SESSION 3

1. SESSION 3

2. 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

3. 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 riskto their health and 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

4. When a worker ceases unsafe workthey 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. Requirements when ceasing unsafe work WHS Act s83-89

5. 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 and 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 and 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

6. 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. Provisional Improvement Notices (PINs) WHS Act s90

7. 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? Provisional Improvement Notices (PINs) WHS Act s90

8. 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. Provisional Improvement Notices (PINs) WHS Act s91-99

9. Provisional Improvement Notices (PINs) - requirements WHS Act s209, 97-99

10. 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

11. Definitions relating to WHS entry Definitions related to workplace entry by WHS entry permit holders include: WHS Act s116

12. WHS entry permits A WHS entry permit holder is a person who holds a WHS entry permit. 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 and 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

13. 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 worker’s consent. • Must not enter residential premises. WHS Act s119-122

14. 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

15. 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 and safety; • Consult with the PCBU about the suspected contravention; • Warn any person who may be exposed to a serious and immediate health and safety risk. WHS Act s117-121

16. 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

17. Other functions under the WHS Act 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. WHS Act s52,54,56,61,68

18. 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

19. Work Health and Safety activities of your union Unions will continue to contribute to improvements in work health and safety under WHS legislation. Activitiesyour union may undertake in your workplace include: • consultation and providing advice on WHS issues to workers and PCBUs; • provision of information on WHS issues; • support for HSRs and deputy HSRs in their roles; and • pursuing matters of potential prosecution where the union believes further actions than those already taken by WorkCover are required. WHS Act 116-151

20. Resolution of health and safety issues Under the WHS Act, 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

21. Resolution of health and 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

22. 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

23. Persons that are protected under the WHS Act include persons who are, have or will: 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 and 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. Conduct in relation to health and safety matters WHS Act s106

24. 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. Conduct in relation to health and safety matters WHS Act s104-115