Work Health and Safety
(WHS) Act
Awareness course for union members
WHS Act – Awareness Course for Union Members
I acknowledge the
traditional custodians of
the land we meet on today
and pay my respects to the
elders past and present.
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Housekeeping
 Emergency Procedures
 Participant Notes – Pre-training quiz
 Location of facilities etc.
 Training rules - participation
 Mobile phones
 Breaks
 Training Ergonomics
 Evaluation questionnaire
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Course Objectives
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
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Group introduction
 Your Name
 Your Role
 Questions about the new Work Health and
Safety laws that you would like answered during
this course.
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Introduction
Activity
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.
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Work Health &
Safety Framework
and
Terminology
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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
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Work Health and Safety
Framework

WHS Act
 WHS Regulations
___________________
 Codes of Practice
 Australian Standards
 Industry Standards
 Guidance Material
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Work Health and Safety
Framework
Model WHS Framework
Model WHS Act and WHS Regulations supported by Codes of Practice
Mirrored by
State WHS Act,
WHS Regulations,
Codes of Practice
Territory WHS Act,
WHS Regulations,
Codes of Practice
Commonwealth
WHS Act, WHS Regulations,
Codes of Practice
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Key changes in NSW
OHS legislation
 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.
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Key changes in NSW
OHS legislation (cont)
 HSRs
able to issue PINs & to direct unsafe work to
cease if they have received the appropriate training
 Authorised representatives now WHS permit holders
Positive duties introduced for ‘officers’
 Unions
right to prosecute only in certain
circumstances
 Removal 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*
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Key changes in terms
Employer
Person Conducting a Business or
Undertaking (PCBU) - includes
corporations, partnerships, labour hire
businesses, associations, franchises.
A PCBU does not need to employ
workers.
Employee
WHS Act s4
Worker - includes employees,
contractors, volunteers, apprentices,
outworkers, trainees and work
experience persons.
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Important terms
Person conducting a business or undertaking (PCBU).
Worker
Workplace
Health and Safety Representative (HSR)
Health and Safety Committee
Officer
‘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
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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
modification
 Construct - 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
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Important terms
Workgroup
A WHS Entry Permit Holder
Provisional Improvement Notice (PIN)
Notifiable Incident
Serious Injury or Illness
Dangerous Incident
Structure
Plant
Substance
WHS Act s4,6, s35-39, s51-59, s90-102
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Terminology
Activity
Please complete the Module 2: Activity – WHS Act
Terminology Table in your handouts.
You can use your participant notes to assist.
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Work Health &
Safety Duties
and
Enforcement
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Persons with health
and safety duties
Persons who currently have
duties:
 Employers
 Controllers of work
premises, plant or
substances
 Designers, suppliers and
manufacturers of plant
and substances
 Self-employed persons
 Employees
 Directors and managers
WHS Act s4
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 workplace
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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
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Health and Safety Duties
‘Reasonably practicable’ is based on:
Likelihood
of the hazard or
risk occurring
What is known
about how to
eliminate or minimise
the risk
Level of harm
from exposure to
the hazard
Availability and
suitability of ways to
eliminate or minimise
What is known
about the hazard
or risk
Whether the cost
of eliminating or
minimising the risk far
exceeds the risk
Where would you find information to assist in doing what would be
considered to be ‘reasonably practicable?
WHS Act s18
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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
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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
provided/required for work.
(an
additional
requirement)
where
See Fact Sheet 3 for other duties of PCBUs.
WHS Act s19
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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
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Health and Safety Duties
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
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Health and Safety Duties
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).
What risks do you think may be immediate or imminent?
WHS Act s84-85
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Health and Safety Duties
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)
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Health and Safety Duties
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
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Health and Safety Duties
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
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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.
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Health and Safety Duties
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; and


without 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 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
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Penalties under the
WHS Act
Failure to
comply with
Health and
Safety duty
Individual
Individual conducting a
PCBU or Officer of a
PCBU
Body
Corporate
Category 1
$300,000 or
5 years imprisonment or
both
$600,000 or
$3,000,000
5 years imprisonment or
both.
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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Enforcement measures
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.
A notice issued by an inspector to the person with
Non-disturbance
management or control of a workplace to facilitate
notices
the exercising of the inspector’s compliance powers.
WHS Act s90 – 102, s191-222
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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 Publicising of the offence, its consequences, the penalty
orders
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
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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
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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
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Enforcement
Activity
 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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Consultation,
Representation
and Participation
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Resources
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 consult
 consultation, co-operation and co-ordination with other duty
holders
www.safeworkaustralia.gov.au
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Consultation, Representation
and Participation
Consultation duties and requirements
Arrangements for consultation with workers
 Consultation between duty holders
 Determination of workgroups
Consultation between multiple business
workgroups
Role & functions of HSCs and HSRs
WHS Act Part 5
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Duty to consult workers
The PCBU is required, so far as is reasonably practicable,
to consult with workers:
 who work for the business or undertaking
or
are 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?
WHS Act s47 (1)
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Duty to consult with
other duty holders
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, cooperate and co-ordinate activities?
WHS Act s46
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Consultation between
duty holders
Duty holder
Duty holder
e.g. Site controller
e.g. Business owner
Duty holder
e.g. Labour hire
company
Consultation procedures & arrangements
e.g. Emergency procedures, work arrangements
Consultation
e.g. sharing of information
on potential hazards
Co-operation
e.g. management of
interactions between
workers
WHS Act s46
Co-ordination
e.g. planning and
organising work activities
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Duty to consult workers
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?
WHS Act s48 and s49
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Establishing Consultative
Representation
 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
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Determination of
workgroups of a PCBU
A worker requests a PCBU to facilitate the election of HSR/s and deputy HSR.
 Negotiations are
to commence
within 14 days
of request.
The PCBU or PCBUs and workers negotiate the
determination of one or more workgroups.
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 PCBU must
notify
workers of
any variations.
The PCBUs involved in negotiations must notify workers
of the outcome and any workgroups determined.
WHS Act s50-54
 Unions can assist in
the determination of
workgroups and in
the election process.
 A workgroup may
be determined
for workers at one
or more workplaces.
 If negotiations fail
any involved party
may request an
inspector to assist.
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Multiple-business workgroups
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.

WHS Act s55-59
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Multiple-business arrangements
for consultation
PCBU duty holder
e.g. Site controller
 A worker may
represent a
workgroup where the
workers are engaged
by different PCBUs.
 Workers are to be
informed
of the outcomes of
negotiations and of
any workgroups.
Consultation
Co-operation
Co-ordination
PCBU duty holder
e.g. Host company
Consultation
Co-operation
Co-ordination
PCBU duty holder
e.g. Labour hire
company
Shared workgroup (workers of the labour hire
company are also workers of the host company)
Consultation arrangements
- policy and procedures -
WHS Act s55-59
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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.
The group will come back together to discuss the
answers.
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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.
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Health & Safety Committees
(HSCs)
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.
WHS Act s75,76,78
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Health and Safety Committees
(HSCs)
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?
WHS Act s77
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Obligations of PCBUs
to the HSC
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.
WHS Act s79
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Health & Safety Representatives
(HSRs)
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 cease
Can choose training provider in consultation with PCBU
See Fact Sheet 4 for further detail.
WHS Act s60 - 64
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Deputy Health & Safety
Representatives (Deputy HSRs)
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.
WHS Act s67 and s64-66,72-73
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Powers and functions of HSRs
Functions of HSRs similar to current functions of OHS
Representatives and OHS Committee members

Represent workers in relation to work health & safety

Monitor the measures taken by the PCBU to meet their duties

Investigate complaints from members of the workgroup

Inquire 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?
WHS Act s68
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Activities of HSRs

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.
WHS Act s68
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Activities of HSRs
 Requesting the establishment
of a Health & Safety
Committee.
 Receiving information on the heath & safety of workers
 except 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?
WHS Act s68
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Limitation of HSRs’ Powers
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.
WHS Act s69
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Obligations of PCBUs to HSRs
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.
WHS Act s70 -74
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HSC and HSRs
- Activity 2 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.
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Provisional Improvement
Notices (PINs)
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.
WHS Act s90
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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.
The group will come back together to discuss the
answers.
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Provisional Improvement
Notices (PINs)
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
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Provisional Improvement
Notices (PINs)
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.
WHS Act s91-99
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Provisional Improvement
Notices (PINs) - requirements
Issuing a PIN
A notice can be delivered personally or by post, fax or
electronically.
Display
A 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
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Review of Provisional
Improvement Notices (PINs)
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.
WHS Act s100-102
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Ceasing unsafe work
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.
WHS Act s83-103
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Workers’ right to cease work
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?
WHS Act s84
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Requirements when
ceasing unsafe work
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 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.
WHS Act s83-89
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Right of HSRs to direct workers
to cease unsafe work
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.
WHS Act s85-89
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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.
The group will come back together to discuss the
answers.
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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
WHS Act s80 - 82
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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
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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.
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Conduct in relation to health
and safety matters
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?
WHS Act s104-115
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Conduct in relation to health
and safety matters
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
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Conduct in relation to health
and safety matters
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
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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.
The group will come back together to discuss the
answers.
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Role
of the
Inspector
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Functions and Powers of
Inspectors
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.
WHS Act s160
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Additional Powers of Inspectors
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?
WHS Act s163-166
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Inspector’s Powers
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.
WHS Act s165, 172, 185
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Offences against Inspectors
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
WHS Act s188-190
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Your Union’s Role in
Work Health &
Safety *
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Definitions relating to
WHS entry
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.
WHS Act s116
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WHS entry permits
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 Act s117, 121
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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
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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
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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 & 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 Act s117-121
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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
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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.
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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
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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
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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
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Prosecutions and unions
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
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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
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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.
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Sources of information
Safe Work Australia - www.safeworkaustralia.gov.au
WorkCover NSW - www.workcover.nsw.gov.au
Course Fact Sheets
Unions NSW - www.council.labor.net.au
UnionSafe - http://unionsafe.labor.net.au/
Police Association NSW - www.pansw.org.au
Public Service Association of NSW- www.psa.labor.net.au
Australian Manufacturing Workers Union - www.amwu.org.au
Construction, Forestry, Mining and Energy Union (CFMEU) - www.cfmeu.asn.au
United 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
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- Activity  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?
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