costs for business & wider economy estimated at $16B Therefore OHS and industrial relations the first areas of major reform 2

3 NEW TERMINOLOGY Employer Controllers, self employed etc. Replaced by the term person conducting a business or undertaking (PCBU) Are also a PCBU with general duties of care Employees Replaced by the term worker which is broadly defined to include anyone who carries out work in any capacity, General duties of Employers Will be subject to qualifier reasonably practicable and will apply to all PCBUs Duty of workers Workers have an expressed duty to take reasonable care of themselves at work 3

4 NEW TERMINOLOGY Directors and Manager Duty on Officers Replaced with the term Officer as defined in the Corporations Act 2001 Officers have positive duty of due diligence to ensure PCBU complies with duties OHS Representatives OHS Committees Union officials Replaced by health & safety representatives (HSR) with increased functions and powers Will be referred to as health and safety committees with effectively the same functions Can apply for WHS entry permit and will be know as WHS entry permit holders. 4

5 NEW TERMINOLOGY Workplace Defined to include any place where a worker goes, or is likely to be, while at work. Structure The provision of safe structures included in general duties of PCBUs and upstream duties of designers 5

6 DEFINITIONS Plant Includes: any machinery, equipment, appliance, container, implement and tool; and any component of any of those things; and anything fitted or connected to any of those things. Structure Substance Means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes: buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and any component of a structure; and part of a structure. Means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour. 6

7 NSW Work Health & Safety Act Module: PCBUs, the Primary Duty of Care & Other Duties 7

8 Person Conducting a Business or Undertaking The WHS Act applies the primary duty of care on any person who conducts a business or undertaking They influence one or more elements that go to the performance of work and They may affect the health and safety of those doing the work or those affected by the work 8

9 What is a business or undertaking? Activities carried out by, or under the control of, a person a) Whether alone or with others b) Whether or not for profit or gain Including activities conducted by: a) A corporation, partnership, b) Unincorporated association c) Self employed person d) Government agency 9

10 DEFINITIONS Person conducting a business or undertaking A person conducts a business or undertaking: whether the person conducts the business or undertaking alone or with others; and whether or not the business or undertaking is conducted for profit or gain. A PCBU may be a partnership, an unincorporated association a self-employed person, a government agency. A person does not conduct a business or undertaking when: the person is engaged solely as a worker in, or as an officer of, that business or undertaking the person is acting in the capacity of an elected member of a local government authority If the Regulation prescribes 10

11 Who will be a PCBU The primary duty is owed by the operator of the business or undertaking; Examples are: PCBU Employers, Self employed, Partner, Franchisees, Franchisor PCBU PCBU PCBU Principal Contractors, Sub-Contractors Businesses who design, manufacture, import, supply plant, substances and structures used at work Businesses who control workplaces, fixtures, fittings, plant at workplaces Some of these duty holders will also have specified further duties 11

12 Who will NOT be a PCBU a) A person engaged solely as a worker or officer of PCBU b) A volunteer association provided no person is employed to carry out work for the organisation c) A charitable, social or sporting organisation when carrying out purely social activities; but will be if activities are of a commercial nature d) Persons who engage workers solely for private or domestic purposes on an ad hoc basis e) An elected member of a local authority 12

13 What WHS Act says PCBUs 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 13

14 Specific obligations: Workplace monitoring Safe work environment Information, training, instruction, supervision Primary Duty of Care Safe plant & structures Facilities for workers welfare Safe systems of work Safe use, handling & storage of plant, structures & substances 14

15 Other PCBU Duties PRIMARY DUTY OF CARE PLUS 1. Consultation 2. Issue Resolution 3.Incident Notification 4 Complying with Regulations 15

16 PCBU will have additional duties IF IT: Manages or controls a workplace Controls the fixtures, fitting or plant at a workplace Designs, Manufactures, Imports, Supplies, Installs plant, substances, structures, dangerous goods for use at work 16

17 DEFINITIONS Designer' Is a person who conducts a business or undertaking that designs: plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or a substance that is to be used, or could reasonably be expected to be used, at a workplace; or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace 17

18 DEFINITIONS Manufacturer' Is a person who conducts a business or undertaking that manufactures: plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or a substance that is to be used, or could reasonably be expected to be used, at a workplace; or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace 18

19 DEFINITIONS Importer' Is a person who conducts a business or undertaking that imports: plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or a substance that is to be used, or could reasonably be expected to be used, at a workplace; or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. 19

20 DEFINITIONS Supplier' Is a person who conducts a business or undertaking that supplies: plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or a substance that is to be used, or could reasonably be expected to be used, at a workplace; or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace 20

21 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 Contract Cleaners Landlord Labour Hire casuals Retailer Customers All duties are concurrent and non-tranferrable 21

22 What are the major differences in the WHS Act? Major difference is the application of the Primary Duty of Care NOW the primary duty of care does NOT rely on the employment relationship NOW the primary duty of care is OWED BY a PCBU. It is OWED TO workers carrying out work for PCBU NOW the primary duty of care is also owed by the PCBU to OTHER people affected by the work 22

23 What are the major differences in the WHS Act? Major difference is the application of the Primary Duty of Care NOW the specific duties that the PCBU has are more explicit and include the duty to monitor workplace NOW there is a greater chance that PCBUs will share duties for the same activities NOW the duty of care is qualified by the standard of what is reasonably practicable. 23

24 What is the likely impact of these changes? If you have existing arrangements for managing contractors and visitors the extension of the primary duty to workers and others may not be significant If you don t have existing arrangements for managing contractors and visitors - you need to identify: what workers you have duties to what others you may owe the duty to what you need to do to extend a duty of care to them 24

25 The Goal Improved safety outcomes because of better communication between PCBUs and more effective risk management, as a result of: Everyone who conducts a business or undertaking having a primary duty of care to anyone who can be affected by their operations Increased shared responsibility between PCBUs for the same activity The requirement to consult, cooperate and coordinate with other PCBUs 25

26 NSW Work Health & Safety Act Module: Duties of Officers, Workers & Others 26

27 Officers Liability OHS Act 2000 ATTRIBUTED LIABILITY Officers are held liable for contraventions by their corporation If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision s26 27

28 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

29 WHS Act specifies Duty of Care on Officers One of the most significant changes introduced by the new Act 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 29

30 Who is an Officer - Corporations Act 2001 Officer of a corporation means: (a) a director or secretary of the corporation, or (b) a person: i. who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or ii. who has the capacity to affect significantly the corporation s financial standing

31 DEFINITIONS Officer Means: an officer within the meaning of s.9 of the Corporations Act 2001; other than a partner in a partnership; an officer of the Crown within the meaning of s.247 an officer of a public authority (including a local authority) within the meaning of s.252 other than an elected member of a local authority acting in that capacity 31

32 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 32

33 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 Due Diligence Understand business health & safety risks Receive and consider business incidents, hazards & risks Provide resources to identify and control risks 33

34 DEFINITIONS Due diligence' Exercising due diligence includes taking reasonable steps: to acquire and keep up-to-date WHS knowledge to gain an understanding of the hazards and risks associated with business operations to ensure the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information to ensure the business or undertaking has, and implements, processes for complying with any duty or obligation of the PCBU under the Act, and to verify the provision and use of the above resources and processes 34

35 What are the major differences in the WHS Act? Major difference is the introduction of a POSITIVE duty of due diligence OFFICERS have a duty to ensure the entity acts appropriately & complies with WHS legislation NOW OFFICERS are defined and include internal and external persons of control and influence NOW DUE DILIGENCE is clearly defined and officers know exactly what they are expected to do 35

36 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. 36

37 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 37

38 Duties of Employees & Others OHS Act 2000 EXISTING DUTY ON EMPLOYEES IS TO TAKE REASONABLE CARE OF OTHERS THE EXISTING DUTY ON OTHERS IS NOT TO ACT RECKLESSLY 38

39 What WHS Act says about Duties of Workers & Others: The WHS Act clearly specifies a duty on workers to take reasonable care for the health and safety of themselves and others at the workplace Others at a workplace, although they have limited control, are expected to also take reasonable care 39

40 DEFINITIONS Worker A person is a worker if the person carries out work in any capacity for a PCBU, including work as: an employee a contractor or subcontractor an employee of a contractor or subcontractor an employee of a labour hire company an outworker an apprentice or trainee a student on work experience a volunteer a person of a prescribed class. The PCBU is also a worker if the PCBU is an individual who carries out work in the business or undertaking 40

41 Duties Workers at work Others at workplace Must take reasonable care of own health & safety Must take reasonable care that conduct does not adversely affect others Must comply, so far as he/she is reasonably able, with instructions Must cooperate with reasonable notified policies and procedures [ 41 ]

42 Did the Worker Fail to Take Reasonable 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 42

43 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 43

44 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 centres etc. 44

45 DEFINITIONS Others Is taken to mean visitors, customers, members of the public etc. A workplace A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. 'Place' includes: a vehicle, vessel, aircraft or other mobile structure, and any waters and any installation on land, on the bed of any waters or floating on any waters. 45

46 Differing standards according to the duty holder and the nature of the activity WHS Act 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 National Review into OHS Laws 2 nd Report [ 46 ]

47 Summary Officer must ensure the PCBU complies with its duties Officer s duty discharged with due diligence This duty can not be delegated or transferred Workers to take care of themself & others at workplace Worker s duty discharged with reasonable care Others at workplace to take care of themselves Other s duty discharged with reasonable care [ 47 ]

48 NSW Work Health & Safety Act Module: Reasonably Practicable 48

49 What is different 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 49

50 DEFINITIONS 'Reasonably practicable' Means what is reasonably able to be done 'at a particular time' to ensure health and safety. It takes into account and weighs up all relevant matters including The likelihood of the hazard or the risk occurring The degree of harm that might result from the hazard or risk. What the person concerned knows, or ought reasonably to know, about the hazard or the risk, and ways of eliminating or minimising the risk, and The availability and suitability of ways to eliminate or minimise the risk (s.18). 50

51 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 placed with another person to carry out work for that person, or influenced or directed in carrying out their work activities by the person, while the workers are at work in the business or undertaking 51

52 Reasonably practicable includes: Reasonably Practicable Cost 52

53 Reasonably practicable: Getting the balance 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 53

54 Reasonably practicable: Getting the balance? 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 54

55 Reasonably practicable in the workplace For common hazards such as noise, 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. 55

56 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 Consequently the level at which controls are applied is subject to decisions about reasonably practicable. For example, falls from height are regulated with a preferred set of controls from design and engineering down to personal protection measures. 56

57 Reasonably practicable: The hierarchy of control Highest LEVEL OF PROTECTION Lowest 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 USE ENGINEERING CONTROLS REDESIGN TO REDUCE RISK ISOLATE PEOPLE FROM RISK USE ADMINISTRATIVE PROCEDURES USE PROTECTIVE CLOTHING / EQUIPMENT MOST RELIABLE LEAST RELIABLE 57

58 What is the likely impact of these changes? Major change is the replacement of an absolute duty of care with a duty qualified by what is reasonably practicable The reverse onus of proof has been removed and the prosecution has to make the case that an offence has been committed Workplaces currently complying with NSW legislation will be well placed for the new laws Workplaces with a form of risk management to tailor their control measures to their particular circumstances will be well placed for the new laws 58

59 NSW Work Health & Safety Act Module: Consultation WHS Act 59

60 What is different in WHS Act about Consultation Much broader duties for PCBUs to consult with other duty holders, and workers, including those likely to be affected by their business or undertaking Establishes comprehensive duties to consult on work health and safety matters so far as is reasonably practicable WHS Act 60

61 What WHS Act says PCBU s must do: Obligation to consult with workers s47 PCBU must, so far as is reasonably practicable, consult with workers who carry out work for the business or undertaking who are, or likely to be, directly affected by a WHS matter SO WHO ARE THE WORKERS LIKELY TO BE AFFECTED? WHS Act 61

62 Effective consultation requires: Agreed procedures followed Workers advised of outcome in timely manner Relevant HSR involved if one exists Consultation Views of workers are taken into account by PCBU Relevant information about the matter is shared with workers Workers given opportunity express views, raise WHS issues contribute to decision making WHS Act 62

63 What WHS Act says about Consultation: CONSULTATION is required WHEN: identifying hazards and assessing risks making decisions about how to eliminate & minimise risks making decisions about facilities for welfare of workers proposing changes that affect WHS of workers decisions about procedures for: Consultation Issue resolution Health monitoring Monitoring condition of workplace Information and training WHS Act 63

64 Consult so far as is Reasonably Practicable? What is reasonable in the particular circumstances at the particular time? This will depend on: The size and structure of your business The nature of the work undertaken and the seriousness of the risk The nature of the particular decision or action including the urgency of need to act The work arrangements & availability of workers shift work, remote work The characteristics of the workers - including language and literacy WHS Act 64

65 What you need to do Make sure your workers are aware of WHS matters asap Encourage them to ask questions about WHS Encourage them to raise concerns and report problems Encourage them to make suggestions to solve WHS problems Involve them in the problem-solving process Inform them of outcome of consultation & decision, promptly WHS Act 65

66 How to consult your workers In collaboration with your workers you need to work out methods that: Meet your duty to consult Ensure all workers can participate in consultation Integrates with the way you manage WHS risks You can have, for example SMALL Informal mechanism MEDIUM Health and Safety Representatives LARGE DIVERSE Safety Committees A combination of methods WHS Act 66

67 Agreeing on Consultation Procedures The WHS Act allows you to establish agreed procedures for consultation with your workers. Such procedures must be consistent with S48 WHS Act. The agreement allows you to clearly state: the responsibilities of all people in the workplace when consultation is necessary who will be involved in the consultation how the consultation will occur how information will be shared what opportunities will be provided for workers and HSRs to give their views how feedback will be given to workers how consultation will occur with workers with language / literacy needs WHS Act 67

68 What WHS Act says PCBUs must do: Obligation to consult with other duty holders s46 Duty holders with overlapping WHS duties must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with each other WHO ARE THESE OTHER DUTY HOLDERS? Same workplace e.g. construction site, shopping centre, Same matter- e.g. design, installation, use of plant, labour hire WHS Act 68

69 What do you need to do? Consulting WORKERS If you have consultative arrangements like an OHS committee or OHS Reps then you need to see how this can be extended to cover all workgroups If you don t have existing arrangements then you need to identify your workgroups and talk to them about when and how you may consult them WHS Act 69

70 What do you need to do? Consulting, Cooperating & Coordinating with OTHER DUTY HOLDERS All duty holders need to gain an understanding of the requirement to consult, cooperate and coordinate activities with each other WHAT IS REASONABLY PRACTICABLE: to achieve effective exchange of information? to work effectively together? to ensure consistency? to meet duties? WHS Act 70

71 NSW Work Health & Safety Act Module: Participation & Representation Health and Safety Representatives WHS Act 71

72 What is different in WHS Act about HSRs New Act prescribes HSR powers to issue PINs and direct unsafe work be ceased not currently found in NSW legislation HSR training has to be requested rather than being an automatic entitlement WHS Act 72

73 DEFINITIONS Health and Safety Representative In relation to a worker, means the health and safety representative elected for the work group of which the worker is a member Workgroup Means a group of workers as determined by negotiation between the PCBU and the workers who will form the workgroup. 73

74 Overview of WHS Act The Act sets out the process for electing HSRs, and their functions, powers and entitlements Determination of work groups provides the basis for electing HSRs HSRs are elected for 3 years to represent their work group on WHS issues HSRs can inspect, investigate and represent workers HSRs can issue Provisional Improvement Notices (PIN) and direct that unsafe work cease WHS Act 74

75 Overview of WHS Act The Act allows work groups to cover multiple businesses to be established HSRs is not personally liable for things done in good faith Deputy HSRs can deputise for the HSR if unable to exercise function or ceases to hold office HSRs powers and functions limited to work group except where issues overlap Disqualification of an HSR can be sought on grounds such as using powers for improper purposes WHS Act 75

76 What WHS Act says PCBU s must do: Respond to a request to establish a work group and negotiate an agreed arrangement Facilitate the election of HSRs Consult with HSR on WHS affecting the work group Allow access to WHS information relevant to work group Allow HSR to be present at interviews on WHS matters (with consent of worker) Provide resources and allow time to enable HSR to exercise functions WHS Act 76

77 What WHS Act says PCBU s must do: Allow HSR to accompany inspector within work group Allow a person assisting the HSR access to the workplace If requested allow HSR to attend WHS training (initial course of 5 days and 1 day refresher annually there after) Keep and display an up to date list of HSRs PCBU must not allow HSR access to personal or medical information unless with consent of worker WHS Act 77

78 HSR Powers: Direct to cease unsafe work Can only act if Completed initial training Consulted with PCBU and followed any issue resolution process Then only if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard With the exception That the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction WHS Act 78

79 HSR Powers: Issue PIN Can only act if Completed initial training Consulted with the person to whom the notice is issued Then only if the representative reasonably believes that a person is contravening a provision of the Act, has contravened a provision of the Act in circumstances that make it likely that the contravention will continue or be repeated And Must be in writing and may recommend measures to remedy issue PCBU can seek review within 7 days. Inspector may cancel, confirm or confirm with modification. WHS Act 79

80 What is the likely impact of these changes? If you have consultative arrangements such as OHS committee and OHS reps little impact except for ability to issue PINs. Existing committee and OHS reps likely to be used in transition arrangements Workplaces establishing HSRs have slightly different processes to follow HSR training has to be requested Longer initial training course and new provision for refresher training may have some impact WHS Act 80

81 NSW Work Health & Safety Act Module: H&S Committees Roles and Functions WHS Act 81

82 What WHS Act says PCBU s must do: PCBU must establish a health & safety committee within 2 months of being requested to do so by: a HSR for the workgroup carrying out the work 5 or more workers at the workplace if required to do so by the regulation PCBU may establish a committee on their own initiative WHS Act 82

83 What WHS Act says about Committees: FUNCTION OF THE HEALTH & SAFETY COMMITTEE: 1 2 Facilitate co-operation between PCBU & workers to instigate, develop & carry out WHS measures Assist develop health & safety standards, rules and procedures to be complied with at the workplace 3 Perform such functions as prescribed by the Regulation or agreed between PCBU and Committee WHS Act 83

84 What WHS Act says PCBU s must do: PCBU must: allow each member of the committee to spend time reasonably necessary to attend meetings, carry out functions pay members usual wages while doing Committee work allow Committee access to information relating to: - hazards & associated risks - health and safety of workers 84 WHS Act

85 What WHS Act says about Committees: HSRs can choose to be member of the Committee If 2 or more HSRs, they choose one or more to be members of Committee At least half the members must be workers NOT nominated by a PCBU Either party can request an Inspector to decide on establishment & make-up of Committee, if agreement not reached Constitution to be agreed by PCBU and workers but must meet at least every 3 months WHS Act 85

86 What is different from current arrangements? SIGNIFICANT CHANGES Changes the focus of the functions of the Committee Removes mandatory requirement for all members of Committee to undertake prescribed training Silent on some administrative details like who should be chair, the status of the management rep, elections Membership may be broadened to include all workgroups Much about Committees is very similar to existing provisions WHS Act 86

87 What do you have to do? If you have a committee that works Keep it and refocus it to fulfil its new functions and to contribute to H&S performance improvements Discuss how it may be extended to cover all workgroups, not just employees Review the current training with committee members and design something that meets the requirements of the members and your business Ensure members understand and use the new legislation WHS Act 87

88 What do you have to do? If you don t have a committee or if it is ineffective Think about whether you need one - a Committee may not be the best or most effective way to consult with your workers. Identify your workgroups and talk to them about how you may consult and determine if a committee is the way to go. A committee may work if you have a significant number of workers who are reluctant to be a HSR but would be part of a committee WHS Act 88

89 NSW Work Health & Safety Act Module: Issue Resolution 89

90 What is different in WHS Act about Issue Resolution New Act makes an issue resolution process open to all parties rather than being restricted to H&S committees and HSRs New Act mandates an issue resolution process that must be followed if there is an unresolved WHS issue 90

91 Overview of WHS Act The parties to an issue include the PCBU or representative and workers or representative The issue resolution provisions apply if there has been no resolution after reasonable efforts have been made If there is no agreed issue resolution procedure the process in the regulations must be followed 91

92 Overview of WHS Act If an issue remains unresolved after reasonable efforts have been made any party can request to assist in resolving the matter Inspector s role to help resolve issue could involve advice or use of compliance powers 92

93 What WHS Act says PCBU s must do: Make reasonable efforts to resolve an WHS issue Follow an agreed procedure if there is one in place If no agreed procedure follow the process set out in regulations Set out the agreed procedure in writing & communicate it to all workers 93

94 What is the likely impact of these changes? If you already have an agreed issue resolution process built into your consultation arrangements then no change (but review) If you have consultative arrangements such as OHS committee and OHS reps then use them to develop an agreed procedure If you have no defined consultative arrangements establish an agreed procedure or you will need to use the default procedure if issues arise 94

95 NSW Work Health & Safety Act Module: Public Safety WHS Act 95

96 What is different in WHS Act about Public Safety? New Act has very similar coverage on public safety matters as the current NSW legislation New Act creates duties for any person affected by work activities of a PCBU effectively codifying existing common law duty WHS Act 96

97 Overview of WHS Act The overall public safety aspect is covered by the duty of PCBUs to others: A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking WHS Act 97

98 Overview of WHS Act Specific reference to means of entering and exiting workplaces: The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person WHS Act 98

99 Overview of WHS Act In addition to the duty to others the WHS Act can also extend coverage in two areas: 1. This Act applies to the storage and handling of dangerous goods even if the dangerous goods are not at a workplace or for use in carrying out work WHS Act 99

100 Overview of WHS Act 2. This Act applies to the operation or use of high risk plant, affecting public safety, even if the plant is not situated, operated or used at a workplace or for use in carrying out work WHS Act 100

101 Overview of WHS Act In addition to PCBU public safety duties the Act also requires workers to: a. take reasonable care for his or her own health and safety; and b. take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons WHS Act 101

102 Overview of WHS Act Finally the WHS Act states that any person at a workplace owes a duty to others: A person at a workplace must:(whether or not the person has another duty a.take reasonable care for his or her own health and safety; and b.take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons c.comply, so far as the person is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with this Act WHS Act 102

103 What is the likely impact of these changes? The WHS Act mirrors the public safety coverage in existing legislation in most respects The duty of any person to others is a new duty but really just clarifies in WHS law what has already existed in the common law WHS Act 103

104 NSW Work Health & Safety Act Module: Enforcement 104

105 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 procecute and abolition of the reverse onus of proof are new to the NSW enforcement framework WHS Act 105

106 Enforcement Measures The WHS Act provides graduated enforcement regime with civil and criminal prosecutions the ultimate sanction Penalty Notice Enforceable Undertaking Injunctions Prosecution ultimate sanction Injunctions, and enforceable undertaking are new in NSW 106

107 Enforceable Undertakings 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 NOT Available for Category 1 Offences 107

108 Enforceable Undertakings: Once accepted no proceedings can be brought in relation to the contravention Giving an undertaking is not an admission of guilt Decision must be given in writing & notice of decision published on s website Undertaking is enforceable when the decision to accept the undertaking is given It is an offence to contravene and can result in proceedings and/or an order to carry out 108

109 The Right to Prosecute The right to bring a prosecution under the WHS Act rests with in NSW A Trade Union can bring a prosecution under the WHS Act in NSW only if: 1.the offence concerned is a Category 3 2.the offence concerned is a Category 1 or a Category 2 offence and has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings 109

110 Power of HSR to issue PIN Can only act if Completed initial training Consulted with the person to whom the notice is issued Then only if the representative reasonably believes that a person is contravening a provision of the Act, has contravened a provision of the Act in circumstances that make it likely that the contravention will continue or be repeated And Must be in writing and may recommend measures to remedy issue PCBU can seek review within 7 days. Inspector may cancel, confirm or confirm with modification WHS Act 110

111 PENALTY STRUCTURE Category 1 Reckless Conduct Corporations: $3m Individuals as a PCBU or Officers of a PCBU: $600k / 5 years jail Other Individuals : $300k / 5 years jail Category 2 Breach High Risk Corporations: $1.5m Individuals as a PCBU or Officers of a PCBU: $300k Other Individuals : $150k Category 3 Duty Breach Corporations: $500k Individuals as a PCBU or Officers of a PCBU: $100k Other Individuals : $50k 111

112 Reverse onus of proof removed The burden of proof (beyond reasonable doubt) rests entirely upon the prosecution in matters relating to non-compliance with duties imposed by the Act Except for civil actions relation to discriminatory conduct and WHS entry permit holders 112

113 What should you do? Understand your obligations and what steps you need to take to ensure compliance with the WHS Act Understand what you have to do to prove due diligence Keep evidence that you have done everything reasonably practicable to prevent a contravention WHS Act 113

114 NSW Work Health & Safety Act Module: Reviewable Decisions 114

115 Overview of WHS Act The WHS Act lists reviewable decisions and establishes procedures for internal review by the regulator and arrangements for external review by the IRC. Those able to apply for review include PCBU, workers and HSRs if their interest are affected by the decision 115

116 Overview of WHS Act Typical matters for review under the Act include Improvement and Prohibition Notices Other matters include disputes about work groups, about HSR training courses and about the make up of H&S committees. The Act also refers certain matters for review to be prescribed in the regulations 116

117 How an Improvement Notice is reviewed under the WHS Act : Seek internal review within time set for compliance or 14 days which ever is the lesser The internal reviewer () has 14 days to make decision Can seek external review of decision within 14 days of being advised Any application for review stays the decision 117

118 How a Prohibition Notice is reviewed under the WHS Act : Seek internal review as soon as aware of Notice or 14 days which ever is the lesser The internal reviewer () has 14 days to make decision Can seek external review of decision within 14 days of being advised Any application for review does not stay the Prohibition notice unless the reviewer decides to do so. If no decision has been made on a stay within one day it is deemed to have been stayed 118

119 What is the likely impact of these changes? Little change to Act review process particularly with Notices Little change* with regulations except an internal review step included IRC and Administrative Decisions Tribunal likely to remain as external reviewing bodies 119

120 NSW Work Health & Safety Act Module: Union Participation in WHS 120 WHS Act

121 What is different in WHS Act about Union Participation in the Workplace The authority for Trade Unions in NSW to initiate proceedings for a breach of the Act has been altered Trade Union officials now must undergo training prior to being issued with an entry permit and have broadened powers on entry WHS Act 121

122 The Right to Exercise Entry Powers Must be WHS Entry Permit Holder Must complete prescribed training Must hold relevant entry permit under IR law May only seek entry for specified purposes May enter without notice to investigate a suspected beach 24hrs notice if consulting workers / documents Must comply with WHS requirements WHS Act 122

123 Reasons for Entry: Entry only be for specified reasons To enquire in suspected contravention that relates to a relevant worker Must reasonably suspect that the contravention has occurred or is occurring before entering workplace To consult with & advise workers who wish to participate in talks about WHS WHS Act 123

124 Notice of Entry A WHS entry permit holder: May enter a workplace immediately to enquire into a suspected contravention, but must, as soon as is reasonably practicable, give notice of the entry and the suspected contravention to the relevant PCBU Must give notice, during usual working hours, of their intended entry to consult and advise workers at least 24 hours but not more that 14 days before entry WHS Act 124

125 Powers on Entry POWER TO: Inspect any work system, plant, substance, structure or other thing relevant to suspected contravention Consult with relevant workers re suspected contravention Consult with PCBU about the suspected contravention Inspect & make copies of any document relevant to the suspected contravention Warn persons exposed to a serious risk emanating from an immediate or imminent exposure to a hazard, of that risk WHS Act 125.

126 Breaches Relating to Entry A person must not: Recklessly & unreasonably hinder a WHS entry holder in, or obstruct them from entering the workplace or exercising their rights A WHS permit holder must not: Intentionally and unreasonably: delay, hinder or obstruct any person disrupt any work, or otherwise act improperly Use or disclose information or a document obtained for a purpose unrelated to the enquiry Unless a serious risk exists Disclosure is necessary part of investigation 126 WHS Act

127 Resolution of Right of Entry Disputes Disputes regarding: Entry entitlement Conduct of WHS Permit Holder Conduct of other persons during course of entry Referred to an Inspector or the Authorising Authority who can deal with matter in manner determined suitable, including: Mediation Conciliation Arbitration WHS Act 127

128 Right to Prosecute THE UNIONS RIGHT QUALIFIED: A Trade Union can bring a prosecution under the WHS Act in NSW only if: 1. the offence concerned is a Category 3 2. the offence concerned is a Category 1 or a Category 2 offence, and has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings 128 WHS Act

129 What do you have to do? You need to understand the WHS entry permit provisions as they may apply in your workplace: PAY PARTICULAR ATTENTION TO NEW PROVISIONS: Union officials MUST hold a WHS entry permit in order to enter your workplace on a WHS matter & must produce the permit if requested You must allow WHS entry permit holders to enter the workplace during normal working hours to consult with members or eligible workers on WHS matter, if given 24 hours notice You may be required to consult with union officials about a suspected contravention WHS Act 129

130 NSW Work Health and Safety Act Module: Incident Notification WHS Act 130

131 What is different in WHS Act about Incident Notification? New Act has similar notification requirements to the current NSW legislation New Act does not include 7 day unfit for work provision found in NSW definition WHS Act 131

132 Overview of WHS Act What is a notifiable incident? An incident involving the death of a person, serious injury or illness of a person or a dangerous incident What is a serious injury or illness? An injury or illness including: immediate treatment as an in-patient in a hospital or immediate treatment for amputation, spinal injury, serious lacerations etc. or medical treatment within 48 hours of exposure to a substance at a workplace WHS Act 132

133 Overview of WHS Act What is a dangerous incident? An incident that exposes a person to serious risk to their health or safety arising from an immediate or imminent exposure to matters such as, for example: an uncontrolled escape, spillage or leakage of a substance, or an uncontrolled implosion, explosion or fire or an uncontrolled escape of gas or steam. WHS Act 133

134 What WHS Act says PCBUs must do: Notify of a notifiable incident immediately after becoming aware of it Notify by phone or in writing- quickest means possible Ensure that the incident site is preserved until an inspector arrives or until directed by an inspector. Does not prevent action to assist injured persons or make site safe Keep a record of notifiable incidents for 5 years WHS Act 134

135 What is the likely impact of these changes? The WHS Act retains similar notification requirements to those that currently apply so little change is expected The duty is for all PCBUs WHS Act 135