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Module 9 Enforcement Measures under the WHS Act

Module 9 Enforcement Measures under the WHS Act. Enforcement Measures.

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Module 9 Enforcement Measures under the WHS Act

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  1. Module 9 Enforcement Measures under the WHS Act

  2. Enforcement Measures This module covers the role of the regulator (i.e. WorkCover and the Department of Trade and Investment, Regional Infrastructure and Services (DTIRIS) as co-regulator in NSW) and enforcement measures available under the WHS Act and includes: • Functions of WorkCover NSW as the regulator; • Functions and powers of inspectors; • Offences against inspectors; • Enforcement measures; and • Legal proceedings and changes to prosecutions WHS Act s152-222, s230-243

  3. Functions of the regulator The functions of the regulator i.e. WorkCover and DTIRIS in NSW are to: • Provide advice to and share information with duty holders and the Minister on work health and safety • Collect, analyse and publish statistics on work health and safety • Foster cooperation and consultation between duty holders and persons owed a duty under the model WHS legislation • Promote and support education and training on work health and safety • Monitor and enforce compliance, including conducting and defending proceedings WHS Act s152-155, Fact sheet 8

  4. 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

  5. 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

  6. 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

  7. 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

  8. Enforcement measures A system of escalating enforcement measures is available under the WHS Act to achieve the best outcome for work health and safety at the earliest opportunity. Where early intervention measures either fail or are not appropriate (e.g. Category 1 offences), prosecutions may result in various types of orders being imposed and/or fines and/or imprisonment. . WHS Act s90-102, s191-222, s230-253

  9. Enforcement measures WHS Act s90 – 102, s191-222

  10. Potential outcomes of legal proceedings WHS Act s230- 242

  11. Potential outcomes of legal proceedings WHS Act s230-242

  12. 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

  13. 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

  14. Prosecutions and unions A person (e.g. a union) is entitled to make a written request to WorkCover to bring a prosecutionwhere: • 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

  15. 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 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. WHS Act s230-233

  16. Burden of proof Currently under the NSW OHS Act : • The defendant is required to show they did everything ‘reasonably practicable’ to ensure health and safety in the workplace (the ‘reverse onus of proof’). Under the WHS Act: • The existing ‘reverse onus of proof’ will no longer be applied. • The prosecution will be required to prove all elements of the offence. WHS Act s31(2)

  17. Module 9- Activity 1 - • 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.

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