NATIONAL HARMONISATION OF OHS LAWS Summary of the key ...
Summary of the Work Health and Safety Act 2011 Jodie Sanders-Bond MACROSSAN & AMIET Solicitors 55 Gordon Street MACKAY QLD 4740 Telephone: (07) 4944 2000 Facsimile: (07) 4957 3346 KEY DIFFERENCES FROM PREVIOUS ACT Definition of worker includes contractors and subcontractors used to be excluded Positive duties due diligence Officers and PCBU now have a positive duty to eliminate risks and monitor the health of workers and conditions at workplace Officers can be in breach of the new Act without a safety incident even occurring used to be that Officers were attributed liability for conduct committed by the company
Onus of proof the onus is on regulator to establish that there has been a lack of due diligence used to be that the onus was on the officer to prove they had a defence Officers, PCBU and employees must answer questions The right to privilege on the grounds of self incrimination has been removed It is now an offence to refuse to answer questions or assist an inspect without reasonable excuse GENERAL DUTIES The new Act imposes positive obligations on officers and persons conducting a business or undertaking (PCBU). Officer - means an officer within the meaning of the Corporations Act 2001 (s.4) and also includes an officer of the Crown or a public authority. Broadly a person who makes or participates in making decisions that affect all or a substantial part of the organisations activities. PCBU means a person who conducts a business or undertaking alone or with others regardless of whether the business is conducted for profit or gain (s.5).
More than one person can have the same duty (i.e. all directors will owe a duty). A person may have more than one duty (i.e. executive director has a duty as a director and as an officer) General duty (s.17): To eliminate risks to health and safety so far as reasonably practicable; and IF NOT reasonably practicable to eliminate risks to minimise risks as far as reasonably practicable. GENERAL DUTIES CONT. Reasonably practicable (s.18) means what could reasonably be done at a particular time to ensure health and safety measures were in place. The test is objective - A duty-holder must meet the standard of behaviour expected of a reasonable person in the duty-holders position. Two elements: A duty-holder must first consider what can be done - that is, what is possible in the circumstances for ensuring health and safety. They must then consider whether it is reasonable, in the circumstances to do all that is possible. What can be done should be done unless it is reasonable in the circumstances
for the duty-holder to do something less. In order to determine this weigh up all relevant matters including: The likelihood of a hazard or risk occurring The degree of harm that would result if the hazard or risk occurred What the person knows or ought reasonably know about ways to eliminate or minimise risk The availability of suitable ways to eliminate or minimise risk The cost of eliminating or minimising the hazard or risk Financial Capacity is NOT relevant A duty-holder cannot expose people to a lower level of protection simply because it is in a lesser financial position than another duty-holder. DUTIES OF A PCBU Primary duty of care PCBUs must ensure the health and safety of workers - so far as reasonably practicable (s.19) Workers = employees, contractors, subcontractors, outworkers, apprentices, trainees, work experience students, volunteers PCBUs must ensure that the health and safety of other persons are not put at risk from the work carried out as part of the business or undertaking so
far as reasonably practicable (s.19) Duty includes: Providing and maintaining a safe working environment Providing and maintaining plant, structure and systems of work Ensuring the safe use of, handling, storage and transport of plant, structures and substances Providing adequate facilities for the welfare of workers at workplaces under their management and control (i.e. toilets, kitchens) Monitoring the health of their workers to prevent injury or illness Maintaining accommodation owned or under their management to ensure health and safety of workers Duty to consult (ss46-49) A PCBU must consult with workers and Health and Safety Representatives (HSRs) about matters that directly affect them this includes consulting with contractors and their workers DUTIES OF OFFICERS Due diligence there is a positive duty imposed on officers of a PCBU to exercise due diligence to ensure compliance with health and safety duties (s27). The duty imposed corresponds to the position of the officer in question and their ability to influence work practices
These due diligence obligations require an officer to ensure that the PCBU uses and applies appropriate resources, policies, procedures and health and safety practices in the conduct of a business or undertaking. If an officer fails to exercise due diligence requirements, they can be held personally liable. Due diligence includes personally taking reasonable steps to: Acquire and keep current information on work health and safety matters Understand the nature of operations of the work and associated hazards and risks Ensure the PCBU has and uses appropriate resources and processes to eliminate or reduce risks Ensure the PCBU has appropriate processes to receive and consider information about incidents, hazards and risks and to respond in a timely manner Ensure the PCBU has and implements processes for complying with their duties obligations DUTIES OF WORKERS AND OTHERS Workers (s28) Own safety workers are required to take reasonable care for their own health and safety in the workplace. Safety of others workers are required to take reasonable care for the health and safety of others in the workplace who may be affected by their actions or omissions. Reasonable instruction or policy of PCBU workers must
cooperate with any reasonable instruction given by a PCBU or any reasonable policy or procedure of the PCBU which seeks to comply with the Act. Others (s.29) these same duties are placed on any person in the workplace, which includes customers and visitors. NOTIFCATION OF INCIDENTS Incidents involving serious injury, illness or death - PCBU must notify WHS QLD as soon as they become aware of a death, serious injury or serious illness which results in: Immediate medical or hospital treatment Medical treatment within 48 hours of exposure to a substance Definition of serious injury or illness - an injury or illness requiring: immediate treatment as an in-patient in a hospital; or immediate treatment for: the amputation of any part of his or her body; or a serious head injury; or a serious eye injury; or a serious burn; or the separation of his or her skin from an underlying tissue (for example, degloving or scalping); or
a spinal injury; or the loss of a bodily function; or serious lacerations; or medical treatment within 48 hours of exposure to a substance NOTIFICATION OF INCIDENTS CONT. Dangerous incident A PCBU must notify WHS QLD as soon as they become aware of a dangerous incident which exposes a person to a serious health or safety risk from the immediate or imminent exposure to: Uncontrolled escape, spillage or leakage of a substance Uncontrolled implosion, explosion or fire Uncontrolled escape of gas, stream or a pressurised substance An electric shock fall or release from height of any plant, substance or thing collapse, overturning, failure or malfunction of or damage to plant Collapse or partial collapse of a structure
Inrush or water, mud or gas into an underground excavation or tunnel Interruption of the main system of ventilation to an underground excavation or tunnel CONSULTATION WITH WORKERS A PCBU must consult with workers and take their views into account when making decisions about (ss46-49): Ways to eliminate or minimise risks The adequacy of facilities for workers welfare Procedures for consulting workers Resolving health and safety issues Monitoring the health and safety of workers in workplace conditions How to provide health and safety information and training to workers Workers are entitled to:
Elect a health and safety representative Request that a health and safety committee be formed Cease unsafe work Agree on a procedure to have health and safety issues resolved Be free from discrimination for raising health and safety issues HEALTH AND SAFETY REPRESENTATIVES A Health and Safety Representative (HSR) represents the interests of a work group in relation to workplace health and safety issues. Work Groups (ss50-57) workers have the right to ask a PCBU to set up a work group for the purposes of electing a HSR A work group is a group of workers who share a similar work situation (i.e. people of the same trade, all people who work in the office, all people who work in the factory, etc) Election of HSR
Where a workers request a HSR be elected, PCBU must start negotiations within 14 days to determine: Number and composition of work groups Number of HSRs Workplaces to which work group apply HEALTH AND SAFETY REPRESENTATIVES CONT. Powers and Functions of HSR (ss68-69) Role is generally limited to HSRs work group But may assist others where there is an immediate hazard or a worker in another work group asks for assistance Inspect the area where work is carried out by work group Accompany a workplace health and safety inspector during inspection of the area Be present in an interview with a worker that the HSR represents about health and safety issues Request a health and safety committee be established Monitor compliance measures by PCBU Represent the work group in health and safety matters Investigate complaints from members of the work group Inquire into any risk to the health or safety of workers in the work group
A HSR is not personally liable for anything done or not done in good faith whilst carrying out their role PCBUs must allow HSRs to attend work health and safety courses approved by Workplace Health and Safety QLD HEALTH AND SAFETY REPRESENTATIVES CONT. Provisional improvement notice (PIN) (ss90-102) if a HSR reasonably believes that a person is contravening or has contravened the Act and it is likely that the contravention will continue or be repeated, can issue a PIN. A PIN must be in writing and: Outline the contravention Specify the section of the Act contravened Give a date by which contravention must be remedied (at least 8 days from issue date) A PIN can include directions on how to remedy contravention PCBU must display a PIN in a prominent place in the workplace If receive a PIN, can ask Workplace Health and Safety QLD to review the notice and decide whether it must be complied (must apply within 7 days of receiving the notice) Direct workers to cease unsafe work (s83-89) If a HSR has a reasonable concern that carrying out work would expose a worker to a serious health and safety risk, the HSR may direct a workers
to cease work BUT must first try to resolve the matter with the PCBU unless the risk is so serious and immediate that it is not reasonable to consult first FUNCTIONS AND POWERS OF WORKPLACE HEALTH AND SAFETY QLD Power of WHS QLD to require documents and information WHS QLD has the power to require a person to provide documents or to provide information upon serving the person with a written notice A person cannot refuse or fail to comply with a request without reasonable excuse There is no longer any privilege on the grounds of self incrimination Powers of Entry of Inspectors Inspectors have the power to enter a workplace or a suspected workplace at any time with or without consent of the manager/owner The power includes the right to inspect, examine or seize anything, including documents A person cannot refuse to assist an inspector without reasonable excuse PENALTIES CATEGOR CORPORATIO OFFICER OR Y
N INDIVIDUAL PCBU WORKER OR OTHER 1 $3m $600,000 5 years jail Both of the above $300,000 5 years jail Both of the above 2 $1.5m $300,000 $150,000 3 $500,000
$100,000 $50,000 Category 1 Duty holder engages in conduct that recklessly exposes a person to a risk of death or serious injury or illness Category 2 Duty holder fails to comply with a health and safety duty that exposes a person to risk of death or serious injury or illness Category 3 Duty holder fails to comply with a health and safety duty ALTERNATIVE PENALTIES
Adverse publicity orders require the offender to publicise the offence and its consequences Restoration orders require the offender to take steps to remedy anything that occurred as a result of the offence Work health and safety projects require the offender to undertake a project for the general improvement of work health and safety Work health and safety undertakings court can adjourn proceedings and make an order for the release of an offender Injunctions to prevent a person from continuing to contravene the Act Training orders a person may be ordered by the court to undertake or arrange for one or more workers to attend a specified training course
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