Session 1

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Work Health and Safety
(WHS) Act
SESSION 1
WHS Act – Awareness Course for Union Members
Housekeeping
 Emergency Procedures
 Participant Notes - content
 Breaks, location of facilities etc.
 Participation in the course
 Parking, mobile phones, smoking
 Evaluation questionnaire
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Course Objectives
This course is designed to provide union members with information
and knowledge on the Work Health and Safety (WHS) Act, to
commence 1 January 2012, that includes:
 The harmonisation model for work health and safety and key
changes;
 New terminology of the WHS legislation;
 Sources of information to assist in understanding the changes;
 ‘Duty holders’ and their duties under the WHS Act;
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Course Objectives (cont)
 Consultation, representation and participation requirements;
 The role of Health and Safety Representatives (HSRs), Health
and Safety Committees (HSCs) and other arrangements;
 Ceasing unsafe work and Provisional Improvement Notices
(PINs);
 Enforcement measures available to WHS authorities to ensure
compliance with WHS legislation; and
 The role of Unions and WHS entry permit holders under WHS
legislation.
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Work Health and Safety
Framework
 WHS Act
 WHS Regulations
 Codes of Practice
 Australian Standards
 Industry Standards
 Guidance Material
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Work Health and Safety
Framework
Model WHS Framework
Model WHS Act and WHS Regulations supported by Codes of Practice
Mirrored by
State WHS Act,
WHS Regulations,
Codes of Practice
Territory WHS Act,
WHS Regulations,
Codes of Practice
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Commonwealth
WHS Act, WHS Regulations,
Codes of Practice
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Model WHS Act
- Object The main object of the model WHS Act is:
‘to provide for a balanced and nationally consistent
framework to secure the health and safety of workers
and workplaces’.
How is the object of the model
WHS Act to be achieved?
WHS Act s3
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Model WHS Act
- How the object is to be achieved The object of the model WHS Act is to be achieved by:
 protecting workers and others from harm to their health,
safety and welfare by elimination or minimisation of risks
arising from work (or specified substances or plant);
 providing for fair and effective workplace representation
(e.g. HSRs), consultation, co-operation and issue
resolution on work health and safety;
WHS Act s3
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Model WHS Act
- How the object is to be achieved  encouraging unions and employer organisations to take a
constructive role and to assist in achieving a healthier and
safe workplace;
 promoting the provision of work health and safety advice,
information, education and training;
 effective and appropriate use of compliance and
enforcement measures;
WHS Act s3
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Model WHS Act
- How the object is to be achieved  monitoring and review of persons with functions and
powers under the model WHS Act;
 providing a framework that ensures continuous
improvement and higher standards for work health and
safety; and
 maintaining and strengthening of the national
harmonisation laws and facilitating a consistent national
approach to work health and safety.
WHS Act s3
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Key changes
Key changes to current NSW OHS legislation includes:
 Work health and safety (WHS) terminology;
 The relationship between the employer and employee to
the broader relationship of ‘a person conducting a business
or undertaking’ (PCBU) and a worker;
 A broadening of health and safety duties;
 Consultation requirements for all duty holders;
 OHS Representatives and OHS Committees change to Health
and Safety Representatives (HSRs) and Health and Safety
Committees (HSCs) with changed roles and functions;
WHS Act s4-9, s13-29, s46
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Key changes
 The introduction of deputy HSRs;
 Risk management is focused more on the outcome than the
process – a risk assessment may not be required in all situations;
 Authorised representatives become WHS entry permit holders
with increased functions;
 A positive duty for ‘officers’ e.g. proactive safety activities;
 Enforcement measures;
 The removal of the reverse onus of proof;
 Changes as to when unions can prosecute.
WHS Act Part 5 s124, Parts 10-13
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Sources of information
Safe Work Australia - www.safeworkaustralia.gov.au
WorkCover NSW - www.workcover.nsw.gov.au
National Safety Council of Australia - www.nsca.org.au
Course Fact Sheets
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Sources of information
Union organisations including:
 IEU – www.ieu.asn.au
 Unions NSW - www.council.labor.net.au

Police Association NSW - www.pansw.org.au

Australian Manufacturing Workers Union - www.amwu.org.au
 Construction, Forestry, Mining and Energy Union (CFMEU) www.cfmeu.asn.au

LHMU (United Voice) - www.lhmu.org.au
 Transport Workers Union – www.twu.nsw.org.au
 Health Services Union – www.hsu.net.au
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Key changes in terms
Occupational Health and
Safety (OHS)
Work Health and Safety (WHS)
Employer
Person Conducting a Business or
Undertaking (PCBU)
Employee
Worker (includes contractors,
volunteers)
OHS Representative
Health and Safety Representative
Health and Safety Committee
OHS Committee
Officer
Managers and directors
WHS Act s4
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Important terms
See model WHS Act for full definitions and Fact Sheet 2.
 Work Health and Safety - covers the concept of the health,
safety and welfare of all persons who may be impacted by work
activities.
 Health means physical and psychological health.
 Safety requires the elimination or minimisation of hazards in
the workplace that have the potential to cause harm.
Welfare includes the provision of facilities, protective clothing
or equipment, rescue equipment and accommodation.
WHS Act s4
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Key changes in terms
Employer
Person Conducting a Business or
Undertaking (PCBU) - includes
corporations, partnerships, labour hire
businesses, associations, franchises.
A PCBU does not need to employ
workers.
Employee
WHS Act s4
Worker - includes employees,
contractors, volunteers, apprentices,
outworkers, trainees and work
experience persons.
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Important terms
Key terms and definitions include:
Person conducting a business or undertaking (PCBU).
Worker
Workplace
Health and Safety Representative (HSR)
Health and Safety Committee
Officer
‘Reasonably practicable’
What is your ‘normal’ place of work? Do you ever work away
from your work’s premises under a different business owner?
WHS Act s4
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Important terms
 Supply - includes a supply and a resupply of the thing by way of
sale, exchange, lease, hire or hire-purchase, whether as
principal or agent.
 Design - includes original design, redesign or modification
 Construct - includes assemble, erect, reconstruct, reassemble
and re-erect.
As part of your work activities have you altered a piece of
equipment or assembled a structure at work?
WHS Act s4
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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
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
WHS Act s4
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Health and Safety Duties
A person with a duty to ensure health and safety under
the WHS Act is required to:
Eliminate risks to health and safety so far as is
‘reasonably practicable’.
Example: Removing the chemicals and using other methods to
clean, such as water blasting.
Where elimination is not reasonably practicable,
minimise those risks so far as is reasonably practicable.
Example: A cleaning chemical is still required but a safer
substance is chosen for use.
WHS Act s17-18
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Health and Safety Duties
‘Reasonably practicable’ is based on:
Likelihood
of the hazard or
risk occurring
What is known
about how to
eliminate or minimise
the risk
Level of harm
from exposure to
the hazard
Availability and
suitability of ways to
eliminate or minimise
What is known
about the hazard
or risk
Whether the cost
of eliminating or
minimising the risk far
exceeds the risk
Where would you find information to assist in doing what would be
considered to be ‘reasonably practicable?
WHS Act s18
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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 and 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.
What might the PCBU have to do to meet this duty of care?
WHS Act s19
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Health and Safety Duties
- PCBUs Duties of PCBUs to meet this primary duty of care are similar to
current requirements and include provision of:
 Safe work environments
 Safe systems of work
PCBUs
 Safe plant and structures
 Safe substances
 Facilities
 Information, instruction, training and supervision
 Monitoring of workers’ health and workplace conditions
Workers’ accommodation (an additional requirement) where
provided/required for work.
See Fact Sheet 3 for other duties of PCBUs.
WHS Act s19
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Health and Safety Duties
- PCBU PCBUs involved in the:
 Management or control of workplaces – including the
means of entering and exiting the workplace
 Management or control of fixtures, fittings or plant
have a duty to eliminate or minimise risks to health and safety
(i.e. a primary duty of care) over the matters they control in
relation to these workplaces, fixtures, fittings or plant.
WHS Act s20-21
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Health and Safety Duties
- PCBU PCBUs also have a ‘primary duty of care’ to ensure health and
safety where they are involved in the:
 Design
 Manufacture
 Import
 Supply
Image removed
 Installation, commission or construction
of plant, substances and structures.
This includes assembly, use, handling, storage, disposal,
provision of current relevant information etc.
WHS Act s22-26
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Health and Safety Duties
- Officers Duty of Officers
Officers of the PCBU are required to exercise ‘due
diligence’ to ensure the PCBU complies with their duties
and obligations.
Who are ‘officers’ in your workplace? What might they
have to do to show they are using ‘due diligence’?
WHS Act s27
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Health and Safety Duties
‘Due diligence’ means taking reasonable steps:
to gain and update knowledge of work health and safety
 in understanding the operations and the general hazards/risks
 for appropriate resources to eliminate/minimise risks
 in managing information about incidents, hazards and risks
to implement processes to comply with duties (e.g. reporting
notifiable incidents, consultation, provision of training)
to verify that resources and processes have been provided, and
their use.
WHS Act s27(5)
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Health and Safety Duties
Duties of workers
Workers, as defined under the WHS Act, are required to:
 Take reasonable care for their own health and safety
 Take reasonable care to ensure acts/omissions do not
adversely affect others health and safety
 Comply with reasonable instructions from the PCBU
 Co-operate with policy or procedures of the PCBU
What might you have to do as a worker to meet these duties?
WHS Act s28
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Health and Safety Duties
Right to cease unsafe work
Workers have the right to cease or refuse to carry out work if:
 they have a reasonable concern that the work would
expose them to a serious risk to health and safety from an
immediate or imminent exposure to a hazard.
 A worker may also be directed to cease unsafe work by
their Health and Safety Representative (HSR).
WHS Act s84-85
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Health and Safety Duties
Duties of self-employed persons
Self-employed persons have:
 a duty to ensure their own work health and safety
 health and safety duties as a PCBU
How might a self-employed person ensure their own health
and safety? For example, using electrical equipment that has
been tested, tagged and checked before use.
WHS Act s19(5)
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Health and Safety Duties
Other persons at the workplace (an expanded duty under
WHS Act)
Other persons at a workplace (e.g. visitor, shopper) have a duty to:
 take reasonable care for his or her own health and safety;
 take reasonable care that his or her acts or omissions do not
adversely affect the health and safety of other persons; and
 comply, so far as reasonably able, with any reasonable
instruction given by the PCBU to allow the PCBU to comply
with their duties.
WHS Act s29
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Health and Safety Duties
Other key concepts of duties under the WHS Act:
 A duty cannot be transferred to another person.
Example: A business owner cannot transfer duties to a
supervisor.
A person can have more than one duty.
Example: A person who conducts a business manufacturing and
selling equipment for use at work.
 More than one person can have a duty.
Example: A contractor and the business owner of the workplace
where the work is being done can have the same duties.
WHS Act s14-16
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Health and Safety Duties
Offences and penalties
A person commits an offence against the WHS Act under the
following categories.
Category 1 - Reckless conduct
A person commits a Category 1 offence if they:
 have a health and safety duty; and
 without reasonable excuse expose a person to a risk of
death, serious injury or illness;
 are reckless as to the risk of the individual of death or
serious injury or illness.
WHS Act s31, s230-236
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Health and Safety Duties
Category 2 - Failure to comply with health and safety duty
A person commits a Category 2 offence if:
 the person has a duty, fails in that duty and exposes a person to
death or serious injury or illness as a result of this failure.
Category 3 - Failure to comply with health and safety duty
A person commits a Category 3 offence if:
 the person has a health and safety duty and they fail to comply
with that duty.
WHS Act s32 and s33
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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
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