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NSW Work Health & Safety Act

NSW Work Health & Safety Act . Module: Union Participation in WHS. About this Module. Purpose: To outline the provisions in WHS Act relating to Trade Unions and the right of entry to deal with WHS issues and explain how these differ from existing requirements. Learning Outcomes.

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NSW Work Health & Safety Act

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  1. NSWWork Health & Safety Act Module: Union Participation in WHS

  2. About this Module Purpose: To outline the provisions in WHS Act relating to Trade Unions and the right of entry to deal with WHS issues and explain how these differ from existing requirements

  3. Learning Outcomes The key learning outcomes of this module are: • An understanding of WHS entry permit holders and their rights and responsibilities in relation to entering workplaces to address WHS issues. • An understanding of the obligations of a PCBU in relation to WHS entry permit holders entering the workplace or exercising their rights and powers in the workplace. • An understanding of changes to a Trade Union’s right to prosecute under the WHS Act

  4. OHS Act 2000 Authorised Representatives of an industrial organisation: • Must have a permit issued under the Fair Work Act 2009 or the Industrial Relation Act 1996 and be able to produce if required • May enter a workplace, where union has members or people eligible to be members, for the purpose of investigating a suspected breach of WHS legislation • Entry without prior notice

  5. OHS Act 2000 Powers available on entry: • make searches and inspections • require occupier to provide assistance and facilities to enable the representative to exercise functions • require production of and inspect any documents that affect or deal with the health and safety of employees • take copies of or extracts from any such documents Authorised Representative may request Inspector to assist

  6. OHS Act 2000 Authority to Prosecute The OHS Act 200 gives the Secretary of an Industrial Organisation the authority to initiate proceeding for an offence against the Act or the Regulations

  7. What is different in WHS Act about Union Participation in the Workplace The authority for Trade Unions in NSW to initiate proceedings for a breach of the Act has been altered Trade Union officials now must undergo training prior to being issued with an entry permit and have broadened powers on entry

  8. The Right to Exercise Entry Powers

  9. Reasons for Entry: Entry only be for specified reasons

  10. Notice of Entry A WHS entry permit holder: 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

  11. Powers onEntry POWER TO: 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 .

  12. Breaches Relating to Entry A person must not: Recklessly & unreasonably hinder a WHS entry holder in, or obstruct them from entering the workplace or exercising their rights 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 A WHS permit holder must not:

  13. Resolution of Right of Entry Disputes Disputes 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

  14. Right to Prosecute THE UNIONS RIGHT QUALIFIED: A Trade Union can bring a prosecution under the WHS Act in NSW only if: • the offence concerned is a Category 3 • the offence concerned is a Category 1 or a Category 2 offence, and WorkCoverhas (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings

  15. What do you have to do? You need to understand the WHS entry permit provisions as they may apply in your workplace: PAY PARTICULAR ATTENTION TO NEW PROVISIONS: 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

  16. Assessment questions • Does a union official have the right to enter a workplace for WHS issues? Under what conditions? • What are the two specified reasons a WHS entry permit holder has to enter a workplace ?

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