1. WORK HEALTH AND SAFETY ACT IMPLICATIONS FOR SENIOR MANAGERS/CEOS
INTRODUCTION TO THE
WORK HEALTH AND SAFETY ACT
IMPLICATIONS FOR SENIOR MANAGERS/CEOS
Trainers Notes
This package provides a brief overview of the major issues likely to impact on senior managers and CEOs.
For each slide there is more detailed information available in a topic module found in the full trainers version.

2. THE KEY CHANGES IN SUMMARY
Penalties for breach of WHS duties divided into 3 categories:
reckless conduct
failure to comply where person exposed to risk of death or serious injury
failure to comply with a duty
Trainers Notes
The review of existing Australian legislation conducted by a Panel of experts who relied on extensive public comment, concluded that new model legislation needed to:
Harmonise the penalty structure based on the degree of culpability or risk
This icon indicates more information can be found in a specific training module on this topic

3. WHAT IS A PCBU?
A PCBU is a person or duty holder such as a company or partnership that operates the business.
Examples of PCBUs would be advertising, installation and production companies, self employed, contractors and sub contractors of these companies
PCBUs are not persons employed solely as workers or volunteer association who do not employ anyone
Trainers Notes
Explain
The WHS Act introduces of the concept of a Person Conducting a Business or Undertaking (PCBU) on whom the Primary Duty of Care is imposed.
The reasoning behind this approach is that anyone who conducts a business or undertaking influences one or more elements that go to the performance of work, and therefore may affect the health and safety of those undertaking the work or others affected by the work undertaken.
You do not necessarily have to employ people to be in a position to influence the way work is done or to have an effect on the health and safety of the people doing the work. The employment relationship is not the basis of the duty of care nor is the workplace.
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

4. WHO IS A WORKER?
A worker is a person who carries out work in any capacity for a PCBU, including work as:
an employee
a contractor or subcontractor
an employee of a contractor or subcontractor
an employee of a labour hire company assigned to work in the business or undertaking
an outworker
an apprentice or trainee
a student on work experience
a volunteer
Trainers Notes
Explain
The duty of care owed by a PCBU is owed to workers in a broadened sense of the word:
The Act defines a worker as:
(1) 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 a volunteer; or
a person of a prescribed class.

5. WHO ARE PCBUs RESPONSIBLE FOR?
PCBUs are responsible for the health and safety of:
Workers - but more than just employees. The new Act does not rely on the employment relationship
Workers could be direct employees, labour hire workers, employees of contractors, apprentices or a student on work experience
Others who could be affected by the business’s activities such as visitors, customers or members of the public
Trainers Notes
Explain:
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 who could be 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 fulfil this duty to the extent that it is reasonably practicable.

6. Section 19(1) of the WHS Act states:
WHAT ARE PCBUs RESPONSIBLE FOR?
Section 19(1) of the WHS Act states:
(1) A PCBU must ensure, so far as is reasonably practicable, the health and safety of:
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 PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons who could be put at risk from work carried out as part of the conduct of the business or undertaking.
It is important to emphasise at this point that the obligation is to fulfil this duty to the extent that it is reasonably practicable.
Model WHS Act

7. WHAT IS MEANT BY REASONABLY PRACTICABLE?
Reasonably practicable represents what can reasonably be done in the circumstances. It takes into account :
The likelihood of the hazard or risk occurring
The degree of harm or possible consequences
The state of knowledge about the risk and the availability and suitability of ways of eliminating or minimising it
Finally, only after consideration of the above points, reasonably practicable takes into account the cost of eliminating hazards or risks
Trainers Notes
Explain
The standard of ‘reasonably practicable’ has been generally accepted for many decades as an appropriate qualifier of the duties of care in most Australian jurisdictions. The core concept of reasonably practicable has not changed in the new Act but the context in which it operates is different. 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.
‘Reasonably practicable’ represents what can reasonably be done in the circumstances. It is an objective standard based on what a reasonable person could be expected to do in the circumstances..
Reasonably practicable takes into account the level or magnitude of risk. The greater is the risk, the greater is the effort that may be needed to eliminate it or minimise it. Similarly the degree of harm or possible consequences need to be considered.
Reasonably practicable also takes into account the state of knowledge about the risk and the availability and suitability of ways of eliminating or minimising it.
Finally, reasonably practicable takes into account the cost of eliminating hazards or risks. This does not mean risks should only be controlled if you can afford it but rather that risks must be controlled unless the cost is grossly disproportionate to the benefits of risk elimination or minimisation.

8. WHO ELSE OWES DUTIES ? Workers and Others
Must take reasonable care of own health & safety
Must take reasonable care that conduct does not adversely affect others
Must comply, so far as he/she is reasonably able, with instructions
In addition workers must cooperate with reasonable notified policies and procedures
Other PCBUs need to ensure their operations do not create a risk for your workplace or workers
Trainers Notes
Explain:
What the WHS Act says ?
Workers are required to take reasonable care of their own health and safety at work and to take reasonable care of others to make sure that what they do or fail to do does not but 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 in the 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 be unaware of such policies and procedures and these are likely not to be relevant to their presence in the workplace.
In legal terms the concept of reasonableness is about considering what a reasonable person would have done in the given circumstances.

9. RESPONSIBILITIES: CONSULTATION
You have to consult with all workers who carry out work or who may be directly affected by a WHS matter
in accordance with Act
on certain matters
with HSR – if workers represented by that HSR
And also consult, cooperate & coordinate activities with other duty holders who share WHS responsibilities
Trainers Notes
Explain
 What the WHS Act says about Consultation
The Obligation on PCBUs to consult can be summarised as follows:
The PCBU must:
MUST consult with workers who may be directly affected by a WHS matter (not just employees)
MUST consult in an effective way (which is detailed in the Act)
MUST consult on certain matters, at certain times (which are also detailed in the Act)
If the workforce has requested Health and Safety Representatives then the consultation is to taken place via the HSR’s
IN ADDITION:
There in now a new obligation on duty holders to consult, cooperate and coordinate activities with each other (duty holders)
Your responsibility to consult is as far as is reasonably practicable or what is reasonable (e.g. how big an issue it is) in the circumstances at the time (e.g. how easy is it to contact and speak to staff). What is reasonably practicable in relation to consultation will depend on:
The size and structure of your business
The nature of the work being carried out and the seriousness of the risk
The nature of the particular decision or action, including the urgency of the need for you to make a decision or to act.
The work arrangements, and the availability of the workers – e.g. shift work, remote work
The characteristics of the workers, including language and literacy levels.
You are not expected to do the impossible but you are expected to take an active and sensible approach to consultation.

10. RESPONSIBILITIES: OFFICER DUTIES
The WHS Act states that if a PCBU has a duty or obligation under the Act, an officer of the PCBU must exercise due diligence to ensure that the PCBU complies with the duty of obligation
An officer is primarily defined by the Corporations Act
This is a positive duty imposed on officers to ensure the organisation is complying
Trainers Notes
Explain
S27 of the WHS Act introduces a duty of Care for Officers.
Officers of companies or other bodies now have a duty to make sure that the organisation which they own or 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.
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, not that of the PCBU. The onus of proving a failure to meet the standard of due diligence is on the prosecution.
The WHS Act clearly defines what officers are expected to do in order to show 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

11. RESPONSIBILITIES: OFFICER DUTIES
To exercise due diligence an officer must take reasonable steps to:
Acquire work health and safety knowledge relevant to the business and keep up to date
Understand the health and safety risks in the business
Provide resources to identify and control risks
Ensure the PCBU has processes to receive and consider information about hazards, risks and incidents
Ensure the PCBU has process to comply with the WHS Act
Verify the provision and use of the above resources and processes
Trainers Notes
Explain
The WHS Act clearly defines what officers are expected to do in order to show 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

12. CEOs and OFFICER DUTIES
The key decision makers such as CEOs and Directors will need to demonstrate due diligence by practices such as:
Ensuring WHS practices and systems are effective
Acting on unsafe practices/ workplaces/incidents- This will include ensuring all reported issues are acted on. Even if they are reported by another PCBU but are about work or structures controlled by you
Regular reporting on safety performance
Ensuring suitable WHS expertise is retained
Trainers Notes
Explain
Both CEOs and Directors are examples of who is likely to be considered an officer. As such they now have a positive duty to ensure the organisation is doing the right thing on WHS. It is not adequate for a Board to assume everything that should be done is being done. They need to understand the issues and take reasonable steps to make sure the company is meeting its obligations.

13. POWERS OF ELECTED HSRS Can only act if Completed initial training
Consulted with the person to whom the notice is issued
Then only if
the representative reasonably believes that a person is contravening a provision of the Act, has contravened a provision of the Act in circumstances that make it likely that the contravention will continue or be repeated
And
Must be in writing and may recommend measures to remedy issue
PCBU can seek review within 7 days. Inspector may cancel, confirm or confirm with modification.
Trainers Notes: HSRs
 Explain
A HSR can only exercise the powers under this provision if the HSR has completed initial HSR training as set out under the regulations, whether for the HSR’s current work group or another workgroup (including a work group of another PCBU).
HSR power to issue PIN
 PINS can only be issued on issues that affect the work group.
 HSRs must consult with the alleged contravenor or likely contravenor before issuing a provisional improvement notice.
 A provisional improvement notice must specify a date for compliance, which must be at least eight days after the notice is issued.
 A person who is issued with a notice must display it in a prominent place at or near the workplace where work affected by the notice is carried out.
It is an offence for a person to not comply with a provisional improvement notice, unless an inspector has been called in to review the notice. If an inspector reviews the notice, it may be confirmed with or without modifications or cancelled. If it is confirmed it is taken to be an improvement notice and may be enforced as such.

14. WHAT’S COVERED IN THE WHS REGULATIONS
PRELIMINARY
REPRESENTATION AND PARTICIPATION
GENERAL RISK & WORKPLACE MANAGEMENT
HAZARDOUS WORK
PLANT AND STRUCTURES
Trainers Notes: Overview
Explain
The WHS Regulations consists of 11 chapters. Some of these chapters will be more relevant to a small business than others, particularly those relating to general risk and workplace management, hazardous work, plant and structure and representation and participation.
Chapter 1: of the WHS Regulation deals largely with administrative matters, including a comprehensive set of definitions.
Chapter 2: deals with representation and participation and provides detailed information about work groups, health and safety representatives, issue resolution and workplace entry permit holders.
Chapter 3: deals with general risk and workplace management and covers the identification and control of workplace risks and prescribed ways of managing WHS concerns common to all workplaces such as training, information and instruction and first aid.
Chapter 4: deals with hazardous work and addresses control measures for issues including noise, confined spaces, falls and licensing of high risk work.
Chapter 5: deals with plant and structures and includes information on general duties for PCBUs who design, manufacture, supply and manage/control plant and structures. The chapter also includes prescriptive requirements for general plant such as guarding and prescriptive requirements for specialised plant such as industrial lift trucks and registration of certain plant and plant designs.

15. WHAT’S COVERED IN THE WHS REGULATIONS
CONSTRUCTION WORK
HAZARDOUS CHEMICALS
ASBESTOS
MAJOR HAZARDOUS FACILITIES
MINES
GENERAL
Trainers Notes: Overview
Explain
Chapter 6: deals specifically with construction work including the duties of key duty holders such as designers, commissioners, principal contractors and workers. The chapter also covers high risk construction work and the requirement for safe work method statements.
Chapter 7: deals with hazardous chemicals including various requirements for labelling, management of risk, emergency plans, storage and handling, health monitoring, information provision, exposure standards and use of symbols.
Chapter 8: is a chapter specifically on asbestos which covers management of risks, demolition and licensing.
Chapter 9: is a specialised chapter dealing with major hazard facilities
Chapter 10: Deals with mines. It is important to note that the inclusion of specific provisions for mine safety directly in to WHS legislation is new for many jurisdictions including NSW.
Chapter 11: is another administrative chapter and among other things deals with reviewable decisions and exemptions.
The following slides will focus on the changes in the WHS Regulations that are considered most relevant to small business

16. Legislative Framework
ACT
REGULATION
Codes of
Practice
WHS Regulations
Australian
Standards
Trainers Notes: Legislative Framework
Explain
The legal framework covering work health and safety in Australia is made up of:
A WHS Act that covers all work situations – the WHS Act is state statutory law. It sets out in broad terms the obligations of duty holders, i.e. it spells out WHAT duty holders must do.
2. WHS Regulations that defines in some detail HOW certain things are to be done – the Regulations are also statutory law and must be followed.
3. Codes of practice that recommend best ways of reducing risks. Codes are not laws but they do set minimum standards and may be relied on when determine the state of knowledge of what is reasonably practicable in the circumstances to which the Code of Practice relates.(s275 WHS Act).
4. Australian Standards are not law unless they are referenced in the legislation. If they are referenced then they become law and must be followed.
5. Industry Standards provide advice and guidance to industry members about how to meet their obligations under the legislation.
6. Guidance Material, such as WorkCover publications, also provide advice to duty holders on the application of the legislation and how duty holders are to meet their obligations.
Industry
Standards
Materials
Guidance

17. Approved Codes of Practice
A practical guide to achieve the standards of health and safety required under the Work Health and Safety (WHS) Act and Regulations
Provide duty holders with guidance on effective ways to manage work health and safety risks
Trainers Notes: Overview.
Explain
Codes of practice play an important role in assisting duty holders to meet the required standard of WHS practices at work. They play an important role in informing duty holders about the “state of knowledge” and industry standards in relation to a particular hazard and must be considered when determining what is “reasonably practicable” to achieve in relation to the control of a particular hazard.
The WHS Act allows for codes of practice to be approved by the Minister responsible for work health and safety legislation in each jurisdiction. The responsible Minister can approve, vary or revoke a Code of Practice that has been developed in accordance with the WHS Act.
For a code of practice to be approved, varied or revoked it needs to be developed through tripartite consultation with Commonwealth, state and territory governments, unions and employer organisations.
The approval, variation or revocation of a code of practice must be published in the government gazette before it takes effect.

18. What is the legal effect of Codes of Practice?
Admissible in court proceedings under the WHS Act and Regulations
May be relied on by courts as evidence of what is known about a hazard, risk or control and in determining what is reasonably practicable
Designed to be used in conjunction with the WHS Act and Regulations but do not have the same legal implications
WHS Act and Regulations may be complied with by following another method if it provides an equivalent or higher standard
An inspector may refer to an approved Code of Practice when issuing an improvement or prohibition notice
Trainers Notes: Overview.
Explain
What is the legal effect of Codes of Practice?
Codes of Practice are admissible in court proceedings under the WHS Act and Regulations. A mistake about, or ignorance of, the existence or contents of an approved code of practice is not an excuse and does not affect its admissibility as evidence.
Courts may regard a Code of Practice as evidence of what is known about a hazard, risk or control and may rely on the Code of Practice in determining what is reasonably practicable in the circumstances to which the Code of Practice relates.
Codes of Practice are designed to be used in conjunction with the WHS Act and Regulations but do not have the same legal implications. A person cannot be prosecuted for failing to comply with a Code of Practice.
The WHS Act and Regulations may be complied with by following another method, such as a technical or an industry standard, if it provides an equivalent or higher standard of work health and safety than the Code of Practice.

19. Codes of Practice PRIORITY CODES
How to manage work health safety risks
WHS Consultation, Cooperation & Coordination
Managing work environment and facilities
Managing noise and preventing hearing loss at work
Hazardous manual tasks
Confined spaces
How to prevent falls at workplaces
Preparation of safety data sheets for hazardous chemicals
Labelling workplace hazardous chemicals
How to manage and control asbestos in the workplace
How to safely remove asbestos
WHS Regulation
Trainers Notes: Overview.
Explain
The draft Codes of Practice listed here are considered to be critical to understanding the duties contained in the WHS Act and Regulations. For this reason, these codes have been developed as a priority so they can be considered concurrently with the WHS Regulations.
It is intended that these Codes of Practice will be supplemented with additional guidance material for specific industries.
Further information:
Safe Work Australia

20. Second Stage Codes of Practice and Guidance Material
First Aid in the Workplace
Demolition Work
Managing Risks in Construction Work
Spray Painting and Powder Coating
Preventing Falls in Housing Construction
Abrasive Blasting
Managing Electrical Risks at the Workplace
Welding and Allied Processes
Managing Risks of Hazardous Chemicals
Safe Access in Tree Trimming and Arboriculture
Managing Risks of Plant in the Workplace
Preventing and Managing Fatigue in the Workplace
Safe Design of Building and Structures
Preventing and Responding to Workplace Bullying
Excavation Work
Trainers Notes: Overview.
Explain
A further 15 draft Codes of Practice have now been released.
Additional Codes of Practice will be developed to support to implementation of the WHS Regulation in 2012 and will be released for public comment in 2012.
Safe Work Australia will continue to provide updates on the development of the Codes and other guidance materials.

21. Transitional arrangements and WorkCover NSW Codes
Existing NSW Codes of Practice can continue to operate until replaced by national Codes of Practice or guidance materials
Where NSW has a Code of Practice on issues that are not specifically regulated, these Codes will become guidance material and must be considered when deciding what is “reasonably practicable”
Trainers Notes: Overview
Explain
Transitional arrangements will apply in areas where no national or “model” Code of Practice or guidance material has been developed by the time that the WHS legislation comes into effect on 1st January This means that the existing NSW Codes of Practice will continue to operate until replaced by model Codes of Practice or guidance material (as per schedule 4 of the WHS Act).
Where NSW has Codes of Practice on issues that are not specifically regulated these Codes will become guidance material and must be considered by a duty holder when determining what is “reasonably practicable”. This guidance material will continue to be considered by Inspectors and the courts when determining what the duty holder should have known or would be reasonably expected to know about a particular workplace hazard.

22. PENALTY STRUCTURE Category 1 Reckless Conduct Category 2
Corporations: $3m
Individuals as a PCBU or Officers of a PCBU: $600k / 5 years jail
Other Individuals : $300k / 5 years jail
Category 1
Reckless Conduct
Corporations: $1.5m
Individuals as a PCBU or Officers of a PCBU: $300k
Other Individuals : $150k
Category 2
Breach High Risk
Corporations: $500k
Individuals as a PCBU or Officers of a PCBU: $100k
Other Individuals : $50k
Category 3
Duty Breach
Trainers Notes
Explain
Three categories of penalties apply to breaches of the work health and safety duties:
• Category 1 - for reckless conduct that exposes an individual to a risk of death or serious injury or illness and is engaged in without reasonable excuse,
• Category 2 - failure to comply with a health and safety duty and exposing an individual to a risk of death or serious injury or illness, and
• Category 3 - failure to comply with a health and safety duty.
Maximum penalties are set according to the category of offence committed and the type of duty holder (i.e. individual, officer or body corporate) convicted of the offence.
The size of the maximum offences for each type of duty holder has significantly increased from existing provisions