Work Health and Safety
Act
Senior Managers
Senior Managers
01
What is new for NSW under the
WHS Act?
Summary
An employer
Is captured under the definition PCBU ‘person
conducting a business or undertaking’
Controllers, self
employed etc.
Are also a PCBU with general duties of care
General duties of
Employers
Will be subject to qualifier ‘reasonably practicable’
and will apply to all PCBUs and extend to all who
are involved in the conduct of work
Employees
Are captured under the definition of worker which is
broadly define to include anyone who carries out
work in any capacity, including volunteers
Summary
Duty of workers
Workers have an expressed duty to take reasonable
care of themselves at work
Duty of others
Others are required to take reasonable care when
at a place of work
Duty of Officers
Will change from having an attributed liability to a
positive duty of “due diligence” to ensure PCBU
complies with duties
Due diligence
Is specifically defined and includes knowledge of
WHS and business risks , allocation of resources,
WHS reporting, compliance and verification
processes
Consultation
Broadened to include all workers affected and
other PCBUs with shared responsibilities
Summary
OHS
Representatives
Replaced by health & safety representatives (HSR)
with increased functions and powers
HSR powers
After completing approved training HSRs will be able
to issue PINs and direct unsafe work to cease
Management of
Risk
Risk assessments are not mandated in the Act but are
mandated in the Regulation for certain high risk work
Union officials
Can apply for WHS entry permit to enter a workplace
to advise on WHS or when a breach is suspected
Summary
Protection against
discrimination
Enhanced to protect workers and those in commercial
arrangements from coercion, inducements or
misrepresentation
Onus of Proof
Reverse onus removed with the prosecution having to
prove a breach was committed
Penalty Options
Graduated enforcement options to include injunctions,
remedial action and enforceable undertakings
Penalties
Maximum penalty for a corporation of $3 million and
for an individual $300,000 & up to 5 years
imprisonment for the most serious breaches
New Terminology
Employer
Replaced by the term ‘person conducting a business
or undertaking’ (PCBU)
Controllers, self
employed etc.
Are also a PCBU with general duties of care
Employees
Replaced by the term worker which is broadly defined
to include anyone who carries out work in any capacity,
General duties of
Employers
Will be subject to qualifier ‘reasonably practicable’
and will apply to all PCBUs
Duty of workers
Workers have an expressed duty to take reasonable care
of themselves at work
New Terminology
Directors and
Manager
Replaced with the term “Officer” as defined in the
Corporations Act 2001
Duty of Officers
Officers have positive duty of “due diligence” to ensure
PCBU complies with duties
OHS
Representatives
Replaced by health & safety representatives (HSR)
with increased functions and powers
OHS Committees
Will be referred to as health and safety committees
with effectively the same functions
Union officials
Can apply for WHS entry permit and will be know as
WHS entry permit holders.
New Terminology
Workplace
Defined to include any place where a worker goes,
or is likely to be, while at work.
Structure
The provision of safe structures included in general
duties of PCBUs and upstream duties of designers
Definitions
‘Person conducting a business or undertaking’
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 selfemployed 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
Definitions
‘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
Definitions
‘Others’
Is taken to mean visitors, customers, members of the public etc.
‘A workplace’
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.
'Place' includes:
• Offices, factories, warehouses, work vehicles, mobile advertising
structure, billboards, bus shelters, phone booths and any other
form of advertising structure.
Definitions
‘Officer’
Means:
• an officer within the meaning of s.9 of the Corporations Act 2001;
other than a partner in a partnership;
An officer may be:
• A director or secretary of the corporation.
• A person who makes, or participates in making, decisions that
affect the whole, or a substantial part of the corporation.
• A person who has the capacity to affect significantly the
corporation's financial standing.
Definitions
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, Billboards, bus shelters and indoor advertising
signs
• 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.
Definitions
‘Designer’
Is a person who conducts a business or undertaking that designs:
• plant that is to be used, or could reasonably be expected to be used,
as, or at, a workplace; or
• 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. This includes billboards, bus shelters,
phone booths and any other form of advertising structure.
Definitions
‘Manufacturer’
Is a person who conducts a business or undertaking that manufactures:
• plant that is to be used, or could reasonably be expected to be used as,
or at a workplace; or
• 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. These include the fabricators that build
billboards, bus shelters, phone booths and any other form of
advertising structure.
02
NSW Work Health & Safety Act
PCBU’s, the Primary Duty of Care & Other
Duties
What is a business or undertaking?
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:
a) A corporation, partnership,
b) Unincorporated association
c) Self employed person
d) Government agency
Who will be a PCBU?
The primary duty is owed by the operator of the business or undertaking;
Examples are:
• Employers, Self employed, Partner, Franchisees , Franchisor
PCBU
• Principal Contractors, Sub-Contractors
PCBU
PCBU
• Businesses who design, manufacture, import, supply plant,
substances and structures used at work
PCBU
• Businesses who control workplaces, fixtures , fittings, plant at
workplaces
What WHS Act says PCBU’s must do:
Primary duty of Care:
A PCBU MUST so far as is reasonably practicable,
ensure the health & safety of:
Workers engaged, or caused to be engaged by the
PCBU
Workers whose activities are influenced or directed
by the PCBU
Other persons who could be put at risk from work
carried out by PCBU
Other PCBU Duties
Primary Duty of Care plus
1. Consultation
2. Issue Resolution
3. Incident Notification
4. Complying with regulations
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
Landlords &
Site Owners
Sign
Installation
Companies
Advertising
Companies
Billboard
Production
Companies
All duties are concurrent and non-transferrable
Electrical
Companies
What are the major differences in the WHS Act?
Major difference is the application of Primary Duty of Care
NOW the primary duty of care does NOT rely on the employment
relationship
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
What are the major differences in the WHS Act?
Major difference is the application of Primary Duty of Care
NOW the specific duties that the PCBU has are more explicit and include
the duty to monitor workplace
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.
03
NSW Work Health & Safety Act
Duties of Officers, Workers & Others
OHS Amendment Act 2011
Recent amendments to the NSW OHS Act (The OHS Amendment Act
2011) have changed the provision of S26, effectively bringing forward the
provision contained in the WHS Act which removes this attributed liability
and introduces the positive duty of “Due Diligence”.
This provision commenced in June 2011
WHS Act specifies Duty of Care on Officers
One of the most
significant
changes
introduced by the
new Act
• Introduces a “duty of care” on officers - the
duty is to the PCBU
• This is a positive duty allocated to officers in
their own right
• An officer may be found guilty of an offence whether or not the PCBU has
been found guilty or convicted of an offence
What WHS Act says about Officers Duties:
Duty of Officers s27
“If a person conducting a business or undertaking has a duty or
obligation under this Act, an officer of the person conducting the
business or undertaking must exercise due diligence to ensure that the
person conducting the business or undertaking complies with that duty
or obligation”
THIS DUTY CANNOT BE DELEGATED
Officers must exercise Due Diligence
What is Due Diligence?
Audit & review WHS
processes and use of
resources
Ensure WHS
legal
compliance
Receive and consider
business incidents,
hazards & risks
Acquire safety
knowledge and keep
up to date
Due
Diligence
Understand
business health
& safety risks
Provide resources to
identify and control
risks
What are the major differences in the WHS Act?
Major difference is the introduction of a POSITIVE duty of Due
Diligence
OFFICERS have a duty to ensure the entity acts appropriately & complies
with WHS legislation
NOW OFFICERS are defined and include internal and external persons of
control and influence
NOW DUE DILIGENCE is clearly defined and officers know exactly what
they are expected to do
What do you have to do?
If you have existing systems to demonstrate management
commitment and responsibility for WHS
•review your systems in line with the legal elements of “due
diligence”
• make sure you have all elements covered and
•make sure you can produce suitable records (evidence) to
demonstrate compliance.
What do you have to do?
If you don’t have existing systems to demonstrate management
commitment and responsibility
•Identify who will have “officer” duties
•Consider using the elements of “due diligence” to develop an officer
Statement of Duty
•Develop, implement, monitor, review WHS procedures and processes to
include the active involvement of your officers
•Provide training to officers to enable them to carry out these functions
COMMENSURATE WITH SIZE & NATURE OF
YOUR OPERATIONS
Duties
Must take reasonable care of own health & safety
Must take reasonable care that conduct does not adversely affect others
Must comply, so far as he/she is reasonably able, with instructions
Must cooperate with reasonable notified policies and procedures
Did the worker fail to take responsible care?
The assessment of a worker’s failure to take reasonable care is made relative
to the PCBU’s actions to do what was reasonably practicable:
The systems of work in place at the time
The training, information, instruction, supervision provided
Whether the worker was working within their stated role
Whether any other worker was placed at risk, and
Whether the worker acted intentionally or recklessly
What is the likely impact of these changes?
Impact in relation to Duties of Workers
•Makes responsibility to take care of own health & safety explicit
•Extends to all workers –need to ensure employees as well as other
workers are given the proper instruction and training about your policies
and procedures and provided with adequate supervision
•This will be a duty you may share with another PCBU
What is the likely impact of these changes?
Impact in relation to the Duty of Others
•The new duty on others is about reasonable care NOT just
recklessness
•It may have the potential to apply to people who have been
outside the jurisdiction of OHS Legislation – like home
owners when work is being done, customers at shopping
centre promotions or advertising displays, the public around
billboards or bus shelters, rail platforms or other installation
works etc.
Differing standards according to the duty holder and the
nature of the activity
ACTIVITY
DUTIES
Primary Duty of Care
Other duties
STANDARD
REASONABLY
PRACTICABLE
Specific duty holders
PCBU
Officers duty of care
Leadership & Governance
DUE DILIGENCE
OFFICER
Workers to take care of
self and others
Includes supervisory role
REASONABLE
CARE
WORKER
Other to take care of
self and others
Follow instructions
OTHERS at
workplace
REASONABLE
CARE
Summary
Officer must ensure the PCBU complies with its duties
Officer’s duty discharged with due diligence
This duty can not be delegated or transferred
Workers to take care of themself & others at workplace
Worker’s duty discharged with reasonable care
Others at workplace to take care of themselves
Other’s duty discharged with reasonable care
04
NSW Work Health & Safety Act
Reasonably Practicable
What is the difference in WHS Act in the use of
reasonably practicable?
• Current NSW OHS Act includes reasonably practicable as a defence in
any proceedings against a person for an offence
• Under the WHS Act the prosecution will have to prove the case thus
abolishing the current reverse onus of proof situation
• Under the WHS Act the obligations of the PCBU will be qualified by
reasonably practicable rather than the current absolute duty in the NSW
Act
Overview of what WHS Act says about
reasonably practicable
The PCBU has a duty to ensure, so far as is reasonably practicable, the
health & safety of workers that are:
•engaged to carry out work for their business or undertaking- this includes
engaging subcontractors and consultants
•placed with another person to carry out work for that person, such as labour
hire or
•influenced or directed in carrying out their work activities by the person,
while the workers are at work in the business or undertaking-Such as an
advertising company officer directing an installation company worker to
perform works onsite
Reasonably Practicable: getting the balance
Likelihood, degree of harm,
knowledge etc
Time, effort and cost
to eliminate or reduce risk
Reasonably practicable is the balance
between risk and time, effort and cost
Reasonably practicable: Getting the balance
?
E.G little
likelihood of
risk
occurring
risk/minimal
harm
High level of time, effort
and cost to eliminate
or reduce risk
Level of time, effort and cost way
out of proportion with benefits
in risk reduction
Reasonably Practicable in the workplace
• For common hazards such as electricity, falls and manual handling
there are regulations that define what has to be done to control risks.
These common hazards also have supporting codes of practice to
provide guidance on how to control risks.
• For more complex or workplace specific risks a risk management
approach can be used to establish what is reasonably practicable
• The most common decisions about reasonably practicable relate to the
type of risk control to be used (the hierarchy of control). In other words
what is the highest level of protection that is reasonably practicable.
Reasonably Practicable: the Hierarchy of Control
• The WHS Act advocates the highest level of protection as is
reasonably practicable and the model regulations in many cases
mandate a set of preferred controls consistent with the hierarchy of
control- for example- the use of only PPE when working at heights
a control in high risk situations may not be deemed as “reasonably
practical” when other controls such as design and engineering are
available
• Consequently the level at which controls are applied is subject to
decisions about reasonably practicable.
Reasonably Practicable: the Hierarchy of Control
ELIMINATE RISKS (so far as is reasonably practicable)
STOP OR CHANGE THE ACTIVITY, PRACTICE OR PROCEDURE
MOST RELIABLE
Highest
STOP USING OR CHANGE THE PRODUCT, PROCESS, PLANT OR SUBSTANCE
MINIMISE RISKS (so far as is reasonably practicable)
LEVEL OF PROTECTION
SUBSTITUTE WITH SAFER ALTERNATIVE
USE ENGINEERING CONTROLS
REDESIGN TO REDUCE RISK
ISOLATE PEOPLE FROM RISK
Lowest
USE PROTECTIVE CLOTHING / EQUIPMENT
LEAST RELIABLE
USE ADMINISTRATIVE PROCEDURES
10
NSW Work Health & Safety Act
Enforcement
What is different in WHS Act about Enforcement
and Penalties?
The WHS Act retains and builds on the enforcement framework found in the
current legislation
A greater range of sanctions, higher penalties, restrictions on a
Trade Unions right to prosecute and abolition of the reverse
onus of proof are new to the NSW enforcement framework
Enforcement Measures
The WHS Act provides
graduated enforcement
regime with civil and
criminal prosecutions the
ultimate sanction
Injunctions, and enforceable
undertaking are new in NSW
Penalty
Notice
Enforceable
Undertaking
Injunctions
Enforceable Undertakings
WorkCover may accept a WHS undertaking in connection
with the matter giving rise to a contravention or an alleged
Penalty
contravention as an alternative to a prosecution
Notice
Enforceable
Undertaking
$$ to focus on positive prevention
action
Injunctions
NOT Available for Category 1 Offences
Enforceable Undertakings
• Once accepted no proceedings can be brought in relation to the
contravention
Penalty
Notice
• Giving an undertaking is not an admission of guilt
Enforceable
Undertaking
Injunctions
• Decision must be given in writing & notice
of decision published
on WorkCover’s website
• Undertaking is enforceable when the decision to accept the
undertaking is given
• It is an offence to contravene – and can result in proceedings
and/or an order to carry out
The Right to Prosecute
The right to bring a prosecution under the WHS Act rests with
WorkCover in NSW
Penalty
Notice
A Trade Union can bring a prosecution under the WHS Act in NSW only if:
1.the offence concerned is a Category 3 or,
Enforceable
Undertaking
Injunctions
2.the offence concerned is a Category 1 or a Category
2 offence
and
WorkCover has (after referral of the matter to the Director of Public
Prosecutions) declined to follow the advice of the DPP to bring the
proceedings
Power of HSR to issue PIN
• Completed initial training
• Consulted with the person to whom the notice is issued
Can only act if
Penalty
Notice
Enforceable
Undertaking
Then only
if
And
• the representative reasonably believes that a person is contravening a
Injunctions
provision of the Act, has contravened a provision
of the Act in
circumstances that make it likely that the contravention will continue or
be repeated
• Must be in writing and may recommend measures to remedy issue
• PCBU can seek review within 7 days. Inspector may cancel, confirm or
confirm with modification
Penalty Structure
• Corporations: $3m
Category 1
Reckless
Conduct
• Individuals as a PCBU or Officers of a PCBU: $600k / 5 years jail
• Other Individuals : $300k / 5 years jail
Penalty
Notice
Enforceable
Undertaking
Category 2
Breach High
Risk
Category 3
Duty Breach
• Corporations: $1.5m
• Individuals as a PCBU or Officers of a PCBU: $300k
Injunctions
• Other Individuals : $150k
• Corporations: $500k
• Individuals as a PCBU or Officers of a PCBU: $100k
• Other Individuals : $50k