WHS Legislation Key Concepts

+ PCBUs and Workers

EVERYBODY WHO ENGAGES, DIRECTS, MANAGES OR CONTROLS THE WORK OF OTHER PEOPLE ON SET IS A PCBU WITH LEGALLY ENFORCEABLE WHS DUTIES OF CARE TO MANAGE HEALTH AND SAFETY RISKS.

PCBU

Firstly, we identify the class of person who has the primary duty to provide a safe workplace. This is the Person Conducting a Business or Undertaking (PCBU). Unless you are in Victoria or Western Australia, in which case it is the employer.

PCBU is a broad concept used in the model legislation to capture all types of modern working relationships. It can apply to any undertaking, even if it is not for profit or gain.

The term PCBU includes employers, but also includes contractors and any other person who exercises management or control over any part of the workplace. There can be multiple PCBUs on the production at any time.

If you are director or officer of a company or other entity that is a PCBU, then you have a legal obligation to ensure that the entity complies with its WHS obligations including:

(i) understand and keep up to date on WHS;

(ii) understand the operations of the PCBU and the hazards and risks involved;

(iii) ensure appropriate resources and processes are available to eliminate or minimise risks and hazards;

(iv) ensure there are processes for you to receive and respond to information about incidents, hazards and risks;

(v) ensure there are processes in place for complying with duties under WHS Legislation (including reporting, consultation, and training); and

(vi) take steps to verify that the WHS processes and resources are being used.

On productions, there will be a variety of situations where individual PCBU’s duties overlap with those of other PCBUs. In those situations, all PCBUs, including the production company, must consult, cooperate, and coordinate in order to manage WHS.

In practice, this means that the production company, as the organisation bringing the PCBUs together, should take a leading role in ensuring coordination across the set, designating someone to take that role, and ensuring the process is properly documented. Heads of department may apply their specialist knowledge of a particular area to provide guidance for all aspects of the production involving that particular area.

It is important to note that you cannot transfer a Duty of Care to another person. If one PCBU takes control of a particular aspect of health and safety, it does not eliminate the responsibility of other PCBUs for that matter. All PCBUs involved in the workplace retain responsibility for the risks created by the work they undertake.

WORKER

Secondly, we identify the class of person to whom this duty is owed. This is the Worker. Unless you are in Victoria or Western Australia, in which case it is the employee.

Again, Worker is a broad concept, used in the model legislation to cover not only employees, but also any person working for a PCBU such as contractors, employees of contractors, volunteers, work experience students etc – anyone providing the benefit of their physical and/or mental effort to the PCBU. It is possible to be both a Worker, and a PCBU at the same time.

+ Primary Duty of Care

Each PCBU must ensure that the health and safety of Workers they engage or direct. They must also ensure that the health and safety of other persons are not put at risk.

This general duty includes a number of specific duties:

(i) provide and maintain a safe work environment;

(ii) provide and maintain safe equipment and structures;

(iii) provide and maintain safe systems of work;

(iv) safe handling and storage of equipment and substances;

(v) provision of adequate facilities for welfare of Workers;

(vi) provision of information, training, instruction and supervision of Workers;

(vii) monitoring the health of Workers; and

(viii) if applicable, provide safe accommodation.

+ Further Duties of Care

There are further duties of care to ensure the health and safety of people, that apply if a PCBU:

(i) manages or controls a workplace, including entry and exit points (noting that workplaces can include vehicles and filming locations);

(ii) manages or controls equipment;

(iii) designs, constructs or installs structures or equipment; and

(iv) manufactures, imports or supplies equipment and substances.

+ Duties of Workers and Other Persons

Even if you are not a PCBU, you still have duties to:

(i) take reasonable care of your own health and safety;

(ii) take reasonable care that you don’t risk the health and safety of others; and

(iii) comply with any reasonable WHS instruction given by a PCBU.

And if you are a Worker, you have one extra duty:

(iv) co-operate with any WHS policy that has been notified to you by PCBU.

+ Risk Management

IF YOU HAVE A DUTY OF CARE, YOU MUST TAKE REASONABLE STEPS TO ELIMINATE RISKS, OR IF THAT IS NOT POSSIBLE, TO MINIMISE THEM.

If you have a WHS Duty of Care then you must take steps to manage the relevant risks. Risk Management means you must eliminate risks to health and safety so far as is reasonably practicable. Then, to the extent elimination of any risk is not reasonably practicable, you must do what you can to minimise that risk.

WHS Duties of Care require you to take steps to the extent that they are ‘Reasonably Practicable’.

‘Reasonably Practicable’ means that you must take the following factors into account when considering how to eliminate or minimise any risk to health and safety:

(i) the likelihood of it happening;

(ii) the degree of harm, severity of consequences if it does happen;

(iii) what you should be expected to know about the risk and the methods of managing it;

(iv) the availability and suitability of ways to eliminate or minimise the risk; and

(v) whether the cost of any way to eliminate or minimise the risk is grossly disproportionate to the risk.

Using this Manual you will be able to perform this Risk Management process in relation to any situation you are likely to encounter in the screen production industry.

+ Consultation

PCBUs HAVE A LEGAL OBLIGATION TO CONSULT WITH EACH OTHER AND WITH THEIR WORKERS

Consultation with others on set is a specific and mandatory requirement under WHS Legislation.

If two PCBUs have overlapping duties of care, then they are required to consult and co-ordinate with each other.

Each PCBU is also required to consult with any Worker who is likely to be affected by any risk, when:

(i) identifying hazards and risks;

(ii) making decisions about ways to eliminate or minimise risks;

(iii) making decisions about the adequacy of facilities for the welfare of Workers; and

(iv) making decisions about procedures for consultation, dispute resolution, monitoring of health and work conditions and provision of training.

Consultation means that the PCBU is required to:

(i) share relevant information with the Workers;

(ii) provide Workers with an opportunity to raise health and safety issues and contribute to decision making processes;

(iii) take the views of Workers into account; and

(iv) advise the Workers of the outcome of the consultation process.

(g) Election of a Health and Safety Representative

Workers may request the PCBU to facilitate the election of a Health and Safety Representative, who must then be involved in any consultation. Workers may also request the PCBU set up a health and safety committee.

WHS laws contain provisions protecting the rights of Workers and Health and Safety Representatives to raise WHS issues, and impose penalties if any PCBU coerces or discriminates against them on this basis.

+ Authorisation

CHECK WHETHER ALL THE NECESSARY AUTHORISATIONS ARE IN PLACE

WHS regulations require that licences, permits and registrations may be required in relation to certain workplaces and activities, for example scaffolding, rigging, cranes, electrical work and diving work.

This Manual provides further information regarding the authorisations that may be required in relation to specific activities.

+ Notifiable Incidents

MAKE SURE YOU HAVE A SYSTEM IN PLACE FOR NOTIFYING YOUR RELEVANT REGULATOR OF ANY WHS INCIDENT

WHS laws require a PCBU to notify the relevant Regulatory Agency, as soon as they become aware that, in relation to the production, a person has been killed, suffered a serious injury or illness, or there has been a dangerous incident.

If a Notifiable Incident occurs, the PCBU must, as far as is reasonably practicable, preserve the site of the incident until a WHS from the relevant Agency can attend. This requirement does not prevent the PCBU from assisting the injured person or making the site safe.

Further information about this Notification process is provided in Section F of the Manual.