Transcript Victorian OHS Legislation

Victorian OHS
Legislation Overview
Required Reading for Case
Management HPG 6042
SESSION OUTLINE
LEGAL OBLIGATIONS
OHS Act in Context
Duty of Care
Personal Liability & Penalties
Inspector Powers
Employer / Employee Duties
Contractors - Due Diligence
Consultative Arrangements
OHS PERFORMANCE
OHS Paradigms & Organisational Performance
HAZARD MANAGEMENT
Hazard Management Process
Risk Control (Group) Exercise
SUMMARY
No safety problems here…..
we have no injuries!
“…I’ve been sailing for 40 years….and have never
been involved in a maritime incident that resulted in a
serious injury or loss of life.”
Capt. John Smith
Captain First Class of the Titanic
April 14, 1912 - 1500 Lives were lost
WORKCOVER AUTHORITY
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VWA Inspectors visited 50,000 workplaces
21% increase in prosecutions for H&S breaches
(254 prosecutions)
Vic Claims Liabilities incurred 2001/02 = $5.93 Billion
Average claims lodged per year (excluding Self
Insurers) = 34,000
Reported Workplace Fatalities 2001/02 = 71
1972 ROBENS COMMITTEE REPORT
Prescriptive vs Performance based
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Self-Regulatory Legislative Framework
Create tripartite structures to develop OHS
requirements (Employers/Workers/Govt.)
General duties on employers, workers, & suppliers
Basic worker & representative rights
Employee consultation on matters of health and
safety
Occupational Health & Safety Act 1985 (Vic)
MAIN PRINCIPLES
1. Duty of Care
– between employers, employees,
contractors, the public.
2. Consultative Process
– between employers,
employees, & third parties.
3. Workplace Arrangements
DWG’s, H&S Representatives
– e.g. OHS Committees,
LEGISLATION IN CONTEXT
OHS Act (Vic.) 2004
REGULATIONS
Law that provides H&S framework &
explains duties. Not hazard specific, but
enables Regulations.
Detailed duties, enforceable in law
CODE OF PRACTICE
Guide to meet obligations under Reg’s &
Act. Used as evidence of compliance.
AUSTRALIAN
STANDARDS
No legislative base but sometimes drawn
upon by legislation (eg. DG Act), as the
minimum standard.
Other Acts
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Equipment (Public Safety) Act 1994
Equipment (Public Safety) (General) Regulations 1995 (Amendment
1999)
Equipment (Public Safety) (incident Notification) Regulations 1997
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Dangerous Goods Act 1985
Dangerous Goods (Storage & Handling) Regulations 1989 (Amendment
1999)
Dangerous Goods (Explosives) Regulations 1988 (Amendment 1997)
Dangerous Goods (Transport by Rail) Regulations 1998
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Road Transport (Dangerous Goods) Act 1995
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Road transport (Dangerous Goods) (License fees) Regulations 1998
Road Transport Reform (Dangerous Goods) Act 1995
(Commonwealth)
Road Transport Reform (Dangerous Goods) Regulations 1997
REGULATIONS
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Dangerous Goods (Explosives) Regs 2000
Dangerous Goods Storage and Handling) Regs 2000
Dangerous Goods (Transport by Rail) Regs 1998
Equipment (Public Safety) (Incident Notification) Regs 1997
Equipment (Public Safety) (General) Regs 1995
Asbestos Regs 1992
Certification of Plant Users and Operators Regs 1994
Confined Spaces Regs 1996
Hazardous Substances Regs 1999
Incident Notification Regs 1997
Issue Resolution Regs 1999
Major Hazard Facilities Regs 2000
Manual Handling Regs 1999
Noise Regs 1992
Plant Regs 1995
Lead Regs 2000
Road Transport (Dangerous Goods)(License Fees) Regs 1998
Road Transport Reform (Dangerous Goods) Regs 1997
CODES OF PRACTICE
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Building and Construction Workplaces (No.13, 1990)
Confined Spaces (No.20, 1996)
Dangerous Goods Storage and Handling (No.27, 2000)
Demolition (No. 14, 1991)
Demolition (Amendment No. 1)(No.21, 1998)
Electrical Installations on Construction Sites (Industry Standard, 2002)
First Aid in the Workplace (No.18, 1995)
Foundries (No. 2, 1988)
Hazardous Substances (No. 24, June 2000)
Lead (No.26, 2000)
Manual Handling (No. 25, 2000)
Noise (No. 17, 1992)
Plant (No. 19, 1995)
Plant (Amendment No. 1) (No. 23, 1998)
Provision of Occupational Health and Safety Information in Languages
Other Than English (No. 16, 1992)
Safe Use of Cranes in the Building and Construction Industry (No. 11,
1990)
Safe Work On Roofs (Excluding Villa Constructions) (No. 10, 1989)
Safe Work On Roofs (Excluding Villa Constructions) (Amendment No.
1) (No. 22, 1998)
Safety in Forest Operations (No. 12, 1990)
Safety Precautions in Trenching Operations (No. 8, 1988)
Tilt-Up Construction (Industry Standard, 2001)
Workplaces ( No. 3, 1988)
WHO’S RESPONSIBLE
FOR OHS IN THE WORKPLACE
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Employers
Self-employed persons
Occupiers of workplaces
Designers of plant and equipment for workplace use
Manufacturers of plant, equipment and substances
for workplace use
Importers and suppliers of plant, equipment, and
substances for workplace use
Employees
Officers of a company
NEGLIGENCE - The Duty of Care
“You must take reasonable care to avoid acts and
omissions which you can reasonably foresee are
likely to injure…persons who are so closely and
directly affected by [your] act that [you] ought
reasonably to have them in contemplation when
[you] are directing [your] mind to the acts or
omissions which are called in question.”
Donaghue v Stevenson - Lord Atkins [1932]
DUTY OF CARE
Paris v Stepney Borough Council [1951]
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Garage worker with one good eye, known to
employer. No eye protection provided – uncommon.
Hammering beneath car, metal flew into good eye.
Employer argued risk the same. Uncommon practice
to provide eye protection for mechanics.
Court Decision – Employer knew of disability,
therefore higher duty of care owed. Employer found
guilty.
Employer owes a duty of care in relation to
the circumstances of the individual.
PERSONAL LIABILITY
Section 52 - Deems persons concerned in the management or control
of the company or body corporate in certain circumstances to also
be guilty of the same offence as the company or body corporate.
Provisions are:
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if the corporation commits an offence
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it’s proven to have been committed with the consent or connivance
of, or to have been attributable to any wilful neglect on the part of
an officer of the body corporate or a person purporting to act as an
officer.
WILFUL NEGLECT
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It’s necessary that the mind of the officer charged
be directed to:
 was there some risk, and
 Had the officer made a conscious decision not
to investigate further.
Wilful neglect requires knowledge & intent
CONVICTIONS
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Denbo Pty Ltd 1994 - Justice Teague
“…there was criminal negligence as the part of the company in
failing to establish an adequate system of maintenance for
it’s plant and vehicles in failing to properly train its
employees’, in permitting [the truck] to be put into use
without proper maintenance….”
COMPANY CONVICTED OF MANSLAUGHTER OF WORKER
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Wilful Neglect
“…he did not act responsibly. He was aware of the poor state
on both trucks but directed that they be used. Moreover the
training which he gave the deceased ….was quite
inadequate.”
OFFICER OF THE COMPANY CONVICTED UNDER THE OHS ACT
OHS Act 1985 (Vic.) - PENALTIES
Serious Offences:
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Obstructing an inspector, failing to comply with a
prohibition notice or discrimination against
employee(s)
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Previous offender against the Act
$250,000 Companies & $50,000 Individual Fines
& up to 5 years imprisonment
Normal Offences:
$250,000 Companies & $50,000 Individual Fines
INSPECTOR POWERS
Section 39 Include….
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Enter, inspect & examine workplaces & equipment &
substances
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Take equip, materials & samples of substances
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Take
photographs,
sketches,
recordings,
measurements
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Require the production of any document for
examination or copying
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Require the workplace be left undisturbed
Any person who obstructs or induces others to obstruct an
inspector shall be guilty of an offence.
INSPECTOR POWERS
Section 43 Improvement Notices
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Issued when contravening the Act or Regulations or
has contravened & likely to again. (may include a
Direction) Minimum 7 days given to remedy
Prohibition Notices
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Issued when the hazardous activity must cease until
remedied (may include a Direction)
Section 46 Appeals
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To the Industrial Division of the Magistrates Court
within 7 days
EMPLOYER DUTIES
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Section 21 – Vic OHS Act 1985…….An employer shall
provide and maintain so far as is practicable for
employees, a working environment, plant, and systems
of work that is safe and without risks to health.
Section 22 - Employers also have a duty to ensure that
the health and safety of the public is not affected
adversely by their business activities.
Section 23 - As occupier of a workplace, employers
must ensure access & egress is safe & without risk
‘PRACTICABLE’
Section 4. Having regard to….
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The severity of the hazard in question
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The state of knowledge about that hazard or risk and
any ways of removing or mitigating that hazard or risk
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The availability and suitability of ways to remove that
hazard or risk, and
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The cost of removing or mitigating that hazard or risk
(Cost having to do with the expense & inconvenience measured against the
consequences. Not whether the employer can afford to do so.)
EMPLOYER DUTIES
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Providing and maintaining safe plant and systems of
work
Arranging safe systems of work in connection with
the use, handling, storage, and transport of plant
and substances
Providing a safe working environment
Providing adequate welfare facilities; and
Providing information on hazards, as well as
instruction, training and supervision of employees,
to enable them to work safely
EMPLOYER DUTIES
Employers are also required, as far as practicable
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Monitor the health of their employees, and
workplace conditions
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Keep information & records on the health & safety of
their employees
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Employ or engage suitably qualified persons to
provide advice in relation to health & safety
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Nominate employer/management health & safety
representative
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Provide information in such languages as
appropriate, with respect to H&S at the workplace
EMPLOYEE DUTIES
Section 25 Employees must…
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Take reasonable care for their own H&S, and for the H&S of
anyone else who may be affected by their acts or omissions at
the workplace; and
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Co-operate with their employer with respect to the employers
actions taken to comply with the OHS Act
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Shall not willfully or recklessly interfere with or misuse
anything provided in the interests of H&S; or
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Willfully place at risk the H&S of any person at the workplace
CONTRACTORS
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Sub-Section 21 (3) - An employee is deemed by the
Act to include an independent contractor engaged
by an employer and any employee of the
independent contractor.
The duties of the employer extend to the
independent contractor and their employees to the
extent that the employer has control.
(Control is undefined – but need to consider the degree of control
exercised, and that which is able to be exercised)
CONTRACTORS
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The OHS Act requires due diligence on the part of
the contract principal by ensuring so far as
‘practicable’, in providing safe premises that the
Contractor and its employees carry out their work,
using proper and safe plant and equipment,
employing systems of work that are safe and in
which there has been adequate instruction, training
and supervision.
The Act doesn’t require the employer (contract principal)
to provide the plant, systems of work and training for a Contractor
and its employees.
CONTRACTORS – DUE DILIGENCE
E.g. Has the contractor ? :
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a good understanding of the activities hazard(s);
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established systems & procedures;
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appropriate licences & competencies;
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registered & maintained/inspected equipment;
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conducted a contract specific risk assessment.
Although the OHS obligations remain the same, practical issues
To also consider include:
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Level of Risk associated with the contracted work
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Duration of the contract
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Complexity of the contract
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Value of the contract
S26 - DEALING WITH
HEALTH & SAFETY ISSUES
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Employer/Employer’s representative and H&S
rep/employees shall attempt to resolve the issue in
accordance with the agreed procedure
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Issue Resolution Regulations
Refer P.I.N. notice flowchart
P.I.N. NOTICE FLOW CHART
VWA Inspector
decides to cancel
PIN. Matter
ceased.
Agree and make
the changes within
the time frame
Safety
Representative
issues Provisional
mprovement Notice
PIN) to employer
after consultation
EMPLOYER CAN….
Within 7 Days
appeal the notive,
because employer
can’t meet the rime
frame given
Appeal the notice,
within 7 days,
because employer
doesn’t agree with
the notice
VWA Inspector
issues Prohibition
Notice (process
must cease until
rectified)
VWA inspector
visits site
VWA Inspector
issues an
Improvement
Notice (gives
compliance time
frame)
VWA Inspector
affirms the PIN
Employer still
decides to
dispute
Within 7 days,
Employer appeals
in writing to
Industrial Div of
the Magistrates
Court
S29 - DESIGNATED WORK GROUPS (D.W.G.’s)
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Employee/employer may initiate negotiations to
establish a DWG
Begin negotiation of composition of DWG within
14 days of request
Consider: no. employees; nature of work; DWG
size; workplace area; nature of hazards; overtime
& shift work arrangements
Composition can be changed by negotiation
Must ensure written, up-to-date DWG list is
displayed
S30 - HEALTH & SAFETY REPRESENTATIVES
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DWG may elect H&S Rep
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H&S Rep may cease if: no longer employed;
resigned as H&S rep; DWG change; not re-elected;
disqualified under S36 (intended to cause harm)
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Functions/Powers: inspect work area’s/incidents;
accompany VWA inspectors & be present during
interviews; request a H&S committee; gain access
to hazard information; accompany consenting
employees during OHS interviews
S31 - HEALTH & SAFETY REPRESENTATIVES
Employer shall:
 (if practicable), consult OHS rep on proposed
workplace changes
 provide paid time-off for performing functions &
any OHS training
And Employer may:
 supply H&S rep’s with medical information if
employee consents or is in a form which doesn’t
identify the employee.
S37 - HEALTH & SAFETY COMMITTEES
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Upon request by H&S rep - establish a H&S
committee within 3 months of request
 Employer to consult with H&S representative
 Committee to consist of  50% employees
Committee Functions:
 facilitate cooperation between employer/employees
to instigate, develop, carry out measures to ensure
H&S at work
 Formulate, review, and inform employees of the
standard rules and procedures at the workplace
 Meet at intervals  3 months
SAFETY – COMMON SENSE?
1
2
3
4
To move the indicator
down, which way would
you move the lever?
Left
Which stove top burner
belongs to which
control?
Right
SAFE PLACE BY DESIGN
Stove tops aligned with
controls.
2
1
4
3
Lever action simulates
direction of indicator.
OHS PARADIGMS
OHS
OHS
OPERATIONS
SALES/MKT
OHS
OPERATIONS
ADMIN
OHS
SALES/MKT
ADMIN
OHS PARADIGMS
OPERATIONS
OHS
SALES/MKT
ADMIN
OHS
…OHS can’t be treated as an afterthought, add-on, ….. to normal
management and work activities……OHS must be integrated into “normal”
management functions. …..OHS is fundamentally an organisational problem.
Quinlan:Key Principals of Effective OHS Management
ORGANISATIONAL SYSTEMS MODEL
RISK CONTROL
Management
System Policies
Emergency Response
Organisational Environment / Culture
Management Approach
Well planned & layed-out
physical work environment
Suitable Procedures
Consultation & Feedback
Training
Competent People
Risk Control
Design &
Purchasing Policy
Fit for purpose Equipment
Resources & Budget
Recruitment & HR Policies
ORGANISATIONAL OHS PERFORMANCE
Ownership
Consultation & Training
Management Commitment
Resources,
Policies& Management Systems
Accountability
H&S MANAGEMENT SYSTEM COMPONENTS
Policy
Design/ Planning
Legislative
Requirements
Review
& Auditing
Risk ID, Assessment
& Control Strategies
Emergency Procedures
Training &
Consultation
Procedures
Records
HAZARD & RISK
HAZARD
 A source or a situation with a potential for harm..
RISK
 The combination of the likelihood of occurrence,
and consequence of a hazardous event.
4 STEP HAZARD MANAGEMENT PROCESS
Inspection & Reports/Audits
JSA; Consultation
Incident/Injury Records
COP Checklists
consult
Hazard
Identification
consult
Risk
Assessment
Measure & Prioritise Risk
Risk
Control
Hierarchy of control –
Short & Long Term
consult
consult
Evaluation
& Monitoring
Check for new hazards
& control effectiveness
RISK ASSESSMENT
Purpose:
 To prioritise by measuring the risk associated with
a hazard
(likelihood x severity)
Depends upon:
 Knowing how the hazard is currently controlled
 The reliability of those controls
 How the current controls could fail
EXAMPLE OF RISK MATRIX
LIKELIHOOD
ASSESS
O
U Catastrophic
T
C
O
M
E
Critical
Serious
OFTEN
HAPPENS
SOMETIMES
HAPPENS
MAY
HAPPEN
MAY NEVER
HAPPEN
HIGH
HIGH
HIGH
MEDIUM
HIGH
HIGH
MEDIUM
MEDIUM
HIGH
MEDIUM
LOW
LOW
MEDIUM
LOW
LOW
LOW
Minor
RISK ASSESSMENT SUBJECTIVITY
Purpose:
 Risk assessments involve value judgments
 Perception of risk varies between individuals
 Closeness to the risk often alters risk perception
 Risk subjectivity is decreased if team based
approaches are used to assess risk
RISK CONTROL
SELECTION & PLANNING
Short Term
Elimination
Substitution
Engineering
Administrative
Personal Protective
Equipment
Medium Term
Long Term
RISK CONTROL
SAFE PLACE vs SAFE PERSON
SAFE PLACE
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Design
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Workplace Layout
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Engineering Control
HIERARCHY OF CONTROL
Elimination
Substitution
Engineering
SAFE PERSON
Administrative
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Behaviour modification
Personal Protective
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Procedures & Instruction
Equipment
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Training
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Personal Protective Equipment
RISK CONTROL
SAFE PERSON
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Relies on the person to
follow instruction
Short term influence
Requires stringent
monitoring / behaviour
reinforcement.
Personal Protective
Equipment (P.P.E.) provided
but often not worn by
workers.
 Focused on the person
to avoid the hazard.
SAFE PLACE
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Passive hazard control
=  reliability
Safer environment for new/
inexperienced worker,visitor,
contractor.
Minimises the likelihood of
‘Human Error’ element
Long term benefit
e.g.  Training costs
 Focused on the source
of the hazard
RISK CONTROL EXERCISE
Room
Pressure
Control &
indicator
Panel
Activity:1. Identify a safe place or
safe person approach to
prevent this kind of
incident from reoccurring. Justify your
decision.
Scenario- Within this chemical processing plant a
maintenance worker opened a door to a
pressurised room without waiting for the room
to de-pressurise. Once the worker released the
door, he was instantly killed as the door
smashed him against a brick wall.
POSSIBLE RISK CONTROL SOLUTIONS
SAFE PERSON
SAFE PLACE
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Place sign on door warning
persons
Re-training
Write up new procedures
Have two people present
Introduce a work permit
system
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Fit interlock to door so that it
could not be physically opened
until the pressure was vented.
The door could be designed to
only open inwards
Less preferable Safe Place
solutions include:
Introduce sliding door
Relocate control box / pressure
gauge next to the door.
The handle for the door to be
located away from the door itself.
SUMMARY
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OHS ‘Duty of Care’ owed to those whom forseeably
may be affected by our actions/omissions within the
workplace - Penalties may apply to both Companies
and Officers of the company.
Effective OHS requires a Top Down - Organisational
approach to OHS and Risk Control.
Hazard Management involves:
Hazard ID/Risk Assessment/Risk Control/Evaluation & Monitoring
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Safe Place Risk Control is the preferred approach to
Hazard Management
SUMMARY
MANAGEMENT ROLE
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To Provide:
A safe working environment
Adequate resources, information, training & supervision
Effective consultation arrangements, and policies
developed
Effective systems for identifying hazards, assessing and
controlling risks to H&S.
Regular evaluation of safety performance, goals &
performance measures
Those who create the risks and those who work with them are
responsible for doing something about them.
Lord Robens 1972
SUMMARY
SUPERVISOR ROLE
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To Provide:
Assistance
with
policy
development
&
implementation
Identify workplace hazards
Ensure effective consultation occurs
Assist with incident investigations
Ensure induction & training occurs
Responding to H&S issues raised
Preparing incident, investigation, and inspection
reports
Discussion for next lecture
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Please look at a work process or a piece of equipment in your
own workplace / home.
Detail what risks you can identify from this process or piece of
equipment (point form is sufficient)
Think of how yow can remove or mitigate the risks associated
with this process / piece of equipment (point form is sufficient)
Please ensure you bring this information to the next lecture for
discussion.
The attached PDF template will assist in what information is
required