WORK HEALTH & SAFETY NEWSLETTER November

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1 WORK HEALTH & SAFETY NEWSLETTER November How WH&S applies to Men s Sheds What s all this about? Ever since the beginning of industry Governments, Unions and employers have introduced many rules and regulations in an effort to reduce workplace injuries. Over the past 20 or so years there has been a shift in emphasis away from prescriptive regulation towards managing risk in a pro-active way, involving managers and workers, identifying risks and taking steps to manage those risks. Many argue that the regulatory approach had gone too far and workers in many industries were hamstrung by laws that in many cases they were unaware of. People and shedders are worried about breaking the law and incurring penalties. The present reform of WH&S laws is aimed at reducing the legislation and regulation and introducing a risk management approach by harmonising the laws on workplace health and safety in all states. This new legislation around the country has provoked concern amongst Sheds and many have asked AMSA about WH&S and how it affects them. Committees in particular have expressed concerns about their WH&S liabilities. Action so far; AMSA provided an OH&S guidance manual on the AMSA website 18 months ago and issued Sheds with the SMART system this year to assist with managing members and equipment at sheds. AMSA requires that all sheds adopt the OH&S manual as a minimum standard and that Sheds add additional procedures where necessary to cover any risks peculiar to their operations that are not in the AMSA manual. See guidance below. Since March, AMSA with NSW representatives Kevin Callinan and John Sharples have met several times with WorkCover NSW seeking answers on behalf of Sheds. At the end of this paper is a document provided to AMSA from WorkCover, which sets out theirs and Safe Work Australia s requirements in respect of OH&S for Sheds. This brings us up to date. Going forward, it s important that each shed complies with the requirements, which are summarised immediately below. WorkCover provides further detail in their document, which follows. This note is based on advice from WorkCover NSW and is the basis of the Commonwealth Governments efforts to introduce uniform OH&S legislation across the Country. Currently, Victoria, South Australia and Western Australia are yet to agree to the new WHS laws and therefore existing laws prevail there. Sheds in these States ought, through their State Men s Sheds Association, enquire of their local authorities about their situation.

2 Sheds that are incorporated and do not employ staff: These Sheds are exempt from the legislation. The new WHS laws do not regulate these Sheds. However, they have a Common Law obligation called a DUTY OF CARE and are required by AMSA to implement and comply with the AMSA manual on the website. (They may have obligations under existing legislation where the new WHS laws have not yet come into force in their state.) (2) Sheds that are incorporated and do employ staff: Sheds that employ staff are regarded as businesses or in terms of the legislation Persons Conducting a Business Undertaking (referred to as a PCBU). These Sheds come under the WH&S Act and are required to comply with the legislation. AMSA requires that all these Sheds comply with the requirements set out in item (1) above, and seek assistance to identify what additional OH&S processes are needed to achieve compliance. (3) Sheds that are incorporated and managed by a person from a different organisation: Some Sheds are incorporated but managed by a person employed by a different organisation. This can happen in a retirement village, Neighbourhood Centre etc. In these situations, the Shed will need to understand the detail in their agreement, but in all likelihood, the OH&S rules of the Manager s company will apply. If no applicable procedures from the Manager exist AMSA recommends that the Shed complies with the AMSA manual and brings any deficiencies to the attention of the Manager. (4) Sheds that are auspiced / sponsored by another organisation. These Sheds are expected to comply with the OH&S system of the auspicing body. If the Shed Committee assesses any part of the organisations system as inadequate, then the Committee ought to bring this to the attention of the auspicing body. In the meantime, AMSA recommends that the Shed comply with the AMSA manual unless a procedure authorised by the auspicing body exists which will take precedence over the AMSA procedure. It should be noted that it is not possible to contract out of responsibilities for workplace health and safety ; also that it is possible for two organisations to have or share the same responsibilities.

3 DUTY OF CARE: All Sheds and their members owe a duty of care to any person in the Shed. This is a duty that exists in society not only in Sheds but whenever we interact with other people; in the Shed, at home, in the street, at the shops, etc. This duty is a legal term, which by definition means; "an obligation, recognised by law, to avoid conduct fraught with unreasonable risk of danger to others". This duty of care applies not only to volunteers, members of a Shed, but also to visitors to the Shed and contractors who may visit from time to time. AMSA understands this to mean that each person has a duty to look after your mate. If you see a potentially dangerous situation, then you have a duty to take action to prevent harm to yourself, or another person. For example, if a Shedder is not skilled, or trained, to operate a machine, then they should not be allowed to operate the machine in question without assistance from someone who is skilled. Another example could be: A Shedder may be skilled but impaired in some way to safely operate a machine, the Duty of Care would require that someone assist that person, and require that they do not work unsupervised. It maybe that the person should not be allowed to operate the machine and another Shedder, perhaps cut to size, enabling the impaired Shedder to assemble and finish the item. Workplace Health and Safety is a serious matter and requires a serious attitude to comply with procedures in order to avoid injuries and make sure we return home safely. The common law duty of care can be addressed, using a risk management approach, and incorporating the outcome in safe operating procedures or other management procedures relevant to the operations, types of machinery and equipment used by the Shed. The topics to be addressed include each of the following: Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. What is reasonably practicable Reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring, and

4 (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. Although the above uses the term a person conducting a business or undertaking this includes for the purposes of these guidance notes stand alone incorporated Sheds which do not employ anyone ; and workers includes volunteers. It should be noted that other types of Sheds have a wider range of duties and obligations under the WH&S legislation.

5 ADVICE FROM N.S.W. WORKCOVER WH&S IN SHEDS Work Health and Safety Laws and Men s Sheds. On 1 January 2012 new Work Health and Safety (WHS) laws commenced in NSW, QLD, the Commonwealth, ACT and the Northern Territory. The same WHS legislation will commence in Tasmania on 1 January The WHS laws have not yet commenced in South Australia, Victoria and Western Australia. You may be wondering what the WHS laws mean for you and your Shed. The new WHS laws make sure volunteers receive the same level of protection as any other workers and ensure that volunteers are not exposed, forgotten or excluded from workplace safety standards. Most volunteer organisations have a strong commitment to the health and safety of their volunteers and the new laws do not have a major impact on how AMSA carries out its activities. Prior to the commencement of the WHS laws, volunteer organisations in most states and territories had a duty to protect the health and safety of their volunteers at work. For practical purposes little will change for organisations that comply with existing OHS legislation in their state or territory. How the WHS Act applies to your Shed To determine if you and your Shed have duties under the WHS laws you need to know whether or not your Shed directly employs anyone. Use the diagram below to find out if you and your Shed have work health and safety duties.

6 Common Law Duty: Regardless of whether a Shed is; a volunteer association without paid employees, is run by an organisation that employs people, or is sponsored by an organisation - all Shed s and their members have a common law duty of care to operate in a safe and healthy manner and should follow the instructions provided such as the AMSA Health & Safety Manual Sheds Volunteer Associations If your Shed does not employ anyone and is a group of volunteers coming together for one or more community purposes it is a Volunteer Association (most Sheds). (see diagram above). Sheds PCBU s: If your Shed employs anyone to carry out paid work, then it is a Person Conducting a Business Undertaking (PCBU). For more information about how you and your Shed can comply with your WHS duties refer to the volunteer resource kit at Safe Work Australia. Please note: Re-imbursement of out of pocket expenses to a volunteer is not employment and does not change the status of the Shed or the Shedder. Engaging a contractor to carry out some specific task will also not normally change a Shed s status. Sheds operated and managed by PCBU s: If your Shed is managed or operated by another organisation, for example it may be operated by an aged care facility as a service to its clients then: you have WHS duties as a volunteer worker, and your Shed must adopt and follow the relevant WHS policies and procedures of the PCBU (for example, aged care facility). For more information about how to comply with WHS laws refer to the volunteer resource kit on the Safe Work Australia website. Sponsored Sheds. If your Shed is auspiced or sponsored by another organisation then whether it is subject to work health and safety laws depends on a number of circumstances. If the auspicing body is a PCBU (employs paid workers) and it directs or influences the work Shedders undertake then it owes its workers, including volunteers (Shedders), a duty of care to ensure their health and safety so far as is reasonably practicable. Under the WHS laws members of these Sheds will also have duties as volunteer workers to take reasonable care. If the sponsoring organisation is a volunteer association then the Shed s members will not have duties under the WHS Act. A sponsored Shed needs to work in cooperation with their sponsor regarding responsibilities for WHS. You cannot contract out your responsibilities under the work health and safety legislation so it is important that you know what your responsibilities are and have in place arrangements to meet them. Further information, including a volunteer resource kit, is available from the Safe Work Australia website, or from the work health and safety regulator in each state or territory.