1 NSW Work Health & Safety Act Session 3 WHS Act.

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NSWWork Health &

Safety Act

Session 3

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Overview of WHS Act• The parties to an issue include

the PCBU or representative and workers or representative

• The issue resolution provisions apply if there has been no resolution after reasonable efforts have been made

• If there is no agreed issue resolution procedure the process in the regulations must be followed

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• Make reasonable efforts to resolve an WHS issue

• Follow an agreed procedure if there is one in place

• If no agreed procedure follow the process set out in regulations

• Set out the agreed procedure in writing & communicate it to all workers

What WHS Act says PCBUs must do:

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What is the likely impact of these changes?

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Enforcement Measures

NoticeNon Disturbance

Improvement

Prohibition

Injunctions

Remedial

Enforceable Undertaking

Penalty Notice

Prosecution – ultimate sanction

Notice

Notice

Action

The WHS Act provides

graduated enforcement

regime with civil and

criminal prosecutions

the ultimate sanction

Injunctions, and enforceable undertaking are new in NSW

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WorkCover may accept a WHS undertaking in connection with the matter giving rise to a contravention or an alleged contravention as an alternative to a prosecution

$$ to focus on positive prevention action

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Enforceable Undertakings

NOT Available for Category 1 Offences

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The Right to Prosecute

The right to bring a prosecution under the WHS Act rests with WorkCover in NSW

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A Trade Union can bring a prosecution under the WHS Act in NSW only if:

1.the offence concerned is a Category 3

2.the offence concerned is a Category 1 or a Category 2 offence

andWorkCover has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings

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Power of HSR to issue PIN

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Health and Safety Duties

Offences and penaltiesA 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; andwithout 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

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Health and Safety Duties

Category 2 - Failure to comply with health and safety dutyA 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 dutyA 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

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Penalties under the WHS Act

Failure to comply

with Health and Safety duty

IndividualIndividual conducting a PCBU or Officer of a

PCBU

Body Corporate

Category 1$300,000 or 5 years imprisonment or both

$600,000 or5 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

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The burden of proof (beyond reasonable doubt) rests

entirely upon the prosecution in matters relating to

non-compliance with duties imposed by the ActExcept for civil actions relation to discriminatory conduct and WHS entry

permit holders

Reverse onus of proof removed

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What should you do?

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The Right to Exercise Entry Powers

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Reasons for Entry:

Entry only be for specified reasons

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May enter a workplace immediately to enquire into a suspected contravention, but

must , as soon as is reasonably practicable, give notice of the entry and the suspected contravention to the relevant PCBU

Must give notice, during usual working hours, of their intended entry to consult and advise workers at least 24 hours but not more that 14 days before entry

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Notice of EntryA WHS entry permit holder:

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Inspect any work system, plant, substance, structure or other thing relevant to suspected contravention

Consult with relevant workers re suspected contravention

Consult with PCBU about the suspected contravention

Inspect & make copies of any document relevant to the suspected contravention

Warn persons exposed to a serious risk emanating from an immediate or imminent exposure to a hazard, of that risk

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Powers onEntryPOWER TO:

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Breaches Relating to Entry

Intentionally and unreasonably:

•delay, hinder or obstruct any person

•disrupt any work, or

•otherwise act improperly

Use or disclose information or a document obtained for a purpose unrelated to the enquiry

•Unless a serious risk exists

•Disclosure is necessary part of investigation

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A WHS permit holder must not:

A person must not:Recklessly & unreasonably hinder a WHS entry holder in, or obstruct them from entering the workplace or exercising their rights

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Resolution of Right of Entry DisputesDisputes regarding:•Entry entitlement

•Conduct of WHS Permit Holder

•Conduct of other persons during course of entry

Referred to an Inspector or the Authorising Authority who can deal with matter in manner determined suitable, including:

•Mediation

•Conciliation

•Arbitration

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Right to Prosecute

A Trade Union can bring a prosecution under the WHS Act in NSW only if:

1.the offence concerned is a Category 3

2.the offence concerned is a Category 1 or a Category 2 offence,

and

WorkCover has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings

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THE UNIONS RIGHT QUALIFIED:

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You need to understand the WHS entry permit provisions as they may apply in your workplace:

PAY PARTICULAR ATTENTION TO NEW PROVISIONS:

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What do you have to do?

Union officials MUST hold a WHS entry permit in order to enter your workplace on a WHS matter & must produce the permit if requested

You must allow WHS entry permit holders to enter the workplace during normal working hours to consult with members or eligible workers on WHS matter, if given 24 hours notice

You may be required to consult with union officials about a suspected contravention