WHS ActTrainer’s Workbook

WORK HEALTH SAFETY ACT

TRAINER’S WORKBOOK

“The purpose of learning is KEY LEARNING OUTCOMES

At the conclusion of the training session participants should have achieved the key learning outcomes:

  • An understanding of why the move to nationally harmonised legislation was needed and the objectives of harmonising WHS legislation
  • An understanding of the new terminology introduced by the WHS Act
  • An understanding of the concept of “Person Conducting a Business or Undertaking” (PCBU ) and why this concept has been introduced
  • An ability to identify who will be a PCBU and who will not
  • Knowledge of the primary duty of care obligations owed by a PCBU and who these duties are owed to and the likely impact for your organisation
  • An understanding of the concept of officers, who is an officer under the WHS Act and what are their duties
  • An ability to explain the concept of due diligence and how it is to be demonstrated by officers
  • An understanding of the duties of workers and others at a work place under the WHS Act
  • Ability to explain the measure of reasonable care
  • An understanding of the concept of reasonably practicable in qualifying responsibilities and the capacity to establish what is reasonably practicable
  • Understanding of the incident notification requirements in the WHS Act
  • An understanding of the duty to consult under the WHS Act
  • An understanding of the arrangements for establishing and operating health and safety representatives under the WHS Act
  • An understanding of the requirement to establish a Health and Safety Committee under the WHS Act and Regulations
  • An understanding of the role and function of a Health & Safety Committee under the WHS Act and Regulations
  • Understanding of the requirements for issue resolution in the WHS Act
  • Understanding of the coverage of public safety in the WHS Act
  • A review of the powers of Inspectors
  • An understanding of the graduated regime of enforcement strategies under the WHS Act
  • Knowledge of the changes regarding the right to prosecute and the powers to issue PINS and understanding of the new penalty structure
  • An understanding of the impact of the removal of the reverse onus of proof in NSW
  • Understanding of how decisions are reviewed under the WHS Act
  • An understanding of WHS entry permit holders and their rights and responsibilities in relation to entering workplaces to address WHS issues.
  • An understanding of the obligations of a PCBU in relation to WHS entry permit holders entering the workplace or exercising their rights and powers in the workplace.

COMPLETE CARE SERVICES

Complete Care Services (CCS) is a registered not for profit organisation providing support for people living with a disability within our community.

CCS employs a multidisciplinary team of 50 staff consisting of disability support workers, social workers, case managers, case workers, community workers and administrative staff working across 6 programs. CCS also has an excellent team of volunteers (40) providing “hands-on” assistance in most programs and may use casual employees from an agency when staff are absent.

CCS is committed in ensuring a safe workplace for all our staff, volunteers, service users/clients and visitors to all their worksites. CCS’ OHS Committee meets monthly and is made up of most workgroups.

CCS recognise that their staff and volunteers are their most valuable resource and are committed in ensuring a resilient safety culture is operating throughout their organisation and in all programs. CCS’ Safety Management System has been fully implemented into all programs with effective OHS risk management initiatives and strategies embedded into all their work activities.

Complete Care Services programs consist of:

  • Day program at 3 sites (100 service users/clients) – leased
  • In-Home Support (125 services users/clients)
  • Centre based respite (80 service users/clients) – CCS own building
  • In-Home respite (20 service users/clients)
  • Disability Case Management (100 service users/clients) – leased office
  • Leaving Care Program (25 service users/clients)

PRACTICAL ACTIVITY 1

PCBU, Primary Duty of Care and Other Duties

Questions / Details
Who would be the PCBUs? / Complete Care Services
Department of Housing
Realtors
Staffing Agency
The Primary Duty of Care rests with all four. 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. Everyone who conducts a business or undertaking has a primary duty of care to anyone who can be affected by their operations.
The Dept of Housing and Realtors as controllers of premises are PCBUs with a duty to ensure the health and safety of staff and volunteers working for CCS.
Each of these PCBUs may owe a duty of care to the same people concurrently. This duty is concurrent and not delegable. Each duty holder retains the non-delegable duty of care at all times.
Who needs to consult? / All of the above with workers and with each other when necessary - the employment relationship is not the basis of the duty of care nor is the workplace.
Who would need to be consulted? / CCS workers including sub-contracted and agency staff, volunteers and external PCBUs when appropriate. It is a requirement to consult, cooperate and coordinate with other PCBUs.
Who would be considered the workers in CCS? / Paid staff, volunteers, sub-contracted staff, agency staff plus any work experience people or trainees performing work for CCS
Do visitors have a duty to others at the workplace? / Yes - the WHS Act states that any person at a workplace owes a duty to others – they are totake reasonable care for his or her own health and safety; andtake reasonable care that his or her acts or omissions do not adversely affect the health and safety of other personsand comply, so far as the person is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with this Act
Others include persons at the workplace other than workers or other PCBUs, such as visitors, clients, passers-by, relatives and associates of workers and trespassers.
The important concept in relation to others is the definition of “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 and may therefore not only include traditional workplaces like group homes, day programs and offices but is extended to include roads, parks, private homes, hospitals, shopping centres and other external venues.

PRACTICAL ACTIVITY 2

DIFFERING STANDARDS ACCORDING TO THE DUTY HOLDER

AND THE NATURE OF THE ACTIVITY

Draw a line linking duties and standard to each Duty Holder and Activity

(first one is completed for you)

DUTY HOLDER & ACTIVITY / DUTIES / STANDARD
PCBU / Take care of self and others
Includes Supervisory Role / Reasonable Care
Officer / Primary Duty of Care
Other Duties
Specific Duty Holders / Reasonably Practicable
Worker / Other to Take Care of Self and Others
Follow Instructions / Due Diligence
Others / Officers Duty of Care
Leadership & Governance / Reasonable Care

REASONABLY PRACTICABLE

STATEMENTS / TRUE / FALSE
Reasonably practicable means that if a risk control is costly it does not have to be used. / False - 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 reduction.
There may be circumstances in which a PCBU cannot afford to implement a control that is not so disproportionate to the risk as to beclearly unreasonable. In this circumstance the duty-holder should not engage in the activity that gives rise to that hazard or risk.
Similarly where the risk is extreme (death or serious injury likely) it is unlikely that the cost of control would be seen as disproportionate and thus the best option would be to cease the activity.
Using a risk management approach is the normal way in which reasonably practicable can be defined. / True - 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 reduce 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 reducing it.
‘Reasonably practicable’ represents what can reasonably be done in the circumstances. / True - It is an objective standard based on what a reasonable person who is committed to providing the highest level of protection against risks to a person’s health and safety and who is proactive in taking measures to ensure this protection takes place could be expected to do in the circumstances.

Due Diligence

STATEMENTS / TRUE / FALSE
Officers of organisations or other bodies now have a duty to make sure that the organisation which they manage is meeting all its duties under the Act . / True - They now have a positive duty to ensure their organisation is doing the right thing on WHS.
Both CEOs and Directors are examples of who is likely to be considered an officer. / True
The board of directors need to understand the issues and take reasonable steps to make sure the organisation is meeting its obligations / True - It is not adequate for the 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 organisation is meeting its obligations.
More than one person can have a duty to the same person concurrently. / True - PCBUs and Officers may owe a duty of care to the same people concurrently. This duty is concurrent and not delegable.

PRACTICAL ACTIVITY 3

INCIDENT NOTIFICATION

A Complete Care Services Disability Support Worker sustained an injury to her lower back whilst providing personal care assistance to a bariatric client accessing the Day Program. The DSW was in significant pain and an ambulance was called. The attending ambulance officers transported the injured worker to the local hospital for further treatment.

Is this is a notifiable incident to WorkCover?
It would be if the injured worker was admitted as an in-patient at the hospital.
The WHS Act says serious injury or illness of a person means an injury or illness requiring the person to have:
(a) immediate treatment as an in-patient in a hospital; or
(b) immediate treatment for:
(i) the amputation of any part of his or her body; or
(ii) a serious head injury; or
(iii) a serious eye injury; or
(iv) a serious burn; or
(v) the separation of his or her skin from an underlying tissue (such as degloving or scalping); or
(vi) a spinal injury; or
(vii) the loss of a bodily function; or
(viii) serious lacerations; or
(c) medical treatment within 48 hours of exposure to a substance, and any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.

PRACTICAL ACTIVITY 4

CONSULTATION

STATEMENTS / TRUE/ FALSE
A WHS Committee must be established if requested by a HSR or by 20 workers or if required by the Regulation. / False – it only takes 5 workers to request a WHS committee to be established.
The PCBU can initiate the formation of a Committee. / True
PCBU must, so far as is reasonably practicable, consult with workers who carry out work for the business or undertaking who are, or likely to be, directly affectedby a WHS matter and they may prefer a more formal arrangement of a committee.
No training is mandated for WHScommittees under the new WHS laws. / True - The only training mandated in the WHS Act is for HSRs and only if they request it.
HSR Training is 5 days duration and 1 day refresher training is to be attended annually when requested.
A “bridging” course is being developed for people who already hold WorkCover NSW’s 4 Day OHS Consultation qualification.

PRACTICAL ACTIVITY 5

HEALTH SAFETY REPRESENTATIVES

A CCS disability support worker requests the HSR to follow up his concern about a client who has been engaging in challenging behaviours for the past month. The HSR is advised that the matter has been with ADHC’s Behavioural Clinician for over three weeks but due to current work demands they have not yet been able to review the behaviour support plan.

QUESTIONS / DETAILS
Does the HSR have grounds to issue a PIN? / Possibly –There is insufficient information provided about the degree of risk posed by the challenging behaviours and short-term actions taken by CCS. It depends on whether CCS has upheld its duty to workers and others in the workplace to do what is reasonably practicable to minimise the risk of harm to all.
What must he or she do before a PIN is issued? / The HSR needs to consult with CCS Officers unless they believe the risk of a serious injury or death to a worker(s) is so great and there is no time for consultation. They are also able to issue a cease to work notice – subject to being trained. Otherwise they must demonstrate that they have consulted on the issue and recommended controls and only issue a PIN if not satisfied with the actions taken and no further negotiation is possible.
HSRs that have received the required training by the WHS Act may direct a work group member to cease unsafe work if they have a reasonable concern that to carry out the work would expose the worker to a serious risk, emanating from an immediate or imminent exposure to a hazard. The power is generally confined to the work group they represent.
If a PIN is issued and you and the PCBU disagree, what can you do? / The new Act allows 7 days to seek a review of an Improvement Notice and if a person is not satisfied with the internal review decision they have a further 14 days on being advised to appeal to an external review body.
While the Notice is being reviewed it has no effect.
If the HSR issued a PIN over this issue are there grounds for disqualification? / No - A HSR can be disqualified for performing a function or exercising a power under the Act for an improper purpose, orusing or disclosing any information acquired as an HSR for a purpose unconnected with their role as a HSR.
The regulator or any person who has been adversely affected by these actions may apply to the relevant court to have the HSR disqualified from office

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