Victorian OHS Legislation Overview

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Victorian OHS Legislation Overview

• Required Reading for Case Management HPG 6042

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SESSION OUTLINE
LEGAL OBLIGATIONS
OHS Act in Context
Duty of Care
Personal Liability Penalties
Inspector Powers
OHS PERFORMANCE
OHS Paradigms Organisational Performance
HAZARD MANAGEMENT
Hazard Management Process
Risk Control (Group) Exercise
SUMMARY
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No safety problems here.. we have no
injuries!

• Ive 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

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WORKCOVER AUTHORITY

• VWA Inspectors visited 50,000 workplaces
• 21 increase in prosecutions for HS 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

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1972 ROBENS COMMITTEE REPORT

• Prescriptive vs Performance based
• 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

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Occupational Health Safety Act 1985 (Vic)

• MAIN PRINCIPLES
• Duty of Care between employers, employees,
  contractors, the public.
• Consultative Process between employers,
  employees, third parties.
• Workplace Arrangements e.g. OHS Committees,
  DWGs, HS Representatives

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LEGISLATION IN CONTEXT
Law that provides HS framework explains
duties. Not hazard specific, but enables
Regulations.
OHS Act (Vic.) 1985
Detailed duties, enforceable in law
Guide to meet obligations under Regs Act. Used
as evidence of compliance.
No legislative base but sometimes drawn upon by
legislation (eg. DG Act), as the minimum standard.
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REGULATIONS CODES OF PRACTICE

• 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)

• 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

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WHOS RESPONSIBLE FOR OHS IN THE WORKPLACE

• 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

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NEGLIGENCE - The Duty of Care

• You must take reasonable care to avoid acts and
  omissions which you can reasonably foresee are
  likely to injurepersons 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

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DUTY OF CARE

• Paris v Stepney Borough Council 1951
• 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.

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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
• if the corporation commits an offence
• its 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.

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WILFUL NEGLECT

• Its 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

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CONVICTIONS

• 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 its 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
• 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

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OHS Act 1985 (Vic.) - PENALTIES

• Serious Offences
• Obstructing an inspector, failing to comply with
  a prohibition notice or discrimination against
  employee(s)
• 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

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INSPECTOR POWERS

• Section 39 Include.
• Enter, inspect examine workplaces equipment
  substances
• Take equip, materials samples of substances
• Take photographs, sketches, recordings,
  measurements
• Require the production of any document for
  examination or copying
• Require the workplace be left undisturbed
• Any person who obstructs or induces others to
  obstruct an inspector shall be guilty of an
  offence.

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INSPECTOR POWERS

• Section 43 Improvement Notices
• 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
• Issued when the hazardous activity must cease
  until remedied (may include a Direction)
• Section 46 Appeals
• To the Industrial Division of the Magistrates
  Court within 7 days

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EMPLOYER DUTIES

• 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

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PRACTICABLE

• Section 4. Having regard to.
• The severity of the hazard in question
• The state of knowledge about that hazard or risk
  and any ways of removing or mitigating that
  hazard or risk
• The availability and suitability of ways to
  remove that hazard or risk, and
• 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.)

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EMPLOYER DUTIES

• 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

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EMPLOYER DUTIES

• Employers are also required, as far as
  practicable
• Monitor the health of their employees, and
  workplace conditions
• Keep information records on the health safety
  of their employees
• Employ or engage suitably qualified persons to
  provide advice in relation to health safety
• Nominate employer/management health safety
  representative
• Provide information in such languages as
  appropriate, with respect to HS at the workplace

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EMPLOYEE DUTIES

• Section 25 Employees must
• Take reasonable care for their own HS, and for
  the HS of anyone else who may be affected by
  their acts or omissions at the workplace and
• Co-operate with their employer with respect to
  the employers actions taken to comply with the
  OHS Act
• Shall not willfully or recklessly interfere with
  or misuse anything provided in the interests of
  HS or
• Willfully place at risk the HS of any person at
  the workplace

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CONTRACTORS

• 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)

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CONTRACTORS

• 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 doesnt require the employer (contract
  principal)
• to provide the plant, systems of work and
  training for a Contractor
• and its employees.

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CONTRACTORS DUE DILIGENCE

• E.g. Has the contractor ?
• a good understanding of the activities hazard(s)
  
• established systems procedures
• appropriate licences competencies
• registered maintained/inspected equipment
• conducted a contract specific risk assessment.
• Although the OHS obligations remain the same,
  practical issues
• To also consider include
• Level of Risk associated with the contracted work
• Duration of the contract
• Complexity of the contract
• Value of the contract

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S26 - DEALING WITH HEALTH SAFETY ISSUES

• Employer/Employers representative and HS
  rep/employees shall attempt to resolve the issue
  in accordance with the agreed procedure
• Issue Resolution Regulations
• Refer P.I.N. notice flowchart

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P.I.N. NOTICE FLOW CHART
VWA Inspector decides to cancel PIN. Matter
ceased.
Agree and make the changes within the time frame
VWA Inspector issues Prohibition Notice (process
must cease until rectified)
Safety Representative issues Provisional
mprovement Notice PIN) to employer after
consultation
Within 7 Days appeal the notive, because employer
cant meet the rime frame given
Within 7 days, Employer appeals in writing to
Industrial Div of the Magistrates Court
VWA inspector visits site
Employer still decides to dispute
EMPLOYER CAN.
VWA Inspector issues an Improvement Notice (gives
compliance time frame)
Appeal the notice, within 7 days, because
employer doesnt agree with the notice
VWA Inspector affirms the PIN
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S29 - DESIGNATED WORK GROUPS (D.W.G.s)

• 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

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S30 - HEALTH SAFETY REPRESENTATIVES

• DWG may elect HS Rep
• HS Rep may cease if no longer employed
  resigned as HS rep DWG change not re-elected
  disqualified under S36 (intended to cause harm)
• Functions/Powers inspect work areas/incidents
  accompany VWA inspectors be present during
  interviews request a HS committee gain access
  to hazard information accompany consenting
  employees during OHS interviews

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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 HS reps with medical information if
  employee consents or is in a form which doesnt
  identify the employee.

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S37 - HEALTH SAFETY COMMITTEES

• Upon request by HS rep - establish a HS
  committee within 3 months of request
• Employer to consult with HS representative
• Committee to consist of ? 50 employees
• Committee Functions
• facilitate cooperation between employer/employees
  to instigate, develop, carry out measures to
  ensure HS at work
• Formulate, review, and inform employees of the
  standard rules and procedures at the workplace
• Meet at intervals ? 3 months

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SAFETY COMMON SENSE?
To move the indicator down, which way would you
move the lever?
Which stove top burner belongs to which control?
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SAFE PLACE BY DESIGN
Stove tops aligned with controls.
Lever action simulates direction of indicator.
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OHS PARADIGMS
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OHS PARADIGMS
OHS
OPERATIONS
ADMIN
SALES/MKT
OHS
OHS cant be treated as an afterthought, add-on,
.. to normal management and work activitiesOHS
must be integrated into normal management
functions. ..OHS is fundamentally an
organisational problem. QuinlanKey Principals
of Effective OHS Management
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ORGANISATIONAL SYSTEMS MODELRISK CONTROL
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ORGANISATIONAL OHS PERFORMANCE

Consultation Training
Resources, Policies Management Systems
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HS MANAGEMENT SYSTEM COMPONENTS

Policy
Design/ Planning
Legislative Requirements
Risk ID, Assessment Control Strategies
Review Auditing
Emergency Procedures
Training Consultation
Procedures
Records
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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.

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4 STEP HAZARD MANAGEMENT PROCESS
Inspection Reports/Audits JSA
Consultation Incident/Injury Records COP
Checklists
Hazard Identification
consult
Risk Assessment
consult
Measure Prioritise Risk
Risk Control
Hierarchy of control Short Long Term
consult
Check for new hazards control effectiveness
Evaluation Monitoring
consult
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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

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EXAMPLE OF RISK MATRIX
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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

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RISK CONTROL SELECTION PLANNING
Elimination Substitution
Engineering
Administrative
Personal Protective Equipment
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RISK CONTROLSAFE PLACE vs SAFE PERSON
HIERARCHY OF CONTROL

• SAFE PLACE
• Design
• Workplace Layout
• Engineering Control
• SAFE PERSON
• Behaviour modification
• Procedures Instruction
• Training
• Personal Protective Equipment

• Elimination
• Substitution
• Engineering
• Administrative
• Personal Protective Equipment

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RISK CONTROL SAFE PERSON SAFE PLACE

• 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.

• 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

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RISK CONTROL EXERCISE
Activity- 1. Identify a safe place or safe
person approach to prevent this kind of incident
from re-occurring. Justify your decision.
Room Pressure Control indicator Panel
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.
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POSSIBLE RISK CONTROL SOLUTIONS SAFE PERSON
SAFE PLACE

• 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

• Place sign on door warning persons
• Re-training
• Write up new procedures
• Have two people present
• Introduce a work permit system

• 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.

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SUMMARY

• 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
• Safe Place Risk Control is the preferred approach
  to Hazard Management

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SUMMARYMANAGEMENT ROLE

• 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 HS.
• 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
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SUMMARYSUPERVISOR ROLE

• To Provide
• Assistance with policy development
  implementation
• Identify workplace hazards
• Ensure effective consultation occurs
• Assist with incident investigations
• Ensure induction training occurs
• Responding to HS issues raised
• Preparing incident, investigation, and inspection
  reports

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Discussion for next lecture

• 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