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NEW LEGISLATION PUSHES BOUNDARYS

New Legislation is now in place for Workplace Health and Safety Act which places the primary duty of care and various other duties and obligations on a ‘person conducting a business or undertaking’ (PCBU). The meaning of a PCBU is set out in section 5 of the WHS Act is a broad concept used to capture all types of modern working arrangements. A PCBU or Person in Control of a Business Unit conducts a business or undertaking alone or with others. The business or undertaking can operate for profit or not-for-profit. The definition of a PCBU focuses on the work arrangements and the relationships to carry out the work. In addition to employers, a PCBU can be a corporation, an association, a partnership or sole trader. A volunteer organisation which employs any person to carry out work is considered a PCBU. Householders where there is an employment relationship between the householder and the worker are also considered a PCBU.

An officer is a person who makes decisions, or participates in making decisions, that affect the whole, or a substantial part, of a business or undertaking and has the capacity to significantly affect the financial standing of the business or undertaking. If a person is responsible only for implementing those decisions, they are not considered an officer. Partners of a partnership are not officers but are PCBUs. An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with their duties under the WHS legislation.

You are considered to be an officer if you are:

• an officer within the meaning of section 9 of the Corporations Act 2001
• an officer of the Crown within the meaning of section 247 of the model Work Health and Safety (WHS) Act
• an officer of a public authority within the meaning of section 252 of the model WHS Act.

Much of what we see in the new legislation has flow on effects with thinks like responsibilities for HSR – Health Safety Representatives in the workplace.

A person who conducts a business or undertaking (PCBU) must consult, so far as is reasonably practicable, with workers who carry out work for the business or undertaking and who are (or are likely to be) directly affected by a work health or safety matter. Part 5 of the WHS Act allows for workers to be consulted and represented through health and safety representatives and committees:

• A worker may ask for a Health and Safety Representative (HSR) to be elected to represent them on work health and safety matters. If a worker makes this request, work groups need to be established to facilitate the election. Where HSRs have been elected, the PCBU must consult with them.
• A Health and Safety Committee (HSC) brings together workers and management to assist in the development and review of health and safety policies and procedures for the workplace. A HSC must be established when a HSR or five or more workers makes a request to the PCBU.

PCBU’s and HSR’s also have responsibility for general safety requirements including certification of workers with licensing such as the National Code of Practice for Induction for Construction Work. As all states and territories have agreed to implement the National Code of Practice for Induction for Construction Work which has been declared by Safe Work Australia. This has resulted in a nationally consistent approach to construction induction training given to workers across Australia. It has also meant that building and construction workers who have completed the induction training are now recognised nationally. The code of practice replaced a multitude of state systems currently in operation with a single national approach. The code provides guidance on the recommended induction training required to ensure construction workers gain awareness and understanding of common hazards on construction sites and how they should be managed. The code is supported by a national unit of competency in CPC08 Construction, Plumbing and Integrated Services Training Package which enables required training to be delivered through the vocational education and training system by registered training organisations. On 1 January 2012, new National OH&S laws came into effect in QLD, NSW, ACT, NT and Commonwealth jurisdictions. The new law (Work, Health and Safety Act, 2011) provides for White Cards to be recognised across all States of Australia. This is an example of the type of licensing that PCBU’s and HSR’s have the responsibility to ensure that they comply with National Licensing and Training requirements.

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Modules

Modules

Module 1:  Overview of WHS Act and the National Changes

 

Module 2: Terminology & Definitions across Australia

 

Module 3:  Implications for Small Business in Australia

 

Module 4:  WH&S ACT implications for Senior Managers, CEO’s and Directors

 

Module 5:  WH&S ACT implications for Group Training Organisations  

 

Module 6: The ACT Terminology

 

Module 7: PCBUs, the Primary Duty of Care & Other Duties

 

Module 8:  Duties of Officers, Workers & Others

 

Module 9: Defining Reasonably Practicable

 

Module 10: Consultation Definition and Requirements

 

Module 11: Participation and Representation for Health and Safety Representatives

 

Module 12: Health and Safety Committees and their Roles and Functions

 

Module 13: PCBU Issue Resolution and Review

 

Module 14: Public Safety , Exposure and Risks

 

Module 15:  Enforcement and Penalties

 

Module 16:  Reviewable Decisions – Internal and External Appeals

 

Module 17: Union Participation in WH & S  

 

Module 18: Notification of Incidents

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New work health and Safety laws

The WHS Act places the primary duty of care and various other duties and obligations on a ‘person conducting a business or undertaking’ (PCBU). The meaning of a PCBU is set out in section 5 of the WHS Act. This is a broad concept used to capture all types of modern working arrangements.

The document attached below provides guidance on the interpretation and application of the concept of a ‘person conducting a business or undertaking’ used in the Work Health and Safety (WHS) Act and Regulations.

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COMCARE Defines PCBU

COMCARE Defines PCBU

The principal duty holder is a ‘person conducting a business or undertaking’ and replaces the term ‘employer’. PCBUs include the Commonwealth, Commonwealth Authorities, non-Commonwealth licensees, principal contractors, and will, in some cases, necessitate an analysis to understand who is a PCBU in a particular factual context under the new WHS laws.

The duty imposed on a PCBU is probably the most significant conceptual change from the majority of previous OHS Acts. For the public sector, it means that every activity that could give rise to a risk is captured in both policy and operational.

This change is aimed at ensuring that the WHS Act coverage extends beyond the traditional employer / employee relationship to include new and evolving work arrangements and risks.

The WHS Act also places specific upstream duties on PCBUs who carry out specific activities:

  • persons with management or control of a workplace/fixtures, fittings and plant
  • designers, manufacturers, importers, suppliers and PCBUs that install construct or commission plant or structures.
  • Duties extend to any PCBU who is contributing to work has a duty of care – this can be more than one duty in relation to specific activities

‘Volunteer association’ (as defined) is not treated as a business or undertaking.

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Online Induction Programs

Incorporating e-learning into your induction and orientation program has some distinct advantages. The most important is the level of in-built trainee engagement, content consistency, and corporate compliance that e-learning provides. Most corporate induction programs involve new employees and contractors sitting in a room for one or two days (or more!), listening to dry presentations from a seemingly endless array of executive representatives, WHSO’s and Quality Managers! This monthly ritual is a familiar scenario to most executives in large organisations. But for all this work and investment of highly paid resource, how much actual retention and competence can really be demonstrated?

In most cases, trainees simply sign off a form to say they were present at the training.  As we say, they were “warm and vertical” on the day, but nothing beyond this is guaranteed!

In contrast, Urban E-learning solutions encourage and support cultural change and evidence of compliance!  Our courses are designed with multiple different modalities of learning and assessment, based on important competencies relevant to the topic at hand.  We provide easy to respond to online assessment tools such as multiple choice, drag-and-drop, matching of pictures with text, and much more!  The results from these assessments are tracked in amazing levels of detail in the “Learning Management System” (LMS) database which is accessible to management 24/7 online!