Transcript Session 2

SESSION 2
WHS Act – Awareness Course for Union Members
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
www.ieu.asn.au
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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
directing unsafe work to cease 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
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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)
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Duty to consult workers
The WHS Act requires that the views of workers and Health
and Safety Representatives must be 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
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Nature of consultation
Consultation requires:
 sharing of health and safety information
 providing workers with a reasonable opportunity to:
 Express their views
 Raise work 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
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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
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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
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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
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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
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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, cooperate and co-ordinate activities?
WHS Act s46
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Consultation between
duty holders
Duty holder
e.g. Site controller
Duty holder
e.g. Business owner
Duty holder
e.g. Labour hire
company
Consultation procedures and arrangements
e.g. Emergency procedures, work arrangements
Consultation
e.g. sharing of information
on potential hazards
WHS Act s46
Co-operation
e.g. management of
interactions between
workers
www.ieu.asn.au
Co-ordination
e.g. planning and
organising work activities
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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.
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
The PCBU must
notify
workers of
any variations.
WHS Act s50-54
The PCBUs involved in negotiations must notify workers
of the outcome and any workgroups determined.
www.ieu.asn.au
 Unions can assist in
the determination of
workgroups and in
the election process.
 A workgroup may
be determined
for workers at one
or more workplaces.
 If negotiations fail
any involved party
may request an
inspector to assist.
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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
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Multiple-business arrangements
for consultation
PCBU duty holder
e.g. Site controller
 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
Consultation
Co-operation
Co-ordination
PCBU duty holder
e.g. Host company
Consultation
Co-operation
Co-ordination
PCBU duty holder
e.g. Labour hire
company
Shared workgroup (workers of the labour hire
company are also workers of the host company)
Consultation arrangements
- policy and procedures -
www.ieu.asn.au
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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 of 3 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
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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 liable when 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
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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
 Investigate complaints 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
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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
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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
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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
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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
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Health and Safety Committees
(HSCs)
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.
WHS Act s75,76,78
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Health and Safety
Committees (HSCs)
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?
WHS Act s77
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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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