Work Health and Safety (WHS) Act Awareness course for union members

WHS Act – Awareness Course for Union Members

Work Health and Safety (WHS) Act

Awareness course for union members

http://www.workcover.nsw.gov.au/Pages/default.aspx

http://www.unionsnsw.org.au/2

I acknowledge the I acknowledge the traditional custodians of traditional custodians of the land we meet on today the land we meet on today and pay my respects to the and pay my respects to the elders past and present.elders past and present.



Emergency ProceduresParticipant Notes – Pre-training quizLocation of facilities etc.Training rules - participationMobile phonesBreaksTraining Ergonomics Evaluation questionnaire

Housekeeping



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

Course Objectives



Group introduction

Your Name

Your Role

Questions about the new Work Health and Safety laws that you would like answered during this course.



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.



Work Health & Safety Framework

and

Terminology



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



Work Health and Safety Framework

WHS Act WHS Regulations

___________________ Codes of Practice Australian Standards Industry Standards Guidance Material



Model WHS FrameworkModel WHS Act and WHS Regulations supported by Codes of Practice

State WHS Act, WHS Regulations,Codes of Practice

Territory WHS Act, WHS Regulations,Codes of Practice

Commonwealth WHS Act, WHS Regulations,

Codes of Practice

Mirrored by

Work Health and Safety Framework



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.

Key changes in NSW OHS legislation



HSRs able to issue PINs & to direct unsafe work to cease if they have received the appropriate training

Authorised representatives now WHS permit holdersPositive duties introduced for ‘officers’Unions right to prosecute only in certain

circumstancesRemoval 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*

Key changes in NSW OHS legislation (cont)



Key changes in terms

Employer

Employee

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.

WHS Act s4



Important termsPerson conducting a business or undertaking (PCBU).WorkerWorkplace Health and Safety Representative (HSR)Health and Safety CommitteeOfficer‘Reasonably practicable’

What is your ‘normal’ place of work? Do you ever work away from your work’s premises under a different business owner?

WHS Act s4



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 modificationConstruct - 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



Important termsWorkgroupA WHS Entry Permit Holder Provisional Improvement Notice (PIN)Notifiable IncidentSerious Injury or IllnessDangerous IncidentStructurePlantSubstance

WHS Act s4,6, s35-39, s51-59, s90-102



TerminologyActivity

Please complete the Module 2: Activity – WHS Act Terminology Table in your handouts.

You can use your participant notes to assist.



Work Health & Safety Duties

and Enforcement



Persons with health and safety duties

Persons who currently have duties:Employers Controllers of work premises, plant or substancesDesigners, suppliers and manufacturers of plant and substancesSelf-employed personsEmployeesDirectors and managers

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 workplaceWHS Act s4



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



Where would you find information to assist in doing what would be considered to be ‘reasonably practicable?


‘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

WHS Act s18



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



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



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




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




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).

WHS Act s84-85

What risks do you think may be immediate or imminent?




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)




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




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



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.




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; 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




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



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



Enforcement measures

WHS Act s90 – 102, s191-222

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 inspector’s compliance powers.



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 offender’s 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



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



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.

Offences by the Crown

WHS Act s245-248



EnforcementActivity

The facilitator will divide the group into smaller groups to review the table and determine if the statements are true or false.




Consultation, Representation

and Participation



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 consultconsultation, co-operation and co-ordination with other duty holders

Resources

www.safeworkaustralia.gov.au



Consultation, Representation and Participation

Consultation duties and requirements Arrangements for consultation with workers Consultation between duty holders Determination of workgroupsConsultation between multiple business workgroupsRole & functions of HSCs and HSRs

WHS Act Part 5



The PCBU is required, so far as is reasonably practicable, to consult with workers:

who work for the business or undertaking orare 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?

Duty to consult workers

WHS Act s47 (1)



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?

Duty to consult with other duty holders

WHS Act s46



Consultation between duty holders

WHS Act s46

Consultatione.g. sharing of information

on potential hazards

Consultation procedures & arrangementse.g. Emergency procedures, work arrangements

Co-operatione.g. management of

interactions between workers

Duty holdere.g. Labour hire

company

Co-ordinatione.g. planning and

organising work activities



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?

Duty to consult workers

WHS Act s48 and s49



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

Establishing Consultative Representation



Determination of workgroups of a PCBU

WHS Act s50-54

A worker requests a PCBU to facilitate the election of HSR/s and deputy HSR.

The PCBU or PCBUs and workers negotiate the determination of one or more workgroups.

A workgroup may be determined

for workers at one or more workplaces.

Negotiations are to commence

within 14 days of request.

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

The PCBUs involved in negotiations must notify workers of the outcome and any workgroups determined.

The PCBU must notify

workers of any variations.

If negotiations failany involved party

may request an inspector to assist.

Unions can assist in the determination of

workgroups and in the election process.



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 don’t affect any work groups already determined by the PCBU for their workers.

Multiple-business workgroups

WHS Act s55-59



Multiple-business arrangementsfor consultation

WHS Act s55-59

PCBU duty holder e.g. Labour hire

company

PCBU duty holdere.g. Host company

PCBU duty holder e.g. Site controller

ConsultationCo-operationCo-ordination

Shared workgroup (workers of the labour hire company are also workers of the host company)

ConsultationCo-operationCo-ordination

A worker may represent a

workgroup where theworkers are engaged

by different PCBUs.

Workers are to be informed

of the outcomes of negotiations and of

any workgroups.



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.




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, HSR’s and deputy HSR’s).

The facilitator will run a short quiz between the two teams.



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.

Health & Safety Committees(HSCs)

WHS Act s75,76,78



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?

Health and Safety Committees(HSCs)

WHS Act s77



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.

Obligations of PCBUs to the HSC

WHS Act s79



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 ceaseCan choose training provider in consultation with PCBU

See Fact Sheet 4 for further detail.

Health & Safety Representatives (HSRs)

WHS Act s60 - 64



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.

Deputy Health & Safety Representatives (Deputy HSRs)

WHS Act s67 and s64-66,72-73



Functions of HSRs similar to current functions of OHS Representatives and OHS Committee members Represent workers in relation to work health & safetyMonitor the measures taken by the PCBU to meet their dutiesInvestigate complaints from members of the workgroupInquire 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?

Powers and functions of HSRs

WHS Act s68



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.

Activities of HSRs

WHS Act s68



Requesting the establishment of a Health & Safety Committee.

Receiving information on the heath & safety of workersexcept 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?

Activities of HSRs

WHS Act s68



HSR’s 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.

Limitation of HSRs’ Powers

WHS Act s69



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.

Obligations of PCBUs to HSRs

WHS Act s70 -74



HSC and HSRs- Activity 2-

The facilitator will divide the group into smaller groups to review the scenarios in the Activity.




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 breachprevent a likely breach from occurring remedy the things or operations causing the breach/likely

breach.

See Fact Sheet 5 for additional information.

Provisional Improvement Notices (PINs)

WHS Act s90



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.




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



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; anda 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/ora choice of ways in which the breach could be remedied.


WHS Act s91-99



Provisional Improvement Notices (PINs) - requirements

Issuing a PIN A notice can be delivered personally or by post, fax or electronically.

DisplayA 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



Requirements under the WHS Act relating to a PIN include:

request for review by the person to whom the PIN was issued;

inspector’s 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.

Review of Provisional Improvement Notices (PINs)

WHS Act s100-102



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.

Ceasing unsafe work

WHS Act s83-103



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?

Workers’ right to cease work

WHS Act s84



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 workA 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.

Requirements when ceasing unsafe work

WHS Act s83-89



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 worker’s 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.

Right of HSRs to direct workers to cease unsafe work

WHS Act s85-89



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.




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



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



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.



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?

Conduct in relation to health and safety matters

WHS Act s104-115



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



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



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.




Role of the

Inspector



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.

Functions and Powers of Inspectors

WHS Act s160



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?

Additional Powers of Inspectors

WHS Act s163-166



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.

Inspector’s Powers

WHS Act s165, 172, 185



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

Offences against Inspectors

WHS Act s188-190



Your Union’s Role in Work Health &

Safety *



Definitions relating toWHS entry

WHS Act s116

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.



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 entry permits

WHS Act s117, 121



A WHS entry permit holder (union representative) is required to:

Complete approved trainingExercise 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 worker’s consent.

Must not enter residential premises.*

Requirements for WHS entry permit holders

WHS Act s119-122



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 entry permitsrequirements for PCBUs

WHS Act s118



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 entry permit holder

WHS Act s117-121



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.

Actions not permitted in relation to WHS entry permits

WHS Act s141-142, 144-148



Your Union’s 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.



A worker’s 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.

Other functions under the WHS Act

WHS Act s52,54,56,61,68



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.

Roles of unions under the WHS Act

WHS Act s230-231



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.

Prosecutions and unions

WHS Act 230-233




WHS Act s230-233

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

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 DPP’s advice and not proceed.

However, if WorkCover doesn’t 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.



Your Union’s 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.



Sources of information

Safe Work Australia - www.safeworkaustralia.gov.auWorkCover NSW - www.workcover.nsw.gov.au Course Fact Sheets Unions NSW - www.council.labor.net.auUnionSafe - http://unionsafe.labor.net.au/Police Association NSW - www.pansw.org.auPublic Service Association of NSW- www.psa.labor.net.auAustralian Manufacturing Workers Union - www.amwu.org.auConstruction, Forestry, Mining and Energy Union (CFMEU) - www.cfmeu.asn.auUnited Voice (former LHMU) - http://unitedvoice.org.au/Transport Workers Union – www.twu.nsw.org.au

Health Services Union – www.hsu.net.au

ACTU- www.actu.asn.au



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?

- Activity -


Work Health and Safety (WHS) Act Awareness course for union members

Documents