SESSION 3
WHS Act – Awareness Course for Union Members
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
www.ieu.asn.au
2
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
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?
WHS Act s84
www.ieu.asn.au
3
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
www.ieu.asn.au
4
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 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.
WHS Act s85-89
www.ieu.asn.au
5
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
www.ieu.asn.au
6
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
www.ieu.asn.au
7
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
www.ieu.asn.au
8
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
www.ieu.asn.au
9
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
www.ieu.asn.au
10
Definitions relating to
WHS entry
Definitions related to workplace entry by WHS entry permit
holders include:
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
www.ieu.asn.au
11
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
www.ieu.asn.au
12
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
WHS Act s119-122
premises.
www.ieu.asn.au
13
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
www.ieu.asn.au
14
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
www.ieu.asn.au
15
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
www.ieu.asn.au
16
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
www.ieu.asn.au
17
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
www.ieu.asn.au
18
Work Health and Safety
activities of your union
Unions will continue to contribute to improvements in work
health and safety under WHS legislation.
Activities your 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
www.ieu.asn.au
19
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
WHS Act s80 - 82
www.ieu.asn.au
20
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
www.ieu.asn.au
21
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
www.ieu.asn.au
22
Conduct in relation to health
and safety matters
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.
WHS Act s106
www.ieu.asn.au
23
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
www.ieu.asn.au
24