APPLICATION OF THE NEW WORK HEALTH AND SAFETY LEGISLATION

1. APPLICATION OF THE NEW WORK HEALTH AND SAFETY LEGISLATION NSW WHS Regulation 2011

2. Agenda • Path to Harmonisation -recap on key changes • Key Areas-WHS Regulation • Representation and participation • General risk and workplace management • Hazardous work • Plant and structures • Hazardous chemicals & Asbestos • Other key areas e.g. construction • Reviewing your Safety System

3. Where are we now? • Five jurisdictions have implemented the new laws • Commonwealth, QLD, NSW, ACT, NT • Tas to commence 1.1.2013

4. WHS Act - Refresher

5. Duty Holders - Recap PCBU Is the entity that operates the business or undertaking-corporate or natural person Worker PCBUs are not persons employed solely as workers, nor volunteer associations who do not employ anyone.

6. Duty Holders - Officers Responsibilities Officers Exercise Due Diligence Ensure PCBU complies This is a positive duty allocated to officers in their own right An officer may be found guilty of an offence whether or not the PCBU has been found guilty or convicted of an offence

7. What is Reasonably Practicable? • In WHS Legislation 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” • Relevant matters include: • The likelihood of the hazard or risk occurring • Degree of harm that might result from the hazard or the risk • What the person concerned knows or ought reasonably to know • The availability and suitability of controls to eliminate or minimise the risk • Cost associated with eliminating or minimising the risk

8. Failing to meet Duties - Penalty Structure

9. WHS Regulation - Snapshot

10. Key changes - WHS Regulation • HSRs may now request a review of a control measure. • Risk management- focusis on the safety outcome rather than the process; a written risk assessment may not be required in all situations. • Number and content of first aid kits or number of trained first aid staff is not prescribed. • New requirement to test the emergency plan in line with the issues prescribed in the WHS Regulation • New duty to ensure that the PPE used by others, (such as visitors), is suitable and effective and that such persons use the PPE

11. Key changes - WHS Regulation • New requirement for audiometric testing for workers who are frequently required to use hearing protection. • Removal of licensing for some classes of equipment • A new class of licence for reach stackers • Definitions and terminology e.g. confined spaces, falls, safety data sheets. • Hazardous Chemicals now classified under the Globally Harmonised Classification System (GHS)

12. Representation & Participation

13. Consultation • Much broader duties for PCBUs to consult with other duty holders, and workers, including those likely to be affected by their business or undertaking

14. Health & Safety Representatives:Functions Represent workers Training Investigate safety issues Monitor safety measures Direct unsafe work to cease Issue PINS Investigate complaints 3 year term

15. Request for HSR’s • Worker of a PCBU can request a HSR to be elected • Negotiation of work groups with the workers must commence within 14 days to decide: • Number and composition of work groups • Number of HSR’s or Deputy HSR’s (if any) • The workplace/s to which work groups apply • Businesses or undertakings to which work groups apply • HSR is not personally liable for anything done or omitted to be done in good faith

16. Establishing Work Groups In negotiating work groups matters to be taken into account include: • Number of workers • views of workers in relation to the determination and variations of workgroups; • number and grouping of workers carrying out similar work; • the extent to which workers must move from place to place at work; • the diversity of workers; • the nature of the hazards and risks at workplace; • the nature of engagement e.g. as a contractor; • times at which work is undertaken; and • arrangements for overtime or shift work.

17. Election of HSR’s, training & removal of HSRs Procedures for election of HSRs • All workers of the work group must be given an opportunity to nominate and vote in the election. • The PCBU and workers of the work group must be advised of the election and the results of the election. • Election process may be informal e.g. show of hands or a more formal process e.g. ballots Removal of a HSR • The majority of members of a work group may remove a HSR by making a written resolution that the HSR should no longer represent their workgroup. Training for HSRs • A HSR can request to attend: • an initial 5 day course; and • an annual refresher course.

18. Health and Safety Committees Health and Safety Committee is to be established within 2 months of being requested by: • A HSR carrying out work at that workplace • 5 or more workers at that workplace • A PCBU may establish a committee whether it is requested or not • Committee must meet at least once every 3 months • Must have equal or greater number of workers who are not nominated by the PCBU

19. Functions of Committees • To facilitate co-operation between the PCBU and workers on measures to ensure health and safety at work • Assist in developing standards and procedures for health and safety to be complied with at the workplace • Other matters: • You can have a committee as well as HSR’s • HSR can be a member on the committee • It is up to the committee & PCBU to decide on how they operate • Training of committee members is not mandatory COP: Work health and safety consultation, cooperation and coordination

20. Issue Resolutionunder WHS legislation Issue resolution process applies to unresolved WHS issues PCBUs to consult, create, communicate and utilise issue resolution procedures Where an issue resolution procedure is not in place The default procedure of the WHS Regulation is to be used

21. Issue Resolution Procedure requires: • All parties to be informed there is an issue to be resolved and the nature and scope of the issue; • The involved parties meet or communicate to resolve the issue; • Certain matters to be taken into account • Degree & immediacy of risk to workers • Number & location of workers affected • Measures that must be implemented • Who will be responsible for implementation • Any party involved in the issue to be represented or assisted by a nominated person if they choose to do so; • The details of the issue and its resolution to be put in writing to the satisfaction of all parties involved in the issue where requested; • A copy of the written agreement to be given to: • parties to the issue (e.g. unions, employer organisations); and • if requested, the workplace’s health and safety committee.

22. What do you need to do? • Establish a consultation arrangement if you do not have one in place • Revise your consultation arrangements in consultation with workers and document this • Include other duty holders such as contractors and labour hire in your consultation process • Cooperate and coordinate activities with other duty holders • Develop/review an issue resolution process and procedure so that it captures all parties COP: Work health and safety consultation, cooperation and coordination Guide: Workers representation and participation

23. General Risk & Workplace Management • Managing risks • First aid • Emergency plans • Personal protective equipment • Remote or isolated work

24. PCBU to Manage Risks • Managing risks to health and safety requires you to: • Identify reasonably foreseeable hazards • Eliminate risks and if not reasonably practicable minimise risks • Minimise risks by using the hierarchy of control measures • Maintain and review risk control measures • Risk assessment not mandatory except for prescribed activities e.g. entering confined spaces • HSRs can request a review of a control measure in certain circumstances

25. Managing Risks Flowchart Identify Hazards that are a potential risk to health and safety Consultation As far as is reasonably practicable Eliminate risk As far as is reasonably practicable Minimise risk Maintain controls Review controls

26. Reasonably Practicable - relevant matters include: • Degree of harm • Likelihood Reasonably Practicable • Availability & suitability of controls • State of knowledge Cost

27. Hierarchy of control measures Where elimination is not reasonably practicable, risks are to be minimised using controls in the following order Highest Level of Protection Lowest Level of Protection

28. Duty to maintain and review A duty holder must ensure an implemented control measure is maintained by ensuring it is • Fit for purpose • Suitable for the nature and duration of work and • Installed, set up and used correctly A duty holder is required to review and, as necessary revise control measures when: • Arisk control measure fails to control the risk (e.g. as determined by monitoring or a notifiable incident occurs); • Achange in the workplace or work systems occurs that is likely to give rise to a new or different risk; • Consultation indicates a review is required; or • AHSR requests a review

29. First Aid • The PCBU must provide for first aid including: • First aid equipment and access to the equipment • Facilities for first aid administration • Adequate number of workers trained in first aid • Access to adequate number of trained others to provide first aid • First aid kit type and content and content of first aid facilities is no longer specified in the WHS Regulation • Factors to consider when assessing first aid requirements: • Nature of the work • Nature of workplace hazards • Size and location of workplace/s • Number and composition of workers and others

30. Short case study – First Aid

31. Emergency plans PCBU must prepare, maintain and implement an Emergency Plan • Plans must include emergency procedures covering: • emergency response • evacuation • early notification to emergency services • medical treatment and assistance • effective communication between the PCBU’s emergency co-ordinator and all persons • Factors to consider: • Nature of the work • Nature of workplace hazards • Size and location • Number and composition of workers and others Testing of procedures Provide, information, training and instruction to workers in emergency procedures

32. Personal Protective Equipment • If PPE is provided to minimise a risk the PCBU who directs the carrying out of work must ensure that PPE provided is: • Appropriate to the activity and hazard • A suitable size and fit • Maintained, repaired and replaced as required • Used or worn by the worker • Workers must be informed and trained on PPE use • Duty to provide PPE to others (such as visitors), and ensure that it is suitable and effective and that such persons use the PPE

33. Remote or isolated work • PCBU’s must manage risks to the health and safety of a worker associated with remote or isolated work • Remote or isolated work in relation to a worker means work that is isolated from the assistance of other persons because of location, time or the nature of work e.g. regional sales drivers • Assistance includes rescue, medical assistance and the attendance of emergency service workers • PCBU’s must provide a system of work that includes effective communication with the worker. This could include: • Personal security systems, radio or satellite communications, distress beacons • Procedures for regular contact with the worker, emergency communication plan

34. Case Study • Scenario: • “ A small business employs 20 people. They are distributors of toys and in peak periods such as Christmas they engage labour hire workers to drive forklifts and work in the pick and pack section. The labour hire agency has informed the host employer that they must supply all the necessary PPE and clothing. The small business is concerned re the increased cost, especially for safety boots. Can they request that the labour hire agency provide their own safety shoes/boots?  “ • Issues to consider: • Who are the duty holders? • Do they have different duties? • Are there overlapping WHS duties for duty holders? • Can the business ask the labour hire agency to provide the safety boots? • Can the labour hire agency ask workers to provide their own safety boots? • What would the alternatives be to providing PPE?

35. PPE - Case Study • What does the legislation say? • PCBU who directs the carrying out of work must provide the PPE at the workplace, unless the PPE has been provided by another PCBU e.g. labour hire agency • More than 1 duty holder may have the same duty. Where this is the case all duty holders must consult, cooperate and coordinate in respect to the same matter • PCBU must not impose a levy or charge on a worker for anything done or provided in relation to work health and safety • PPE provided must be suitable to the nature of the work and hazard, suitable size and fit, comfortable, maintained and used by the worker

36. Applying Reasonably Practicable • Likely: • Risk of injury • Peak period-high staff turnover • High traffic area • New workers-training • Appropriateness of PPE • Foot injuries: • Crush • Lacerations • Broken bones • Amputation • Length of time PCBU has operated in this industry • Knowledge of types of foot injuries from forklifts, heavy stock • PPE is least effective on hierarchy of controls • WHS legislation, COP’s, guides re requirements Degree of harm Likelihood Reasonably Practicable Availability & suitability of controls • Redesign of work area/warehouse • Separate workers and forklifts • Implement a traffic management plan • Safety boots • Overboots, foot guards State of knowledge Cost Cost of redesign may be disproportionate to the risk

37. PPE – Case Study • Suggested conclusions: • Both labour hire agency and small business are PCBU’s, so consult with labour hire agency in relation to who will provide the PPE and the standards it must meet • Negotiate an arrangement that the labour hire provide some PPE and document this in a contract/commercial arrangement which outlines clearly who is responsible for provision of PPE • Remove need for PPE by eliminating the hazard if possible e.g. redesign warehouse/work area, separate forklifts and worker/pedestrian/s, traffic management plans • Choose an alternative labour hire supplier/agency Enforcement measures could apply to both PCBU’s in the event of a breach

38. What do you need to do? • Review risk procedures to incorporate the qualifier so far as is reasonably practicable • Continue to assess risks to promote best practice and assist in demonstrating so far as is reasonably practicable • Assess your first aid requirements to ensure first aid measures are suitable to the work that is conducted • Review/develop emergency plans and test the plans to ensure their effectiveness and schedule training for workers • Identify others e.g. visitors, customers in the workplace who may be required to wear PPE to minimise risks to their health and safety • Identify workers who perform remote/isolated work and develop a communication plan that incorporates emergency requirements • Transitional arrangements until 1 Jan 2013 for development of emergency plans and remote work COP: How to manage work health and safety risks, First aid in the workplace, Managing the work environment and facilities

39. Time for a quick 10 minute break

40. Hazardous Work

41. Hazardous Work Includes: • Noise - exposure to noise above the exposure standard • Hazardous Manual Tasks - previously referred to as manual handling • Confined Spaces – key changes in definitions and requirements • Falls- the hierarchy of controls and record keeping requirements are specified. • High risk work-requiring licences • Demolition Work- certain work must be notified to WorkCover • Electrical safety-definitions and use of residual current devices • Diving Work- new provisions to NSW regulation • COP: Managing Noise and Preventing Hearing Loss at Work • Hazardous Manual Tasks, Confined Spaces • Managing the risk of falls at Workplaces

42. Noise A PCBU must ensure that a worker is not exposed to noise that exceeds the exposure standard (unchanged): • the equivalent of 8 hours continuous exposure to 85dB(A); or • a peak of 140dB(C) A PCBU must implement control measures as per general risk management requirements. Where a worker is frequently required to wear PPE, the PCBU must now provide audiometric testing for the worker: • within 3 months of the start of work; • in any event at least every two years.

43. Confined Spaces • Changes from current NSW OHS legislation include: • Requirements for review of the risk assessment by a competent person and at the request of the HSR; • Signage - to be erected immediately before work commences and while the work is being carried out. The signage must identify that it is a confined space; entry is not permitted without a permit; and be clear and prominently located next to each entry to the confined space; • Communication – continuous communication with the worker from outside the confined space; • Monitoring of conditions to be made by the stand-by person, and if practicable, while observing the work; • Record of training provided kept for 2 years

44. Confined Spaces - Record Keeping • Record keeping - risk assessments must be kept for at least 28 days after the work to which they relate finishes, • Entry permits must be retained for the duration of the work; • Both risk assessments and entry permits must be retained for at least 2 years if a notifiable incident occurs during the work; and • Trainingrecords must be kept for 2 years.

45. Falls PCBU must manage the risk of falls which is: • A situation that exposes a worker while at work, or another person at or near the workplace, to a risk of a fall from one level to another that is ‘reasonably likely’ to cause injury. • This includes risk of a fall: • In or on an elevated workplace from which a person could fall • In the vicinity of an opening through which a person could fall • In the vicinity of an edge over which a person could fall • On a surface through which a person could fall or • In any other place from which a person could fall Duties • A PCBU is required to identify all fall hazards associated with the business or undertaking.

46. Falls - risk control measures • A PCBU must ensure that, as far as reasonably practicable, work involving the risk of a fall is carried outon the groundor on solid construction. • If it is not reasonably practicable to eliminate the risk of a fall, the PCBU must provide adequate protection against the risk of a fall, by providing safe systems of work including (in descending order): • Use of a fall prevention device (e.g. guard rails, scaffolding); or • Use of a work positioning system (e.g. rope access systems); or • Use of a fall arrest system (e.g. harness, safety nets) if 1 and 2 are not reasonably practicable. The use of these controls should include training, procedures, permit systems and signage as required. If a fall arrest system is used emergency and rescue procedures must be established

47. High Risk Work • High risk work is any work that is in the scope of a high risk licence (based on the national standard) and includes: • Scaffolding work • Dogging and rigging • Crane and hoist operation (concrete placing booms have been added to meet cross border requirements) • Reach stackers (a new class) • Forklifts • Pressure operating equipment Plant no longer requiring a licence includes: • Front end loaders; • Front end loader backhoes; • Front end loader skid steer and • Excavators. WHS Regulation: Schedule 3 & 4

48. Licensing of high risk work

49. High Risk Work There are no longer specific provisions under the regulation for: • Abrasive blasting (covered in relation to restricted use of chemicals) • Electroplating • Spray painting • Welding and UV radiation • Molten metal • Now captured by the general duties of PCBUs to control risk by eliminating, or if not possible, minimising those risks, as far as reasonably practicable. Note: Long distance truck driver fatigue is also no longer specifically covered under the WHS Regulation.

50. Electrical Work New definitions in the WHS Regulation include those for: • Electrical equipment is defined generally but does not include vehicles • Electrical installations is a group of electrical equipment permanently connected (not plug and socket connection) • Electrical work covers the work done by licenced people and not tasks such as connecting a flexible cord plug and socket outlet • There are a variety of low risk activities that are not includedin electrical work e.g. replacing a fuse or light bulb • Need to ensure that the task can be safely performed by the person who does not have expertise in carrying out electrical work