NSWWork Health &
Safety Act
Session 2
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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
• placed with another person to carry out work for that person, or
• influenced or directed in carrying out their work activities by the person, while the workers are at work in the business or undertaking
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Cost
Reasonably practicable includes:
ReasonablyPracticable
Degree of harm
State of knowledgeAvailability &
suitability of controls
Likelih
ood
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Reasonably practicable: Getting the balance
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Reasonably practicable is the balance between risk and time,
effort and cost
Likelihood, degree of harm, knowledge etc
Time, effort and cost to eliminate or reduce risk
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Reasonably practicable: Getting the balance
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? Level of time, effort and cost way
out of proportion with benefits in risk reduction
E.G little likelihood of risk occurring risk/minimal harm
High level of time, effort and cost to eliminate or reduce risk
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Reasonably practicable in the workplace
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• For common hazards such as noise, 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.
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Reasonably practicable: the Hierarchy of Control
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• 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
• Consequently the level at which controls are applied is subject to decisions about reasonably practicable.
For example, falls from height are regulated with a preferred set of controls from design and engineering down to personal protection measures.
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Reasonably practicable: The hierarchy of control
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STOP OR CHANGE THE ACTIVITY, PRACTICE OR PROCEDURE
ELIMINATE RISKS (so far as is reasonably practicable)
MINIMISE RISKS (so far as is reasonably practicable)
SUBSTITUTE WITH SAFER ALTERNATIVE
REDESIGN TO REDUCE RISK
ISOLATE PEOPLE FROM RISK
STOP USING OR CHANGE THE PRODUCT, PROCESS, PLANT OR SUBSTANCE
USE ENGINEERING CONTROLS
USE ADMINISTRATIVE PROCEDURES
USE PROTECTIVE CLOTHING / EQUIPMENT
MO
ST RELIABLE LEAST RELIABLE
Highest LEVEL O
F PROTECTIO
N Low
estW
HS
Act
What is different in WHS Act about Consultation
Much broader duties for PCBUs to consult with other duty holders, and workers, including those likely to be affected by
their business or undertaking
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Establishes comprehensive duties to consult on work health and safety matters so far as is reasonably practicable
Overview of what WHS Act says about Consultation
• with all workers who carry out work who may be directly affected by WHS matter
• in an effective way
• on certain matters,
• involve HSR – if workers represented by that HSR
• …., cooperate and coordinate activities with other duty holders who share WHS responsibilities
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MUST CONSULT:
SO FAR AS IS REASONABLY PRACTICABLE
Obligation to consult with workers – s47
PCBU must, so far as is reasonably practicable, consult with
workers who carry out work for the business or undertaking
who are, or likely to be, directly affected by a WHS matter
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What WHS Act says PCBUs must do:
SO WHO ARE THE WORKERS LIKELY TO BE AFFECTED?
Effective consultation requires:
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Consultation
Relevant HSR involved if one
exists
Relevant information about the matter is
shared with workers
Agreed procedures followed
Workers given opportunity • express views, • raise WHS issues • contribute to decision
making
Views of workers are taken into
account by PCBU
Workers advised of outcome in timely manner
• identifying hazards and assessing risks
• making decisions about how to eliminate & minimise risks
• making decisions about facilities for welfare of workers
• proposing changes that affect WHS of workers
• decisions about procedures for:• Consultation• Issue resolution• Health monitoring• Monitoring condition of workplace • Information and training
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What WHS Act says about Consultation:
CONSULTATION is required WHEN:
Consult so far as is Reasonably Practicable ?
What is reasonable in the particular circumstances at the particular time? This will depend on:
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What you need to do
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How to consult your workersIn collaboration with your workers you need to work out methods that:•Meet your duty to consult•Ensure all workers can participate in consultation •Integrates with the way you manage WHS risks
You can have, for example
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Agreeing on Consultation Procedures
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The WHS Act allows you to establish agreed procedures for consultation with your workers. Such procedures must be consistent with S48 WHS Act.
The agreement allows you to clearly state:•the responsibilities of all people in the workplace
•when consultation is necessary
•who will be involved in the consultation
•how the consultation will occur
•how information will be shared
•what opportunities will be provided for workers and HSRs to give their views
•how feedback will be given to workers
•how consultation will occur with workers with language / literacy needs
Obligation to consult with other duty holders – s46
“Duty holders with overlapping WHS duties must, so far as is reasonably practicable, consult, co-operate and co-ordinate
activities with each other”
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What WHS Act says PCBUs must do:
WHO ARE THESE OTHER DUTY HOLDERS?
•Same workplace – e.g. construction site, shopping centre, •Same matter- e.g. design, installation, use of plant, labour hire
Major difference is the extent of the scope of the obligation:
NOW have to consult with all workers directly affected not just employees
NOW have to consult with other duty holders who share responsibilities
.
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What are the major differences in the WHS Act?
The nature of consultation required & when you are expected to consult are basically the same as existing provisions
Consulting WORKERSIf you have consultative arrangements like an OHS committee or OHS Reps then you need to see how this can be extended to cover all workgroups
If you don’t have existing arrangements then you need to identify your workgroups and talk to them about when and how you may consult them
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What do you need to do?
What is different in WHS Act about HSRs
New Act prescribes HSR powers to issue PINs and direct unsafe work be ceased not currently found in
NSW legislation
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HSR training has to be requested rather than being an automatic entitlement
Overview of WHS Act• The Act sets out the process for
electing HSRs, and their functions, powers and entitlements
• Determination of work groups provides the basis for electing HSRs
• HSRs are elected for 3 years to represent their work group on WHS issues
• HSRs can inspect, investigate and represent workers
• HSRs can issue Provisional Improvement Notices (PIN) and direct that unsafe work cease
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Overview of WHS Act• The Act allows work groups to cover
multiple businesses to be established
• HSRs is not personally liable for things done in good faith
• Deputy HSRs can deputise for the HSR if unable to exercise function or ceases to hold office
• HSRs powers and functions limited to work group except where issues overlap
• Disqualification of an HSR can be sought on grounds such as using powers for improper purposes
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• Respond to a request to establish a work group and negotiate an agreed arrangement
• Facilitate the election of HSRs
• Consult with HSR on WHS affecting the work group
• Allow access to WHS information relevant to work group
• Allow HSR to be present at interviews on WHS matters (with consent of worker)
• Provide resources and allow time to enable HSR to exercise functions
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What WHS Act says PCBUs must do:
• Allow HSR to accompany inspector within work group
• Allow a person assisting the HSR access to the workplace
• If requested allow HSR to attend WHS training (initial course of 5 days and 1 day refresher annually there after)
• Keep and display an up to date list of HSRs
• PCBU must not allow HSR access to personal or medical information unless with consent of worker
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What WHS Act says PCBUs must do:
HSR Powers: Direct to cease unsafe work
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HSR Powers: Issue PIN
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