BBN 2012 Seminar 8 – OHS: What are your obligations? Victorian OHS and Equal Opportunities

Notes:  Julie McLoughlin

July 2012

  1.        Victorian OHS Act 2004 – Current Employer Obligations
  2.       How do we work towards meeting our obligations
  3.       For medium and large businesses – seven pillars of safety
  4.       Common Hazards in small business
  5.       Harmonisation Update
  6.       Victorian EO Act 2010 – Current Employer Obligations
  7.       How do we work towards meeting our EEO obligations

 

1. Victorian OHS Act 2004 Current Employer Obligations  http://www.worksafe.vic.gov.au

Responsibility (‘the buck stops here’) cannot be delegated to others. The responsible manager may delegate the authority to act while setting up accountability processes to ensure that the actions are appropriate and completed.

2004 Act employer responsibilities

As an employer you must provide and maintain for employees and contractors – a working environment that is safe and without risks to health. This includes:

  • providing and maintaining safe plant (such as machinery and equipment) and safe systems of work (such as controlling entry to high risk areas, controlling work pace and frequency and providing systems to prevent falls from heights)
  • implementing arrangements for the safe use, handling, storage and transport of chemicals (such as dangerous goods and other harmful materials)
  • maintaining the workplace in a safe condition (such as ensuring fire exits are not blocked, emergency equipment is serviceable, and the worksite is generally tidy)
  • providing workers and contractors with adequate facilities (such as clean toilets, cool and clean drinking water, and hygienic eating areas)
  • making sure workers have adequate information, instruction, training and supervision to work in a safe and healthy manner.

You must also:

  • adequately monitor your workers’ health (providing hearing tests, providing blood tests for workers exposed to lead and monitoring fatigue levels of transport and other workers)
  • keep information and records relevant to your workers’ health and safety (such as records of biological monitoring, asbestos assessments, first aid records and relevant medical information)
  • employ or engage people with the necessary qualifications or expertise to advise you on health and safety issues affecting your workers
  • consult with employees on matters that may directly affect their health, safety or welfare.
  • nominate a senior management representative (or yourself) to deal with workers and their health and safety representatives in resolving health and safety issues at the workplace
  • provide your workers with information in the appropriate languages about your workplace health and safety arrangements, including the names of those to whom the workers can make an inquiry or complaint.

Other health and safety obligations

You must ensure that other people (such as your customers, visitors and the general public) are not endangered by the conduct of your business

You also have obligations to:

  • meet particular licensing, registration and certification requirements
  • immediately notify WorkSafe of certain dangerous incidents or incidents that cause or could have caused serious injury or death  – $33,036.00 fine     13 23 60
  • co-operate and comply with WorkSafe Inspectors
  • keep a Register of Injuries to keep track of work-related injuries and illnesses.
  • Display an  ‘if you are injured at Work Poster’ – $35,835 fine

You have additional specific obligations if your business involves the:

  • manufacture, importation, transportation, supply, storage, handling or use of dangerous goods
  • design, manufacture, importation, supply, erection or installation of plant
  • manufacture, importation, or supply of substances.

Penalties for breaches of the Occupational Health & Safety Act 2004.

The maximum penalties are now $1,075,050 for a body corporate and $215,010 for individuals.

Definition of an Officer

A person ‘who makes or participates in making decisions that affect the whole, or a substantial part, of the business of the corporation or who has the capacity to affect significantly the corporation’s financial standing.

You can’t delegate this duty and you have to prove due diligence.


 

2. How do we work towards meeting our due diligence obligations

Due diligence: What is required of officers?

  • Have up-to-date knowledge of OHS laws and compliance requirements
  • Understand the nature of operations and generally the hazards and risks associated with those operations
  • Ensure appropriate resources and processes to enable:
    • Identification, elimination or control of OHS hazards and risks
    • compliance with specific obligations (e.g. consultation, incident notification)
    • Verify that risks and hazards are being appropriately controlled
    • Have a process for receiving, considering and timely response to information on incidents, hazards and risks.

So, what should you do to meet your duties?

ü  Undertake a risk analysis

ü  Undertake a systems gap analysis

ü  Review, revise and supplement policies and procedures

ü  Implementation plan – including training and ongoing review

ü  Develop effective representation and consultation processes

ü  Develop robust issue resolution processes

ü  Ensure effective management and ‘due diligence’ compliance – REPORTING

 

More Specifically:

External Monitoring

  • Keep up to date knowledge of health and safety matters – understand the trends, best practice, industry standards and legislative requirements.

Internal Monitoring

  • Read the safety reports and know what is happening at a shop floor level
  • Ensure regular OHS performance reporting is in place  (LEAD and LAG Indicators)

Know your Organisation

  • Know your hazards and what controls need to be in place
  • Ensure there are appropriate resources (high risk industry – more resources)
  • Develop a safety management system, policies, procedures and safe work procedures and Invest in
    • controlling hazards
    • auditing
    • improvements of existing processes

So things that you should consider:

  • Review your hazard reporting, risk management and incident reporting procedures
  • Ensure “Officers” are identified – give them training so they know what to do
  • Document / Record.
  •  Engage a work health and safety professional to help
  • Talk to your workers and health and safety representatives

Resources

These websites provides information and tools to assist employers, workers and others in understanding their obligations as the laws


 

3. For medium and large businesses – seven pillars of safety

1 Senior management roles and accountability

  • Clear top down responsibility and KPIs for OHS/Return to Work, supplemented with suitably qualified, professional advice.

2 Strategic planning

  • A commitment to health and safety (and assisting workers to return to the workplace after injury) are part of the organisation’s business plan.

3 Recording and reporting

  • Health and safety and injury claims/premium performance data is recorded and reported at director level.

4 Training and supervision

  • Managers and supervisors understand their OHS role and responsibilities and potential impacts of poor performance.

5 Consultation

  • Regular, inclusive discussion with relevant staff on health and safety and return to work improvements.

6 Hazard management

  • Hazards are identified and risks controlled in a systematic way using the hierarchy of control.

7 Injury management

All relevant staff proactively involved and coordinated by a suitably appropriately senior and competent Return to Work Coordinator

Appoint a Return to Work Coordinator – “Employers with an annual rateable remuneration of:
• $2 million* or more, must have a Return to Work Coordinator at all times.
• less than $2 million* must appoint a Return to Work Coordinator for the duration of the employer’s return to work obligations to an injured worker.
A Return to Work Coordinator needs to have an appropriate level of seniority and be competent to assist the employer to meet their return to work obligations.”


 

4. Common Hazards in small business

What WorkSafe inspectors commonly DONT see during their visits to small businesses.

Manual Handling

  • Hazardous manual handling eliminated.
    • Adequate space is provided for work or storage and trolleys are used to move items.
    • The work area is between knee and shoulder height, and is close to the worker’s body.

Housekeeping / Slips, trips and falls

  • Work areas are kept clean, uncluttered and well lit.
  • Employees wear suitable footwear.

Storage and Racking

  • Racking systems are stable and in good condition, and they display and comply with the specified Safe Working Load.
  • Safe access is provided to storage areas.

Working at Heights

  • Mezzanine floors have safe access and fall protection, handrails are secure and steps are well maintained
  • platform ladders are industrial grade and in good condition.

Hazardous Substances

  • Chemicals register and Material Safety Data Sheets (MSDS) are current.
  • Chemicals are handled and stored to MSDS guidelines, and employees who use chemicals are trained in their safe use.

Fire and Evacuation

Fire Ensure extinguishers are in place, maintained and clearly marked for type of fire. All fire exits are clear and exit signs illuminated.

First Aid and Amenities

  • A first aid box is readily available and appropriately stocked.
  • Qualified first aid staff are available and known to staff.
  • Sufficient amenities are present for all staff.

Electricity

  • Electrical Plugs, sockets, switches are in good condition.
  • Extension cords are tested and tagged. Floors are clear.
  • Safety switches are hardwired into electrical switchboards.

Machinery and Equipment

  • Safe access to machinery and equipment is provided.
  • Moving parts cannot strike or reach people, and other hazards associated with machinery such as fumes, chemicals and noise have been assessed.
  • Forklifts
    • Forklift operators have a current licence and always wear a seatbelt.
    • Forklifts are checked daily and regularly maintained.
    • Traffic management plans and signage are present, and pedestrians are physically separated as much as possible.

Noise

  • Eliminate or reduce noise from loud processes or equipment.
  • Where applicable, hearing protection is available and signage indicates it must be worn.

Asbestos

Responsibility sits with – those who manage or control a workplace

  • Asbestos to be
    • Identified  (pre 1990 and cement sheeting/ vinyl tiles in wet areas/ corrugated cement sheeting / pipes carrying water or sewage)
    • correctly labelled
    • if poor condition must be removed by a licensed asbestos removalist.
    • register is prepared and up to date.

Young Workers

  • Inducted
  • Trained
  • Supervised
  • Encouraged to speak up


 

5. Harmonisation Update

Commonwealth – WHS Laws passed

Queensland – WHS Laws passed

New South Wales – WHS Laws passed

Northern Territory – WHS Laws passed

Australian Capital Territory – WHS Laws passed

Tasmania – 2013

Victoria – ???

Western Australia – ???

South Australia – ???

The Victorian Government is not implementing the model harmonised WHS laws due to a range of concerns. A report commissioned by Victorian Government was released mid 2012 based on an Impact Assessment looking at costs and benefits of adaptation. The Assessment looked at 20 of the proposed changes and found that adaptation could cost Victoria $3.4 billion over 5 years and would not result in significant safety benefits. The Government has now requested feedback from industry on the contents of the report.

The most onerous changes indentified in the report are:

  • The extended definition of “confined spaces”
  • Extending the “officer” liability principle
  • Removing the two metre height threshold for falls
  • The broader scope of “plant”
  • Absolute duty to have emergency plans
  • The extended definition of “worker”

The Victorian Government has said that it supports harmonisation of workplace health and safety laws “in principle”. It will further consider its position after receiving industry feedback.
6. Victorian EO Act 2010 – Current Employer Obligations

EEO Act

The key features for employers under the new 2010 Equal Opportunity Act

  • a positive duty to eliminate discrimination, harassment and victimisation
  • a duty to provide reasonable adjustments for people with disabilities  to help perform the job
  • protection of volunteers and unpaid workers from sexual harassment in employment
  • Small business employers are no longer exempt.

Sexual harassment is unwelcome sexual behaviour, which could be expected to make a person feel offended, humiliated or intimidated. Sexual harassment can be physical, spoken or written.

Victimisation is subjecting, or threatening to subject, someone to a detriment because they asserted their rights under equal opportunity law, made a complaint, helped someone else make a complaint, or refused to do something because it would be discrimination, sexual harassment or victimisation.

Discrimination occurs when someone is treated (or proposed to be treated) unfairly and is disadvantaged because of a personal characteristic that is protected under law:

Bullying is unwelcome or unsolicited conduct (or potential for) that intimidates, humiliates, insults, offends or scares the person at whom it is directed, regardless of the intent of the offender.

Sexual harassment – Case Study

Soon after starting a new job as an office worker, Sarah (not her real name) alleged her manager slapped her on the behind when walking past her in the corridor at work. When she complained, the manager said it was only a tap and not sexual harassment.

Over the next few weeks her colleagues ridiculed her for insisting the behaviour was inappropriate, her hours were cut and she eventually left and found work elsewhere.

Sarah telephoned the Commission’s Enquiry Line and found information about sexual harassment laws and how to make a complaint. She then completed the complaint form on the Commission’s website.

A conciliator from the Commission contacted her and arranged for Sarah, her previous employer and manager to attend a conciliation conference. Conciliation is a free, flexible and confidential process where the parties to the complaint, with the help of a conciliator, explore resolution. The aim of a conciliation conference is to help the parties reach agreement about resolving the dispute.

At the conciliation conference the complaint was resolved without admission of liability, and a payment of $20,000 was made to Sarah for damages and loss of earnings.


7.  How do we work towards meeting our obligations

http://www.humanrightscommission.vic.gov.au/

PREVENTION

  • have a policy stating what is unacceptable
  • include awareness in induction process
  • survey staff to uncover issues
  • provide awareness programs to help implement your policies and procedures
  • monitor the environment, if any of your staff are:
    • Withdrawn
    • Appear fatigued or tired
    • Make more frequent mistakes or accidents at work
    • Are regularly late or absent
    • Appear emotional
    • Lack confidence or self-esteem

RESPONSE

  • have grievance procedures
  • consider contact officers
  • consider EAPs
  • don’t ignore any complaints or delay in responding

VEOHRC SESSIONS

  • Equal opportunity basics: Compliance for small business

6 –7pm, Thursday 9 or Monday 27 August
Recommended for small business operators wanting a quick overview of the key obligations under equal opportunity law

  • Practical management skills for small business: Equal opportunity

6 –7.30pm, Thursday 16 August
Recommended for small business operators wanting practical strategies to implement equal opportunity in the workplace.

For more details, and to register online, http://fs4.formsite.com/veohrc/form12/index.html

call (03) 9032 3415.

REFERENCES: Worksafe Victoria Website

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