WHS legal framework

BSBWHS402A
ASSIST WITH COMPLIANCE WITH WHS LAWS
LEARNER GUIDE

Module One – Assist In Determining WHS Legal Framework

THE CUNNING FAMILY TRUST AND THE PEACHEY FAMILY TRUST TRADING AS SAFE WORK RESOURCES PTY LTD ABN 90 785 129 255
(“SAFE WORK RESOURCES”)
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TABLE OF CONTENTS
Review Log ..................................................................................................................................... 4!
Module Basis .................................................................................................................................. 4!
1.1 Introduction .............................................................................................................................. 5!
1.2 Access WHS Information And Determine Legal Requirements .......................................... 6!
1.2.1 External Sources Of WHS Information .................................................................................................. 7!
1.2.1.1 Australian And Industry Standards ................................................................................................ 8!
1.2.1.2 WHS Legislation ............................................................................................................................ 9!
1.2.1.3 Duty Of Care And Common Law Duties ...................................................................................... 11!
1.2.1.4 WHS Regulations ........................................................................................................................ 12!
1.2.1.5 Codes Of Practice ....................................................................................................................... 13!
1.2.2 Internal Sources Of Information .......................................................................................................... 14!
1.2.3 Accessing And Analysing Information ................................................................................................. 15!
1.3 Confirm WHS Duties, Rights And Obligations .................................................................... 20!
1.3.1 Rights And Responsibilities Of PCBUs ............................................................................................... 22!
1.3.2 Rights And Responsibilities Of Workers .............................................................................................. 23!
1.3.3 Health And Safety Representatives .................................................................................................... 24!
1.4 Seek WHS Advice .................................................................................................................. 25!
1.4.1 Approaching Legal Advisors ................................................................................................................ 25!
Appendix 1A – Work Health & Safety Common Terms And Definitions ................................. 26!

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REVIEW LOG
Version Number

Date Updated

Details of Updates

Version 4H
Released
July, 2013

MODULE BASIS
This module is based on the unit of competency BSBWHS402A Assist With Compliance With WHS Laws:
Element 1 – Assist with determining the legal framework for WHS in the workplace. 1.1 Access current WHS legislation and related documentation relevant to the organisation’s operations.
1.2 Use knowledge of the relationship between WHS Acts, regulations, codes of practice, standards and guidance material to assist with determining legal requirements in the workplace.
1.3 Assist with identifying and confirming the duties, rights and obligations of individuals and parties as specified in legislation.
1.4 Assist with seeking advice from legal advisors where necessary.

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1.1 INTRODUCTION
This training course is based on the national unit of competency BSBWHS402A: Assist With Compliance
With WHS Laws and applies to people who work in a broad range of Work Health and Safety (WHS) roles across all industries. This course describes the performance outcomes, skills and knowledge required to assist with providing advice about the legislative duties, rights and obligations of individuals and parties prescribed in WHS laws.

It includes identification of WHS legislation, duties, rights and obligations and the necessary actions to ensure compliance in the workplace.
The materials in this course cover:
Assisting with determining the legal framework for WHS in the workplace.
Assisting with providing advice on WHS compliance.
Assisting with WHS legislation compliance measures.

NOTE: The terms Occupational Health and Safety (OHS) and Work Health and Safety (WHS) are equivalent and generally either can be used in the workplace. The term
WHS will be used throughout this training course.

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1.2 ACCESS WHS INFORMATION AND
DETERMINE LEGAL REQUIREMENTS
To effectively assist with WHS compliance in your workplace, it is important that you access and stay up to date with current
Commonwealth, state or territory WHS Acts, legislation, regulations, and codes of practice.

Other relevant information important to access includes organisational WHS policies and systems, and documents such as standards, guidance publications and alerts issued by the relevant WHS regulator.
This information will enable you to assist in determining legal requirements in your workplace.

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1.2.1 EXTERNAL SOURCES OF WHS INFORMATION
You will need to collect and review documentation from a range of external information sources, including:
Australian and industry standards.
Legislation, codes of practice and standards.
Australian Safety and Compensation Council.
Australian Bureau of Statistics (ABS).

WHS legislation and codes of practice.
WHS authorities, professional bodies and specialists. Manufacturers' manuals and specifications.
Unions and industry bodies.
PCBU groups.

Research literature.
Databases with national and state injury data such as
National Industrial Chemicals Notification and
Assessment Scheme (NICNAS).
Internet, journals, magazines.
Websites.
Technical information and data.

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1.2.1.1 AUSTRALIAN AND INDUSTRY STANDARDS
Australian and industry standards are published documents setting out specifications and procedures for ensuring that products, services and systems are safe, reliable and consistently perform the way they were intended to.
Standards are not legal documents but many, because of their detail and relevance, are called up into legislation by government and become mandatory.

Some examples of Australian and international standards are:
AS2865 – Safe working in a confined space.
AS/NZS ISO 31000:2009 – Risk Management.
AS1674.1 – Safety in welding and allied processes.
AS/NZS1715:2009 – Selection, use and maintenance of respiratory protective equipment.
ISO 14001 – Environmental management systems.
Where standards and/or codes of practice are referred to, always make sure you are using the most current version.

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1.2.1.2 WHS LEGISLATION
WHS legislation forms the basis of all requirements for site and equipment safety including materials handling and all other work activities.
The aim is to ensure the safety of everyone working on or visiting the site.

Harmonisation Of Work Health & Safety Legislation
In response to industry calls for greater national consistency, the Commonwealth, states and territories have agreed to implement nationally harmonised Work Health & Safety
(WHS) legislation to commence on 1 January 2012.
While not all states and territories have actually implemented the model WHS legislation as of the start of 2012, it is important to be aware of these changes, as all states and territories will eventually implement them.

Harmonisation aims to develop consistent, reasonable and effective safety standards and protections for all Australian workers through uniform WHS laws, regulations and codes of practice.

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Key Elements Of The Work Health & Safety Legislation
The following key elements of the WHS legislation will impact the way you do your job, and the responsibilities of your workplace:

The legislation also outlines requirements for:
The reporting requirements for notifiable incidents.
Licences, permits and registrations (e.g. for persons engaged in high risk work or users of certain plant or substances).
Provision for worker consultation, participation and representation at the workplace.
Provision for the resolution of health and safety issues. Protection against discrimination.

Many specific details relating to WHS will be negotiated within the workplace in accordance with the legislation.
It is important that you speak with your Health and Safety
Representative or supervisor for more information on how these elements will effect your day-to-day operations, or if you have any concerns relating to health and safety.
New Regulations and Codes of Practice have been developed for specific industries and practices to help implement the requirements of the WHS legislation in workplaces across Australia.
A list of common WHS terms and their definitions can be found in
Appendix 1A.

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1.2.1.3 DUTY OF CARE AND COMMON LAW DUTIES
Duty of care is a legal obligation to adhere to a standard of reasonable care when performing acts that have the potential to harm others.
Everyone on a worksite has a legal responsibility under duty of care to do everything reasonably practicable to protect others from harm by complying with safe work practices, including activities that require licences, tickets or certificates of competency or any other relevant state and territory WHS requirements. Common law duties may include the requirements to meet general duty of care.
These base common law duties can change over time due to legislative changes or they may simply vary between states and industries.
It is essential that you regularly check for any base or common law changes. Any specific state or territory legislation will need to be clarified, particularly for members of your work team who come from another state.

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1.2.1.4 WHS REGULATIONS
WHS Regulations supplement the Act by providing more detailed information on duties that apply to specific hazards, other procedures and obligations.
The regulations cover general requirements for hazard identification, risk assessment and risk controls for high risk areas, such as:
Plant.
Electrical safety.

Manual handling.
Confined spaces.
Occupational noise.
Hazardous substances.
Storage and handling of dangerous goods.
Major hazards facilities.

Working at heights.
Competency standards for users and operators of industrial equipment.
Driver fatigue.
Construction work.

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1.2.1.5 CODES OF PRACTICE
Codes of practice are a set of ethical principles guiding the way the organisation operates.
They are not mandatory like laws but are honorary codes. They provide practical guidance on how to meet the standards set out in the WHS Act and the WHS Regulations.
Alternatively, your organisation might have its own code of practice that it expects you to operate within.

Codes of Practice are admissible in proceedings as evidence of whether or not a duty under the WHS laws has been met.
They can also be referred to by an inspector when issuing an improvement or prohibition notice.

It is recognised that equivalent or better ways of achieving the required work health and safety outcomes may be possible.
For that reason compliance with Codes of Practice is not mandatory providing that any other method used provides an equivalent or higher standard of work health and safety than suggested by the Code of Practice.

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1.2.2 INTERNAL SOURCES OF INFORMATION
It is important that you know what is happening within your workplace.
As well as keeping up to date with external information, you need to regularly review internal documentation.

Information can be gained from a range of internal sources including: WHS reports including workplace inspections, hazard and incident reports, technical reports, consultations and observations.
WHS policies and procedures.
Organisational data such as insurance records, incident investigations, enforcement notices and actions, workers’ compensation data, WHS performance indicators, audits.
Workers information papers, brochures, notes, newsletters. Material Safety Data Sheets (MSDS) and registers. Manufacturers’ manuals.
Job System Analysis (JSAs).
Risk assessments (past and present).
Safety handbooks.
Work instructions.
This information is likely to change over time so it is important that you monitor it on a regular basis.

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1.2.3 ACCESSING AND ANALYSING INFORMATION
You can source information and documents from hard copies or electronic files (websites, intranet, databases, emails).
Data and information may also be found on removable storage devices such as:
USB flash drives.
Optical discs – including Blu-ray, DVDs or CDs.
Memory cards – including CompactFlash cards, secure digital cards or memory sticks.

Magnetic tapes.
External and/or removable hard disk drives.
Make sure you follow all processes and procedures for accessing and retrieving information in your organisation, including the use of various technology and communications media.

You will need sound computer and technology skills in order to access and evaluate this information to make sure it is credible, reliable and useful to your business.
You should be comfortable working with a wide range of computers and software products to obtain and evaluate
WHS information and data from internal as well as external sources.

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You will also need your skills in literacy and analysis to read and accurately interpret the WHS information you have retrieved.
Policies, procedures, legislation, codes of practice and regulations can be challenging to read.
They are often long documents and consist of complex jargon and phrases.

When reading WHS information documents, try:
Scanning through them first to get a rough idea of what they are about.
Pay close attention to headings as they will help guide you through.
Take the time to carefully read through all the relevant documentation or read summaries or plain
English versions if they are available.
Remove distractions such as noise or interruptions when you are reading.

Conduct an Internet search for legislation or codes of practice to find information about them to help put it in context.
Make notes about any points you aren’t clear about and then clarify them later.

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When analysing WHS data, you need to critically evaluate whether it is relevant to your workplace operations. To do this, read through the document to check that it is clear, accurate, current and relevant. Then check the document more thoroughly for errors or inaccuracies.
Sometimes the information may not be clear or you may have other difficulties with it.

To solve any problems you need patience and persistence to examine and/or apply a series of options until you find the solution that best fits your situation.
You also need creative thinking.
By being able to think outside the box and approach problems with creativity, you may be able to develop a solution that will turn the problem into an opportunity for your organisation.

Problem-solving skills include the ability to communicate and help to develop a response or solution to the problem. They also involve researching solutions that may have been used previously or in similar situations on other sites. BSBWHS402A – ASSIST WITH COMPLIANCE WITH WHS LAWS
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While trying to solve problems, you may need some expert advice. If so, you should consult with specialists or technical advisors who may come from different areas of your organisation, other sites managed by your company or they could be external specialists.

You also need to be aware of any confidentiality requirements that may apply.
It is necessary that any personal information you acquire during your work activities be kept confidential.
This could include information relating to injuries or illnesses, occupationally acquired or not.

The information and documents you access, interpret and analyse will help you to understand the relationship between
WHS Acts, regulations, codes of practice, standards and guidance material.
This in turn will enable you to assist in determining the legal requirements in your workplace.

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Keeping up to date with legislation and related documentation
– and monitoring changes – will involve reviewing various websites on a regular basis.
Some of the websites, such as your state or territory work safety authority, offer free subscription services and send notifications via email when changes are occurring.

If you have any difficulties interpreting requirements or you don’t understand something, speak to your supervisor or team leader.

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1.3 CONFIRM WHS DUTIES, RIGHTS AND
OBLIGATIONS
Having identified the legislative requirements for your organisation, you need to assist in identifying and confirming any particular roles, responsibilities or requirements for individuals and parties within the organisation, and other stakeholders.

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Common positions that may have specific duties, rights and obligations could include:
Duty holders as specified in WHS Acts, e.g.
PCBUs or their officers.
Self-employed persons.
Persons in control of workplaces.
Workers.
Other persons at a workplace.

WHS representatives, inspectors, regulators, committees. Contractors and subcontractors.
Customers.
Suppliers.

Designers, manufacturers, importers, and suppliers of plant.
Unions.
Erectors and installers of certain plant.
Manufacturers, importers and suppliers of substances. WHS entry permit holders.

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1.3.1 RIGHTS AND RESPONSIBILITIES OF PCBUS
WHS legislation requires PCBUs, including managers and supervisors, to protect anyone at the workplace, whether workers, contractors, or members of the public, against any risks to their health or safety by eliminating or reducing risks as far as practicably possible.
Specific legislative requirements may also apply to PCBUs in certain industry types or locations.

PCBUs should:
Monitor the health of workers to minimise risks and WHS issues.
Exchange information about WHS risks and controls with WHS representatives and workers.
Work with WHS representatives and workers to resolve WHS issues within the workplace in accordance with the agreed procedure.

Managers and supervisors have a responsibility to ensure that:
They follow health and safety procedures.
They implement health and safety procedures in their areas of control.
They implement, monitor and evaluate risk control measures.
Any workers under their control are provided with adequate information, instruction and training to effectively and safely complete their work tasks.

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1.3.2 RIGHTS AND RESPONSIBILITIES OF WORKERS
Workers have a duty to take reasonable care for their own health and safety and that of other people who may be affected by the PCBU’s acts or omissions in the workplace.
Workers must also cooperate with the PCBU and follow all reasonable directions given by them or their representative to enable compliance with the law.

Workers should:
Be represented by a WHS representative when raising WHS issues or have a defined system so that there is communication with management to resolve these issues.
Follow measures put in place to protect their safety such as using and caring for personal protective equipment (PPE) or follow safe operating procedures.

Exchange information about WHS risks and controls with their PCBU and WHS representative. Work with their PCBU to resolve WHS issues within the workplace in accordance with the agreed procedure.

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1.3.3 HEALTH AND SAFETY REPRESENTATIVES
WHS representatives have the right to be consulted on health and safety matters and to represent workers in relation to WHS issues. They also have the right to be provided with information and training, and to attend investigations. They should attempt to resolve WHS issues for those workers they represent.
PCBUs and workers may request intervention by external parties such as WHS authorities or inspectors when health and safety issues cannot be resolved internally.

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1.4 SEEK WHS ADVICE
It is important that you fully understand how the identified duties, rights and obligations of the people in your organisation are to be applied in the workplace.
You will then be able to assist with providing information or advice, where necessary, in determining the WHS framework of your workplace.

1.4.1 APPROACHING LEGAL ADVISORS
If you require clarification about any WHS matters, including the confirmation of rights and responsibilities, it is essential that you seek advice from legal practitioners
(internal or external) or government WHS inspectors.
When dealing with WHS compliance it is a good idea to seek legal assistance.
A lawyer can help ensure that all duties, rights and obligations are clearly defined and understood.

When seeking a lawyer, you need to look for one who:
Has experience in WHS compliance.
Can communicate with you in plain and simple language. You feel comfortable with.
Charges fees that you feel are reasonable.
Make sure you ask the lawyer lots of questions. Remember that you are their customer. You need to be confident in their ability to serve your interests.

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APPENDIX 1A – WORK HEALTH & SAFETY
COMMON TERMS AND DEFINITIONS
Person
Conducting a
Business or
Undertaking
(PCBU)

A ‘person conducting a business or undertaking’ (PCBU) replaces the term ‘employer’. A
PCBU includes all employers, sole traders, principal contractors, unincorporated associations, partnerships and franchisees. Volunteer organisations that also employ people will be PCBUs.
A PCBU’s primary duty of care is to ensure the health and safety of everyone in the workplace, so far as is reasonably practicable.

Officers

An ‘Officer’ is a person who makes, or participates in making, decisions that affect the whole or a substantial part of a corporation. This includes Health and Safety
Representatives (HSR).

Workers

‘Worker’ replaces the term ‘employee’. It is defined broadly to mean a person who carries out work in any capacity for a PCBU.
A ‘worker’ covers employees, contractors, sub-contractors (and their employees), labour hire employees, outworkers, apprentices, trainees, work experience students and volunteers. Reasonably
Practicable

Reasonably Practicable is defined as action that is, or was at a particular time, reasonably able to be done to help ensure health and safety based on the following factors: a) Chances of the hazard or risk occurring (likelihood).
b) The degree of harm (consequence).
c) The knowledge of persons involved in the situation relating to the hazard or risk and methods of eliminating or controlling it.
d) The availability and suitability of ways to eliminate or control the hazard or risk.
e) The costs involved in taking action to eliminate or control the hazard or risk including consideration of whether the cost involved is inconsistent to the level of risk. Due
Diligence

The Work Health and Safety Act 2011 (the WHS Act 2011) imposes a specific duty on officers of corporations to exercise due diligence to ensure that the corporation meets its work health and safety obligations. In short, they have a responsibility to ensure that the
PCBU is doing everything it should to ensure health and safety.
The duty requires officers to be proactive in ensuring that the corporation complies with its duty.
Due diligence may be demonstrated through the following courses of action:
1. Acquiring knowledge of health and safety issues.
2. Understanding operations and associated hazards and risks.
3. Ensuring that appropriate resources and processes are used to eliminate or minimise risks to health and safety.
4. Implementing processes for receiving and responding to information about incidents, hazards and risks.
5. Establishing and maintaining compliance processes.
6. Verifying the provision and use of the resources mentioned in 1-5.

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