Work Health & Safety Act (SA) 2012 - SISA...• AS/NZS 1576 Scaffolding (Parts 1 – 4); • AS1735 Lifts, escalators and moving walks;’AS1755 Conveyors – Safety requirements;

© Donaldson Walsh August 13 Liability limited by a scheme approved under the Professional Standards Legislation © Donaldson Walsh

Work Health & Safety Act (SA) 2012

© Donaldson Walsh August 13

Disclaimer

The notes in these slides are brief comments on the matters that

are discussed. They do not constitute advice and should not be

relied on without independent verification or appropriate

professional advice.


Time Frame

• Intergovernmental agreement for a harmonised Work Health

and Safety regime – around 2009;

• Model Work Health & Safety Act;

• Now passed in all states except Victoria and WA;

• Work Health & Safety Act (WHS Act) came into effect in

South Australia on 1 January 2013;

• WHS Regulations came into effect on 1 January 2013 with

some exceptions:

- Regulation 58 re audiometric testing of workers regularly

required to wear hearing protection;


Time Frame (cont’d)

- Regulation 164A re provision of residual current devices;

- Certain regulations re: diving work; construction work;

hazardous chemicals; asbestos

deferred until 1 January 2014 (and certain regulations re

asbestos deferred until 1 January 2015).

• Transitional provisions relating to appointments and elected

positions, health and safety representatives, authorisations,

records, high risk work licences, asbestos removal licences –

see SafeWork SA website.

• Note - s277 – Minister to conduct review of Act after 1 and

3 years, and must table written report in Parliament.


Regulations

• Representation and Participation

• General Risk and Workplace Management

• Hazardous Work

• Plant and Structures

• Construction Work

• Hazardous Chemicals

• Asbestos

• Major Hazard Facilities

• Mines


Codes of Practice s275 COP are admissible in Court proceedings as evidence of whether a duty has been complied with; what

is known about a hazard / risk; what is reasonably practicable

Operational from 1/1/13 • How to Manage Work Health and Safety Risks

• Hazardous Manual Tasks

• Managing the Risks of Falls at Workplaces

• Labelling of Workplace Hazardous Chemicals

• Preparation of Safety Data Sheets for Hazardous Chemicals

• Confined Spaces

• Managing Noise and Preventing Hearing Loss at Work

• Managing the Work Environment and Facilities

• Work Health and Safety Consultation, Cooperation and Coordination

• How to Safely Remove Asbestos

• How to Manage and Control Asbestos in the Workplace

• First Aid in the Workplace

• Construction Work

• Preventing Falls in Housing Construction

• Managing Risks of Plant in the Workplace


Codes of Practice (cont’d) Operational from 1/1/13

• Managing Risks of Hazardous Chemicals in the Workplace

• Safe Design of Structures

• Managing Electrical Risks at the Workplace

• Demolition Work

• Excavation Work

• Welding Processes

• Spray Painting and Powder Coating

• Abrasive Blasting


Codes of Practice (cont’d) Regulation 739 – certain existing codes will continue to operate

until national codes developed: • Approved COP for Working Hours

• National COP for Precast, Tilt Up and Concrete Elements in Building

Construction;

• Approved COP for Tuna Farm Diving;

• AS/NZ 1200 Pressure Equipment;

• AS 4024.3001 Safety of machinery-Materials forming and shearing-Mechanical

• AS1418 Cranes, including hoists and winches;

• AS/NZS 1576 Scaffolding (Parts 1 – 4);

• AS1735 Lifts, escalators and moving walks;’AS1755 Conveyors – Safety

requirements;

• AS3533 Amusement rides and devices;

• AS2030 Gas cylinders;’;AS2550 Cranes, hoists and winches – Safe use;

• AS2593 Boilers – Safety management and supervision systems;

• AS/NZS3788 Pressure equipment – in service inspection;


Codes of Practice (cont’d) Further national COP to be issued

(Anticipated in first half of 2013)

• Preventing and Responding to Workplace Bullying

(Awaiting approval by Ministerial Council on Workplace Relations)

• Working in the vicinity of overhead and underground electric lines

• Safe design, manufacture, import and supply of Plant

• Traffic Management in Workplaces

• Managing cash-in-transit security risks

• Scaffolds and scaffolding work

• Tree trimming and removal work – crane access method

• Industrial Lift Trucks

• Managing risks of plant in rural workplaces

• Cranes

• Managing risks in forestry operation.


GUIDES Produced by SafeWork Australia

• Guide to Model WHS Act

• Guidance on the Interpretation of Workplace exposure standards for airborne contaminants

• Guide for Preventing and Respondind to Cyanide Poisoning in the Workplace

• Controlling Risks associated with Electroplating guide.

• Guide to Managing Risks associated with Foundry Work.

• Guidance of the Classification of Hazardous Chemicals under the WHS Regs.

• Health Monitoring for Exposure to Hazardous Chemicals (guide for workers and guide for

medical practitioners).

• Hazardous Chemicals Requiring Health Monitoring.

• Major Hazards Facilities guides.

• Guide for Managing Risks Involving Heritage Plant.

• Safe Handling and Use of Carbon Nanotubes.

• Guide to the Model WHS Regulations.

• Worker Representation and Participation Guide.

• How to Determine what is Reasonably Practicable to Meet a H & S Duty.

• Cash Handling.

• Managing the Risks of Fatigue at Work (DRAFT).


Significant Changes • Wider application – worker/workplace definition extended

• New concept - Person conducting a business or undertaking (PCBU)

• Positive duty on company officers to exercise ongoing due diligence to ensure PCBU’s compliance with health and safety duties

• Consultation obligations

• Right of entry for unions

• New offences re discriminatory, coercive and misleading conduct.

• Civil penalty provisions (civil breaches)

• Increased penalties


Objects of the Act

• To provide for a balanced and nationally consistent

framework to secure the health and safety of workers and

workplaces by:

• providing workers and others with the highest level of

protection against harm to health safety and welfare as is

reasonably practicable;

• providing fair and effective workplace representation,

consultation, cooperation and issue resolution;

• encouraging improvements in WHS;

• Promoting the provision of advice, information,

education and training;


Objects of the Act (cont’d)

• securing compliance with the Act and ensuring scrutiny

and review of actions by persons exercising

power/performing functions under the Act;

• maintaining and strengthening national harmonisation of

laws and facilitating a consistent national approach to

WHS.


Health & Safety Duties

Four classes of duty holders:

• Person Conducting a Business or Undertaking - PCBU –

principal duty holder

• Workers

• Officers of PCBU

• Other persons in the workplace


Change: Wider Application - Worker – s7 • Person who carries out work in any capacity for a PCBU

including: • Employee; • Contractor/sub-contractor and their employees; • Employee of a labour hire company • Outworker; • Apprentice or trainee; • Student gaining work experience; • Volunteer • Self-employed person (in their capacity as a worker)


Wider Application - Workplace – s8 • The place where workers carry out the business or

undertaking including any place where a worker goes or is likely to be while at work;

• Includes vehicles, vessels, aircraft or other mobile structures and water, installations on land, on the bed of any waters or floating on any water.


Change: New Concept - Person Conducting

a Business or Undertaking (PCBU) - s 5

• A natural person or business entity:

• conducting business/undertaking alone or with others

• conducting business/undertaking regardless of profit or

gain

(excludes volunteer associations that do not employ

staff)

• Partnerships and unincorporated associations

• Sole traders


Primary Duty of Care – s 19

PCBU must ensure so far as reasonably practicable:

• the health or safety of workers:

• who they engage/cause to be engaged; and

• whose activities in carrying out work they can influence

or direct.

while the workers are at the work in the business or

undertaking; and

• that the health and safety of other persons is not put at risk

from the work carried out.


Satisfying the Primary Duty of Care – s19

Ensuring, so far as reasonably practicable the:

• provision and maintenance of a safe work environment

• provision and maintenance of safe plant and structures

• provision of maintenance of safe systems of work

• safe use, handling and storage of plant, structures and

substances

• provision of adequate facilities for the welfare of workers at

work;


Satisfying the Primary Duty of Care (cont’d)

• provision of information, training, instruction or supervision

• monitoring of health of workers and workplace conditions.


Further Duties of PCBUs - ss 20-26

PCBUs which:

• manage/control workplace, fixture, fittings or plant

• design plant, substances or structures

• manufacture plant, substances or structures

• import plant, substances or structures

• supply plant, substances or structures

• install, construct or commission plant or structures

have a duty to remove or reduce the risk to health and safety to

any persons, so far as reasonably practicable.


Duties of Workers and Other Persons

(including Volunteers) - ss 28 & 29

• Take reasonable care for their own health and safety;

• Take reasonable care that their acts or omissions do not

adversely affect the health and safety of other persons;

• Comply, so far as reasonably able, with reasonable

instructions given by PCBU to enable PCBU to comply

with the Act;

• (for workers) cooperate with any reasonable policy or

procedure of PCBU relating to workplace health or safety

that they have been notified of.


Health & Safety Duties – ss 13-17

Principles

• A duty to “ensure health and safety” requires a person to

eliminate risks to h & s, so far as reasonably practicable, or

if not reasonably practicable, to minimise risks so far as

reasonably practicable, to the extent which a person has the

capacity to influence and control the matter, or would have

that capacity but for an agreement or arrangement

purporting to limit that or remove that capacity.

• Non-transferrable.

• A person can have more than one duty.

• More than one person can hold the same duty.


Health & Safety Duties

Principles (cont’d)

• Each duty holder must comply with the duty, even if

another duty holder has the same duty.

• Each duty holder must discharge the duty to the extent to

which they have the capacity to influence and control the

matter.

• A person with concurrent duties must consult, cooperate

and coordinate activities with all other persons who have a

duty in relation to the same matter. (Section 46)


CHANGE -

Duty of Due Diligence by“Officers” of PCBU

Officers - s 4 • Officer of Crown or public authority

• As defined in Section 9 of the Corporations Act (Cth) 2001

(other than a partner in a partnership), namely:

• Director or Secretary of corporation;

• Receiver/Administrator/Liquidator of corporation;

• Trustee or other person administering a compromise or

arrangement made between the corporation and someone

else; or


Officers - s 4 (cont) (Section 9 of the Corporations Act (Cth) 2001 cont

• A person who:

• makes or participates in making decisions affecting the

whole or substantial part of the business of the

Corporation; or

• who has capacity to significantly affect the financial

standing of the business; or

• in accordance with whose instructions or wishes the

Directors of the corporation are accustomed to act.


Officers – definition

• person who makes or participates in making decisions

affecting the whole or substantial part of the business, or

who has capacity to significantly affect the financial

standing of the business; or who has the capacity to

affect significantly the corporation’s financial standing;

or in accordance with whose instructions or wishes the

Directors are accustomed to act.


Officers – definition Hodgson V Amcor [2012] VSC 94

In determining whether a former senior manager of a company was an “officer”

pursuant to Section 9, Court considered:

• Level of manager’s capital expenditure authority - here, limit of $250,000

indicated that he might not be an officer;

• Who he reported to – if report directly to Board, may be an officer, even if

not, may be an officer if “capable of dealing directly with Board members”;

• What the extent of his “domain” was – here he headed and managed the

largest division of the company – suggesting he was an officer;

• Whether he had control over his own budget – if so, indicates an officer;

• To what extent did staff report to him? Here – he had oversight of a

significant number of staff suggesting he was an officer.


Officers – definition Shafron v ASIC [2012] HCA 18 - “participation” does not require that be ultimate decision maker – sufficient if

involved in decision making process (but mere administrative involvement

not sufficient)

Here, determinative factors were:

• One of three senior executives responsible for formulating and presenting

proposals to the Board;

• An employee (rather than external adviser);

• He went behyon proferring advice and information to Board – instead,

played an active role in formulating the proposal in question that he and

others put to the Board.


Officers – definition Lessons from Shafron v ASIC : - A job description purporting to distinguish between administrative and other

duties may not be determinative if in reality responsibilities merge and overlap;

- Person can “participate” in making decisions without being the decision maker;

- Participation is more than an administrative arrangement, there must be a real

contribution from the participation to the decision making;

- The notion of participating in making decisions is a question of fact;

- An inquiry into who is an officer should extend to the role the individual plays

generally within the corporation, not simply the role the person played in relation

to the particular issue / act in question.


Officers • Definition - much broader (NB – can be someone outside

organisation, eg CEO of parent company)

• Clearly, Board members, CEO, CFO, COO, Gen

Manager would be officers.

• What about HR managers, WHS managers and advisers;

supervisors, “middle management”?

Safework SA says “HR and OHS managers, supervisors

or WHS advisers are not generally officers for WHS

purposes” - BUT – depends on each case –

circumstances of the PCBU, size, organisational

structure, etc.


Officers – Due Diligence - s 27

• Officers are required to exercise due diligence to ensure

compliance by the business or undertaking with its health

and safety obligations.

• Due diligence includes taking reasonable steps to:

• acquire and update knowledge of work health and safety

matters;

• gain an understanding of the nature and operations of the

business or undertaking and the hazards and risks

associated with those operations;


Officers – Due Diligence (cont’d)

• ensure the provision and use of appropriate resources

and processes to identify, eliminate or minimise hazards

and risks to health and safety from work carried out as

part of the conduct of the business or undertaking;

• ensure appropriate processes for receiving and

responding to information about incidents, hazards and

risks;

• ensure the PCBU institutes and implements the processes

for compliance with its obligations under the Act;

• verify the provision and use of resources and processes

referred to above


Failure to Exercise Due Diligence – s 27

Officers can be found guilty of a criminal offence for failing to

exercise due diligence, even if the PCBU itself is not found

guilty of an offence – penalties of up to $600,000 (if

recklessness involved) and 5 years jail.


Due Diligence

• More stringent than “reasonable care” (1986 Act)

• Whether “reasonable steps” taken is an objective test –

Officer’s own views not relevant


Due Diligence IN A PRACTICAL SENSE, DUTY REQUIRES: • Understand PCBU obligations pursuant to the Act, and keep up to date

(ALL obligations);

• Understand the risks in business, operations performed, and how people can

be injured or hurt – duty requires positive steps to understand operations,

become familiar with work and potential adverse effects and consequences;

• Have a Safety Management System in place – ensure it is adequate,

properly resourced, regularly reviewed and updated (including consultation

with workers pursuant to s49);

• Ensure business has appropriate processes for handling and dealing with

information re incidents, hazards and risks, notification, consultation,

instruction and training;

• Develop and encourage a proactive safety culture – actively looking for

safety issues / problems.


Due Diligence Inspector Kumar v Ritchie [2006] NSWIRComm 323

Very high standard .

Not sufficient for CEO of global company (Director of constituent company

guilty of OHS contravention) to rely on expertise of others.

Not aware of specific legal obligations.

Not aware of specifics re the operations involved, and associated hazards /

risks associated with.

DEMONSTRATES – despite wide responsibilities of directors, senior

management will be expected to have a high degree of attention to detail.

?? Too onerous???


Due Diligence Inspector Aldred v Herbert [2007] NSWIRComm 170

Not sufficient to employ competent managers who possess relevant

experience and expertise – must also make consistent and ongoing enquiries

to ensure that management was capable and competent of carrying out the

corporation’s statutory obligations. –M

The directors minds should be concentrated on likely risks to safety involved

in running the business or in addressing procedures or processes to expose

any risks to safety.

No answer to say that the directors did not have the necessary expertise to

identify and address the risks in question.


Due Diligence Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163

Employee seriously injured while assisting in the lift by a crane of a large

steel plate.

Directors had ensured comprehensive safety policies, and demonstrated a

commitment to safety. BUT the manager supervising the task did not have

appropriate qualifications re dogging work. Defendant company held a

qualification register which showed that the manager DID have appropriate

qualifications. Directors relied on the register but it was wrong.

Court noted – the system of recording qualifications was defective –

qualification should not be recorded unless certification sighted. Directors

should have ensured a proper system of recording qualifications especially

where the qualifications had implications for safety.

Therefore directors did not exercise due diligence.


CHANGE – CONSULTATION

PCBU duty of consultation - ss 46-49 So far as reasonably practicable, consult with workers who are

likely to be directly affected by work, health and safety matter.

Consultation must:

• be in accordance with any agreed procedures.

• be effective (i.e. share relevant information with workers,

give workers opportunity to raise reviews and contribution to

decision-making, take their views in account, advise of

outcomes);

• involve any health and safety representative

• ‘VERTICAL CONSULTATION:


• Consultation (cont’d) Section 49 - PCBU must consult when:

• identifying hazards / assessing risks;

• making decisions re elimination or minimisation of risks;

• making decisions re adequacy of facilities;

• proposing changes that might affect health and safety;

• making decisions re procedures for: consultation; resolution

of health and safety issues; monitoring workers’ health &

work conditions; providing information and training.


• Consultation (cont’d) • ALSO obligations for HORIZONTAL consultation – duty to

consult, co-operate and co-ordinate with others who have a

duty in relation to the same matter (Section 46)


Consultation (cont’d)

• Penalties for failure to consult:

• $20,000 for individuals

• $100,000 for corporations


Consultation

Comcare v Commonwealth of Australia [2012] FCA 1419

(Under old OHS laws)

Officer Cadet injured by an unguarded moving propeller of

an inflatable boat. Six previous incident within the ADF

and various reports, safety case reviews prepared but not

reported to the Aust Defence Force Academy. Therefore

ADFA did not have information that might have prompted it

to take appropriate action (installing full propeller guards).

Judge Griffiths stressed the need for ADF to ensure

effective systems to communicate and share health and

safety information across all sections of ADF –

HORIZONTAL CONSULTATION.


CHANGE – RIGHT OF ENTRY TO UNIONS Workplace entry by WHS entry permit holders • WHS permits issued to union officials that meet

eligibility criteria (completed prescribed training, is holds entry permit under SA or Federal Fair Work Act)

• WHS permit holders have prescribed powers • Inspect plant and substances • Consult with workers and PCBUs • Inspect relevant documents • Warn workers of exposure to imminent or

immediate risk to health and safety


Workplace entry by WHS entry permit holders (Cont’d) • Restrictions on exercise of powers

• Notice of entry 1 – 14 days prior (except in limited cases)

• Time (usual working hours) & place

• Obligations of permit holder

• Abide by permit conditions

• Do not act in improper manner

• Do not intentionally hinder or obstruct PCBU or workers


Workplace entry by WHS entry permit holders (Cont’d) • Permit holders prohibited from:

• Entering workplace unless they hold a FW Act entry permit

• Entering unless they comply with PCBU’s reasonable requests to comply with WHS requirements that apply

• Intentionally and unreasonably delay, hinder or obstruct persons or work at a workplace

• Failure of permit holder to comply will attract civil penalty of $10,000

• Can also result in revocation of a permit


Workplace entry by WHS entry permit holders (Cont’d) • Obligation of persons not to:

• Refuse or unduly delay entry without reasonable excuse

• Intentionally and unreasonably hinder or obstruct permit holder from entering or exercising a right

• Take action, intending or being reckless about whether the impression is given that doing something is authorised, when it is not

• Penalty: $10,000; $50,000


Workplace entry by WHS entry permit holders (Cont’d) • Disputes about entry to workplace

• Party to the dispute can request that SafeWork SA appoint an inspector to attend and assist in its resolution

• Resolution can be attempted through mediation, conciliation, arbitration or other nominated means


CHANGE – NEW OFFENCES Discriminatory, coercive and misleading

conduct

Discriminatory conduct

• Engaging in discriminatory conduct/inducing, instructing or requesting etc others to engage in discriminatory conduct for a prohibited reason.

• Prohibited reasons include:

• Matters relating to the performance of functions under the Act;

• Acting to ensure compliance with the Act;

• Raising worker health and safety issues.


Discriminatory, coercive and misleading conduct (Cont’d)

Coercive conduct

• Taking or threatening action with the intention of coercing or inducing a person to fail to fulfill a function or exercise power under the Act

Misleading conduct

• Knowingly or recklessly making a false or misleading representation to another about matters arising under the Act, if the person to whom the representation was made would be expected to rely upon it.


Discriminatory, coercive and misleading conduct (Cont’d)

Criminal and civil penalties apply

• Individual: $100,000

• Body corporate: $500,000

Civil remedies available include:

• Injunctions;

• Payment of compensation;

• Reinstatement of employment.


CHANGE – civil breaches

• Civil Penalty Provisions (civil breaches) are new to South Australia

• Proceedings for a contravention of a WHS civil penalty provision – brought by the regulator or an inspector with the authority of the regulator

• Civil Proceedings can be brought for breaches of: right of entry provisions; provisions re discriminatory, coercive or misleading conduct – within 2 years

• Penalties can include: monetary penalties; compensation; reinstatement; injunctions

• Criminal proceedings can be commenced for same / similar conduct.


CHANGE - Increased Penalties

Penalties under WHS are significantly greater than

under previous legislation.


Offences - ss 30-33 Failure to Comply with health and safety duty

Category 1 – Reckless Conduct

Engaging in conduct exposing individuals to risk of death

or serious injury/illness, being reckless to that risk.

Maximum penalties:

Individual (other than a PCBU/Officer) – $300,000 and /or

five years imprisonment;

PCBU (individual) or officer – $600,00 and / or five

years imprisonment;

Body corporate - $3 million


Offences (cont’d) Category 2

Exposing individuals to risk of death or serious

injury/illness.

Maximum penalties:

Individual (other than a PCBU/Officer) – $150,000;

PCBU (individual) or officer – $300,000;

Body corporate - $1.5 million


Offences (cont’d)

Category 3

Maximum penalties:

Individual (other than a PCBU/Officer) – $50,000;

PCBU (individual) or officer – $100,000;

Body corporate - $500,000.

Documents

Work Health & Safety Act (SA) 2012 - SISA...• AS/NZS 1576 Scaffolding (Parts 1 – 4); • AS1735 Lifts, escalators and moving walks;’AS1755 Conveyors – Safety requirements;