WHS Act

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WHS Act Summary of Main Changes (Lunch and
Learn)
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Housekeeping

• Emergency Procedures
• Participant Notes
• Location of facilities etc.
• Training rules - Participation
• Mobile phones
• Training Ergonomics
• Evaluation questionnaire

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Module Objectives

• Understand Key Changes
• Model WHS harmonisation
• Work Health Safety (WHS)Terminology
• WHS Duties
• Consultation, representation participation
• Enforcement
• Unions Role

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Key changes in NSW OHS legislation

• Changes in work safety terminology.
• A broadening of health safety duties.
• A move away from the employer/employee
  relationship to the broader definitions of PCBUs
  and workers.
• A requirement for all duty holders to consult.
• Changes in the names, role and functions of OHS
  representatives OHS Committees to HSRs (deputy
  HSRs) HSCs.
• Increased max. penalties (up to 3mill /up to 5
  years gaol) for breaches of the Act

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Key changes in NSW OHS legislation (cont)

• HSRs able to issue PINs to direct unsafe work
  to cease if they have received the appropriate
  training
• Authorised representatives NOW WHS permit holders
• Positive duties introduced for officers
• Unions right to prosecute only in certain
  circumstances
• Removal of reverse onus of proof prosecution
  must now prove a failure by a duty holder to do
  what is reasonably practicable to ensure the
  health safety of workers and others

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WHS Terminology

• A person conducts a business or undertaking
  (PCBU)
• 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.
• Duties of PCBUs extend to those involved in
• management, maintain or control of workplaces,
  fixtures, fittings or plant
• and PCBUs in relation to plant, substances and
  structures that
• design, manufacture, import, supply, install,
  commission or construct.
• All PCBUs have a primary duty of care
•  

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WHS Terminology

• A worker under the WHS Act is anyone carrying out
  work, in any capacity, for a PCBU. This includes
• Direct employees
• Contractors and subcontractors, and their
  employees
• Labour hire employees engaged to work in the
  business or undertaking
• Outworkers
• Apprentices, trainees and students on work
  experience
• Volunteers

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Persons with health and safety duties

• Persons with duties under the WHS Act
• PCBUs including manufacturers, suppliers,
  importers or persons with management or control
  of workplaces, fixtures and fittings.
• PCBUs who install, commission or construct plant,
  structures or substances.
• Self-employed persons
• Workers
• Officers
• Others at the workplace

• Persons who currently have duties
• Employers
• Controllers of work premises, plant or substances
• Designers, suppliers and manufacturers of plant
  and substances
• Self-employed persons
• Employees
• Directors and managers

• New duty holders
• Construct
• Commission
• Maintain
• Import
• Designer
• (more explicit duties and apply to plant,
  substances and facilities)

WHS Act s4
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• Health and Safety Duties
• - PCBUs -

• PCBUs have a primary duty of care to ensure, so
  far as is reasonably practicable, the health
  safety of
• workers engaged directly or indirectly by the
  PCBU
• workers whose work activities are influenced or
  directed by the PCBU and
• other persons present where work activities are
  being conducted.

WHS Act s19
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• Health and Safety Duties

• Duties of workers
• Take reasonable care for their own health
  safety
• Take reasonable care to ensure acts/omissions do
  not adversely affect others health safety
• Comply with reasonable instructions from the
  PCBU
• Co-operate with policy or procedures of the PCBU

WHS Act s28
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Penalties under the WHS Act
Failure to comply with Health and Safety duty Individual Individual conducting a PCBU or Officer of a PCBU Body Corporate
Category 1 300,000 or 5 years imprisonment or both 600,000 or 5 years imprisonment or both. 3,000,000
Category 2 150,000 300,000 1,500,000
Category 3 50,000 100,000 500,000
WHS Act s30-34
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Consultation, Representation and Participation

• PCBU to consult with workers, as far as
  reasonably practicable,
• who work for the business or undertaking
• or
• are likely to be directly affected by a work
  health safety matter.
• Workers include contractors, subcontractors,
  labour hire and volunteers.
• Each person who has a duty to ensure the health
  safety of persons at a place of work must , as
  far as reasonably practicable, consult,
  co-operate and co-ordinate activities with other
  duty holders to do so.

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Consultation, Representation and Participation

• Consultation can occur through
• Health safety representatives (HSRs)
• Deputy health safety representatives (deputy
  HSRs)
• Health safety committees (HSC)
• Other arrangements as agreed to between workers
  and PCBUs e.g. through toolbox talks, inclusion
  of work health safety matters in staff meetings

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Consultation, Representation and Participation

• Establishing HSC/HSRs
• WHS entry permit holders can assist
• 1 worker can request HSR election (14 days)
• 5 workers or HSR can request a HSC be formed
  (within 2 mths)
• PCBU must train HSR within 3 months of request
• Training provider chosen by HSRs
• No requirement to train HSCs unless agreed
• Union can assist negotiate workgroups and run
  elections

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Consultation, Representation and Participation

• Functions of the HSC are to
• Facilitate cooperation between the PCBU and
  workers in instigating, developing and carrying
  out measures to ensure workers health safety.
• Assist in development of health 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.

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Consultation, Representation and Participation

• Powers functions of a HSR
• Represent workers in relation to work health
  safety
• Monitor the measures taken by the PCBU to meet
  their duties
• Investigate complaints from members of the
  workgroup
• Inquire into anything that appears to be a risk
  to the health safety of workers
• Direct unsafe work to cease when necessary
• Issue provisional improvement notices when
  necessary

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Consultation, Representation and Participation

• A PIN can be issued by a suitably trained HSR if
  they believe a person
• is breaching a provision of the model WHS Act
• has breached a provision of the model WHS Act
  and is likely to continue to or to repeat this
  breach.
• A PIN issued by the HSR may require the person
  to
• resolve the breach
• prevent a likely breach from occurring
• fix the things or operations causing the
  breach/likely breach.

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Consultation, Representation and Participation

• A worker has a right to cease or refuse to
  undertake work if
• they have a reasonable concern that doing the
  work would expose them to a serious risk to their
  health and safety from immediate or imminent
  exposure to a hazard.
• Or if directed to cease unsafe work by a trained
  HSR with concerns for worker health and safety
• who has been unable to resolve the matter with
  the PCBU through consultation (unless the matter
  is so serious as to impose an immediate risk, in
  which case consultation must occur as soon as
  practicable after work has ceased).

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Union activities

• Your union representative is entitled to
• Perform the functions of a WHS entry permit
  holder if they are eligible, including consulting
  and advising workers.
• Negotiate agreements for work groups with the
  PCBU and for multiple businesses, including
  negotiating a variation of an agreement.
• Request the assistance of an inspector where
  these negotiations fail.
• Assist with the election of a HSR.
• Assist the HSR in their role when requested by
  the HSR.

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Consultation, Representation and Participation
WHS Entry Permit

• An eligible person must
• be an official of the union
• have satisfactorily completed approved training
• hold or will hold an entry permit under the Fair
  Work Act 2009 (Cth) or relevant industrial law.
• A WHS permit holder can
• inquire into a suspected contravention of the
  model WHS Act that relates to relevant workers
  (as defined)
• consult and advise workers and
• consult with PCBUs about a suspected
  contravention.
• inspect any work, plant, substances, structure or
  relevant thing
• inspect and copy any relevant document
• warn any person who may be exposed to a serious
  and immediate health and safety risk.

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Enforcement measures Under WHS Act

• Provisional Improvement Notices PIN
• Cease Work
• Improvement Notices
• Prohibition Notices
• Non-disturbance notices
• Enforceable (WHS) undertakings
• Court orders include
• Adverse publicity orders
• Orders for restoration
• Work Health and Safety (WHS) project orders
• Court ordered WHS undertakings
• Injunctions
• Training orders
• Penalties

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Module - Activity -

• Do the quick quiz on the handout.
• Check through your answers with the facilitator
  and the group.
• Are there any issues relating to changes
• brought about by the WHS Act where you
• require any further clarification?
• QA

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Sources of Information See handouts

• Evaluations
• Please complete course evaluation
• and
• hand the evaluation and your completed quick
  quiz to your facilitator.