PowerPoint Presentation

Work Health and Safety Act

Senior Managers

Trainers Notes: OverviewExplainThis session provides an overview of the reasons behind the federal Governments initiative to harmonise WHS laws. The session also covers the objects of harmonisation, a summary of the benefits anticipated for business and for workers as a result of consistency across all jurisdictions as well as a summary of the changes that will be introduced in NSW by the new legislation. 1

Senior Managers

Trainers Notes: OverviewExplainThis session provides an overview of the reasons behind the federal Governments initiative to harmonise WHS laws. The session also covers the objects of harmonisation, a summary of the benefits anticipated for business and for workers as a result of consistency across all jurisdictions as well as a summary of the changes that will be introduced in NSW by the new legislation. 2

01What is new for NSW under the WHS Act?

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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 careGeneral 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

Trainers Notes: OverviewExplain: Following is a summary of the main changes which will impact on businesses in NSW. For detailed information about each of these changes and what they really mean you will need to complete the detailed training module as indicated

The Model Act includes the following key elements:

The concept of the employer with responsibility for WHS has been broadened by using the term person conducting a business or undertaking (PCBU). (Refer to Module on PCBU and Duty of Care)Self employed person and a controller of a premise will also be as a Person Conducting a Business of undertaking with the same obligations. (Refer to Module on PCBU and Duty of Care)The primary duty of care will require persons conducting a business or undertaking (PCBUs) to, so far as is reasonably practicable, ensure the health and safety of workers and others who may be affected by the carrying out of work. (Refer to Module on the Reasonably Practicable Test)The concept of the worker also has been broadened to someone who carries out work for a PCBU in any capacity. (Refer to Module on PCBU and Duty of Care)4

Summary

Duty of workers Workers have an expressed duty to take reasonable care of themselves at workDuty of othersOthers are required to take reasonable care when at a place of work Duty of OfficersWill change from having an attributed liability to a positive duty of due diligence to ensure PCBU complies with dutiesDue diligenceIs specifically defined and includes knowledge of WHS and business risks , allocation of resources, WHS reporting, compliance and verification processes ConsultationBroadened to include all workers affected and other PCBUs with shared responsibilities

Trainers Notes: Overview:Explain:

Workers have an express duty to take reasonable care of themselves while at work. (Refer to Module on Duties of Officers and Workers)

Other, although they have limited control, are also required to take reasonable care when at a place of work. Others include persons at the workplace other than workers or other PCBUs, such as visitors, customers, clients, passers-by, relatives and associates of workers and trespassers

Officers of PCBUs have a duty to exercise due diligence to ensure compliance obligations are met. (Refer to Module on Duty of Officers and Workers)

Due diligence has been specifically defined in the legislation making it very clear what officers must do to meet their obligations. (Refer to Module on Duty of Officers and Workers)

PCBUs will have to consult more directly and widely with both workers and other PCBUs who they interact with at a workplace. (Refer to Module on Consultation).5

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 RiskRisk assessments are not mandated in the Act but are mandated in the Regulation for certain high risk workUnion officials Can apply for WHS entry permit to enter a workplace to advise on WHS or when a breach is suspected

Trainers Notes: Overview:Explain:

The OHS Representative will be replaced by the Health and Safety Representative with increased functions. (Refer to Module on Consultation and Module on HSRs)

Elected Health and Safety Representatives (HSR)can issue Provisional Improvement Notices under certain conditions. (Refer to Module on HSRs)

The requirement to undertake risk assessments has been removed with a greater focus placed on getting the appropriate risk controls in place rather than on paperwork. Risk Assessments are mandated in the Regulation for some high risk activities. (Refer to Module on Reasonably Practicable)

Unions can apply for a WHS entry permit that allows them to enter workplaces to inquire about suspected breaches and consult with workers. (Refer to Module on Union involvement in WHS)6

Summary

Protection against discriminationEnhanced to protect workers and those in commercial arrangements from coercion, inducements or misrepresentationOnus of Proof Reverse onus removed with the prosecution having to prove a breach was committed Penalty OptionsGraduated enforcement options to include injunctions, remedial action and enforceable undertakingsPenaltiesMaximum penalty for a corporation of $3 million and for an individual $300,000 & up to 5 years imprisonment for the most serious breaches

Trainers Notes: Overview:Explain:

There are enhanced protection for workers who raise WHS issues and those in commercial arrangements against discrimination, coercion, inducements or the misrepresentation of powers . (Refer to Module on Union involvement in WHS)

The reverse onus of proof in current NSW OHS law will be replaced with the prosecution having to prove that the PCBU or the individual being prosecuted did not do everything reasonably practicable to prevent the contravention. (Refer to Module on Offences, Penalties and Proof)

The range of Penalty options has been extended with a graduated approach to enforcement to include injunctions, remedial action and enforceable undertakings along with the more traditional existing penalties. (Refer to Module on Enforcement, Penalties and Proof)

Penalties for breach of WHS duties divided into 3 categories; reckless conduct, failure to comply where person exposed to high risk and failure to comply with a duty. (Refer to Module on Enforcement, Penalties and Proof)

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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 careEmployees 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

Trainers Notes: OverviewExplain: Following is a summary of the main terminology that will change with the commencement of the WHS Act. For detailed information about each of these changes and what they really mean you will need to complete the detailed training module as indicated

The Model Act includes the following new terminology:

The concept of the employer with responsibility for WHS has been broadened by using the term person conducting a business or undertaking (PCBU). (Refer to Module on PCBU and Duty of Care)Self employed person and a controller of a premise will also be as a Person Conducting a Business of undertaking with the same obligations. (Refer to Module on PCBU and Duty of Care)The concept employee has been broadened by the use of the term worker. A work is someone who carries out work for a PCBU in any capacity. (Refer to Module on PCBU and Duty of Care)The primary duty of care will require persons conducting a business or undertaking (PCBUs) to, so far as is reasonably practicable, ensure the health and safety of workers and others who may be affected by the carrying out of work. (Refer to Module on the Reasonably Practicable Test)The duty on employees has been broadened to a duty on workers and includes a duty to take reasonable care of themselves at work. (Refer Module Duties of Officers and Workers)8

New Terminology

Directors and ManagerReplaced with the term Officer as defined in the Corporations Act 2001Duty of OfficersOfficers have positive duty of due diligence to ensure PCBU complies with dutiesOHS Representatives Replaced by health & safety representatives (HSR) with increased functions and powersOHS CommitteesWill be referred to as health and safety committees with effectively the same functionsUnion officials Can apply for WHS entry permit and will be know as WHS entry permit holders.

Trainers Notes: Overview:Explain:

Directors and Managers have been replaced with the term Officers as defined by the Corporations Act 2001. (Refer to Module on Duty of Officers and Workers) Officers of PCBUs have a duty to exercise due diligence to ensure compliance obligations are met. (Refer to Module on Duty of Officers and Workers) Officers have a positive duty of Due diligence (Refer to Module on Duty of Officers and Workers) The OHS Representative will be replaced by the Health and Safety Representative with increased functions. (Refer to Module on Consultation and Module on HSRs)OHS Committees will be know as Health and Safety Committees with similar functionsUnions officials can apply for a WHS entry permit that allows them to enter workplaces to inquire about suspected breaches and consult with workers and will be referred to a WHS Entry Permit Holders. (Refer to Module on Union involvement in WHS)

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New Terminology

WorkplaceDefined to include any place where a worker goes, or is likely to be, while at work.

StructureThe provision of safe structures included in general duties of PCBUs and upstream duties of designers

Trainers Notes: Overview:Explain:

A workplace has been more broadly defined to include anyplace where a worker goes, or is likely to go, while at workThe provision of safe structures has been included in the general duties of PCBUs and the upstream duties of designers10

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; andwhether 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 authorityIf the Regulation prescribes

Trainers Notes: Overview:Explain:

S5 of the WHS Act details the meaning of a business or undertaking

For the purposes of the WHS Act, a business or undertaking is taken to mean activities carried out by, or under the control of, a person:

whether the person conducts the business or undertaking alone or with others; and

(b) whether or not the business or undertaking is conducted for profit or gain.

(2) Includes a business or undertaking conducted by a: partnership or 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 undertakingthe person is acting in the capacity of an elected member of a local government authorityIf the Regulation prescribes11

Definitions

Worker A person is a worker if the person carries out work in any capacity for a PCBU, including work as:an employeea contractor or subcontractoran employee of a contractor or subcontractoran employee of a labour hire company an outworkeran apprentice or traineea student on work experiencea volunteera 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

Trainers Notes: Overview:Explain:

The duty of care owed by a PCBU is owed to workers in a broadened sense of the word:Section 7 of the Act defines a worker as:

A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:(a) an employee; or(b) a contractor or subcontractor; or(c) an employee of a contractor or subcontractor; or(d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or(e) an outworker; or(f) an apprentice or trainee; or(g) a student gaining work experience; or(h) a volunteer; or(i) a person of a prescribed class.12

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.

Trainers Notes: Overview:Explain:

A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

Others include persons at the workplace other than workers or other PCBUs, such as visitors, customers, members of the public

The important concept in relation to others is the definition of workplace. and may therefore not only include traditional workplaces like factories, construction sites and offices but is extended to include roads, parks, homes, hotels, airports, shopping centres, etc.

Section 8 of the Act defines a workplace:

A workplace is a place where work is carried out for a business or an undertaking. This includes anyplace where a worker goes, or is likely to go while at work

Place includes:(a) a vehicle, vessel, aircraft or other mobile structure; and(b) any waters and any installation on land, on the bed of any waters or floating on any waters.

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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.

Trainers Notes: Overview:Explain:

Officer" of a corporation means: according to S9 of the Corporations Act 2001 means

(a) a director or secretary of the corporation; or (b) a person: (i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (ii) who has the capacity to affect significantly the corporation's financial standing; or

Officer does not include: A partner in a partnership14

Definitions

PlantIncludes:any machinery, equipment, appliance, container, implement and tool; andany component of any of those things; andanything fitted or connected to any of those things.StructureMeans 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; andpart of a structure.SubstanceMeans any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour.

Trainers Notes: Overview:Explain:

Plant is defined to include: any machinery, equipment, appliance, container, implement and tool; andany component of any of those things; andanything fitted or connected to any of those things.

Structure is defined to include 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); andany component of a structure; andpart of a structure.

Substance is defined to include any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour.

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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; ora substance that is to be used, or could reasonably be expected to be used, at a workplace; ora 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.

Trainers Notes: Overview:Explain:

Designer is defined as [s.22(1] 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; ora substance that is to be used, or could reasonably be expected to be used, at a workplace; ora structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

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Definitions

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; ora substance that is to be used, or could reasonably be expected to be used, at a workplace; ora 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. Manufacturer

Trainers Notes: Overview:Explain:Manufacturer is defined as [s.23(1)] 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; ora substance that is to be used, or could reasonably be expected to be used, at a workplace; ora structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.17

02NSW Work Health & Safety Act-PCBUs, the Primary Duty of Care & Other Duties

Trainers Notes: PCBUExplainThis session covers the background to the concept of a Person Conducting a Business or Undertaking (PCBU) and illustrates who is a PCBU and why and what their obligations are.This session should be covered before the session on Duties18

What is a business or undertaking?

Activities carried out by, or under the control of, a person Whether alone or with othersWhether or not for profit or gain

Including activities conducted by:A corporation, partnership, Unincorporated associationSelf employed personGovernment agency

Trainers Notes: ConsultationExplain

S5 of the WHS Act details the meaning of a business or undertaking

For the purposes of the WHS Act, a business or undertaking is taken to mean activities carried out by, or under the control of, a person:

whether the person conducts the business or undertaking alone or with others; and

(b) whether or not the business or undertaking is conducted for profit or gain.

(2) Includes a business or undertaking conducted by a: partnership or an unincorporated association.A self-employed person A Government agency 19

Who will be a PCBU?

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

Trainers Notes: PCBUExplain:The duty is owed by the person conducting a business or undertaking, whether as an individual, company, partnership, etc. We are talking here about the legal entity that conducts the business or undertaking . The duty applies to those for whom the work is being done, including those who are providing or contributing to the things necessary for the work to be done. This includes all of the duty holders who had a primary duty of care and those with only other duties under our existing legislation, namely:Employers, self employed persons, partners in a partnership, franchisees, franchisorsPrincipal Contractors, Sub-ContractorsPersons conducting businesses or undertakings that design, manufacture, import, supply plant, substances or structures used at a workplacePersons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces

Some of these duty holders will also have specified further duties in addition to their primary duty of care which we will talk about later in this session. Activity:Think about the business or undertaking you represent Is it a PCBU?Why?What work activities does this PCBU performWhose health and safety could be affected by these activities:Facilitation:Get the group to discuss the organisation they represent and identify the nature of the business or undertakingIs it a company, a sole trader, a partnership, an incorporated association.Who exactly is the PCBU its the entity of the operator.Who can their undertaking affect?20

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 PCBUWorkers whose activities are influenced or directed by the PCBUOther persons who could be put at risk from work carried out by PCBU

Trainers Notes: PCBU:Explain:What the WHS Act says PCBUs must do?

Section 19(1) of the WHS Act states:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:(a) workers engaged, or caused to be engaged by the person; and(b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

In relation to workers the primary duty of care extends beyond direct employees to others who do work for or under the influence or direction of the PCBU.

Other persons is taken to mean visitors, customers, members of the public etc.

It is important to emphasise at this point that the obligation is to fulfil this duty to the extent that it is reasonably practicable. There is a complete module which will help you understand how this reasonably practicable test is applied.21

Other PCBU Duties

Primary Duty of Care plus1. Consultation2. Issue Resolution3. Incident Notification4. Complying with regulations

Trainers Notes: PCBUExplain:In addition to the Primary Duty of Care PCBUs have other duties: These duties include the following Consultation:The WHS Act includes a provision requiring consultation, cooperation and coordination of activities between concurrent duty holders as well as a broadening of the requirement to consult with employees to a duty to consult with all workers who may be affected by the work being carried out.There is a separate training module dealing with consultation with workers and coordination with other PCBUsIssue Resolution:The new legislation requires a PCBU to have a mechanism in place to resolve WHS issues and requires that a PCBU make reasonable efforts to resolve the matter. If after reasonable attempts the issue remains unresolved, it may be referred to an inspector to assist in resolving the issue. Again this requirement has been extended in the new legislation to apply to all PCBUs. There is a separate training module dealing with this requirement.Incident Notification:A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. Also the person with management or control of a workplace at which a notifiable incident has occurred must ensure, so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.While both these requirements exists in the current legislation they have been expanded in the new Act to apply to all PCBUs, and the requirement to preserve the site is a little different.Complying with Regulations:The regulations include many of the administrative aspects of licences and permits. There are certain requirements for PCBUs to make sure that certain types of workplaces, plant and work as prescribed by the regulation to be authorised are authorised and that work does not occur if the authorisation is not obtained. This would include things like asbestos removal.22

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 All duties are concurrent and non-transferrable

Billboard Production CompaniesAdvertising CompaniesLandlords & Site OwnersSign Installation CompaniesElectrical CompaniesTrainers Notes: PCBUExplain Because of the expanded nature of the duty of care owed by all PCBUs to not only their employees but anyone working with or for them, including the employees and workers of other PCBUs, it is more than likely that several PCBUs may own the same duty of care to the same person concurrently. In this regards the WHS Act states: S 16: More than one person can have a duty:(1) More than one person can concurrently have the same duty.(2) Each duty holder (PCBU) must comply with that duty as far as is reasonably practicable, even if another duty holder has the same duty.(3) If more than one person has a duty for the same matter, each person (PCBU):(a) retains responsibility for the person's duty in relation to the matter; and(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangementWhere a PCBU has a very limited involvement or very limited ability to take relevant steps in relation to managing risks, those factors will assist in determining what is reasonably practicable for them in complying with their duty of care.The PCBU is not necessarily required to directly undertake the activities necessary for compliance these can be done by others at the instigation or direction of the PCBUBUT - arranging for another person to undertake activities necessary for your compliance with the duty of care you owe to a person would not be sufficient to meet the duty so far as is reasonably practicable, unless you took steps necessary to confirm the relevant matters were appropriately attended to, and the required health and safety standards were maintained.The PCBU is required to ensure that the activities are undertaken and the outcomes achieved.This allows for the coordination of activities between duty holders and the reasonable reliance on others to facilitate compliance. For example the host employer providing adequate facilities for the hired labour and inducting them into the specific work environment and work activity with the Labour Hire Company ensuring and checking that it is done!Example of PCBUs sharing duties include:Principal contractor and sub-contractorLabour provider and person with management of workplaceA contractor with employees working in another's workplaceIt should also be emphasised that the duties are concurrent and not delegable meaning the PCBU cant transfer their specific duties to another PCBU. Each duty holder retains the non-delegable duty of care at all times. 23

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 relationshipNOW 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

Trainers Notes: PCBUExplainHow is the new Act different?The major difference in the WHS Act from the current NSW OHS Act 2000 lies in the application of the Primary Duty of Care.The primary duty of care under the existing legislation is owed by an employer to its employees and in a more limited way to others at the workplace.

The WHS Act removes the employment relationship as the basis of the duty of care and as a result has broadened the scope of the primary duty of care.The duty is owed by the person conducting a business or undertaking whether or not that PCBU is an employer, self employed, company, incorporated association. The duty is owed to workers, not just employees but workers carrying out work for the PCBU or affected by the PCBUThe primary duty of care is now also owed to people other than workers who may be affected by the activities of the business or undertaking. While this has been covered to a limited extent in the existing requirements it should now be clear that the fully duty of care and specified duties is owed to these persons.

While our current legislation requires that an employer ensures that persons not in their employment are not exposed to risks to their health or safety whilst at place of work, it does not require specifically that these non employers are afforded all the specific duties owed by an employer to employees in relation to systems of work, plant etc.24

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.

Trainers Notes: PCBUExplainHow is the new Act different?

The specific things that a PCBU must do are similar to the current NSW requirements but are in some instances more explicit. For example currently the requirement is to provide safe premises, safe plant and substances, safe systems of work and a safe working environment as well as facilities for worker welfare as well as information, instruction, training and supervision of employees to enable them to work safely. The WHS Act includes the provision of safe structures as well as the safe use, handling and storage of plant, structures and substances; and a requirement to monitor workers and the working conditions to prevent injuries or illness. Overall the changes are not that major.

The nature of the PCBU and the expansion of the duty of care is almost certain to mean that there is a greater chance that PCBUs will share duties for the same activities and this will impact on the way these PCBUs work together to achieve the desired safety outcomes.

Under the WHS Act, the primary duty of care is qualified by the standard of what is reasonably practicable.

The placement of the qualifier of reasonably practicable, within the duty or within a defence, is relevant to the issue of who bears the onus of proving or disproving that the standard has been met. This is significant in the NSW jurisdiction and is addressed in full in a separate module.25

03NSW Work Health & Safety Act- Duties of Officers, Workers & Others

Trainers Notes: DUTIESExplainThis session covers the obligations on Officers under the WHS Act as well as the duty on workers and others at a place of work.

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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 2011Trainers Notes: DUTIESExplain

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

The details of this change are covered in this session.27

WHS Act specifies Duty of Care on Officers

Introduces a duty of care on officers - the duty is to the PCBU This is a positive duty allocated to officers in their own rightAn officer may be found guilty of an offence whether or not the PCBU has been found guilty or convicted of an offence

Trainers Notes: DutiesExplain

S27 of the WHS Act introduces a duty of care for officers due diligence.Officers of companies or other bodies now have a duty to exercise due diligence to make sure that the organisation which they manage is meeting all its duties under the Act .This is a positive duty in that it is allocated to the officer in his/her own right.An officer of a PCBU may be convicted or found guilty of an offence under this Act whether or not the PCBU has been convicted or found guilty of an offence under this Act

This is a significant reform and will require the officers of a PCBU to show leadership with regard to health and safety in order to influence health and safety outcomes and the safety performance of the organisation. It will also require officers of a PCBU to be able to prove that they have taken steps to make sure their organisation or entity complies with its legal obligations and continues into the future to comply . 28

What WHS Act says about Officers Duties:

Duty of Officers s27If 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 DELEGATEDTrainers Notes: Duties:Explain:What the WHS Act says an Officer must do?Section 27 of the WHS Act states:27 Duty of officersIf 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.An officer of the PCBU must actively take steps to ensure that the PCBU complies with its duty or obligations. The officer is liable for his/her own conduct or omission. The onus of proving a failure to meet the standard of due diligence is on the prosecution.

The advantages of placing a positive duty on officers is that it requires the officer(s) to take active steps to make sure the PCBU meets its primary duty of care in the first instance not only after a breach has occurred. The officer(s) will be liable if he/she failed to do whatever was reasonably necessary to the extent of his/her ability to do so to cause the business or undertaking to comply.

Importantly an officer cannot delegate this duty to someone else in the organisation. Its not acceptable to leave this responsibility to the care of an OHS coordinator, line manager etc

So what do we mean by due diligence in relation to officers?29

Officers must exercise Due Diligence

What is Due Diligence?

Due DiligenceAudit & review WHS processes and use of resourcesEnsure WHS legal complianceReceive and consider business incidents, hazards & risksProvide resources to identify and control risksUnderstand business health & safety risksAcquire safety knowledge and keep up to dateTrainers Notes: DutiesExplain:The WHS Act clearly defines what officers are expected to do in order to exercise due diligence.S 27 of the Act states: due diligence includes taking reasonable steps:

to acquire and keep up-to-date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking and of the hazards and risks associated with those operations; and

to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

(d) 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; and

to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

To verify the provision and use of these resources and processes

NOTE: The next six slides have been noted as optional you may wish to use the slides or simply use the examples of what an offer need to do to demonstrate each element of due diligence while presenting this slide.30

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 legislationNOW 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

Trainers Notes: DutiesExplainHow is the new Act different?The major difference in the WHS Act from the amended NSW OHS Act 2000 lies in the change from directors and managers of a corporation to a broader definition of officer.

Officers have a duty to ensure the entity (PCBU) acts appropriately and complies with the legislation

NOW who is an officer has been clearly defined by reference to existing legal constructs and it includes internal and external persons who influence or control the entity.

NOW due diligence has been defined and officers know exactly what they have to do to fulfil their duty and to be able to provide evidence that they have they fulfilled their duty in the event of an investigation or prosecution against the entity.

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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.

Trainers Notes: DUTIESExplain What is the likely impact of the changes?Organisations that have OHS Management Systems (policies and procedures) in place usually have to some extend covered this requirement by having a procedure on Management Commitment and Responsibilities.

If you have existing systems to demonstrate management commitment and responsibility for OHS, (which many organisation who have OHS Management Systems in place will have), To ensure full compliance you may need to review your existing system (Policies, procedure) and then you will need to review the various operational procedures concerned with things like hazard reporting, risk management, incident reporting, workplace inspection, audit and review etc.

make sure that your identified officers have an appropriate level of responsibility and accountability and will be able to actively demonstrate due diligence as defined in the WHS Act.Make sure you can produce suitable records which show that this is the usual activity of the officers in your organisation

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What do you have to do?

If you dont 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 DutyDevelop, implement, monitor, review WHS procedures and processes to include the active involvement of your officersProvide training to officers to enable them to carry out these functions COMMENSURATE WITH SIZE & NATURE OF YOUR OPERATIONS

Trainers Notes: DUTIESExplain What is the likely impact of the changes?

If you dont have existing arrangements for contractor management and the management of others in the workplace then then you need to:

Identify who will have officer duties in your organisation;Consider using the Elements of due diligence as prescribed in the WHS Act to develop an Officers Statement of DutyDevelop, implement, monitor and review WHS Procedures and processes to include the active involvement of identified officersProvide the necessary training to enable them to carry out these functions effectively And remember your reasonable steps to take should be commensurate to the size, nature of your operations.33

Duties

Must take reasonable care of own health & safetyMust take reasonable care that conduct does not adversely affect othersMust comply, so far as he/she is reasonably able, with instructionsMust cooperate with reasonable notified policies and procedures

Trainers Notes: Duties:Explain:What the WHS Act says ? Workers are required to take reasonable care for their own health and safety at work and to make sure that what they do, or fail to do, does not put others are risk.

Workers are also required to follow all reasonable instructions that are given to them at the workplace and must also the follow all policies and procedures the PCBU has in place and that they have been made aware of. These duties are really the common law duty of care made as a statutory duty under the WHS Act.

Others at the workplace have exactly the same duty as workers to take care of themselves and others and to follow any reasonable direction given BUT ARE NOT required to follow detailed organisational policies and procedures as they would likely be unaware of such policies and procedures.

So what do we mean by reasonable care. Well in legal terms the concept of reasonableness is about considering what a reasonable person would have done in the given circumstances. 34

Did the worker fail to take responsible care?

The assessment of a workers failure to take reasonable care is made relative to the PCBUs 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, andWhether the worker acted intentionally or recklessly

Trainers Notes: DutiesExplain:The assessment of a workers failure to take reasonable care is made relative to the PCBUs actions to do what was reasonably practicable, Remember a workers duty is not issued in isolation, it is imposed and assessed in the context of the PCBUs duty, including the duty to provide the workers with safe systems of work, safe equipment etc, and all necessary information, training and instruction to work safely.

The assessment of whether a worker failed to take reasonable care is therefore made relative to the PCBUs actions to do what was reasonably practicable to ensure their health and safety. If the PCBU failed to meet their duty of care to the extent that was reasonably practicable then the workers ability to take reasonable care will be diminished.

Therefore in determining if a worker has failed to take reasonable care the Court will take taken into account the workers actions or omissions in the context of the following:

The systems of work in place at the timeThe training, information, instruction and supervision provided to the workerWhether the worker was working within their stated role Whether any other worker was placed at risk, andWhether the worker acted intentionally or recklessly

You need to make sure you can provide evidence of all the conditions listed above.35

What is the likely impact of these changes?

Impact in relation to Duties of Workers

Makes responsibility to take care of own health & safety explicitExtends 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 supervisionThis will be a duty you may share with another PCBU

Trainers NotesExplain What is the likely impact of the changes?Impact in relation to Duties of Workers:The impact of these changes on your business may be minimal as the newly expressed duties of workers in the WHS Act are very similar to the existing duties of employees ( only the WHS Act will explicitly state that a worker has a duty to take reasonable care of themselves, which is not explicit in the OHS Act 2000).

The major change is that this duty is imposed on all workers whether they are your employees or not; they may be contractors, labour hire personnel or even volunteers. Even though some of these would have been caught by the existing duty imposed on persons at the workplace, that duty concerned recklessness not reasonableness. The significance of this change for your business is that you need to look closely at the induction and training you give other workers and ensure that you are providing them with sufficient information and instruction and supervision to enable them to be able to take reasonable care while at your workplace.

This may be a duty you share with the person employing or controlling them but you still have a responsibility and you will see when we cover the requirement for consultation that you may need to cooperate, consult and coordinate such activities with the other PCBUs concerned. 36

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.

Trainers NotesExplain What is the likely impact of the changes?Impact in relation to Duties of Others:The new duty on others in a workplace is about reasonable care NOT just recklessnessIt 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 centres etc.

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Differing standards according to the duty holder and the nature of the activity

ACTIVITYDUTIESSTANDARD

PCBU

OFFICER

WORKER

OTHERS at workplacePrimary Duty of CareOther dutiesSpecific duty holdersOfficers duty of care Leadership & Governance Workers to take care of self and othersIncludes supervisory role Other to take care of self and others Follow instructionsREASONABLY PRACTICABLEDUE DILIGENCEREASONABLE CAREREASONABLE CARETrainers NotesExplain In Summary:

In considering the previous session on PCBU and this session on Duties of Officers, workers and others we are now in a position to summarise the duties imposed by the WHS legislation.

This diagram summarises the duties associated with the various activities that take place within an organisation.

The activity is associated with the duty holder on the left hand side:

The PCBU controls the business or undertakingOfficers influence and govern the business or undertakingWorkers do the work and supervise the workOthers have an incidental reason for being at the workplace.

The respective duties of these duty holders are listed in the middle

The standard of compliance applied by the WHS Act is listed on the right hand side. 38

Summary

Officer must ensure the PCBU complies with its dutiesOfficers duty discharged with due diligenceThis duty can not be delegated or transferred Workers to take care of themself & others at workplaceWorkers duty discharged with reasonable careOthers at workplace to take care of themselves Others duty discharged with reasonable careTrainers NotesExplain In Summary:

Officer must ensure the PCBU complies with its dutiesOfficers duty discharged with due diligenceThis duty can not be delegated or transferred Workers to take care of themself & others at workplaceWorkers duty discharged with reasonable careOthers at workplace to take care of themselves Others duty discharged with reasonable care39

04NSW Work Health & Safety Act -Reasonably Practicable

Trainers Notes: Reasonably practicableExplainThis session covers the obligations imposed by the Work Health Safety Act in relation to determining what is reasonably practicable.

It should be covered after the Module on PCBUs.40

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 offenceUnder the WHS Act the prosecution will have to prove the case thus abolishing the current reverse onus of proof situationUnder the WHS Act the obligations of the PCBU will be qualified by reasonably practicable rather than the current absolute duty in the NSW Act

Trainers Notes: Reasonably practicable

Explain

The use of reasonably practicable to qualify the duties of PCBUs rather than the absolute or unqualified duty currently found in the NSW Act represents a significant change. Instead of only being thought about when defending a charge that the law has been breached the use of reasonably practicable to qualify the duty of PCBUs casts the duty in a more positive light. Instead of being a defence it is a positive duty to ensure that persons are protected at work.

In this new use the concept of reasonably practicable is consistent with practice in most other states that have operated under this positive duty for many years.

In relation to any alleged breach of duty it becomes the job of the prosecution to prove the case.

In normal interactions with inspectors who administer the OHS law notice are often written requiring employers to ensure a particular hazard is minimised so far as is reasonably practicable.

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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- 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

Trainers Notes: Reasonably practicable

Explain

The WHS Act outlines the duties of PCBUs (covered in detail in the PCBU module) and qualifies their obligation by the expression so far as is reasonably practicable..How the Act defines Reasonably Practicable18 What is reasonably practicable in ensuring health and safetyIn this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring; and(b) the degree of harm that might result from the hazard or the risk; and(c) what the person concerned knows, or ought reasonably to know, about:(i) the hazard or the risk; and(ii) ways of eliminating or minimising the risk; and(d) the availability and suitability of ways to eliminate or minimise the risk; and(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.42

Reasonably Practicable: getting the balance

Reasonably practicable is the balance between risk and time, effort and cost Likelihood, degree of harm, knowledge etcTime, effort and cost to eliminate or reduce risk

Trainers Notes: Reasonably PracticableExplain

Balance point The balance point is where the time, effort and cost is proportionate to the benefit in risk reduction.

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Reasonably practicable: Getting the balance

Level of time, effort and cost way out of proportion with benefits in risk reductionE.G little likelihood of risk occurring risk/minimal harmHigh level of time, effort and cost to eliminate or reduce risk?

Trainers Notes: Reasonably PracticableExplain

Balance point The concept of reasonably practicable means that where this balance is out of kilter (i.e. where the costs are grossly disproportionate to the benefits of risk reduction) the employer is entitled to introduce prevention measures that are more appropriate to the likely benefitsReasonably practicable also means that the higher the level of risk the greater the time, effort and cost must be taken to eliminate it or reduce it.

Ask

Are there examples in your workplace where you have to achieve this balance?

Discuss with a view to what would be reasonably practicable.44

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 practicableThe 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.Trainers Notes: Reasonably PracticableExplainFacilitate: Group exerciseTo highlight the fact that most hazards and risks are already well covered by risk controls ask the group to nominate three hazards found in their workplace.For each hazard draw a circle and by working through questions such as:Do existing regulations prescribe what has to be done?Are there approved codes that recommend risk controls?Are there industry guides available?Are there well accepted industry practices used?Positive answers to these questions mean that the circle should be shaded in as there is little uncertainty or need for a definition of what is reasonably practicable?Where there are uncertainty gaps see how a standard risk assessment would provide a guide to what is reasonably practicable.45

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 availableConsequently the level at which controls are applied is subject to decisions about reasonably practicable.

Trainers Notes: Reasonably PracticableExplain

Hierarchy of controlWhat is meant by the highest level of protection is best described by the concept of the hierarchy of control.The following questions can guide you through the hierarchy:Can the risk be removed by ceasing the use of substances or stopping particular activities? ELIMINATION. Can materials, equipment or processes be replaced with less hazardous ones?-SUBSTITUTION. Can the source of risk be isolated by barriers or enclosures? - ISOLATIONCan the source of risk be reduced by engineering controls? ENGINEERINGCan the risk be reduced by redesign of the materials, equipment and work process? DESIGNCan the risk be reduced by using safe work practices? - ADMINISTRATIVECan the risk be reduced by using Personal Protective Equipment? - PPE46

Reasonably Practicable: the Hierarchy of Control

STOP OR CHANGE THE ACTIVITY, PRACTICE OR PROCEDUREELIMINATE RISKS (so far as is reasonably practicable) MINIMISE RISKS (so far as is reasonably practicable) SUBSTITUTE WITH SAFER ALTERNATIVEREDESIGN TO REDUCE RISKISOLATE PEOPLE FROM RISKSTOP USING OR CHANGE THE PRODUCT, PROCESS, PLANT OR SUBSTANCEUSE ENGINEERING CONTROLSUSE ADMINISTRATIVE PROCEDURESUSE PROTECTIVE CLOTHING / EQUIPMENTMOST RELIABLE LEAST RELIABLEHighest LEVEL OF PROTECTION LowestTrainers Notes: Reasonably practicable

NOTE:THIS SLIDE IS OPTIONAL (unhide if you want to use)Explain

Diagram illustrates hierarchy and highlights that level of protection and the reliability of the prevention measures. Measures that depend solely on individual awareness (e.g. signage keep clear of edge) are less reliable than engineering or design measures (e.g. edge protection, safety barriers).

The exercise that follows also illustrates the hierarchy in deciding what is reasonably practicable.47

10NSW Work Health & Safety Act -Enforcement

Trainers Notes: EnforcementExplainThis session covers the details related to range of enforcement & penalty options available to ensure compliance & to penalise non compliance with work health and safety laws. 48

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 frameworkTrainers Notes: EnforcementExplainHow is the new Act different?

The WHS Act retains and builds on the enforcement framework found in the current NSW Act. Therefore a considerable part of the enforcement and compliance strategy in the WHS Act is the same or very similar to what we already have.

The major changes concern:A wider range of sanctions for beaches of possible breachesMuch greater penalties for breachesRestrictions on a unions right to bring a prosecution, and Abolition of the reverse onus of proof in prosecutions49

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 NoticeEnforceable UndertakingInjunctionsRemedialProhibition Improvement Non DisturbanceActionNoticeNoticeNoticeTrainers Notes: EnforcementExplain

The WHS Act encourages voluntary compliance by providing for the functions of the Regulator to include the provision of advice to and education of duty holders. Nevertheless an obligation is meaningless if it is not appropriately enforced.

To achieve this the WHS Act provides a graduated regime of enforcement strategies with civil and criminal prosecution being the ultimate sanction. In addition to fines and custodial sentences there will be further options such as: remedial orders, injunctions or enforceable undertakings

While NSW has an existing regime of graduated sanctions similar to that in the WHS Act enforceable undertakings is an alternative that has not previously been available to businesses in NSW. (Category 2 and 3 offences only) 50

Enforceable Undertakings

Penalty NoticeEnforceable UndertakingInjunctionsRemedialProhibition Improvement Non DisturbanceActionNoticeNoticeNoticeWorkCover may accept a WHS undertaking in connection with the matter giving rise to a contravention or an alleged contravention as an alternative to a prosecution

$$ to focus on positive prevention action

NOT Available for Category 1 Offences

Trainers Notes: EnforcementExplainAs an alternative to prosecution the WHS Act introduces the ability for Regulator (WorkCover NSW) to accept a work health and safety undertaking in connection with the matter which has given rise to the non compliance or alleged non compliance with the Act.If administered appropriately this imitative has the potential to be much more effective in achieving the objectives of the Act as the money is diverted away from punitive actions and associated legal expenses towards proactive compliance actions aimed at improving work health and safety.ASK:What do you think would be some examples of enforceable undertakings businesses would be prepared to make?

2 EXAMPLES of Undertakings agreed to by Workplace Health and Safety Queensland where Enforceable undertaking have been operating for some years are listed here: Activities XYZ Contractors Pty Ltd will undertake include:conducting third party audits of the occupational health and safety management system in accordance with the requirements of AS/NZS 4801:2001 at least three times over the life of the undertaking with audit recommendations to be implementeddeveloping a scaffold specific inspection tool for use by company site supervisors and undertake an inspection of all company sites in Queensland that have scaffold, using the inspection tooldevelopment and delivery of a training program for company foremen and supervisors on the management of scaffolding on construction sites development and circulation of an industry alert on the risks associated with the interface between formwork and scaffolding trades on construction sitespreparation and presentation of a case study at specified industry forums regarding the risks associated with the interface between formwork and scaffolding trades at construction sitesproviding support to the Occupational Stress Prevention Program to deliver a number of construction specific outcomes donation of a specified amount to a nominated charity whose aim is improving mental health and wellbeing for workers in the construction industry. This undertaking has a total minimum expenditure of $180 000 (including recoverable departmental costs).

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Enforceable Undertakings

Penalty NoticeEnforceable UndertakingInjunctionsRemedialProhibition Improvement Non DisturbanceActionNoticeNoticeNotice

Trainers Notes: EnforcementExplain

The following criteria apply to enforceable undertakings:

Once accepted , no proceedings can be brought against the person in relation to the contravention giving rise to the undertakingGiving an undertaking does not constitute an admission of guilt by the person who gives the undertaking.The Regulator must give the person who is seeking the undertaking written notice of its decision to accept or reject the undertaking and the reasons for the decision. In addition the Regulator MUST publish on its web site the notice and its decision to accept an undertaking and its reasons why . THIS IS TO ENSURE TRANSPARENCY AND ACCOUNTABILITY in the systemThe undertaking becomes enforceable when the regulators decision to accept the undertaking is given to the person who made the undertaking or at a date specified by the Regulator.It is an offence for a person to contravene an undertaking. If this occurs, the Regulator may commence proceedings for a breach of the Act and apply to the Court for orders requiring the specific performance of the undertaking. 52

The Right to Prosecute

Penalty NoticeEnforceable UndertakingInjunctionsRemedialProhibition Improvement Non DisturbanceActionNoticeNoticeNoticeThe right to bring a prosecution under the WHS Act rests with WorkCover in NSW

A Trade Union can bring a prosecution under the WHS Act in NSW only if:the offence concerned is a Category 3 or,the offence concerned is a Category 1 or a Category 2 offence andWorkCover has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedingsTrainers Notes: EnforcementExplain:

The State Regulator responsible for HSW has the power to bring a prosecution under the WHS Act. In NSW this remains WorkCover.

The Unions right to bring a prosecution under the WHS Act in NSW as been qualified as follows:

The secretary of an industrial organisation can bring proceeding for a breach of the WHS Act in NSW only if:

The offence concerned is a category 3 offencethe offence concerned is a Category 1 offence or a Category 2 offence, and WorkCover has (after referral of the matter to the regulator and the Director of Public Prosecutions) declined to follow the advice of the Director of Public Prosecutions to bring the proceedings

Currently a Registered Trade Union can bring a prosecution against a breach of the legislation and if they are successful in that prosecution the Union is allowed to retain half of the penalty applied for the offence.

DO SOMETHIMNG WITH THIS SLIDE!!!!!!!53

Power of HSR to issue PIN

Penalty NoticeEnforceable UndertakingInjunctionsRemedialProhibition Improvement Non DisturbanceActionNoticeNoticeNoticeTrainers Notes: EnforcementExplain Under the WHS Act HSRs have powers to issue Provisional Improvement Notices but only issues that affect the work group.A HSR can only exercise the powers under this provision if the HSR has:

completed initial HSR training as set out under the regulations, consult with the alleged contravener or likely contravener before issuing a provisional improvement notice.Only if the HSR believes that there is, has or will be a contravention of the Act

This is a new provision in NSW but has been operating in some other jurisdictions for some time.54

Penalty Structure

Penalty NoticeEnforceable UndertakingInjunctionsRemedialProhibition Improvement Non DisturbanceActionNoticeNoticeNoticeTrainers Notes: EnforcementExplain Under the WHS Act HSRs have powers to issue Provisional Improvement Notices but only issues that affect the work group.A HSR can only exercise the powers under this provision if the HSR has:

completed initial HSR training as set out under the regulations, consult with the alleged contravener or likely contravener before issuing a provisional improvement notice.Only if the HSR believes that there is, has or will be a contravention of the Act

This is a new provision in NSW but has been operating in some other jurisdictions for some time.55