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Work Health and Safety

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Title: Work Health and Safety


1
Work Health and Safety (WHS) Act Awareness
course for union members
2
  • I acknowledge the traditional custodians of the
    land we meet on today and pay my respects to the
    elders past and present.

3
Housekeeping
  • Emergency Procedures
  • Participant Notes Pre-training quiz
  • Location of facilities etc.
  • Training rules - participation
  • Mobile phones
  • Breaks
  • Training Ergonomics
  • Evaluation questionnaire

4
Course Objectives
  • To provide union members with information and
    knowledge on the Work Health Safety (WHS) Act,
    to commence 1 January 2012
  • New terminology of the WHS legislation
  • Duty holders and their duties under the WHS Act
  • Consultation, representation and participation
    requirements
  • Role of Health Safety Representatives (HSRs),
    Health Safety Committees (HSCs) and other
    arrangements
  • Ceasing unsafe work Provisional Improvement
    Notices (PINs)
  • Enforcement measures
  • Role of Unions and WHS entry permit holders

5
Group introduction
  • Your Name
  • Your Role
  • Questions about the new Work Health and Safety
    laws that you would like answered during this
    course.

6
IntroductionActivity
  • Please complete the pre-course quiz in the
    activities section of your participant notes.
  • We will review this quiz again at the end of the
    course to make sure that you have information you
    need on the WHS Act.

7
  • Work Health Safety Framework and
  • Terminology

8
Work Health Safety
  • See Fact Sheet 2 and NSW WHS Act for full
    definitions
  • Work Health and Safety - covers the concept of
    the health, safety and welfare of all persons who
    may be impacted by work activities.
  • Health means physical and psychological health.
  • Safety requires the elimination or minimisation
    of hazards in the workplace that have the
    potential to cause harm.
  • Welfare includes the provision of facilities,
    protective clothing or equipment, rescue
    equipment and accommodation.

WHS Act s4
9
Work Health and Safety Framework
  • WHS Act
  • WHS Regulations
  • ___________________
  • Codes of Practice
  • Australian Standards
  • Industry Standards
  • Guidance Material

10
Work Health and Safety Framework
Model WHS Framework Model WHS Act and WHS
Regulations supported by Codes of Practice
Mirrored by
State WHS Act, WHS Regulations, Codes of Practice
Territory WHS Act, WHS Regulations, Codes of
Practice
Commonwealth WHS Act, WHS Regulations, Codes of
Practice
11
Key changes in NSW OHS legislation
  • Changes in work safety terminology.
  • A broadening of health safety duties.
  • A move away from the employer/employee
    relationship to the broader definitions of PCBUs
    and workers.
  • A requirement for all duty holders to consult.
  • Changes in the names, role and functions of OHS
    representatives and OHS Committees to HSRs
    (deputy HSRs) and HSCs.

12
Key changes in NSW OHS legislation (cont)
  • HSRs able to issue PINs to direct unsafe work
    to cease if they have received the appropriate
    training
  • Authorised representatives now WHS permit holders
  • Positive duties introduced for officers
  • Unions right to prosecute only in certain
    circumstances
  • Removal of reverse onus of proof prosecution
    must now prove a failure by a duty holder to do
    what is reasonably practicable to ensure the
    health safety of workers and others

13
Key changes in terms
Person Conducting a Business or Undertaking
(PCBU) - includes corporations, partnerships,
labour hire businesses, associations,
franchises. A PCBU does not need to employ
workers. Worker - includes employees,
contractors, volunteers, apprentices, outworkers,
trainees and work experience persons.
  • Employer
  • Employee

WHS Act s4
14
Important terms
  • Person conducting a business or undertaking
    (PCBU).
  • Worker
  • Workplace
  • Health and Safety Representative (HSR)
  • Health and Safety Committee
  • Officer
  • Reasonably practicable
  • What is your normal place of work? Do you ever
    work away from your works premises under a
    different business owner?

WHS Act s4
15
Important terms - related to duties
  • Supply - includes a supply and a resupply of the
    thing by way of sale, exchange, lease, hire or
    hire-purchase, whether as principal or agent.
    Design - includes original design, redesign or
    modification
  • Construct - includes assemble, erect,
    reconstruct, reassemble and re-erect.
  • Other terms- Import, Manufacture, Commission,
    Maintain
  • As part of your work activities have you
    altered a piece of equipment or assembled a
    structure at work?

WHS Act s4
16
Important terms
  • Workgroup
  • A WHS Entry Permit Holder
  • Provisional Improvement Notice (PIN)
  • Notifiable Incident
  • Serious Injury or Illness
  • Dangerous Incident
  • Structure
  • Plant
  • Substance

WHS Act s4,6, s35-39, s51-59, s90-102
17
TerminologyActivity
  • Please complete the Module 2 Activity WHS Act
    Terminology Table in your handouts.
  • You can use your participant notes to assist.

18
  • Work Health Safety Duties
  • and
  • Enforcement

19
Persons with health and safety duties
  • Persons with duties under the WHS Act
  • PCBUs including manufacturers, suppliers,
    importers or persons with management or control
    of workplaces, fixtures and fittings.
  • PCBUs who install, commission or construct plant,
    structures or substances.
  • Self-employed persons
  • Workers
  • Officers
  • Others at the workplace
  • Persons who currently have duties
  • Employers
  • Controllers of work premises, plant or substances
  • Designers, suppliers and manufacturers of plant
    and substances
  • Self-employed persons
  • Employees
  • Directors and managers

WHS Act s4
20
Health and Safety Duties
  • A person with a duty to ensure health and safety
    under the WHS Act is required to
  • Eliminate risks to health and safety so far as is
    reasonably practicable.
  • Example Removing the chemicals and using other
    methods to clean, such as water blasting.
  • Where elimination is not reasonably practicable,
    minimise those risks so far as is reasonably
    practicable.
  • Example A cleaning chemical is still required
    but a safer substance is chosen for use.

WHS Act s17-18
21
  • Health and Safety Duties

Reasonably practicable is based on
Likelihood of the hazard or risk occurring
Level of harm from exposure to the hazard
What is known about the hazard or risk
What is known about how to eliminate or minimise
the risk
Whether the cost of eliminating or minimising
the risk far exceeds the risk
Availability and suitability of ways to eliminate
or minimise
Where would you find information to assist in
doing what would be considered to be reasonably
practicable?
WHS Act s18
22
  • Health and Safety Duties
  • - PCBUs -
  • PCBUs have a primary duty of care to ensure, so
    far as is reasonably practicable, the health
    safety of
  • workers engaged directly or indirectly by the
    PCBU
  • workers whose work activities are influenced or
    directed by the PCBU and
  • other persons present where work activities are
    being conducted.
  • What might the PCBU have to do to meet this duty
    of care?

WHS Act s19
23
  • Health and Safety Duties
  • - PCBUs -
  • Duties of PCBUs to meet this primary duty of care
    are similar to current requirements and include
    provision of
  • Safe work environments
  • Safe systems of work
  • Safe plant and structures
  • Safe substances
  • Facilities
  • Information, instruction, training and
    supervision
  • Monitoring of workers health and workplace
    conditions
  • Workers accommodation (an additional
    requirement) where provided/required for work.
  • See Fact Sheet 3 for other duties of PCBUs.

WHS Act s19
24
  • Health and Safety Duties
  • - PCBU -
  • PCBUs involved in the
  • Management or control of workplaces including
    the means of entering and exiting the workplace
  • Management or control of fixtures, fittings or
    plant
  • have a duty to eliminate or minimise risks to
    health and safety (i.e. a primary duty of care)
    over the matters they control in relation to
    these workplaces, fixtures, fittings or plant.

WHS Act s20-21
25
  • Health and Safety Duties
  • - PCBU -
  • PCBUs also have a primary duty of care to
    ensure health and safety where they are involved
    in the
  • Design
  • Manufacture
  • Import
  • Supply
  • Installation, commission or construction
  • of plant, substances and structures.
  • This includes assembly, use, handling, storage,
    disposal, provision of current relevant
    information etc.

WHS Act s22-26
26
  • Health and Safety Duties
  • - Officers -
  • Officers of the PCBU are required to exercise
    due diligence to ensure the PCBU complies with
    their duties and obligations.
  • Officer includes a director or secretary of the
    corp., a person who makes, or participates in
    making, decisions that affect the whole or
    substantial part of the business of the
    corporation, receiver, administrator, liquidator
    or a trustee.
  • Who are officers in your workplace? What might
    they have to do to show they are using due
    diligence?

WHS Act s27 Corp Act 2001
27
  • Health and Safety Duties
  • Due diligence means taking reasonable steps
  • to gain and update knowledge of work health and
    safety
  • in understanding the operations and the general
    hazards/risks
  • for appropriate resources to eliminate/minimise
    risks
  • in managing information about incidents, hazards
    and risks
  • to implement processes to comply with duties
    (e.g. reporting notifiable incidents,
    consultation, provision of training)
  • to verify that resources and processes have been
    provided, and their use.

WHS Act s27(5)
28
  • Health and Safety Duties
  • Duties of workers
  • Take reasonable care for their own health
    safety
  • Take reasonable care to ensure acts/omissions do
    not adversely affect others health safety
  • Comply with reasonable instructions from the
    PCBU
  • Co-operate with policy or procedures of the PCBU
  • What might you have to do as a worker to meet
    these duties?

WHS Act s28
29
  • Health and Safety Duties
  • Right to cease unsafe work
  • Workers have the right to cease or refuse to
    carry out work if they have a reasonable concern
    that the work would expose them to a serious risk
    to health safety from an immediate or imminent
    exposure to a hazard.
  • ? A worker may also be directed to cease unsafe
    work by their Health and Safety Representative
    (HSR).

What risks do you think may be immediate or
imminent?
WHS Act s84-85
30
  • Health and Safety Duties
  • Duties of self-employed persons
  • Self-employed persons have
  • a duty to ensure their own work health and
    safety
  • health and safety duties as a PCBU
  • How might a self-employed person ensure their own
    health and safety?

WHS Act s19(5)
31
  • Health and Safety Duties
  • Other persons at the workplace (e.g. visitor,
    shopper)
  • (an expanded duty under WHS Act)
  • take reasonable care for his or her own health
    safety
  • take reasonable care that his or her acts or
    omissions do not adversely affect the health
    safety of other persons and
  • comply, so far as reasonably able, with any
    reasonable instruction given by the PCBU to allow
    the PCBU to comply with their duties.

WHS Act s29
32
Health and Safety Duties
  • Other key concepts of duties under the WHS Act
  • A duty cannot be transferred to another person.
  • Example A business owner cannot transfer duties
    to a supervisor.
  • A person can have more than one duty.
  • Example A person who conducts a business
    manufacturing and selling equipment for use at
    work.
  • More than one person can have a duty.
  • Example A contractor and the business owner of
    the workplace where the work is being done can
    have the same duties.

WHS Act s14-16
33
Health and Safety Duties- Activity -
  • The facilitator will divide the group into
    smaller groups to review the scenarios in the
    Activity.
  • The group will come back together to discuss the
    answers.

34
  • Health and Safety Duties
  • Offences and penalties
  • A person commits an offence against the WHS Act
    under the following categories.
  • Category 1 - Reckless conduct
  • A person commits a Category 1 offence if they
  • have a health and safety duty and
  • without reasonable excuse expose a person to a
    risk of death, serious injury or illness
  • are reckless as to the risk of the individual of
    death or serious injury or illness.

WHS Act s31, s230-236
35
  • Health and Safety Duties
  • Category 2 - Failure to comply with health and
    safety duty
  • A person commits a Category 2 offence if
  • the person has a duty, fails in that duty and
    exposes a person to
  • death or serious injury or illness as a result of
    this failure.
  • Category 3 - Failure to comply with health and
    safety duty
  • A person commits a Category 3 offence if
  • the person has a health and safety duty and they
    fail to comply with that duty.

WHS Act s32 and s33
36
Penalties under the WHS Act
Failure to comply with Health and Safety duty Individual Individual conducting a PCBU or Officer of a PCBU Body Corporate
Category 1 300,000 or 5 years imprisonment or both 600,000 or 5 years imprisonment or both. 3,000,000
Category 2 150,000 300,000 1,500,000
Category 3 50,000 100,000 500,000
WHS Act s30-34
37
Enforcement measures
Provisional Improvement Notices (PIN) A notice issued by a HSR to address a contravention of a provision of the WHS Act. The notice may be reviewed by an inspector and can be applied, altered or removed.
Improvement Notices A notice issued to a person by an inspector to address a contravention of a provision of the WHS Act.
Prohibition Notices A direction from an inspector prohibiting the person in control from carrying on an activity until the risk is remedied.
Non-disturbance notices A notice issued by an inspector to the person with management or control of a workplace to facilitate the exercising of the inspectors compliance powers.
WHS Act s90 102, s191-222
38
Potential outcomes of legal proceedings
Court Order Requirement
Enforceable (WHS) undertakings A written undertaking given by a person in relation to a contravention (or alleged contravention) of the WHS Act (excepting Category 1 offences).
Adverse publicity orders Publicising of the offence, its consequences, the penalty and any other related matter.
Orders for Restoration Actions are required by the offender to remedy any matter caused by the offence that is within the offenders power to remedy.
Work Health and Safety (WHS) project orders A specified project for the general improvement of health and safety that the offender is required to undertake within the specified period.
WHS Act s230- 242
39
Potential outcomes of legal proceedings
Court Order Requirement
Court ordered WHS undertakings The court may adjourn proceedings for up to two (2) years and make an order for the release of an offender on the basis the offender gives an undertaking with specified conditions.
Injunctions The offender is required to cease contravening the WHS Act.
Training Order The person guilty of an offence is required to undertake or arrange for workers to undertake a specified training course.
WHS Act s230-242
40
Offences by the Crown
  • Officer of the Crown
  • A person who makes or participates in making
    decisions that affect the whole or a substantial
    part of the business or undertaking of the Crown.
  • Officers of the Crown are now held accountable
    for contraventions of the WHS Act in the same way
    as officers of PCBUs are.
  • This means they can be personally fined or
  • imprisoned where a serious breach is proven.

WHS Act s245-248
41
EnforcementActivity
  • The facilitator will divide the group into
    smaller groups to review the table and determine
    if the statements are true or false.
  • The group will come back together to discuss the
    answers.

42
  • Consultation, Representation
  • and Participation

43
Resources
  • WHS Act Regulation
  • Fact sheet 4?
  • Code of Practice How to consult on work health
    safety practical guidance on the requirements for
    consultation, representation and participation.
  • duties for consultation
  • effective consultation
  • how when to consult
  • consultation, co-operation and co-ordination with
    other duty holders

www.safeworkaustralia.gov.au
44
Consultation, Representation and Participation
  • Consultation duties and requirements
  • Arrangements for consultation with workers
  • Consultation between duty holders
  • Determination of workgroups
  • Consultation between multiple business workgroups
  • Role functions of HSCs and HSRs

WHS Act Part 5
45
Duty to consult workers
  • The PCBU is required, so far as is reasonably
    practicable, to consult with workers
  • who work for the business or undertaking
  • or
  • are likely to be directly affected by a work
    health safety matter.
  • Workers include contractors, subcontractors,
    labour hire and volunteers.
  • When may it be considered not reasonably
    practicable to consult?

WHS Act s47 (1)
46
  • Duty to consult with
  • other duty holders
  • Each person who has a duty to ensure the health
    safety of persons at a place of work must , so
    far as is reasonably practicable,
  • consult
  • co-operate and
  • co-ordinate activities with other duty holders
    to do so.
  • This will help remove any gaps in work health
    safety.
  • How might duty holders meet this requirement to
    consult, co-operate and co-ordinate activities?

WHS Act s46
47
Consultation between duty holders
Duty holder e.g. Labour hire company
WHS Act s46
48
Duty to consult workers
  • Consultation procedures are to be used
  • where they have been agreed to by a
  • PCBU and the workers and
  • they are consistent with the required
  • nature of consultation.
  • What items would you
  • like to include in your
  • ideal consultative
  • procedure?

WHS Act s48 and s49
49
Nature of consultation
  • Consultation requires
  • sharing of health safety information
  • providing workers with a reasonable opportunity
    to
  • Express their views
  • Raise work health safety issues
  • Contribute to the decision making process
  • views of workers and HSRs must be taken into
    account before making a decision on a health
    safety issue
  • advising workers on the outcome in a timely
    manner.
  • An elected HSR of the workers must also be
    involved in consultation.
  • How and when can workers be provided with
    opportunities for consultation on health and
    safety issues?

WHS Act s48
50
Consultation is required when
  • Deciding on procedures for
  • consulting with workers
  • resolving work health safety issues
  • monitoring workers health
  • monitoring conditions at any workplace under the
    management or control of the PCBU
  • providing information or training for workers
  • Or other activities as described under the
    regulations.

WHS Act s49
51
Consultation is required when
  • identifying and assessing risks to health
    safety
  • deciding ways to eliminate or minimise those
    risks
  • deciding on the adequacy of facilities for
    worker welfare
  • proposing changes that may affect the health
    safety of workers
  • How can workers be involved in identifying
    assessing risks and the ways in which they are to
    be eliminated or minimised?

WHS Act s49
52
Establishing Consultative Representation
  • Can be as HSC, HSRs or other agreed arrangements
    or combination of these
  • 1 worker can request that a PCBU facilitate an
    election for a HSR
  • The PCBU or multiple PCBUs must commence
    negotiations about the workgroup and nature of
    consultation within 14 days of the request
  • Union can assist
  • 5 workers or a HSR can request the formation of a
    HSC
  • The PCBU must establish a committee within 2
    months

53
Determination of workgroups of a PCBU

A worker requests a PCBU to facilitate the
election of HSR/s and deputy HSR.
? Negotiations are to commence within 14 days
of request.
? Unions can assist in the determination
of workgroups and in the election process.
The PCBU or PCBUs and workers negotiate the
determination of one or more workgroups.
  • Negotiations are to be conducted to determine
  • the number and composition of workgroups
  • the number of HSRs and deputy HSRs to be elected
  • the workplace/s to which the workgroups apply
  • the businesses or undertakings to which the
    workgroups will apply

? A workgroup may be determined for workers at
one or more workplaces.
?The PCBU must notify workers of any
variations.
? If negotiations fail any involved party may
request an inspector to assist.
The PCBUs involved in negotiations must notify
workers of the outcome and any workgroups
determined.
WHS Act s50-54
54
Multiple-business workgroups
  • Workgroups may be determined for workers who
    carry out work
  • for two or more PCBUs or
  • at one or more workplaces.
  • The determination of work groups is to
  • be negotiated between each of the PCBUs and the
    workers.
  • These arrangements dont affect any work groups
    already determined by the PCBU for their workers.

WHS Act s55-59
55
Multiple-business arrangements for consultation
Consultation Co-operation Co-ordination
Consultation Co-operation Co-ordination
? A worker may represent a workgroup where
the workers are engaged by different PCBUs.
? Workers are to be informed of the outcomes
of negotiations and of any workgroups.
WHS Act s55-59
56
Consultative Arrangements- Activity 1-
  • The facilitator will divide the group into small
    groups to review the scenarios provided and
    determine the most effective consultation
    arrangements for each situation.
  • The group will come back together to discuss the
    answers.

57
HSR and HSC - Activity 1 -
  • The facilitator will divide the group into two
    teams to review the selected sections of the WHS
    Act and develop questions for a group quiz.
  • Team A Develop questions using the WHS Act
    s46-49 (duties to consult) and s75-79 (HSCs).
  • Team B Develop questions using the WHS Act
    s50-74 (Workgroups, HSRs and deputy HSRs).
  • The facilitator will run a short quiz between the
    two teams.

58
Health Safety Committees (HSCs)
  • The PCBU must establish a HSC within 2 months of
    a request by
  • a HSR for a workgroup carrying out work at the
    workplace or
  • 5 or more workers at the workplace
  • or
  • as required by the regulations or
  • on their own initiative.
  • A HSC under the WHS Act can
  • continue the functions of an existing OHS
    Committee
  • be a consultation mechanism
  • assist and support the HSR in their role and
    represent all workers at the workplace not just
    the workgroup the HSR represents.
  • While current OHS Committees meet the
    requirements for HSCs under the WHS Act, the
    composition of a HSC can now be different.

WHS Act s75,76,78
59
Health and Safety Committees (HSCs)
  •  Functions of the HSC are to
  • Facilitate cooperation between the PCBU and
    workers in instigating, developing and carrying
    out measures to ensure workers health safety.
  • Assist in the development of health and safety
    standards, rules and procedures to be used and
    complied with in the workplace.
  • Any other functions as agreed to between the PCBU
    and the HSC.
  • Do these functions differ much from current
    activities of OHS Committees?

WHS Act s77
60
Obligations of PCBUs to the HSC
  • A PCBU must allow a member of the HSC, with
    respect to work health and safety matters
  • Reasonable time to
  • attend HSC meetings
  • carry out functions as a member of the HSC
  • Access to information on
  • hazards (including associated risks)and
  • the health safety of workers of the workgroup
    with the workers consent (information must not
    contain any information that may allow
    identification)
  • Meetings of the HSC are to be held at least once
    every 3 months and any other reasonable time at
    the request of at least half the HSC.

WHS Act s79
61
Health Safety Representatives (HSRs)
  • Health Safety Representatives
  • are to be elected from the workgroup they are to
    represent
  • have a term of office of 3 years (previously 2
    years)
  • can cease to hold office for various reasons
  • are not personally liable for anything either
    done or omitted in their role as a HSR if done in
    good faith (immunity)
  • are eligible for re-election (unchanged)
  • are entitled to receive training upon request -
    certain functions cannot be performed unless
    trained e.g. issuing of Provisional Improvement
    Notices (PINs) and directing unsafe work to cease
  • Can choose training provider in consultation with
    PCBU
  • See Fact Sheet 4 for further detail.

WHS Act s60 - 64
62
Deputy Health Safety Representatives (Deputy
HSRs)
  • Deputy Health Safety Representatives
  • can use the powers and perform the functions of a
    HSR if the HSR no longer holds office or is
    unable to fulfil their role
  • have same roles. powers functions as HSR
  • See Fact Sheet 4 for further detail.

WHS Act s67 and s64-66,72-73
63
Powers and functions of HSRs
  • Functions of HSRs similar to current functions
    of OHS Representatives and OHS Committee members
  • Represent workers in relation to work health
    safety
  • Monitor the measures taken by the PCBU to meet
    their duties
  • Investigate complaints from members of the
    workgroup
  • Inquire into risk to the health and safety of
    relevant workers
  • Additional powers functions (where trained to
    do so)
  • Directing unsafe work to cease when necessary
  • Issuing of provisional improvement notices when
    necessary
  • How might HSRs monitor the measures taken by
    the PCBU?

WHS Act s68
64
Activities of HSRs
  • Inspecting all or part of the workplace
  • at any time after giving notice
  • at any time without notice after an incident or
    where there is a serious and immediate or
    imminent risk to the health safety of a person.
  • Accompanying an inspector
  • during an inspection.
  • Being present at an interview between a worker or
    a group of workers (with their consent) and an
    inspector or the PCBU.

WHS Act s68
65
Activities of HSRs
  • Requesting the establishment of a Health Safety
    Committee.
  • Receiving information on the heath safety of
    workers
  • except personal or medical information (without
    the consent of the worker) unless the information
    cannot be used to identify the worker.
  • Requesting the assistance of another person where
    necessary e.g. union representative.
  • When might a HSR request assistance from another
    person?

WHS Act s68
66
Limitation of HSRs Powers
  • HSRs powers are limited to matters that
    affect/may affect workers they represent except
  • where there is a serious and immediate/imminent
    risk to the health safety of members of another
    workgroup
  • a member of another workgroup asks for
    assistance and the HSR for that workgroup (upon
    reasonable inquiry) is not available.
  • HSRs are only permitted to issue PINs and direct
    unsafe work to cease if they have completed
    approved training.

WHS Act s69
67
Obligations of PCBUs to HSRs
  • A PCBU must, in respect to HSRs, on work health
    and safety matters
  • Consult so far as is reasonably practicable
  • Confer whenever reasonably requested
  • Allow access to information on hazards and the
    health and safety of workers
  • Provide resources, time and facilities
  • Allow access to the workplace to a person
    assisting the HSR
  • Compile, keep up-to-date and display a list of
    HSRs and deputy HSRs (if any) and provide a copy
    to WorkCover.

WHS Act s70 -74
68
HSC and HSRs- Activity 2-
  • The facilitator will divide the group into
    smaller groups to review the scenarios in the
    Activity.
  • The group will come back together to discuss the
    answers.

69
Provisional Improvement Notices (PINs)
  • A PIN can be issued by a suitably trained HSR if
    they believe a person
  • is breaching a provision of the WHS Act
  • has breached a provision of the WHS Act and is
    likely to continue to or to repeat this breach.
  • A PIN issued by the HSR may require the person
    to
  • remedy the breach
  • prevent a likely breach from occurring
  • remedy the things or operations causing the
    breach/likely breach.
  • See Fact Sheet 5 for additional information.

WHS Act s90
70
Cease Work and PINs- Activity 1 -
  • The facilitator will divide the group into
    smaller groups to review the scenarios to
    determine what actions are required and who has
    responsibilities in relation to these actions.
  • The group will come back together to discuss the
    answers.

71
Provisional Improvement Notices (PINs)
  • A PIN cannot be issued to a person if
  • the HSR has not received the required training
  • the HSR has not firstly consulted with the
    person or
  • an inspector has already issued (or decided not
    to issue) an improvement or prohibition notice
    for the same matter.
  • Note HSR training provides the knowledge and
    skills required to issue a PIN and to direct
    unsafe work to cease.
  • What information is required to be contained in a
    PIN?

WHS Act s90
72
Provisional Improvement Notices (PINs)
  • A PIN must be in writing and state
  • the HSR believes a person is in breach of the WHS
    Act, or is likely to continue or repeat the
    breach
  • what that provision is and how it is being
    breached and
  • a date as to when the breach is to be remedied.
  • A PIN may also state
  • directions on what is required to remedy or
    prevent the breach (this may include a reference
    to a Code of Practice)
  • the cause or likely cause of the breach and/or
  • a choice of ways in which the breach could be
    remedied.

WHS Act s91-99
73
Provisional Improvement Notices (PINs) -
requirements
Issuing a PIN A notice can be delivered personally or by post, fax or electronically.
Display A person who is issued a PIN must display it, as soon as practicable upon receipt, in a prominent place at or near the workplace or work areas affected by the PIN.
Cancellation A HSR can at any time cancel a PIN in writing to the person issued the PIN.
Irregularities A notice is not invalid because of a formal defect or irregularity (e.g. in the wording, section breach or name of the person identified in the PIN) unless it is likely to cause a substantial injustice.
Compliance A PIN must be complied with, within the time specified on the PIN.
WHS Act s209, 97-99
74
Review of Provisional Improvement Notices (PINs)
  • Requirements under the WHS Act relating to a PIN
    include
  • request for review by the person to whom the PIN
    was issued
  • inspectors review and
  • possible outcomes of a review by an inspector.
  • Fact Sheet 6 provides a flowchart for the issuing
    of PINs and some additional information on the
    requirements for PINs.

WHS Act s100-102
75
Ceasing unsafe work
  • There may be times when work is unsafe and
    serious actions
  • may need to be taken.
  • Can you think of such a situation?
  • New provisions under the WHS Act for situations
    considered to involve unsafe work include
  • Rights to cease unsafe work or be directed by a
    HSR to cease unsafe work and
  • HSRs (and deputy HSRs) having the power to issue
    a Provisional Improvement Notice (PIN).
  • HSRs can only exercise these powers if they are
    trained to do so.

WHS Act s83-103
76
Workers right to cease work
  • A worker has a right to cease or refuse to
    undertake work if they have a reasonable concern
    that doing the work would expose them to a
    serious risk
  • to their health safety from immediate
  • or imminent exposure to a hazard.
  • Have you previously experienced situations where
    you needed to stop work? Would you refuse to
    work if you had serious concerns about a risk to
    health and safety?
  • What actions would you take immediately after
    stopping or refusing to undertake unsafe work?

WHS Act s84
77
Requirements when ceasing unsafe work
  • When a worker ceases unsafe work they must
  • notify the PCBU, as soon as practicable, unless
    directed to stop work by a HSR (in which case the
    HSR notifies the PCBU)
  • remain available to undertake alternative work.
  • Alternative work
  • A PCBU can direct a worker to do other safe,
    suitable work at the same or another workplace
    until normal duties can be resumed.
  • The worker in doing so retains continuity of
    engagement.
  • An inspector may be requested by the worker, PCBU
    or the HSR to assist in resolving the issue.

WHS Act s83-89
78
Right of HSRs to direct workers to cease unsafe
work
  • A HSR (if trained) may direct a worker of their
    workgroup to cease unsafe work
  • if they have a reasonable concern that doing the
    work would expose workers to a serious risk to
    their health safety from immediate or imminent
    exposure to a hazard and
  • only after attempting to consult and resolve the
    matter with the PCBU, unless there is a serious
    risk to a workers health safety emanating from
    an immediate or imminent exposure to a hazard (in
    which case consultation must occur as soon as
    practicable after the unsafe work has ceased).
  • The HSR must inform the PCBU of any direction to
    cease unsafe work.

WHS Act s85-89
79
Cease work and PINs- Activity 2 -
  • The facilitator will divide the group into
    smaller groups to review the scenarios and
    determine what information the HSR would include
    in the sample PIN.
  • The group will come back together to discuss the
    answers.

80
Resolution of health safety issues
  • The issue resolution process applies where a work
    health and safety issue remains unresolved.
  • PCBUs are expected to establish and utilise issue
  • resolution procedures in consultation with
  • workers and other relevant parties.
  • Where an issue resolution procedure is not in
    place, the WHS Regulation provides a default
    procedure.
  • See Fact Sheet 7 for the issue resolution
    requirements and flowchart
  • See Fact Sheet 5 for the issue resolution
    requirements and flowchart

WHS Act s80 - 82
81
Resolution of health safety issues
  • Under the WHS Act parties involved in relation
    to an issue include
  • A PCBU or their representative
  • Where more than one business or undertaking is
    involved, the PCBU for each or their
    representative
  • Where workers of a workgroup are affected, their
    HSR or their representative
  • Where the worker/s are not in a workgroup, the
    worker/s or their representative (this can be a
    union representative).
  • The person representing the PCBU must
  • Have a level of seniority and competency to act
    as the PCBUs representative.
  • Not be a HSR.

WHS Act s80 - 82
82
Issue Resolution- Activity 1 -
  • The facilitator will divide the group into small
    teams groups to review the scenario and determine
    steps in the issue resolution process.
  • The group will come back together to discuss
    their responses.

83
Conduct in relation to health and safety matters
  • With the new powers and duties of various persons
    under the WHS Act, provisions have been made to
    protect anyone acting in good faith for the
    purpose of ensuring health and safety in the
    workplace.
  • What type of conduct do you think may occur that
    requires protection under the law?

WHS Act s104-115
84
Conduct in relation to health and safety matters
  • Persons that are protected under the WHS Act
  • Act, perform/or not perform their functions or
    exercise their powers (where applicable ) as
    HSRs, deputy HSR, HSC members, WHS entry permit
    holders or any other role in accordance with the
    WHS Act.
  • Assist or give information to persons using a
    power or performing a function under the WHS Act.
  • Raise an issue or concern about work health
    safety with PCBU/s, other workers, persons with
    roles and functions or an inspector.
  • Be involved in resolving a work health and safety
    issue.
  • Take action to seek compliance with WHS duties
    and obligations.

WHS Act s106
85
Conduct in relation to health and safety matters
  • Provisions are also in place to ensure that
    persons with powers do not abuse them.
  • What type of behaviours may be considered as
  • Discriminatory?
  • Coercive?
  • Misleading?
  • See Fact Sheet 7 for information on
    discriminatory, coercive or misleading behaviour.

WHS Act s104-115
86
Issue Resolution- Activity 2 -
  • The facilitator will divide the group into small
    teams groups to review the statements in the
    table and determine if they are true or false.
  • The group will come back together to discuss the
    answers.

87
  • Role
  • of the
  • Inspector

88
Functions and Powers of Inspectors
  • WorkCover NSW inspectors have a greater role
    under the WHS Act in advising and supporting
    workplaces and can
  • Provide advice about work health and safety
    matters
  • Assist in the negotiation of consultation
    arrangements
  • Assist in resolving work health and safety issues
    and relevant access/right of entry issues
    including anonymous complaints
  • Require compliance with the WHS Act through
    issuing notices
  • Review of Provisional Improvement Notices (PINs)
    and
  • Investigate breaches of the law and assist in
    prosecutions.

WHS Act s160
89
Additional Powers of Inspectors
  • Workplace Entry
  • Inspectors
  • may enter workplaces at any time without prior
    notice and
  • are required to take all reasonable steps to
    notify the PCBU of their entry in that workplace,
    the person in control or managing the workplace
    and any relevant HSR (except where to notify
    would defeat the purpose for entry or cause
    unreasonable delay).
  • What things might inspectors do while
  • in the workplace that may impact on
  • you?

WHS Act s163-166
90
Inspectors Powers
  • An inspector can require a person to give
    assistance, answer questions and provide
    information or documents.
  • This must be complied with even if it means the
    person incriminates them self, or may be liable
    to a penalty.
  • However, the answers, information and documents
    provided are not admissible in either criminal or
    civil proceedings (except where the answers are
    false or misleading).
  • A person may be required by an inspector to
    provide their name and residential address.

WHS Act s165, 172, 185
91
Offences against Inspectors
  • Inspectors are protected by the law in performing
    their functions.
  • A person must not
  • Intentionally hinder or obstruct (or encourage
    anyone else to do so) an inspector in exercising
    their powers.
  • (Fines of up to 10,000 for an individual and
    50,000 for a body corporate may apply)
  • Directly/indirectly assault, threaten or
    intimidate or attempt to do so to an inspector or
    any person assisting an inspector.
  • (Fines of up to 50,000 2 years imprisonment or
    both may apply to an individual and fines of up
    to 250,000 may apply to a body corporate)
  • Fines of up to 10,000 apply to any person
    falsely claiming to be an inspector

WHS Act s188-190
92
  • Your Unions Role in Work Health Safety

93
  • Definitions relating to
  • WHS entry

Official of a union a person who holds an office or is an employee of the union
Relevant union the union that the WHS entry permit holder represents
Relevant worker a worker who is a member or eligible to be a member of a relevant union and whose industrial interests the relevant union is entitled to represent and who works at the workplace.
WHS Act s116
94
WHS entry permits
  • A WHS entry permit is issued to an eligible
    person for the purpose of
  • inquiring into a reasonably suspected
    contravention of the WHS Act that has or is
    occurring that relates to/affects a relevant
    worker.
  • consulting and advising on work health safety
    matters to one or more relevant workers who wish
    to participate in the discussions.
  • Term A WHS entry permit is valid for 3 years
    from the date of issue.

WHS Act s117, 121
95
Requirements for WHS entry permit holders
  • A WHS entry permit holder (union representative)
    is required to
  • Complete approved training
  • Exercise their rights only in the areas relevant
    to or directly affecting the relevant workers.
  • Exercise their rights only during usual working
    hours.
  • Notify the PCBU of their entry in relation to a
    suspected contravention after entering, except
    where this would defeat or hinder the purpose.
  • Notify the PCBU 24 hours prior to entering to
    consult and advise workers.
  • A WHS entry permit holder
  • Is not required to disclose to the PCBU the name
    of any worker at the workplace without the
    workers consent.
  • Must not enter residential premises.

WHS Act s119-122
96
WHS entry permits requirements for PCBUs
  • A PCBU
  • is not required to allow a WHS entry permit
    holder to inspect or copy documents if to do so
    would contravene any law e.g. Privacy Act 1988
  • Persons must not however, without reasonable
    excuse,
  • refuse entry to the relevant workplace
  • refuse or allow inspection or copying of
    relevant documentation.
  • Note Where employee records e.g. training
    records, or other relevant documentation is held
    by someone other than the PCBU, 24 hours notice
    to inspect and copy is required.

WHS Act s118
97
WHS entry permit holder
  • As a WHS entry permit holder, the union
    representative is entitled to
  • Inquire into a suspected contravention of the WHS
    Act that relates to relevant workers (as
    defined)
  • Inspect any work, plant, substances, structure or
    relevant thing at the workplace in relation to
    the contravention
  • Inspect and copy any document directly related to
    the suspected breach
  • Consult and advise with relevant workers on work
    health safety
  • Consult with the PCBU about the suspected
    contravention
  • Warn any person who may be exposed to a serious
    and immediate health safety risk.

WHS Act s117-121
98
Actions not permitted in relation to WHS entry
permits
  • A person must not
  • Refuse or unduly delay entry of a WHS permit
    holder into a workplace they are entitled to
    enter, without reasonable cause
  • Intentionally and unreasonably hinder or
    obstruct a WHS entry permit holder in entering a
    workplace or exercising their rights.
  • A person must also not
  • Give the impression they are doing something
    under the WHS Act, that is not authorised (unless
    they believe otherwise)
  • Use or disclose information/documentation
    obtained in an inquiry, unrelated to the inquiry
    except in certain circumstances e.g. illegal
    activities are suspected, serious risk could be
    reduced.

WHS Act s141-142, 144-148
99
Your Unions Role- Activity 1-
  • The facilitator will divide the group into small
    teams to review the Activity.
  • The group will come back together to discuss the
    answers with the facilitator.

100
Other functions under the WHS Act
  • A workers representative (e.g. union
    representative) is entitled to
  • Negotiate on an agreement for work groups on
    behalf of a worker with the PCBU and for multiple
    businesses including negotiating for a variation
    of an agreement.
  • Request the assistance of an inspector
  • where these negotiations fail.
  • Assist with the election of a HSR.
  • Assist the HSR in their role when requested by
    the HSR the PCBU is required to allow a person
    assisting a HSR to have access to the workplace
    where necessary.

WHS Act s52,54,56,61,68
101
Roles of unions under the WHS Act
  • Participate in the issue resolution process on
    behalf of a workgroup or worker if requested, and
    enter the workplace to participate in discussions
    aimed at resolving the issue.
  • Request the assistance of an inspector if the
    issue resolution process fails.
  • In NSW, under the WHS Act the unions may
  • Prosecute Category 1 and Category 2 offences
    where WorkCover elects not to prosecute a breach
    identified by the Department of Public
    Prosecutions (DPP).
  • Prosecute Category 3 offences.

WHS Act s230-231
102
Prosecutions and unions
  • Unions have retained the right to prosecute
    certain WHS offences in NSW.
  • Proceedings for an offence against the WHS Act in
    NSW can be brought by
  • WorkCover or
  • an inspector with the written authorisation of
  • the WorkCover or
  • the unions for a Category 3 offence or a
    Category 1 or Category 2 offence where the
    Director of Public Prosecutions (DPP) has
    identified a breach and WorkCover has elected not
    to commence proceedings.

WHS Act 230-233
103
Prosecutions and unions
  • A person (e.g. a union) is entitled to make a
    written request to WorkCover to bring a
    prosecution where
  • the person reasonably considers a Category 1 or
    2 offence has occurred and
  • a prosecution is not brought after 6 months but
    no longer than 12 months after the occurrence.
  • If WorkCover reviews the matter and decides not
    to proceed with a prosecution they must
  • advise the person they are able to request
    referral of the matter to the DPP for
    consideration.

WHS Act s230-233
104
Prosecutions and unions
The DPP is then required to provide WorkCover
with advice in relation to the alleged offence
within one month of receiving the
request. WorkCover may reject the DPPs advice
and not proceed. However, if WorkCover doesnt
proceed they are required to provide reasons for
the decision in writing to the person making the
request (e.g. a union) and the person accused of
the offence. The union may then elect to
commence proceedings.
WHS Act s230-233
105
Your Unions Role- Activity 2 -
  • The facilitator will hold a discussion with the
    group to assist in completing the Table in the
    handbooks.
  • The facilitator may provide additional material
    from the union they represent.

106
Sources of information
  • Safe Work Australia - www.safeworkaustralia.gov.au
  • WorkCover NSW - www.workcover.nsw.gov.au
  • Course Fact Sheets
  • Unions NSW - www.council.labor.net.au
  • UnionSafe - http//unionsafe.labor.net.au/
  • Police Association NSW - www.pansw.org.au
  • Public Service Association of NSW-
    www.psa.labor.net.au
  • Australian Manufacturing Workers Union -
    www.amwu.org.au
  • Construction, Forestry, Mining and Energy Union
    (CFMEU) - www.cfmeu.asn.au
  • United Voice (former LHMU) - http//unitedvoice.o
    rg.au/
  • Transport Workers Union www.twu.nsw.org.au
  • Health Services Union www.hsu.net.au
  • ACTU- www.actu.asn.au

107
- Activity -
  • At the start of the course you completed a quick
    quiz on your understanding of new model WHS
    legislation.
  • Redo the quick quiz on the handout.
  • Check through your answers with the facilitator
    and the group.
  • Are there any issues relating to changes
  • brought about by the WHS Act where you
  • require any further clarification?
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