NSW Work Health & Safety Legislation

Session 1

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NSWWork Health &

Safety Legislation

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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

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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Jan-Dec2011

Dec 2010

Dec 2009

Oct 2008Jan 2009

Nov

2010 June 2011

Sept 2009

July

2008

Mirroring of Model

Legislation by States and Territories

Development and agreement on Model

WHS Legislation and priority Model Codes of Practice

Commencement of harmonised

Legislation across Australia

1st Jan 2012

The Path to Harmonisation

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Model Work Heath & Safety Act & Regulation

Jurisdictional Work Heath & Safety Act

Jurisdictional Work Heath & Safety Regulation

Model Work Health &Safety Codes of Practice

Nationally consistent Compliance & Enforcement Policy

The Result: A Nationally Uniform WHS Legislative Framework

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The new laws introduce a number of significant changes:

What will be different

Questions - Please!

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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

‘Person conducting a business or undertaking’ DEFINITIONS

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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

‘Worker’

DEFINITIONS

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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:

• 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.

‘A workplace‘

‘Others‘Is taken to mean visitors, customers, members of the public etc.

DEFINITIONS

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Means:

•an officer within the meaning of s.9 of the Corporations Act 2001; other than a partner in a partnership;

•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

‘Officer‘

DEFINITIONS

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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.

‘Officer‘

DEFINITIONS

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In relation to a worker, means the health and safety representative elected for the work group of which the worker is a member

‘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.

DEFINITIONS

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Exercising due diligence includes taking reasonable steps:• 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

‘Due diligence' DEFINITIONS

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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 likelihood of the hazard or the risk occurring

• 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).

'Reasonably practicable' DEFINITIONS

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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.

DEFINITIONS

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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

‘Designer'

DEFINITIONS

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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

‘Manufacturer'

DEFINITIONS

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Is a person who conducts a business or undertaking that imports:

• 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.

‘Importer' DEFINITIONS

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Is a person who conducts a business or undertaking that supplies:

• 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

‘Supplier'

DEFINITIONS

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Person Conducting a Business or Undertaking The WHS Act applies the primary duty of care on any person

who conducts a business or undertaking

• They influence one or more elements that go to the performance of work and

• They may affect the health and safety of those doing the work or those affected by the work

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

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What is a business or undertaking?

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Who will be a PCBU

Some of these duty holders will also have specified “further duties”

The primary duty is owed by the operator of the business or undertaking; Examples are:

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Who will NOT be a PCBU

a) A person engaged solely as a worker or officer of PCBU

b) A volunteer association – provided no person is employed to carry out work for the organisation

c) A charitable, social or sporting organisation – when carrying out purely social activities; but will be if activities are of a commercial nature

d) Persons who engage workers solely for private or domestic purposes on an ad hoc basis

e) An elected member of a local authority

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 contractor or subcontractor

• an employee of a labour hire company assigned to work in the business or undertaking

• an outworker

• an apprentice or trainee

• a student on work experience

• a volunteer24

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Other persons who could be put at risk from work carried out by PCBU

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 engaged, or caused to be engaged by the PCBU

Workers whose activities are influenced or directed by the PCBU

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Safe work environment Workplace monitoring

Primary Duty of Care

Safe plant & structures

Information, training, instruction, supervision

Facilities for workers’ welfare Safe systems of work

Safe use, handling & storage of plant, structures & substances

Specific obligations:

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Other PCBU Duties

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PCBU will have additional duties

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Several PCBUs may owe a duty of care to the same people concurrently :

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Multiple PCBUs in respect of same activities:

• Each PCBU MUST comply with their duty, so far as is reasonably practicable

Contract Cleaners

RetailerLandlord

Labour Hire casuals

Customers

All duties are concurrent and non-tranferrable

• Each PCBU must discharge their duty to the extent that they can influence or control the matter W

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What are the major differences in the WHS Act?

Major difference is the application of the Primary Duty of Care

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What are the major differences in the WHS Act?

Major difference is the application of the Primary Duty of Care

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