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?