Review of OHS Act 1985

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Review of OHS Act 1985

• New Act available at
• http//www.dms.dpc.vic.gov.au/
• Go to Victorian Statute Book / Acts by title /
  2004
• WorkSafe Advisory Line - 1800 136 089

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Review of OHS Act
WorkSafe has released a plain English version
of the Act, and this is available on the
WorkCover website, or obtain a paper copy from
Information Victoria
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Review of OHS Act

• This talk will cover
• Background to Review Maxwell Report
• Significant changes with the Occupational Health
  Safety Act 2004
• Application to RMIT managers
• Presentation available at www.rmit.edu.au/set/staf
  f
• Note slides showing VWA logos taken from
  WorkSafe Victoria presentation on new Act at
  www.workcover.vic.gov.au

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Review of the Victorian OHS Act 1985
Recommended changes to the way WorkSafe operates
Maxwell Report
OHS Act 2004
Transformation of WorkSafe
Note Maxwell report available at http//www.dtf.v
ic.gov.au/
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Review of OHS Act

• Maxwell identified a number of key issues
• Clarification of terminology and duties in the
  legislation
• Control by managers
• Reduce influence of cost on practicability
• Design of buildings that are used as workplaces
• Need for upgrading of OHS knowledge by all
  involved in workplace, particularly HSRs and
  managers.
• Expansion of the role of consultation in
  workplace change
• Variations to role of HSRs to include multiple
  sites and employers
• Union entry into workplaces

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Review of OHS Act

• Maxwell identified a number of key issues
• Improvement in enforcement of legislation
• Breach of legislation occurs whether or not harm
  caused and prosecutions may proceed on this.
• Increased penalties to come into line with those
  in other states
• Alternate to penalties may include enforceable
  undertakings
• Rejects industrial manslaughter legislation, but
  custodial sentences should be available for first
  offences
• Rejects union initiated prosecutions
• Alterations to operation of WorkSafe Victoria to
  improve decision making. - Decisions of
  inspectors to be subject to review.
• Ability for inspectors and VWA to give advice

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Review of OHS Act

• Occupational Health Safety Act 2004 developed
  by the Victorian Government, not WorkSafe
  Victoria, incorporating some of Maxwells
  recommendations but not others.
• Note that the substantive duty of care has not
  changed. Act provides for changes to WorkSafe
  operations, and transition arrangements. Changes
  to Act are given in Red in subsequent slides.
• Act commences generally 1 July 2005 (some
  exceptions), and there is 24 month window to June
  2007 to change all Regulations and Codes of
  Practice.

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Review of OHS Act

• s4 Principles of health safety
• All people should be given the highest level of
  protection that is reasonably practicable against
  HS risks
• Any person who manages, owns or controls
  workplaces is responsible for eliminating or
  reducing risks as practicable.
• Employers should be proactive and take reasonably
  practicable measures to ensure HS
• Employers and employees should exchange ideas and
  info about HS risks and measures to eliminate or
  reduce risks
• Employees are entitled and should be encouraged
  to be represented on HS issues.

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Review of OHS Act

• s20 - Duty of care requires employer -
• To eliminate risks to health safety so far as
  is reasonably practicable, and
• If not reasonably practicable to eliminate risks,
  to reduce risks so far as reasonably practicable.
• Practicable now reasonably practicable -
  covers
• Likelihood of risk eventuating
• Degree of harm resulting from risk eventuating
• What employer knows, or ought to know about
  hazards / risks and ways of eliminating hazards
  or reducing risks
• Availability and suitability of ways to
  eliminate hazard or reduce risk and
• Cost of eliminating hazard or reducing risk.

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Review of OHS Act

• s21 - Employer Duties
• Employer must, so far as reasonably practicable,
  provide and maintain for employees a working
  environment that is safe and without risks to
  health.
• Employee includes all staff, sessionals,
  casuals, and also encompasses contractors working
  on RMIT site e.g. construction, cleaners,
  caterers, repair technicians, etc.
• Workplace includes campus and field locations
  where staff may undertake practicals or visits.
• Employer is VC responsibility delegated to
  persons who control or manage matters that may
  give rise to risks.

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Review of OHS Act

• s21 - Employer Duties
• Safe and without risks to health achieved by
• Safe plant and systems of work
• Safe use and storage of hazardous substances
• Safe workplace and equipment
• Appropriate facilities
• Relevant information, instruction, training and
  supervision
• - so far as is reasonably practicable
• Monitor conditions at workplace (s22)

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Review of OHS Act

• s23 - Employer Duties
• Duties to other persons
• Employer must ensure, so far as reasonably
  practicable, that persons other than employees
  are not exposed to risks to their health or
  safety arising from the conduct of the
  undertaking of the employer e.g.
• Students
• Visitors

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Review of OHS Act

• S25 Duties of Employees
• While at work, an employee must
• Take reasonable care of their own health safety
• Take reasonable care for the health safety of
  persons who may be affected by the employees
  acts or omissions at the workplace
• Cooperate with the employer in complying with
  requirements imposed by Act or Regulations.

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Review of OHS Act

• New definitions
• Health includes psychological health
• Replaces duty of occupiers to one for persons
  who have management or control of a workplace
• An officer is someone who makes decisions that
  affect the whole, or a substantial part, of the
  business
• Expressly excludes volunteers from liability

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Review of OHS Act

• New duty on designers of buildings and structures
• Only applies to buildings that will be used as a
  workplace
• Need to ensure that their designs are safe for
  intended purpose
• Designers responsible for design only
• Only applies to designs from 1 July 2006

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Review of OHS Act

• Part 7- Improvements in Representation
• s4346 Designated Work Areas
• No change for single employers ie RMIT
• May encompass multiple employers (e.g.
  construction)
• To come about by agreement between employers.
• VWA to publish guidelines on this requirement.
• Training and other costs to be shared between
  employers
• Individual employer may pull out of agreement.

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Review of OHS Act

• Part 7- Improvements in Representation
• s5457 HSRs -
• represent designated work group
• elected for no more than 3 years or until leaves
  DWG, or resigns as HSR, or voted out by majority,
  or disqualified by court.
• deputies elected if agreed
• HSRs may also represent contractors if agreed.
• Powers of HSR unchanged eg PINs, consultation
  etc.
• Names of HSRs to be notified to VWA within 28
  days of election or ceasing to hold office.

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Review of OHS Act

• Part 7- Improvements in Representation
• s67-71 Obligations of employers to HSRs
• Provides for more training to improve OHS
  knowledge and skills of HSRs
• Initial course on being elected (5 days)
• Refresher course annually after initial course
• 14 days notice to attend courses
• Courses approved by VWA, relevant to industry,
  chosen in consultation with employer.
• Attendance with pay and costs by employer.
• VWA can intervene if cannot agree on courses
• Refusal to allow attendance, after VWA
  intervention, without reasonable excuse, up to
  6000 fine.

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Review of OHS Act

• Part 7- Improvements in Consultation
• s72 Health Safety Committees
• No change
• s73-75 Issue Resolution
• No change in process
• Requires nominated employer representatives to
  have sufficient seniority and sufficiently
  competent in OHS

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Review of OHS Act

• s35 Duty of Employer to consult Employees
• When identifying/assessing hazards or risks
• Decisions on risk control
• Decisions on adequacy of facilities
• Issue resolution, consultation processes,
  monitoring processes, information and training
  provision.
• Membership of OHS committees
• Workplace changes affecting OHS.

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Review of OHS Act

• s36 Consultation to consist of
• Sharing of information with employees on the
  subject,
• Giving reasonable opportunity for employees to
  express views
• If employees represented by HSR, consultation
  must include HSR
• Other procedures for consultation as agreed.

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Review of OHS Act

• Part 8 - Entry by Authorised Union
  representatives eg NTEU, AEU
• Must have permit issue by Court valid for 3
  years or ceases with union.
• Limited numbers of permits
• Must have undertaken approved OHS training course
• Permit may be revoked if misused

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Review of OHS Act

• Part 8 Entry by Union representatives
• Entry to review suspected contravention of Act
  or Regs
• Where work done by own union members or people
  eligible to be in own union
• Entry during work hours only, must notify
  occupier and HSR
• No entry to home, even if work done there.
• Not able to stop work but either party may call
  in Inspector to assist.

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Review of OHS Act

• Part 8 Entry by Union representatives
• Advice to managers in relation to this is that
  employer is still responsible for health safety
  of union rep on site, therefore
• Rep needs to conform to security requirements of
  site, ie reports to security and advise
  management of presence
• Rep needs to provide written notice explaining
  the suspected contravention.
• Rep needs to conform to all safety rules of site,
  including requirements for induction and personal
  protective equipment
• Employer should provide escort for union rep
• If genuine safety problems exist, commit to fix
  them.

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Review of OHS Act

• Incidence reporting now included in Act (s37-39)
  with OHS (Incident Reporting) Regs abolished
• No change in process
• If reportable incident, site is to remain
  unchanged until authorised by inspector. i.e.
  cannot continue activity.
• Failure to notify appropriately or to preserve
  site can result in fine up to 30 000

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Review of OHS Act

• Part 9 Inspectors
• Most powers the same as before
• New powers to obtain execute search warrants
  (s104-106) similar to police
• Provide advice on how to comply with the Act
• Issue binding directions if there is an immediate
  threat
• Issue non-disturbance notices
• Employer must co-operate with inspectors when
  questioned. People to provide name and address.

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Review of OHS Act

• Part 10 Review of decisions (s127-128)
• Definitions included of inspectors decisions
  that are reviewable
• subject to internal review within WorkSafe
• subject to challenge by employer in AAT
• Time limits apply
• Original decision remains in force
• Review decisions must be explained
• No. of requests and outcomes will be published

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Review of OHS Act

• Part 12 Compliance Codes
• Compliance with regulations or compliance codes
  to the extent that it makes that provision is
  taken as compliance with Act or Regulation in
  relation to that duty or obligation(s152)
• Failure to comply with compliance code does not
  give rise to civil or criminal liability
• Section on use of CoP in proceedings gone, but
  transition arrangements apply to current CoPs
  till Dec 2006.

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Review of OHS Act

• Inspectors able to offer advice on how to meet
  regulations
• Worksafe able to issue guidelines on how to meet
  regulations.
• Complying with Compliance Codes signifies
  compliance with regulations.
• Advice given does not imply liability by VWA

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Review of OHS Act

• Maximum penalties increased
• 922 500 for corporations
• 184 500 for individuals
• Others have decreased eg Failing to publish a
  list of HSRs
• New penalty for reckless endangerment
• Conscious deliberate disregard for safety
• Maximum jail sentence of 5 years

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Review of OHS Act

• As alternative to prosecution WorkSafe may accept
  an enforceable undertaking
• New sentencing options
• Adverse publicity orders
• Orders to undertake improvement projects
• Health and safety undertakings - up to 2 yrs

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Where WorkSafe is going
The essentials
Well know weve got it right when..

• Were working constructively with employers and
  workers to make workplaces safer
• Our inspectors are confident in providing
  guidance as well as enforcing the law
• Our decisions are open to review
• The community understand how and why we enforce
  the law
• The community has confidence that were
  consistent, unbiased and open
• Published results show workplaces are safer

Constructive Transparent Accountable Effective
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Review of OHS Act

• What should RMIT do?
• Ensure all managers and staff understand their
  responsibilities under the Occupational Health
  Safety Act 2004 e.g. within workplans
• Ensure that all appropriate processes carried out
• SAFE_at_RMIT
• Workplace inspections
• Hazard register
• Risk assessments
• Incident reporting, etc.
• Appropriate resources time, training, - to
  fix things, so far as reasonably practicable.

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Review of OHS Act

• What should RMIT managers (academic, technical or
  administrative) do?
• Appreciate and implement your responsibilities
  under the Occupational Health Safety Act 2004
• Know about the consultative mechanisms in your
  area
• Designated Work Group
• Health Safety Rep Health Safety Committee
• Know where to find information, eg VWA website,
  also RMIT/Staff/People Culture/OHS for local
  procedures
• Understand the hazards and risks within your
  workplace, whether they apply to staff or
  students.

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Review of OHS Act

• What should RMIT managers (academic, technical or
  administrative) do?
• Undertake some level of training in OHS, e.g.
• OHS training course run by RMIT People and
  Culture
• Leadership
• Management
• Systems
• Ensure that the people they supervise have
  appropriate competencies in OHS, consistent with
  their jobs
• Includes training for HSRs
• Walk the Talk!

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Review of OHS Act

• What should RMIT managers (academic) do?
• Ensure that students in their courses appreciate
  the need for safety in lectures, practical
  classes and field activities. Enforce rules.
• Promote OHS training to students
• PUBH1340 OHS for Managers City - Semester 1
• PUBH1341 OHS for Managers Bundoora Semester 2
  
• Elective - covers OHS law, risk management,
  consultation, common industrial hazards and their
  control

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Review of OHS Act

• Thank you
• Keep Safe
• Questions?