Work Health and Safety Act Middle Managers and Supervisors

Work Health and Safety Act

Middle Managers andSupervisors

Middle Managers andSupervisors

01What is new for NSW under the WHS Act?

Summary

An employer

Is captured under the definition PCBU ‘person conducting a business or undertaking’

Controllers, self employed etc.

Are also a PCBU with general duties of care

General duties of Employers

Will be subject to qualifier ‘reasonably practicable’ and will apply to all PCBUs and extend to all who are involved in the conduct of work

Employees

Are captured under the definition of worker which is broadly define to include anyone who carries out work in any capacity, including volunteers

SummaryDuty of workers

Workers have an expressed duty to take reasonable care of themselves at work

Duty of others Others are required to take reasonable care when at a place of work

Duty of Officers

Will change from having an attributed liability to a positive duty of “due diligence” to ensure PCBU complies with duties

Due diligence Is specifically defined and includes knowledge of WHS and business risks , allocation of resources, WHS reporting, compliance and verification processes

Consultation Broadened to include all workers affected and other PCBUs with shared responsibilities

SummaryOHS Representatives

Replaced by health & safety representatives (HSR) with increased functions and powers

HSR powers After completing approved training HSRs will be able to issue PINs and direct unsafe work to cease

Management of Risk

Risk assessments are not mandated in the Act but are mandated in the Regulation for certain high risk work

Union officials Can apply for WHS entry permit to enter a workplace to advise on WHS or when a breach is suspected

SummaryProtection against discrimination

Enhanced to protect workers and those in commercial arrangements from coercion, inducements or misrepresentation

Onus of Proof Reverse onus removed with the prosecution having to prove a breach was committed

Penalty Options Graduated enforcement options to include injunctions, remedial action and enforceable undertakings

Penalties Maximum penalty for a corporation of $3 million and for an individual $300,000 & up to 5 years imprisonment for the most serious breaches

New TerminologyEmployer Replaced by the term ‘person conducting

a business or undertaking’ (PCBU)

Controllers, self employed etc.

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

New TerminologyDirectors and Manager

Replaced with the term “Officer” as defined in the Corporations Act 2001

Duty of Officers Officers have positive duty of “due diligence” to ensure PCBU complies with duties

OHS Representatives

Replaced by health & safety representatives (HSR) with increased functions and powers

OHS Committees

Will be referred to as health and safety committees with effectively the same functions

Union officials Can apply for WHS entry permit and will be know as WHS entry permit holders.

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

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

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

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:• Offices, factories, warehouses, work vehicles, mobile

advertising structure, billboards, bus shelters, phone booths and any other form of advertising structure.

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 may be:• A director or secretary of the corporation.• A person who makes, or participates in making,

decisions that affect the whole, or a substantial part of the corporation.

• A person who has the capacity to affect significantly the corporation's financial standing.

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

DefinitionsPlant 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 Means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes:

• buildings, Billboards, bus shelters and indoor advertising signs

• any component of a structure; and• part of a structure.

Substance Means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour.

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. This includes billboards, bus shelters, phone booths and any other form of advertising structure.

Definitions

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. These include the fabricators that build billboards, bus shelters, phone booths and any other form of advertising structure.

‘Manufacturer’

02NSW Work Health & Safety Act-PCBU’s, the Primary Duty of Care & Other Duties

What is a business or undertaking?Activities carried out by, or under the control of, a person a) Whether alone or with othersb) Whether or not for profit or gain

Including activities conducted by:c) A corporation, partnership, d) Unincorporated associatione) Self employed personf) Government agency

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• Principal Contractors, Sub-Contractors

PCBU

• Businesses who design, manufacture, import, supply plant, substances and structures used at work

PCBU

• Businesses who control workplaces, fixtures , fittings, plant at workplaces

What WHS Act says PCBU’s 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

Other PCBU Duties

Primary Duty of Care plus

1. Consultation

2. Issue Resolution

3. Incident Notification

4. Complying with regulations

Multiple PCBUs in respect of same activitiesSeveral 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

All duties are concurrent and non-transferrable

Billboard Production Companies

Advertising Companies

Landlords & Site

OwnersSign

Installation Companies

Electrical Companies

What are the major differences in the WHS Act?Major difference is the application of 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

What are the major differences in the WHS Act?Major difference is the application of 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.

03NSW Work Health & Safety Act- Duties of Officers, Workers & Others

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 2011

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

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

Officers must exercise Due Diligence What is Due Diligence?

Due Diligenc

e

Audit & review WHS processes and use of

resources

Ensure WHS legal

compliance

Receive and consider business

incidents, hazards & risks

Provide resources to identify and control risks

Understand business health &

safety risks

Acquire safety knowledge and keep up to date

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

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.

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

Workers Duties 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

Did the worker fail to take responsible 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

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

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 centre promotions or advertising displays, the public around billboards or bus shelters, rail platforms or other installation works etc.

Differing standards according to the duty holder and the nature of the activity

ACTIVITY DUTIES STANDARD

PCBU

OFFICER

WORKER

OTHERS at workplace

Primary Duty of Care

Other dutiesSpecific duty

holders

Officers duty of care

Leadership & Governance

Workers to take care of self and others

Includes supervisory role

Other to take care of self and others

Follow instructions

REASONABLY PRACTICABLE

DUE DILIGENCE

REASONABLE CARE

REASONABLE CARE

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

04NSW Work Health & Safety Act -Reasonably Practicable

What is the difference 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

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- this includes engaging subcontractors and consultants

•placed with another person to carry out work for that person, such as labour hire or

•influenced or directed in carrying out their work activities by the person, while the workers are at work in the business or undertaking-Such as an advertising company officer directing an installation company worker to perform works onsite

Reasonably Practicable: getting the balance

Reasonably practicable is the balance between risk and

time, effort and cost

Likelihood, degree of harm, knowledge etc

Time, effort and cost to eliminate or reduce

risk

Reasonably practicable: Getting the balance

Level of time, effort and cost way

out of proportion with benefits in risk reduction

E.G little likelihood

of risk occurring risk/minim

al harm

High level of time, effort

and cost to eliminate or reduce risk?

Reasonably Practicable in the workplace• For common hazards such as electricity, 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.

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- for example- the use of only PPE when working at heights a control in high risk situations may not be deemed as “reasonably practical” when other controls such as design and engineering are available• Consequently the level at which controls are applied is

subject to decisions about reasonably practicable.

Reasonably Practicable: the Hierarchy of Control

STOP OR CHANGE THE ACTIVITY, PRACTICE OR PROCEDURE

ELIMINATE RISKS (so far as is reasonably practicable)

MINIMISE RISKS (so far as is reasonably practicable)

SUBSTITUTE WITH SAFER ALTERNATIVE

REDESIGN TO REDUCE RISK

ISOLATE PEOPLE FROM RISK

STOP USING OR CHANGE THE PRODUCT, PROCESS, PLANT OR SUBSTANCE

USE ENGINEERING CONTROLS

USE ADMINISTRATIVE PROCEDURES

USE PROTECTIVE CLOTHING / EQUIPMENT

MOST RELIABLE LEAST

RELIABLE

Highest LEVEL OF PROTECTION Lowest

05NSW Work Health & Safety Act -Consultation

Overview of what WHS Act says about ConsultationMUST CONSULT:•with all workers who carry out work who may be directly affected by WHS matter• in an effective way• on certain matters, • involve HSR – if workers represented by that HSR• …., cooperate and coordinate activities with other duty holders who share WHS responsibilities

SO FAR AS IS REASONABLY PRACTICABLE

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

How to consult your workers In collaboration with your workers you need to work out methods that:Meet your duty to consultEnsure all workers can participate in consultation Integrates with the way you manage WHS risksYou can have, for example

SMALL• Informal mechanism

MEDIUM• Health and Safety Representatives

LARGE• Safety Committees

DIVERSE• A combination of methods

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

What the 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. maintenance staff, electricians and sign installers at the same worksite, bus cleaners

and installers at the same depot or shelter• Same matter- e.g. design, installation, use of plant,

labour hire

What are the major differences in the WHS Act?

Major difference is the extent of the scope of the obligation:

NOW have to consult with all workers directly affected not just employees NOW have to consult with other duty holders who share responsibilities

.The nature of consultation required & when you are expected to consult are basically the same as

existing provisions

06NSW Work Health & Safety Act -Participation and RepresentationHealth and Safety Representatives

Overview of the 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

What the WHS Act 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

HSR Powers: Direct to cease unsafe work

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

Can only act if

• Completed initial training• Consulted with PCBU and followed any issue resolution

process

With the exception

• That the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction

HSR Powers: Issue PIN

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

Can only act if

• Completed initial training• Consulted with the person to whom the notice is issued

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.

07NSW Work Health & Safety Act -H & S Committees – Roles & Functions

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

What WHS Act says PCBU’s must do:

PCBUs 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

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 reachedConstitution to be agreed by PCBU and workers but must meet at least every 3 months

What is different from current arrangements?SIGNIFICANT CHANGES

Membership may be broadened to include all workgroups

Silent on some administrative details like who should be chair, the status of the management rep, elections

Removes mandatory requirement for all members of Committee to undertake prescribed training

Changes the focus of the functions of the Committee

Much about Committees is very similar to existing provisions

08NSW Work Health & Safety Act -Issue Resolution

What is difference 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

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

Overview of WHS Act• If an issue remains unresolved after reasonable efforts have been made any party can request WorkCover to assist in resolving the matter

• Inspector’s role to help resolve issue could involve advice or use of compliance powers

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

09NSW Work Health & Safety Act -Public Safety

Overview of WHS ActThe 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”

Overview of the WHS ActSpecific 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”

Overview of WHS ActIn 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


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

10NSW Work Health & Safety Act -Enforcement

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 prosecute

and abolition of the reverse onus of proof are new to the NSW enforcement framework

Enforcement Measures

The WHS Act provides graduated

enforcement regime with civil and criminal

prosecutions the ultimate sanction

Injunctions, and enforceable undertaking are new in NSW

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial

Prohibition Improvement

Non Disturbance

Action

Notice

Notice

Notice

Enforceable Undertakings

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

WorkCover 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

Enforceable Undertakings

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

• 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 WorkCover’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

The Right to Prosecute

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

The right to bring a prosecution under the WHS Act rests with WorkCover 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 or,2.the offence concerned is a Category 1 or a Category 2 offence

andWorkCover has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings

Power of HSR to issue PIN

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

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

Can only act if

• Completed initial training• Consulted with the person to whom the notice is issued

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

Penalty Structure

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

• Corporations: $3m• Individuals as a PCBU or Officers of a PCBU:

$600k / 5 years jail • Other Individuals : $300k / 5 years jail

Category 1 Reckless Conduct

• Corporations: $1.5m• Individuals as a PCBU or Officers of a PCBU:

$300k • Other Individuals : $150k

Category 2 Breach High Risk

• Corporations: $500k• Individuals as a PCBU or Officers of a PCBU:

$100k • Other Individuals : $50k

Category 3Duty Breach

11NSW Work Health & Safety Act - Reviewable Decisions

Overview of the WHS Act

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

•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

Overview of the WHS Act

Penalty Notice

Enforceable

Undertaking

Remedial


Non Disturbance

Action

Notice

Notice

Notice

•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

12NSW Work Health & Safety Act - Union Participation in WHS

The Right to Exercise Entry Powers

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

• 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 breach

• 24hrs notice if consulting workers / documents

• Must comply with WHS requirements

Reasons for Entry

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

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

Powers on Entry

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

POWER TO:

Inspect any work system, plant, substance, structure or other thing relevant to suspected contraventionConsult with relevant workers re suspected contraventionConsult with PCBU about the suspected contraventionInspect & 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

.

13NSW Work Health & Safety Act - Incident Notification

What is the difference in WHS Act about Incident Notification?

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

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

Overview of WHS Act

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

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

Overview of WHS Act

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

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.

What WHS Act says PCBUs must do:

Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

Notify WorkCover 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


Penalty Notice

Enforceable

Undertaking

Injunctions

Remedial


Non Disturbance

Action

Notice

Notice

Notice

The WHS Act retains similar notification requirements to those that currently apply so little change is expected

The duty is for all PCBUs

Work Health and Safety Act Middle Managers and Supervisors

Documents

Transcript of Work Health and Safety Act Middle Managers and Supervisors