WHS Act
Summary of Main Changes
(Lunch and Learn)
WHS Act – Awareness Course for Union Members
Housekeeping
 Emergency Procedures
 Participant Notes
 Location of facilities etc.
 Training rules - Participation
 Mobile phones
 Training Ergonomics
 Evaluation questionnaire
http://www.unionsnsw.org.au/
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Module Objectives
Understand Key Changes:
 Model WHS harmonisation
 Work Health & Safety (WHS)Terminology
 WHS Duties
 Consultation,
representation &
participation
 Enforcement
 Union’s Role
http://www.unionsnsw.org.au/
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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*
http://www.unionsnsw.org.au/
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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*
http://www.unionsnsw.org.au/
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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 PCBU’s have a “primary duty of care”
http://www.unionsnsw.org.au/
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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
http://www.unionsnsw.org.au/
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Persons with health
and safety duties
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
WHS Act s4
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
Import
Designer
(more explicit duties and apply to
plant, substances and facilities)
http://www.unionsnsw.org.au/
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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
http://www.unionsnsw.org.au/
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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
http://www.unionsnsw.org.au/
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Penalties under the
WHS Act
Failure to
comply with
Health and
Safety duty
Individual conducting a
PCBU or Officer of a
PCBU
Individual
Body
Corporate
Category 1
$300,000 or
5 years imprisonment or
both
$600,000 or
$3,000,000
5 years imprisonment or
both.
Category 2
$ 150,000
$300,000
$1,500,000
Category 3
$50,000
$100,000
$500,000
WHS Act s30-34
http://www.unionsnsw.org.au/
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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.
http://www.unionsnsw.org.au/
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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
http://www.unionsnsw.org.au/
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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
http://www.unionsnsw.org.au/
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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.
http://www.unionsnsw.org.au/
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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
http://www.unionsnsw.org.au/
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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.
http://www.unionsnsw.org.au/
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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).
http://www.unionsnsw.org.au/
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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.
http://www.unionsnsw.org.au/
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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.
http://www.unionsnsw.org.au/
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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
http://www.unionsnsw.org.au/
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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?
Q&A
http://www.unionsnsw.org.au/
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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.
http://www.unionsnsw.org.au/
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