WHS Act
NSW
Work Health &
Safety
Legislation
Session 1
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Changes in the way work is organised
Organisational Practices
• Outsourcing
• Downsizing
• Restructuring
• Privatisation
Management Techniques
• Labour hire
• Franchising
• Use of Technology
Structural Changes:
• Higher female participation
• Expansion of service industries
WHS WHS
Australia has witnessed a marked growth in part-time,
fixed term and temporary employment arrangements
in the past 30 years due to:
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The Path to
Harmonisation
Oct 2008
Jan 2009
Sept
2009
Dec
2009
Nov
2010
Development and agreement on
Model
WHS Legislation and
priority Model Codes of Practice
Dec
2010
June
2011
Jan-Dec
2011
Mirroring of
Model
Legislation by
States and
Territories
1st Jan
2012
Commencement
of harmonised
Legislation across
Australia
WHS Act
July
2008
The Result:
A Nationally Uniform WHS Legislative Framework
Nationally consistent Compliance &
Enforcement Policy
Jurisdictional Work Heath & Safety Regulation
WHS Act
Model Work Health &Safety Codes of Practice
Jurisdictional Work Heath & Safety Act
Model Work Heath & Safety Act
& Regulation
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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
Enhanced protection against discrimination, coercion, inducement and
misrepresentation that prevent a person from being involved WHS
WHS Act
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
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
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WHS Act
Questions - Please!
DEFINITIONS
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
WHS Act
‘Person conducting a business or undertaking’
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‘Worker’
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
WHS Act
DEFINITIONS
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DEFINITIONS
‘Others‘
Is taken to mean visitors, customers, members of the public etc.
‘A workplace‘
'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.
WHS Act
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.
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DEFINITIONS
‘Officer‘
Means:
• 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
WHS Act
• an officer within the meaning of s.9 of the Corporations Act
2001; other than a partner in a partnership;
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DEFINITIONS
‘Officer‘
An officer may be:
• A person who makes, or participates in making, decisions
that affect the whole, or a substantial part of the
corporation.
WHS Act
• A director or secretary 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‘
‘Workgroup‘
Means a group of workers as determined by negotiation
between the PCBU and the workers who will form the
workgroup.
WHS Act
In relation to a worker, means the health and safety
representative elected for the work group of which the worker is
a member
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‘Due diligence'
DEFINITIONS
• 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
WHS Act
Exercising due diligence includes taking reasonable steps:
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'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 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).
WHS Act
• The likelihood of the hazard or the risk occurring
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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
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.
Substance
Means any natural or artificial substance, whether in
the form of a solid, liquid, gas or vapour.
WHS Act
DEFINITIONS
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DEFINITIONS
‘Designer'
Is a person who conducts a business or undertaking that designs:
• 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
WHS Act
• plant that is to be used, or could reasonably be expected
to be used, as, or at, a workplace; or
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DEFINITIONS
‘Manufacturer'
Is a person who conducts a business or undertaking that
manufactures:
• a substance that is to be used, or could reasonably be
expected to be used, at a workplace; or
WHS Act
• plant that is to be used, or could reasonably be expected
to be used, as, or 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
‘Importer'
Is a person who conducts a business or undertaking that
imports:
• a substance that is to be used, or could reasonably be
expected to be used, at a workplace; or
WHS Act
• plant that is to be used, or could reasonably be expected
to be used, as, or 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:
• 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
WHS Act
• plant that is to be used, or could reasonably be expected
to be used, as, or at, a workplace; or
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Person Conducting a Business or Undertaking
The WHS Act applies the primary duty of care on any person
• They influence one or more
elements that go to the
WHS Act
who conducts a business or undertaking
performance of work and
• They may affect the health and
safety of those doing the work
or those affected by the work
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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:
WHS Act 2012
What is a business or
undertaking?
a) A corporation, partnership,
b) Unincorporated association
c) Self employed person
d) Government agency
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Who will be a PCBU
The primary duty is owed by the operator
of the business or undertaking; Examples are:
PCBU
• Principal Contractors, Sub-Contractors
PCBU
• Businesses who design, manufacture, import, supply
plant, substances and structures used at work
PCBU
• Businesses who control workplaces, fixtures , fittings,
plant at workplaces
Some of these duty holders will also have specified “further duties”
WHS Act 2012
PCBU
• Employers, Self employed, Partner, Franchisees ,
Franchisor
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Who will NOT be a PCBU
a) A person engaged solely as a worker or officer of PCBU
c) A charitable, social or sporting organisation – when
carrying out purely social activities; but will be if
activities are of a commercial nature
WHS Act
b) A volunteer association – provided no person is
employed to carry out work for the organisation
d) Persons who engage workers solely for private or
domestic purposes on an ad hoc basis
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 labour hire company assigned to work in
the business or undertaking
• an outworker
WHS Act
• an employee of a contractor or subcontractor
• an apprentice or trainee
• a student on work experience
• a volunteer
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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 whose activities are influenced or
directed by the PCBU
WHS Act
Workers engaged, or caused to be engaged
by the PCBU
Other persons who could be put at risk from
work carried out by PCBU
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Specific obligations:
Safe work environment
Information, training,
instruction, supervision
Safe plant &
structures
Primary
Duty of Care
Facilities for workers’ welfare
Safe systems of work
Safe use, handling & storage of plant,
structures & substances
WHS Act
Workplace monitoring
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Other PCBU Duties
PRIMARY DUTY OF CARE PLUS
2. Issue Resolution
WHS Act
1. Consultation
3.Incident Notification
4 Complying with Regulations
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PCBU will have additional duties
Manages or controls a workplace
WHS Act
IF IT:
Controls the fixtures, fitting or plant at
a workplace
Designs, Manufactures, Imports, Supplies,
Installs plant, substances, structures,
dangerous goods for use at work
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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
• Each PCBU must discharge
their duty to the extent that
they can influence or control
the matter
Contract
Cleaners
Retailer
Labour Hire Customers
casuals
WHS Act
Landlord
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 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
WHS Act
NOW the primary duty of care does NOT rely on the
employment relationship
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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 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.
WHS Act
NOW the specific duties that the PCBU has are more
explicit and include the duty to monitor workplace
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