Transcript Session 1
NSW Work Health & Safety Legislation
Session 1
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Changes in the way work is organised
Australia has witnessed a marked growth in
part-time,
fixed term and temporary employment arrangements
in the past 30 years due to:
Organisational Practices
• • • • Outsourcing Downsizing Restructuring Privatisation
Management Techniques
• • • Labour hire Franchising Use of Technology • •
Structural Changes:
Higher female participation Expansion of service industr ies 2
The Path to Harmonisation
July 2008 Oct 2008 Jan 2009 Sept 2009 Dec 2009 Nov 2010 Dec 2010 June 2011 Jan-Dec 2011 1 st Jan 2012 Development and agreement on Model WHS Legislation and priority Model Codes of Practice Mirroring of Model Legislation by States and Territories Commencement of harmonised Legislation across Australia
The Result:
A Nationally Uniform WHS Legislative Framework
Nationally consistent Compliance & Enforcement Policy Model Work Health &Safety Codes of Practice Jurisdictional Work Heath & Safety Regulation Jurisdictional Work Heath & Safety Act Model Work Heath & Safety Act & Regulation 4
What will be different
The new laws introduce a number of significant changes :
A focus on cause and effect giving prominence to the duties of care, consultation and representation Moving away from the employment relationship as the basis of obligations to ensure all who are involved in work being done will have a duty of care – no loop-holes or gaps Enhanced protection against discrimination, coercion, inducement and misrepresentation that prevent a person from being involved WHS Broadened rights for representation and rights of representatives including preserving union right of entry to workplaces Provision for graduated enforcement, with alternative options for improvement in health and safety Significant increases in the maximum fines and the introduction of categories of offence 5
Questions - Please!
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 7
‘Worker’
DEFINITIONS
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 8
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. 9
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
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DEFINITIONS
‘Officer‘
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.
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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.
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‘Due diligence'
DEFINITIONS
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 13
'Reasonably practicable'
DEFINITIONS
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).
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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.
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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 16
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 17
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.
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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 19
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 20
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 21
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 PCBU • 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” 22
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
– carrying out
purely social activities;
when but will be if activities are of a commercial nature
d) Persons who engage workers
solely for
domestic purposes
on an ad hoc basis
private or e) An elected member of a local authority
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Who is a Worker?
A worker is a person who 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 assigned to work in the business or undertaking • an outworker • • an apprentice or trainee a student on work experience • a volunteer 24
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
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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
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Other PCBU Duties
PRIMARY DUTY OF CARE PLUS 1. Consultation 2. Issue Resolution 3.Incident Notification 4 Complying with Regulations
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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 28
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 Landlord Retailer •
Each PCBU must discharge their duty
to the extent that they can influence or control the matter Contract Cleaners Labour Hire casuals Customers
All duties are concurrent and non-tranferrable
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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
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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.
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