1 FACT SHEET 1: WHS Harmonisation New Legislation In July 2008, a formal agreement was made between the Commonwealth and all states and territories (with the exception of Western Australia) to implement harmonised work health and safety laws in each jurisdiction. The model laws have been developed by the Commonwealth, in consultation with the states and territories, and it is expected that each state and territory will implement their own legislation that mirrors the model laws. The WHS laws are due to come into effect on 1 January In addition to the Work Health and Safety (WHS) Act and the Work Health and Safety (WHS) Regulations, there are also model Codes of Practice under development to provide support and guidance on different issues in work health and safety. Purpose/Objectives The purpose of the model WHS Act and other WHS legislation is to introduce a nationally consistent set of laws covering health and safety at work. Currently, there are numerous variations between the laws of each state and territory, and this can lead to confusion for businesses and employees, as well as different standards of safety depending where the work is carried out. The main objective of the model Work Health and Safety Act is to: provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces. Key Changes Key changes in the new WHS Act compared with existing NSW OHS legislation will include: Changes in terminology e.g. from occupational health and safety to work health and safety ; A broadening in the definition of who is a worker; A broadening of persons with health and safety duties; Requirement for all duty holders to consult with others; Changes from OHS Representatives, OHS Committees and authorised representatives to Health and Safety Representatives (HSRs), Health and Safety Committees (HSCs) and WHS entry permit holders with different role and functions; The introduction of a positive duty for officers (such as directors of a company) e.g. proactive safety activities; No longer a need to undertake a risk assessment in all situations; Unions may still prosecute breaches, under certain circumstances; and Removal of the reverse onus of proof in prosecutions, in line with criminal law standards.
2 Achieving the objective of the model WHS Act The main object of the model WHS Act is to provide for a balanced and nationally consistent framework to secure the health safety and welfare of workers and workplaces and is to be achieved by: protecting workers and others from harm to their health, safety and welfare by elimination or minimisation of risks arising from work (or specified substances or plant); providing for fair and effective workplace representation (e.g. HSRs), consultation, cooperation and issue resolution on work health and safety; encouraging unions and employer organisations to assist in achieving a healthier and safe workplace; promoting the provision of health and safety advice, information, education and training; effective and appropriate use of compliance and enforcement measures; monitoring and review of persons with duties and powers under the WHS Act; providing a framework that ensures continuous improvement and higher standards for work health and safety; and maintaining and strengthening of the national harmonisation laws and facilitating a national approach to work health and safety. Additional Information Additional information can be found at the following links: Safe Work Australia: Model legislation and supporting information Work Cover NSW: Advice and assistance with WHS legislation and work health and safety requirements. National Safety Council of Australia (NSCA): Providing work health and safety information, training auditing and consulting services. Union Web Sites Unions NSW Police Association NSW Australian Manufacturing Workers Union Construction, Forestry, Mining and Energy Union (CFMEU) LHMU (United Voice) Transport Workers Union Health Services Union
3 Module 2: WHS Act Terminology Connect the Terms with the correct description using Fact sheet 2 if required. WHS Term Description Taking all steps a duty holder was reasonably able to, taking into account: Person conducting a business or undertaking (PCBU) Likelihood of the hazard or risk happening; Consequences (or degree of harm) if it does occur; What the person knows, or should know about the hazard/risk and ways of eliminating or minimising it; Availability and suitability of ways to eliminate or minimise the risk; The cost of eliminating or minimising the risk, and whether this cost far exceeds the level of reduction of risk. Worker A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking. Reasonably Practicable A person that conducts the business or undertaking alone or with others whether or not the business or undertaking is conducted for profit or gain. Health and Safety Representative (HSR) A written notice from a Health and Safety Representative to a person or the PCBU, advising there either has been a breach of the Act that is likely to be repeated, or there is a current breach of the Act. Provisional Improvement Notice (PIN) Anyone carrying out work, in any capacity, for a PCBU including direct employees; contractors and subcontractors, and their employees; labour hire employees engaged to work in the business or undertaking; outworkers; apprentices, trainees and students on work experience; and volunteers. Officer The person elected by members of a work group within the PCBU, or across a number of businesses (e.g. multiple workplaces) to represent that work group during consultation on work health and safety issues.
4 FACT SHEET 2: WHS Act Terminology Person conducting a business or undertaking (PCBU) Model WHS Act: s5 A person conducts a business or undertaking: (a) whether the person conducts the business or undertaking alone or with others; and (b) whether or not the business or undertaking is conducted for profit or gain. A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association. If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference to a PCBU refers to each partner in the partnership. Duties of PCBUs extends to those involved in: Management or control of workplaces Management or control of fixtures, fittings or plant and PCBUs in relation to plant, substances and structures that: Design Manufacture Import Supply Install, commission or construct A PCBU does not include: where the person is engaged solely as a worker in, or as an officer of, that business or undertaking. an elected member of a local authority a volunteer association Officer of a PCBU Model WHS Act: s27 An officer is a person within the PCBU that makes or participates in making decisions that affect the whole or a significant part of the organisation. Examples include a director or secretary of a company. The full definition of an officer can be found in section 9 of the Corporations Act People within the Crown or a public authority who make decisions that affect the whole or a significant part of the Crown or public authority are also considered officers. Worker Model WHS Act: s7 A worker under the WHS Act is anyone carrying out work, in any capacity, for a PCBU. This includes: Direct employees; Contractors and subcontractors, and their employees; Labour hire employees engaged to work in the business or undertaking; Outworkers; Apprentices, trainees and students on work experience; and Volunteers.
5 Health and Safety Representative (HSR) Model WHS Act: s60-69 A Health and Safety Representative (HSR) is the person elected by members of a work group within the PCBU, or across a number of businesses (e.g. multiple workplaces) to represent that work group during consultation on work health and safety issues. HSRs also monitor measures taken by the PCBU to comply with the WHS Act, investigate complaints about WHS from the work group and, if appropriately trained, can direct that unsafe work stop and issue provisional improvement notice (PIN). Health and Safety Committee (HSC) Model WHS Act: s75-79 A PCBU must establish a HSC where requested to do so by the HSR, or a minimum of 5 or more workers at the workplace or at the PCBU s own initiative. The HSR can be a member of the HSC if they consent. The key functions of the HSC are to: facilitate co-operation between the PCBU and workers in instigating, developing and carrying out measures designed to ensure the workers' health and safety at work; and to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace; and other functions under the regulation or agreed to between the PCBU and the HSC. Work group Model WHS Act: s51-59 A work group is the group of people represented by the HSR. This could be a specific department, shift (e.g. day/night shift), location or type of worker. Work groups are determined by negotiation between the PCBU and workers (and their representative if required). Reasonably practicable Model WHS Act: s18 Reasonably practicable means taking all steps as a duty holder is reasonably able to, taking into account: Likelihood of the hazard or risk happening; Consequences (or degree of harm) if it does occur; What the person knows, or should know about the hazard/risk and ways of eliminating or minimising it; Availability and suitability of ways to eliminate or minimise the risk; and The cost of eliminating or minimising the risk, and whether this cost far exceeds the level of reduction of risk. Provisional Improvement Notice (PIN) Model WHS Act: s A Provisional Improvement Notice (PIN) is a written notice from a Health and Safety Representative to a person or the PCBU, advising there has either has been a breach of the Act that is likely to be repeated, or there is a current breach of the Act. Only a HSR who has completed the required training is permitted to issue a PIN. Before issuing the PIN, the HSR must consult with the person or PCBU to whom the PIN is being issued. The HSR can also include directions on how to remedy the breach, and the person or PCBU must meet the requirements of the improvement within the specified timeframe. The HSR can also request an inspector review the PIN.
6 Workplace Model WHS Act: s8 A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. A WHS Entry Permit Holder Model WHS Act: s116 A WHS entry permit holder is representative of a relevant union of the workers for the purpose of consultation on work health and safety matters with, and provides advice on those matters to, one or more relevant workers who wish to participate in the discussions. Structure Model WHS Act: s4 Structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes: buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and any component or part of a structure. Plant Model WHS Act: s4 Plant includes: any machinery, equipment, appliance, container, implement and tool; and any component of any of those things; and anything fitted or connected to any of those things. Substance Model WHS Act: s4 Substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour. Notifiable Incident Model WHS Act: s35 Notifiable incident means: (a) the death of a person; or (b) a serious injury or illness of a person; or (c) a dangerous incident Serious Injury or Illness Model WHS Act: s36 Serious injury or illness of a person means an injury or illness requiring the person to have: (a) immediate treatment as an in-patient in a hospital; or (b) immediate treatment for: (i) the amputation of any part of his or her body; or (ii) a serious head injury; or (iii) a serious eye injury; or (iv) a serious burn; or (v) the separation of his or her skin from an underlying tissue (such as degloving or scalping); or (vi) a spinal injury; or (vii) the loss of a bodily function; or (viii) serious lacerations; or (c) medical treatment within 48 hours of exposure to a substance, and any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.
7 Dangerous Incident Model WHS Act: s37 A dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person's health or safety emanating from an immediate or imminent exposure to: (a) an uncontrolled escape, spillage or leakage of a substance; or (b) an uncontrolled implosion, explosion or fire; or (c) an uncontrolled escape of gas or steam; or (d) an uncontrolled escape of a pressurised substance; or (e) electric shock; or (f) the fall or release from a height of any plant, substance or thing; or (g) the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations; or (h) the collapse or partial collapse of a structure; or (i) the collapse or failure of an excavation or of any shoring supporting an excavation; or (j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or (k) the interruption of the main system of ventilation in an underground excavation or tunnel; or (l) any other event prescribed by the regulations, but does not include an incident of a prescribed kind.
8 FACT SHEET 3: Health and Safety Duties Key Points About Health and Safety Duties Model WHS Act: s13 s18 Duties are not transferrable they cannot be delegated to another person A person can have more than one duty e.g. a PCBU manufacturing plant has duties as a manufacturer, and duties as a PCBU to their own workers. More than one person can have the same duty. Where this happens, each person is required to carry out their duty to the extent they have the capacity to influence and control the matter. Where a person has a duty to ensure health and safety, this means they are required to: Eliminate risks to health and safety as far as reasonably practicable; Or, if this is not possible: Minimise the risks to health and safety so far as is reasonably practicable. Duties of a Person Conducting a Business or Undertaking (PCBU) Model WHS Act: s19 Primary duty of care: A PCBU has the primary duty of care to ensure the health and safety of workers while they are at work in the business or undertaking. A PCBU is also responsible for ensuring work carried out does not carry risk to the health and safety of others. This means the PCBU must: Provide and maintain a safe work environment; Provide and maintain safe plant and structures; Provide and maintain safe systems of work; Ensure the safe use, handling and storage of plant, structures and substances; Provide adequate facilities (and ensure access is maintained); Provide instruction, training, information and supervision; and Monitor the health of workers and conditions at the workplace. Duties of PCBU involved in the management of or control of workplaces Model WHS Act: s20 The PCBU of the workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. Duties of PCBU involved in the management of or control of fixtures, fittings or plant at a workplace Model WHS Act: s21
9 The PCBU must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person. Duties of PCBU as a designer, manufacturer, supplier or importer Model WHS Act: s22-25 A PCBU in relation to plant, substances or structures that are to be used, or could reasonably be expected to be used, as, or at, a workplace must ensure that the design, manufacture, import or supply is without risk to health and safety of persons who may be affected. This includes provision of relevant information. Duties of PCBU that installs, constructs or commissions plant or structures Model WHS Act: s26 The PCBU must ensure that the installation, construction or commission is without risk to health and safety of persons who may be affected by these activities. Duties of Officers (of a PCBU) e.g. director of a company Model WHS Act: s27 Where a PCBU has a health and safety duty, an officer of the PCBU is required to exercise due diligence to ensure the PCBU meets that duty. Due diligence means taking reasonable steps: To gain and update knowledge of WHS matters; To understand the nature of the business/undertakings operations and the general hazards and risks involved; To ensure the PCBU has appropriate resources for eliminating/minimizing risks, and that these resources are actually used; To ensure the PCBU has processes for receiving, reviewing and responding to information about incidents, hazards and risks; and To ensure the PCBU implements processes for complying with their duties, such as: Consultation; Providing training and instruction; and Reporting of notifiable incidents. Duties of Workers Model WHS Act: s28 Take reasonable care for your own safety; Take reasonable care to ensure your acts or omissions do not adversely affect the health and safety of others; Comply with reasonable instructions from the PCBU to assist them in complying with the WHS Act; and Co-operate with policies or procedures relating to health and safety that the workers have been notified of. Duties of Self Employed Persons Model WHS Act: s19(5) Ensure their own health and safety (as far as reasonably practicable) while at work. Self-employed persons are also considered to be PCBUs.
10 Duties of Others e.g. visitors Model WHS Act: s29 Take reasonable care for their own safety; Take reasonable care to ensure their acts or omissions do not adversely affect the health and safety of other persons; and Comply with any reasonable instructions from a PCBU. FACT SHEET 4: WHS Consultation Consultation, Representation and Participation Model WHS Act: Part 5, 6 & 7 Consultation requirements have been expanded to engage all persons that may have an impact on the health and safety of persons associated or affected by a business or undertaking. Consultation is required between: duty holders with shared duties and PCBUs and the workers impacted by the work activities or undertakings. Consultation is required to be effective. It is expected that consultation be approached in a coordinated, co-operative and timely manner between all relevant duty holders and other parties. Consultation is essential when gathering information on all potential hazards, the associated risks and ways in which to eliminate or minimise those risks. Effective consultation will engage all persons in the workplace and can be utilised to increase understanding, awareness and commitment to health and safety in the workplace. The WHS legislation requires consultation, as far as reasonably practicable, with workers and other duty holders. A variety of mechanisms are available including HSRs; deputy HSRs; direct consultation e.g. staff and toolbox meetings, co-ordinated consultation between duty holders, and representation and assistance from other parties e.g. WHS entry permit holders (union representatives). Nature of consultation Consultation requires: sharing of health and safety information providing workers with a reasonable opportunity to: Express their views Raise work health and safety issues Contribute to the decision making process taking the views of workers into account advising workers on the outcome in a timely manner. An elected HSR of the workers must also be involved in consultation. When consultation is required Consultation is required when: identifying and assessing risks to health and 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 and safety of workers; when deciding on procedures for: consulting with workers
11 resolving work health and safety issues monitoring workers health monitoring conditions at any workplace under the management or control of the PCBU providing information or training for workers; and other activities as described under the regulations. Health and Safety Representatives (HSR) Model WHS Act: s50-74 Eligibility: A worker must be a member of the workgroup to be elected as the HSR for and by the members of the work group. Procedures for election: Workers of the workgroup determine how the election is to be conducted If the majority of workers agree the election can be conducted with the assistance of a union, other person or organisation An election is not required if the number of candidates = the number of vacancies. A HSR ceases to hold office if the HSR: resigns as the HSR (submitted in writing to the PCBU) ceases to be a worker of the workgroup is disqualified or is removed as the HSR by majority of workgroup Disqualification by the authority (WorkCover) may result from: using a power for an improper purpose; and/or using or disclosing information other than is required in the role of HSR. Training requirements: The PCBU must, if requested by a HSR, allow the HSR to attend a course: approved by the regulator that the HSR is entitled to attend under the regulations chosen by the HSR in consultation with the PCBU. If an agreement on training is not reached an inspector can be requested to assist and the decision must be complied with. Attendance at training is to be within 3 months of the request. Additional obligations of PCBUs to HSRs: Allow access to information on hazards and the health and safety of workers of the workgroup (information must not contain any information that may allow identification) without workers consent; Allow the HSR to be present at interviews (with the workers consent) between a worker, an inspector in PCBU; Provide reasonable facilities, time and assistance; Allow the HSR to accompany an inspector during an inspection; and
12 Share costs associated with HSRs where the PCBU is involved with multiple businesses or undertakings. When the assistance of another has been requested by the HSR the PCBU is not required to: Give financial assistance for this person; Allow access when the person s entry permit has been revoked, suspended or if disqualified; and/or Allow access when there are reasonable grounds for refusal (the HSR may request the assistance of an inspector to resolve the matter). Health and Safety Committees (HSC) Model WHS Act: s75-79 Requirements for a HSC include: The Constitution of a HSC may be agreed to between the PCBU and the workers; A HSR may be a member of the HSC if they consent; Where there are two or more HSRs, they may choose one or more of their number to be HSC members; At least half the members must be workers not nominated by the PCBU; and An inspector can assist when agreement cannot be reached and may determine the constitution or that a HSC should not be established.
13 FACT SHEET 5: Issuing of PINs Additional information Process to Follow Additional information Breach of a provision of the WHS Act A HSR is to consult with the person in breach. Immediate Risk Where an immediate risk exists, a worker is to cease unsafe work, or directed to cease unsafe work, by HSR. Issue resolution procedures are to be followed The PIN must be displayed in a prominent place at or near the workplace. Provisional Improvement Notice(PIN) issued in a written format with the required content. To issue a PIN HSR to be trained inspector must not have already reviewed and acted A HSR may, at any time, cancel a PIN by issuing a written notice to the person. After the PIN is issued: An inspector may review the matter and determine an inspector is not required to the workplace. The person must then comply with the PIN within the time specified on the PIN. Minor changes of PINs are permitted for clarification, correctness or changed circumstances A request can be made by the person issued the PIN for an inspector to review the notice (within 7 days of issue of the PIN). A copy of the review is to go to: the review applicant the HSR who issued the PIN The WorkCover inspector is required to review the breach and must either: Confirm the PIN or Confirm the PIN with changes or Cancel the PIN. A PIN that is confirmed (with or without changes) by an inspector is taken to be an IMPROVEMENT NOTICE issued by an inspector under the WHS Act and must be complied with.
14 Requirements for the issuing of notices Model WHS Act s209 The WHS Act stipulates requirements for all notices issued under the WHS Act. This includes issuing of PINs and permit to entry notices: Key requirements include: delivery either personally to the person or sending by post, fax or electronically; or leaving at the person s usual or last known address or business with a person who appears to reside or work there and appears to be over 16 years of age; or by leaving it for the person at the workplace to which the notice relates with a person who appears to be the manager or control of the workplace; or in a prescribed manner. Requirements for training for HSRs before being permitted to issue PINS Model WHS Act s90 A health and safety representative cannot issue a provisional improvement notice unless the representative has: completed initial training prescribed by the regulations, a course that the health and safety representative is entitled under the regulations to attend; or previously completed that training when acting as a health and safety representative for another work group; or completed training equivalent to that training under a corresponding WHS law. Provisional improvement notice may give directions to remedy contravention Model WHS Act s93 A PIN may include directions concerning the measures to be taken to: remedy or prevent the likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates. A direction included in a provisional improvement notice may: refer to a code of practice; and offer the person to whom it is issued a choice of ways in which to remedy the contravention. Request for review of provisional improvement notice Model WHS Act s100 Within 7 days after PIN is issued to a person: the person to whom it was issued; or if the person is a worker, the PCBU at the workplace at which the worker carries out work, may ask the regulator to appoint an inspector to review the notice. If such a request is made, the operation of the PIN is stayed until the inspector makes a decision on the review.
15 FACT SHEET 6: WHS Entry Permit Holders Entry to inquire into suspected contraventions Model WHS Act s117 A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of WHS Act that relates to, or affects, a relevant worker. The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring. In relation to records held by another person Model WHS Act s120 For the purposes of the inquiry into the suspected contravention, the WHS entry permit holder may enter any workplace for the purpose of inspecting, or making copies of: employee records that are directly relevant to a suspected contravention; or other documents that are directly relevant to a suspected contravention and that are not held by the relevant PCBU. Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant PCBU. The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. Note: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 (Cwth). WHS entry permit revoking permits Model WHS Act 138 Persons entitled to request a WHS entry permit be revoked include: the regulator the relevant PCBU any other person who has been the subject of, or affected by a WHS entry holder exercising their rights under the WHS Act. any other person affected by the exercise or purported exercise of a right by a WHS entry permit holder. WHS entry permit holders right to show cause Model WHS Act 139 The show cause notice must: contain a statement to the effect that the WHS entry permit holder may, not later than 21 days after the day the WHS entry permit holder is given the notice, give the authorising authority written reasons explaining why the WHS entry permit should not be revoked; and be accompanied by a summary of the reasons for the application; and if applicable, be accompanied by a notice of suspension of the permit.
16 Determination of application to revoke permit WHS Act: s140 If the authorising authority is satisfied on the balance of probabilities that the WHS permit holder is no longer eligible, has contravened a condition of entry, has acted in an improper manner or hindered or obstructed a PCBU or workers it may make one or more of the following orders: an order imposing conditions on the WHS entry permit; an order suspending the WHS entry permit; an order revoking the WHS entry permit; an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked; an order imposing any alternative action the authorising authority considers appropriate. In deciding what action to take in relation to a person, the authorising authority must take into account: the seriousness of any findings of the authorising authority having regard to the object of the WHS Act; and any other matters the authority considers relevant. Dealing with a dispute WHS Act: s141 If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this WHS Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. The authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. If dealing with the dispute through arbitration the authorising authority may order one or more of the following in relation to a WHS entry permit: impose conditions suspend or revoke the permit impose requirements for the future issue of a permit to one or more persons any other order considered appropriate.
17 FACT SHEET 7: WHS Issue Resolution Relevant parties Process to Follow Additional information HSR/deputy HSRs Other PCBUs WHS entry permit holder Workers Workers representative (union representative) PCBU Immediate Risk Where there is an immediate risk, a worker is to cease or can be directed to cease unsafe work by a HSR Unresolved health and safety issue exists after discussion with relevant parties using the PCBU s own issue resolution procedures Cease work HSR issues PIN PCBUs Issue Resolution Procedure As above Parties must make a reasonable effort to achieve a timely, final and effective resolution. How to Consult on work health & safety: Code of Practice HSR, deputy HSR, workers, duty holders Where there is no agreed issue resolution procedure parties are to use the default procedure WHS Regulation Part 2.2 Further consultation and advice may be sought from internal or external stakeholder(s). If the issue remains unresolved after reasonable efforts, any of the involved parties may make a request to the authority (WorkCover) for an inspector to assist. Workers remain entitled to cease unsafe work or a HSR to direct cessation of unsafe work or issue a PIN A representative of an involved party may enter a workplace to attend discussions to help resolve the issue e.g. union representative The WorkCover inspector will assist in resolving the issue with the parties. If necessary, the inspector may exercise their compliance powers to resolve the matter. WHS Act Part 10 Feedback to workers and other duty holders where relevant Any action/s undertaken should be monitored for effectiveness. Feedback on the outcome should be provided to all relevant parties. PCBUs issue resolution procedure
18 Key Points of the Default Issue Resolution Procedure Model WHS Regulations: Part 2.2 The WHS Act refers to a requirement to utilise the default procedure prescribed in the WHS Regulations where a PCBU/s does not have a written agreed procedure for issue resolution. Matters to be taken into account by parties to the health and safety issues include: the number and location of workers affected by the issue; any relevant accepted industry practice, if that practice is consistent with the WHS Act and the WHS Regulations; the requirements for the management of risks (WHS Act s17); what (if any) temporary measures are required; what (if any) further information is required; a method and timeline for resolution of the issue; whether any other persons may reasonably be required to assist the early resolution of the issue; and who is to be responsible for implementing the resolution of the issue on behalf of the PCBU. Other requirements pertaining to the issue resolution procedure under the WHS Regulation include: If the issue is resolved, the details of the issue and the resolution must be set out in writing to the satisfaction of all the parties. As soon as reasonably practicable after the issue is resolved, the PCBU must ensure that: the workers affected by the issue are informed of the details of the agreement between the parties a copy of the agreement is forwarded to any relevant HSR. A copy of the agreement to the resolution of an issue may be forwarded by any of the parties to any union or employer organisation that represents the party. Workplace issue resolution procedure If an agreed procedure for issue resolution at a workplace does not include a step specified in the default procedure in WHS Regulation 2.2.1, as described above that step is automatically included in the workplace agreed procedure. The PCBU must ensure that the agreed procedure for issue resolution at the workplace is: set out in writing; and communicated to all workers engaged by the person. Discriminatory conduct Model WHS Act: s A person only commits an offence under the WHS Act if the dominant reason for the discriminatory behaviour is conduct by a person in relation to health and safety activities. Discriminatory conduct is considered to be if a person does, organises or threatens to : In regards to a worker: dismiss or terminate a contract for services with a worker; or alter the position of a worker to the worker's detriment; or In regards to a prospective worker: refuse or fail to offer to engage a prospective worker; or treat a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement; or Terminates, refuses or fails to enter into a commercial arrangement with another person. The WHS Act also makes it clear that is illegal for a person to request, instruct, induce, encourage, authorise or assist a person in discriminatory behaviour.
19 Other prohibited conduct Model WHS Act: s Coercion or inducement: A person must also not organise or threaten to take actions against another person with the intent of coercing or inducing them in relation to performing (or not performing) their role, exercising or not their powers or from taking or continuing in a role under the WHS Act e.g. a person attempting to persuade individuals not to take a role as a HSR or to cease unsafe work. Misrepresentation: To support the prohibition of coercion or inducement under the WHS Act, a person can be fined for knowingly or recklessly making false or misleading representation to another person about the other persons : rights or responsibilities; or ability to initiate or participate in a process or proceedings e.g. request the election of a HSR or the establishment of a HSC, cease work; and/or ability to make a complaint or inquiry to a person or other body e.g. WorkCover, that has the power to seek compliance with the WHS Act.
20 FACT SHEET 8: Enforcement Measures Functions of WorkCover Model WHS Act: s152 WorkCover has several functions under the Work Health and Safety Act, including: Providing advice and information about work health and safety, both to duty-holders under the WHS Act and the community generally; Promoting and supporting training and education on work health and safety; Fostering cooperation and consultation on work health and safety issues between duty holders and the persons to whom they owe those duties and their representatives (e.g. union representatives); Collecting, analysing and publishing statistics on work health and safety; Encouraging and co-ordinating the sharing of information to achieve the objectives of the WHS legislation including information from corresponding regulators; and Monitoring and enforcing compliance, including conducting and defending prosecutions. Functions and Powers of Inspectors Model WHS Act: s Under the Work Health and Safety Act, inspectors may: Provide information and advice about complying with the WHS Act; Investigate breaches of the WHS Act, issue notices to require compliance and assist in prosecutions; Review Provisional Improvement Notices (PINs) issued by HSRs in the event of a dispute; Assist in resolving work health and safety issues and those relating to access and entry rights at a workplace. To help inspectors perform these functions, they are given powers to: Enter a workplace, or somewhere suspected to be a workplace, at any time, with or without the consent of the manager or controller of the workplace. Once at a workplace, inspectors are entitled to: Inspect and examine the workplace and any item or document at the workplace; Bring to, and use equipment or other materials at the workplace; Take measurements and samples, conduct tests, and make recordings or sketches (including photos, video and audio recordings); and Require any person at the workplace to assist them to carry out their enquiries. Inspectors may require a person at a workplace to answer questions, produce documents or provide other information. The person is required to comply with the request, even if this means the person will incriminate themselves or expose them to a penalty. (Documents protected by legal privilege are exempt from this requirement).
21 Enforcement Measures Model WHS Act: s Provisional Improvement Notices (PINS) Details can be found in Fact Sheet 6. PINs may be issued by suitably trained HSRs to the PCBU. Improvement Notices Improvement notices are issued by an inspector, if they believe a person is breaching a provision of the Act, or has done so and it is likely the breach will continue or happen again. The improvement notice will generally require the person it is issued to, to remedy the breach, prevent a likely breach from happening, or fix the things or operations causing the breach. Improvement notices will include details of the breach and the date this needs to be remedied by. An improvement notice may also include directions on what measures the person needs to take to correct the breach. Fines of up to $50,000 for an individual and $250,000 for a body corporate can be imposed for failing to comply with an improvement notice in the time specified. Prohibition Notices Prohibition notices are issued by an inspector if they believe an activity is either happening, or will happen at a workplace that will involve a serious risk to the health and safety of a person from exposure to a hazard. The inspector may then issue a direction prohibiting the activity taking place, or being carried out in a certain way, until the inspector is satisfied that the hazards creating the serious risk have been eliminated or adequately controlled. A prohibition notice may specify the workplace (or part of) where the activity is not to be carried out; any item not to be used (e.g. machinery); and/or any procedure that is not to be followed. A prohibition notice may also include directions on what measures are to be taken to remedy the risk. Non-disturbance Notices Non-disturbance notices may be issued by an inspector to enable them to exercise their compliance powers, for example, after a serious incident has occurred. These notices are a direction to the person with management or control of a workplace. They require that person to preserve the site where a notifiable incident has taken place, or to prevent any disturbance of a particular site. This includes preventing plant from operating. Non-disturbance notices do not prevent assisting an injured person, removing a deceased person or making the site safe and preventing further incidents. Non-disturbance notices can be issued for a maximum of seven days, although subsequent notices can be issued if required.
22 Sentencing for offences Model WHS Act: s Enforceable (WHS) Undertakings Where a breach of the WHS Act has occurred that is not a Category 1 offence, WorkCover may accept a written undertaking from the person that the person must then comply. A prosecution cannot be brought for an offence under the WHS Act once an enforceable undertaking has been accepted. The idea behind these undertakings is to allow businesses to implement effective work health and safety initiatives and improve work safety as an alternative to prosecution. Adverse publicity orders The court may make an adverse publicity order in relation to an offence that requires: Information pertaining to the offence, its consequences, the penalty imposed and any other related matter to be publicised; and/or Notifying a specified person of information pertaining to the offence, its consequences, the penalty imposed and any other related matter. Orders for restoration The court may make an order for restoration in relation to an offence that requires the offender to: Take any actions within the offender s power to rectify any matter caused by committing of the offence; and Do so within the time specified by the court. Work Health and Safety (WHS) Project Orders The court may make an order the undertaking of a WHS project in relation to an offence that requires the offender to: Undertake a specified project for the general improvement of work health and safety; Do so within the specified period; and Comply with conditions specified as part of the project. Court ordered WHS undertaking The court may adjourn proceedings for an offence for up to two years (with or without a conviction) and release an offender on the basis they give a WHS undertaking with specified conditions. Certain conditions must be complied with while the order is in place e.g., the offender is not to commit any offence against the WHS Act during the period. The court is required to discharge the offender without a further hearing if the court is satisfied that the offender has observed the conditions of the undertaking within the specified time frame. Injunction Where the court finds a person guilty of an offence, including non-compliance with a nondisturbance, improvement or prohibition notice, the court may issue an order (an injunction) requiring the person to cease contravention of the WHS Act. Training Orders The court may make a training order in relation to an offence that requires the offender to: Undertake a specified training course themselves; or Arrange for worker/s to complete a specified training course. FAILURE TO COMPLY WITH ORDERS Where a person fails to comply with an order, without a reasonable excuse, fines of up to $50,000 for an individual and $250,000 for a body corporate can be imposed. This does not apply to a court ordered WHS undertaking or Injunctions to which failure to comply will result in either penalties determined at the time the court makes the WHS undertaking or further court proceedings or actions.
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