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News and Updates Model Work Health and Safety Act Reproduced from Work Health and Safety WorkCover Legislation Fact Sheet <strong>Issue</strong> 01 / 2011 Wintalyka What is new for NSW under the model Work Health and Safety Act? The model Work Health and Safety Act will come into effect on 1 January 2012. Model refers to Safe Work Australia’s Work Health and Safety framework which includes an act, regulations and codes of practice to be adopted by each State and Territory following agreement to a set of principles which will ensure that transitional arrangements are consistent across Australia. Similar work health and safety laws in each State and Territory will provide: • A consistent level of safety for all workers in Australia • Reduced compliance and regulatory burdens for businesses across State and Territory boundaries • Workers with licences or permits issued by State work health and safety regulators the ability to move easily between jurisdictions • A larger resource of health and safety information, which will deliver clear and consistent information to all Australians What is new for NSW under the model WHS Act? • An employer will become known as a “person conducting a business or undertaking” or PCBU • Certain volunteers will be included as a worker • Health and Safety Representatives (HRSs) will replace occupational health and safety (OHS) representatives • An HSR, after completing training , will be able to issue provisional improvement notices (PINS) and direct that unsafe work cease • An employee representative body can apply to the relevant body for a WHS entry permit, allowing the permit holder to enter a workplace under certain circumstances • What is a person conducting a business or undertaking (PCBU)? A PCBU includes an employer, corporation, association, partnership, sole trader and certain volunteer organisations. For example, a volunteer organisation that employs a person to carry out work is a PCBU. But a volunteer organisation that operates with volunteers and does not employ anyone is not a PCBU. A PCBU has the primary duty of care for workplace health and safety When is a person not a PCBU? A person is not a PCBU if they are: • Engaged solely as a worker or an officer • An elected member of a local authority • A volunteer association where no-one is paid to carry out work for the association What are the duties of a PCBU? The duties of a PCBU, as set out in the model WHS Act, are generally the same as those of an employer, as set out in the OHS Act i.e. a PCBU must ensure the health and safety of workers, customers and visitors by eliminating or minimizing risks at the workplace Who is a worker? A worker is someone who carries out work for a PCBU. A worker includes an employee, 36 www.nswmealsonwheels.org.au
Wintalyka <strong>Issue</strong> 01 / 2011 News and Updates Criminal Record Checks Christine Russell As you may remember from 30 September 2009 ADHC ceased to conduct criminal record checks and suggested that these be sought from your local police station for $52, Crimtrac or NSW Businesslink for $37 per employee and $15 per volunteer or to seek out other preemployment screening brokers. labour hire staff, volunteer, apprentice, work experience student, subcontractor and contractor What are the duties of a worker? The duties of a worker, as set out in the model WHS Act, are the same as an employee, as set out in the OHS Act. While at work, a worker must take reasonable care for their own safety and ensure that they do not adversely affect the health and safety of others. A worker must comply with any reasonable instruction and cooperate with the PCBU’s WHS policy and procedures. Who are ‘others’ at the workplace? Others include clients, customers and visitors and they also have the same duties as a worker Comment: The inclusion of volunteers within the definition of ‘ workers’ as a means of ensuring volunteers receive the same level of OHS protection has been welcomed by Volunteering Australia. However they say that the effect of potential civil and criminal liabilities on organisations that rely on volunteers to manage their governance and management is a concern and they have written to the government for clarification about personal, civil and criminal liability of volunteers who govern and manage community organisations. For more information go to: www.workcover.nsw.gov.au/ newlegislation2012 It is still a requirement that services conduct criminal record checks for their employees and volunteers. Federally funded aged care services must conduct criminal record checks on employees to include volunteers every three years. However one off criminal record checks are still in place for HACC services until 1 July 2012. However, there may be budgetary implications and considerations in respect of any changes in this requirement under the Commonwealth for 2012. In 2012 Commonwealth Accountability principles provide that criminal record checks must be conducted every three years on paid and unpaid staff who work in federally funded aged care services. The criminal record checks must be national and not state based. Further developments on these requirements will be issued as they are conveyed from ADHC and or the Commonwealth. www.nswmealsonwheels.org.au 37
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