1. WHS Act – Awareness Course for Union Members Module 3 Health and Safety Duties Under the WHS Act

2. www.nsca.org.au2 Health and Safety Duties This module covers health and safety duties under the WHS Act including:  Key concepts of health and safety duties  The meaning of ‘reasonably practicable’  Primary duty of care  Further duties of PCBUs including those who:  manage /control workplaces and/or fixtures, fittings or plant  design, manufacture, import, supply, install, commission or construct plant, substances and structures  Duties of officers, workers and other persons in the workplace  Failure to comply – Category 1, 2 and 3 offences WHS Act s13-24

3. www.nsca.org.au3 Consider a commercial building in the city with tenants such as legal firms, advertising agencies, financial agents and brokers some of whom use labour hire and who have clients regularly visiting the building. A sports association also has an office which volunteers visit. The property manager engages a variety of contractors, such as cleaners, tradesmen and security to maintain the building. Under current OHS legislation:  Who has duties now and to whom?  Who are the employees, what are their duties and to whom do they owe those duties?  Who are ‘others’ in the workplace and what are their duties? Health and Safety Duties - Scenario -

4. www.nsca.org.au4 Persons with health and safety duties Persons who currently have duties:  Employers  Controllers of work premises, plant or substances  Designers, suppliers and manufacturers of plant and substances  Self-employed persons  Employees  Directors and managers Persons with duties under the WHS Act:  PCBUs including manufacturers, suppliers, importers or persons with management or control of workplaces, fixtures and fittings.  PCBUs who install, commission or construct plant, structures or substances.  Self-employed persons  Workers  Officers  Others at the workplace WHS Act s4

5. www.nsca.org.au5 Health and Safety Duties A person with a duty to ensure health and safety under the WHS Act is required to:  Eliminate risks to health and safety so far as is ‘reasonably practicable’. Example: Removing the chemicals and using other methods to clean, such as water blasting.  Where elimination is not reasonably practicable, minimise those risks so far as is reasonably practicable. Example: A cleaning chemical is still required but a safer substance is chosen for use. WHS Act s17-18

6. www.nsca.org.au6 Where would you find information to assist in doing what would be considered to be ‘reasonably practicable? Health and Safety Duties ‘Reasonably practicable’ is based on: Likelihood of the hazard or risk occurring Level of harm from exposure to the hazard What is known about the hazard or risk What is known about how to eliminate or minimise the risk Whether the cost of eliminating or minimising the risk far exceeds the risk Availability and suitability of ways to eliminate or minimise WHS Act s18

7. www.nsca.org.au7 Health and Safety Duties - PCBUs - PCBUs have a ‘primary duty of care’ to ensure, so far as is reasonably practicable, the health and safety of:  workers engaged directly or indirectly by the PCBU;  workers whose work activities are influenced or directed by the PCBU; and  other persons present where work activities are being conducted. What might the PCBU have to do to meet this duty of care? WHS Act s19

8. www.nsca.org.au8 Health and Safety Duties - PCBUs - Duties of PCBUs to meet this primary duty of care are similar to current requirements and include provision of:  Safe work environments  Safe systems of work  Safe plant and structures  Safe substances  Facilities  Information, instruction, training and supervision  Monitoring of workers’ health and workplace conditions  Workers’ accommodation (an additional requirement) where provided/required for work. See Fact Sheet 3 for other duties of PCBUs. WHS Act s19

9. www.nsca.org.au9 Health and Safety Duties - PCBU - PCBUs involved in the:  Management or control of workplaces – including the means of entering and exiting the workplace  Management or control of fixtures, fittings or plant have a duty to eliminate or minimise risks to health and safety (i.e. a primary duty of care) over the matters they control in relation to these workplaces, fixtures, fittings or plant. WHS Act s20-21

10. www.nsca.org.au10 Health and Safety Duties - PCBU - PCBUs also have a ‘primary duty of care’ to ensure health and safety where they are involved in the:  Design  Manufacture  Import  Supply  Installation, commission or construction of plant, substances and structures. This includes assembly, use, handling, storage, disposal, provision of current relevant information etc. WHS Act s22-26

11. www.nsca.org.au11 Health and Safety Duties - Officers - Duty of Officers  Officers of the PCBU are required to exercise ‘due diligence’ to ensure the PCBU complies with their duties and obligations. Who are ‘officers’ in your workplace? What might they have to do to show they are using ‘due diligence’? WHS Act s27

12. www.nsca.org.au12 Health and Safety Duties ‘ Due diligence’ means taking reasonable steps:  to gain and update knowledge of work health and safety  in understanding the operations and the general hazards/risks  for appropriate resources to eliminate/minimise risks  in managing information about incidents, hazards and risks  to implement processes to comply with duties (e.g. reporting notifiable incidents, consultation, provision of training)  to verify that resources and processes have been provided, and their use. WHS Act s27(5)

13. www.nsca.org.au13 Health and Safety Duties Duties of workers Workers, as defined under the WHS Act, are required to:  Take reasonable care for their own health and safety  Take reasonable care to ensure acts/omissions do not adversely affect others health and safety  Comply with reasonable instructions from the PCBU  Co-operate with policy or procedures of the PCBU What might you have to do as a worker to meet these duties? WHS Act s28

14. www.nsca.org.au14 Health and Safety Duties Right to cease unsafe work Workers have the right to cease or refuse to carry out work if:  they have a reasonable concern that the work would expose them to a serious risk to health and safety from an immediate or imminent exposure to a hazard.  A worker may also be directed to cease unsafe work by their Health and Safety Representative (HSR). WHS Act s84-85

15. www.nsca.org.au15 Health and Safety Duties Duties of self-employed persons Self-employed persons have:  a duty to ensure their own work health and safety  health and safety duties as a PCBU How might a self-employed person ensure their own health and safety? For example, using electrical equipment that has been tested, tagged and checked before use. WHS Act s19(5)

16. www.nsca.org.au16 Health and Safety Duties Other persons at the workplace (an expanded duty under WHS Act) Other persons at a workplace (e.g. visitor, shopper) have a duty to:  take reasonable care for his or her own health and safety;  take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and  comply, so far as reasonably able, with any reasonable instruction given by the PCBU to allow the PCBU to comply with their duties. WHS Act s29

17. www.nsca.org.au17 Consider our earlier scenario: Under the WHS Act:  Who has duties as a PCBU and to whom?  Who are the workers, what are their duties and to whom do they owe those duties?  Who are ‘others’ in the workplace and what are their duties? Health and Safety Duties - Scenario -

18. www.nsca.org.au18 Health and Safety Duties Other key concepts of duties under the WHS Act:  A duty cannot be transferred to another person. Example: A business owner cannot transfer duties to a supervisor.  A person can have more than one duty. Example: A person who conducts a business manufacturing and selling equipment for use at work.  More than one person can have a duty. Example: A contractor and the business owner of the workplace where the work is being done can have the same duties. WHS Act s14-16

19. www.nsca.org.au19 Based on our previous scenario:  Can the labour hire company transfer their duty to the legal firm?  Who do the labour hire business owe duties to? Is it more than one person?  Does more than one person have the same duty throughout this building? Health and Safety Duties - Scenario -

20. www.nsca.org.au20 Health and Safety Duties Offences and penalties A person commits an offence against the WHS Act under the following categories. Category 1 - Reckless conduct A person commits a Category 1 offence if they:  have a health and safety duty; and  without reasonable excuse expose a person to a risk of death, serious injury or illness;  are reckless as to the risk of the individual of death or serious injury or illness. WHS Act s31, s230-236

21. www.nsca.org.au21 Health and Safety Duties Category 2 - Failure to comply with health and safety duty A person commits a Category 2 offence if:  the person has a duty, fails in that duty and exposes a person to death or serious injury or illness as a result of this failure. Category 3 - Failure to comply with health and safety duty A person commits a Category 3 offence if:  the person has a health and safety duty and they fail to comply with that duty. WHS Act s32 and s33

22. www.nsca.org.au22 Penalties under the WHS Act Failure to comply with Health and Safety duty Individual Individual conducting a PCBU or Officer of a PCBU Body Corporate Category 1 $300,000 or 5 years imprisonment or both $600,000 or 5 years imprisonment or both. $3,000,000 Category 2$ 150,000$300,000$1,500,000 Category 3$50,000$100,000$500,000 WHS Act s30-34

23. www.nsca.org.au23 Module 3 - Activity -  The facilitator will divide the group into smaller groups to review the scenarios in the Activity.  The group will come back together to discuss the answers.