A guide to understanding and complying
with work health and safety laws
July 2014
Introduction
4
This Guide covers:
4
Part 1: Do NSW WHS Laws apply to your not-for-profit community organisation?
6
Introduction
6
When do the NSW WHS Laws apply?
6
Part 2: If NSW WHS Laws do apply, what are the specific duties?
7
What are the duties our organisation has under the WHS Laws?
7
Specific information on key duties owed under the WHS Act
7
Nature of the health and safety duties
7
Primary duty to ensure the health and safety of workers (s 19)
8
Duty of persons conducting businesses or undertaking involving management or control of
workplaces (s 20)
8
Duty of persons who design, manufacture, supply, construct or commission plant,
substances or structures (s21 – s26)
8
Duty to notify regulator immediately of notifiable incidents and duty to preserve incident
sites (s 38 and s 39)
9
Duty to consult with other duty holders (s 47)
9
Duty to consult with workers (s 48)
9
Duty to permit election of health and safety representative, on request, and to confer with
the representative (s50 and s70)
Duty to establish a health and safety committee, on request (s72)
9
10
Part 3: Who may be legally responsible under NSW WHS Laws?
11
Liability of the community organisation itself
11
Incorporated community organisations
11
Unincorporated community organisations
11
Prosecution of directors and officers
11
When are directors and officers be personally liable?
12
What duties do directors and officers owe?
12
What does ‘reasonably practicable’ mean?
14
Part 4: What can your community organisation do to comply with NSW WHS Laws?
14
What are the obligations of workers?
15
Part 5: What should your organisation do if there is a workplace incident?
16
Community organisations and work health and safety law
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2
1.
Initial response to an incident
16
2.
Consider notification requirements
16
The immediate reporting requirement
16
‘Notifiable incidents'
16
3.
The notification procedure
17
4.
Maintaining records of notifiable incidents
18
5.
Preservation of incident site
18
Register of injuries
19
6.
19
Investigate and prevent reoccurrences
Part 6: What are the powers of the NSW WorkCover Authority?
20
WorkCover inspector’s power to enter a workplace
20
WorkCover notices
21
Improvement notices
21
Prohibition notices
21
Non-disturbance notices
21
Resources
22
Related Not-for-profit Law Resources on the Information Hub
22
Related legislation
22
Other Related Resources
22
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3

Part 1: Do NSW Work Health and Safety Laws apply to your not-for-profit
community organisation?

Part 2: If NSW WHS Laws do apply, what are the specific duties?

Part 3: Who may be legally responsible under NSW WHS Laws?

Part 4: What can your organisation do to comply with NSW WHS Laws?

Part 5: What should your organisation do if there is a workplace incident?

Part 6: What are the powers of the NSW WorkCover Authority?
Not-for-profit community organisations are required by law to ensure they provide a safe
workplace for their employees and volunteers. This guide is designed to provide people
who are involved in not-for-profit community organisations with a basic understanding of
work health and safety laws in New South Wales.
In NSW, work health and safety in the workplace is regulated by the Work Health and Safety Act 2011
(NSW) and the Work Health and Safety Regulation 2011 (NSW) (NSW WHS Laws).
The recent harmonisation of work health and safety laws across Australia has seen most states adopt
the model Work Health and Safety Act, meaning there is consistency in the legal regime for work
health and safety that applies in most states and at the Commonwealth level.
Alongside the duties imposed on employers under NSW WHS Laws, there are also common law
duties to provide employees with a safe workplace. Under the common law, all employers have a
legal duty to take reasonable care to avoid exposing employees to reasonably foreseeable risks of injury.
These obligations are not exhaustively covered in this guide.
Compliance with NSW WHS Laws is important. If your not-for-profit community organisation does not
comply with these laws it risks substantial fines and directors and officers risk further fines and
imprisonment if they do not exercise due diligence in relation to work health and safety matters.
This guide focuses on the legal duties and obligations that community organisations and the directors
and officers of community organisations owe to various people, including their employees, volunteers,
contractors, apprentices/trainees and members of the public, under the NSW WHS Laws. NSW WHS
Laws also set out a number of legal duties owed by employees (and contractors). These employee
duties are not covered in this guide, which focuses only on the organisations and agents within its
responsibilities.
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4
The information contained in this fact sheet is a guide only, and is not legal advice.
If you or your organisation has a legal problem you should talk to a lawyer before making a decision
about what to do. The information in this fact sheet is written for people and organisations resident in, or
affected by, the laws that apply in New South Wales, Australia and is current at 10 July 2014.
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5
Introduction
The NSW WHS Laws aim to protect workers and others from safety hazards in the workplace. The laws
also provide a framework for continuous improvement and progressively higher standards of work
health and safety compliance.
The NSW WHS Laws apply to all community organisations that have employees. They do not apply to
organisations which only engage volunteers.
When do the NSW WHS Laws apply?
The NSW WHS Laws apply to 'persons conducting a business or undertaking'. A 'volunteer association'
is taken not to be conducting a business or undertaking and therefore is not subject to the
requirements of the WHS Act. A CLG is incorporated under the Commonwealth Corporations Act 2001
and can carry out its activities anywhere in Australia.
Conducting a business or undertaking
An organisation will be considered to be conducting a business or undertaking whether or not that
business/undertaking is:
 conducted for profit or gain
 conducted by an individual or a group of people, or
 is structured as a partnership, incorporated association or unincorporated association.
Volunteer association
A volunteer association is defined under the NSW WHS Laws as:
a group of volunteers working together for one or more
community purposes where none of the volunteers,
whether alone or jointly with any other volunteers,
employs any person to carry out work for the volunteer
association.
This means that only not-for-profit community groups which consist
solely of volunteers (and not employees or contractors) are exempt
from NSW WHS Laws. If your organisation employs anybody
(whether casually, part time or as a contractor) it is not a Volunteer
Association and must comply with NSW WHS Laws.
Even if your organisation is a
volunteer association and is
exempt from the NSW WHS Laws,
it is a good idea to comply with
the general WHS duties under
the WHS Act. Australian courts
have recognised that volunteers
are owed a general duty of care
by the organisations that they are
engaged by. Complying with the
Act will help to ensure this duty is
satisfied.
It is important to note that payments that are made to volunteers for direct out-of-pocket expenses
(such as travel and meals) when carrying out volunteer work will not be regarded as wages or salary.
However, if other payments for carrying out volunteer work are made they may constitute a wage or
salary and mean that the person is being 'employed' by the organisation.
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What are the duties our organisation has under the WHS
Laws?
If your not-for-profit community organisation employs at least one paid worker then the organisation
will owe WHS duties to all workers, including volunteers.
The WHS key duties are set out in the table below.
Duties under NSW WHS Act
Section of Act
Primary duty of care
s 19
Duty of persons conducting businesses or undertakings involving management or control
of workplaces
s 20
Duty of persons conducting businesses or undertakings involving management or control
of fixtures, fitting and or plant at workplaces
s 21
Duty of persons conducting businesses or undertakings that design plant, substances or
structures
s 22
Duty of persons conducting businesses or undertakings that manufacture plant,
substances or structures
s 23
Duty of persons conducting businesses or undertakings that import plant, substances or
structures
s 24
Duties of persons conducting businesses or undertakings that supply plant, substances
or structures
s 25
Duties of persons conducting businesses or undertakings that install, construct or
commission plant or structures
s 26
Duty to notify regulator immediately of notifiable incidents
s 38
Duty to preserve incident sites
s 39
Duty to consult with other duty holders
s 46
Duty to consult with workers
s 47
On request, to facilitate election of health and safety representative/s
s 50
Duty to consult with and confer with a health and safety representative
s 70
On request, duty to establish a health and safety committee
s 75
Specific information on key duties owed under the WHS Act
Nature of the health and safety duties
Where a duty is imposed on an organisation under the WHS Act to ensure health and safety, this will
require the organisation to eliminate (or minimise) risks to health and safety, so far as is reasonably
practicable.
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Primary duty to ensure the health and safety of workers (s 19)
Organisations must ensure, as far as is reasonably practical, the health and safety of:
 workers engaged, or caused to be engaged by the organisation, and
 workers whose activities in carrying out work are influenced or directed by the organisation.
For the purposes of the WHS Act, a worker includes any of the following persons:
 employees
 volunteers
 contractors or subcontractors, and employees of those contractors or subcontractors
 employees of a labour hire company assigned to work in the organisation
 apprentices and trainees
 students gaining work experience, and
 outworkers.
In addition to workers, community organisations must also ensure, so far as is reasonably practicable,
that the health and safety of other persons is not put at risk from work carried as part of the conduct
of the organisation. This means that in carrying out its activities, there is a potentially large class of
persons to whom your community organisation may owe WHS duties.
A charity organisation, staffed by employees and volunteers, arranges a sausage sizzle to raise
money. The event takes place at a local park, where an employee and volunteer are responsible for
the set up of a barbeque. They recklessly cause a gas leak which results in a minor explosion. The
employee, volunteer and a passer-by are injured. As the charity is an employer, they will owe a duty to all
three injured parties – the employee, the volunteer and the passer-by.
Duty of persons conducting businesses or undertaking involving management or
control of workplaces (s 20)
All community organisations with management or control, in whole or part, of a workplace have a duty
to ensure, so far as is reasonably practicable, that:
 the workplace
 means of entering or exiting the workplace, and
 anything arising from the workplace,
are without risks to the health and safety of any person.
Duty of persons who design, manufacture, supply, construct or commission plant,
substances or structures (s21 – s26)
Community organisations that are involved in, or have some aspect of their operations involved in, the
design, manufacturing, supply, construction or commission of machinery, equipment, substances or
various structures owe particular duties to ensure that those processes, so far as is reasonably
practicable, are carried out without risks to the health and safety of any person.
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Further details on each specific duty are contained in sections 21 to 26 of the WHS Act.
Duty to notify regulator immediately of notifiable incidents and duty to preserve
incident sites (s 38 and s 39)
See Part 5 of this Guide for an outline of the duties your community organisations must fulfill when
WHS incidents occur.
Duty to consult with other duty holders (s 47)
Community organisations which have a duty under the WHS Act where other persons or organisations
have a duty in relation to the same WHS matter must, so far as is reasonably practicable, consult, cooperate and co-ordinate activities with all other persons who have a duty in relation to the same
matter.
Duty to consult with workers (s 48)
Community organisations must also consult, as far as is reasonably practicable, with their workers
who are directly affected by matters relating to work health or safety. This duty is owed not only to
employees but also volunteers.
The WHS Act requires community organisations to ensure that there is consultation with workers on
the following matters:
 the identification of hazards and risk assessment of WHS issues within the organisation's
operations
 decision-making about ways to eliminate or minimise WHS risks
 decision-making about the adequacy of facilities for the welfare of workers
 proposed changers which may affect the health and safety of workers, and
 decision-making about procedures for consultation with workers, resolving WHS issues, monitoring
the health of workers, monitoring workplace conditions and providing WHS information and training
to workers.
In these instances, community organisations must ensure that: relevant information about the WHS
matters is shared with workers, that workers are given a reasonable opportunity to express their views
or concerns about WHS issues, and that they are able to contribute to any relevant decision-making
processes.
The views of the workers should be taken into account and workers should be advised of the outcome
of consultations in a timely matter.
Duty to permit election of health and safety representative, on request, and to
confer with the representative (s50 and s70)
The employees or volunteers of a community organisation may request that the organisation facilitate
the election of one or more persons as 'health and safety representative' to represent the employees
and volunteers of that organisation in respect of WHS matters.
The purpose of a health and safety representative is to:
 represent the workers in relation to WHS matters
 monitor measures taken by the organisation to ensure they are in compliance with the WHS Act
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 investigate complaints from workers regarding WHS matters, and
 inquire into anything that appears to be a risk to the health or safety or workers arising from the
conduct of the organisation.
Where a request for election is made, the community organisation must follow the prescribed
procedure for establishing work groups which health and safety representatives will represent, and for
facilitating the election of health and safety representatives by the organisation's workers (see
sections 55 – 67 of the WHS Act).
Small community organisations are unlikely to need a health and safety representative. In large
community organisations with many employees and volunteers, it may be useful for a health and
safety representative to be appointed.
Duty to establish a health and safety committee, on request (s72)
The employees and volunteers of a community organisation may request that the organisation
establish a 'health and safety committee'. This request may be made by an elected health and safety
representative, or 5 or more workers within the organisation. If such a request is made, a committee
must be established within 2 months of the request.
The purpose of a workplace health and safety committee is to:
 facilitate co-operation between the organisation and worker in developing and carrying out
measures designed to ensure the workers' work health and safety while at work
 develop standards, rules and procedures in relation to health and safety, and
 fulfill any other functions as agreed between the organisation and the committee.
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There is a chance that both your organisation and its directors and officers could be liable for failure to
comply with NSW WHS Laws. The NSW WorkCover Authority is able to prosecute the organisation and
its directors and officers in relation to WHS offences.
Liability of the community organisation itself
Incorporated community organisations
If your community organisation is incorporated (such as an incorporated association or a company
limited by guarantee), the organisation itself is considered to be a separate person for the purposes of
the NSW WHS Laws and can be found guilty of breaches of the WHS Act.
This means that an incorporated organisation as a whole can be held responsible for breaches of the
Act by its officers, employees, or agents, where those officers, employees or agents are performing
tasks within the scope of their authority.
The NSW regulator, WorkCover, will prosecute not-for-profit community organisations as severely as
commercial enterprises. WorkCover may also prosecute the organisation’s directors and officers
personally (see below for more information on directors and officers of a community organisation).
Unincorporated community organisations
If your community organisation is unincorporated, it is not recognised by law and cannot itself be
prosecuted for breaches of the NSW WHS Laws.
However, as with an incorporated organisation, the ‘officers’ of an unincorporated organisation can be
held personally liable for a breach, and could potentially incur penalties where there has been a
serious failure to take adequate care to prevent or report workplace injuries.
Prosecution of directors and officers
The NSW WorkCover Authority can prosecute the directors and officers of a community organisation
when there has been a breach of the NSW WHS Laws.
Who is an officer?
Under NSW WHS Law, directors and officers of a community organisation may include
 a director or secretary of the community organisation
 a person who makes decisions that affect the whole or a substantial part of the operations of a
community organisation (eg. a CEO)
 a person who has the capacity to significantly affect the community organisation’s financial
standing
 a person who commonly instructs the committee of management on how to perform its functions
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 various people who may be involved in a community organisation in positions of responsibility such
as a receiver, administrator, liquidator or trustee of a community organisation, and
 an officeholder of an unincorporated association.
When are directors and officers personally liable?
Paid directors and officers
A director or officer of a community organisation (whether incorporated or unincorporated), may be
found personally liable for a breach of the NSW WHS Laws if:
 they receive payment for their position as an officer in the organisation (that is, they are not a
volunteer officer), and
 they fail to exercise due diligence in relation to WHS matters.
Volunteer directors and officers
A volunteer director or officer is expected to comply with the duties under the WHS Act, however, they
cannot be prosecuted for failing to comply with those duties. This immunity from prosecution under
the Act has been designed to ensure that people are not discouraged from taking up voluntary
positions in community organisations.
However, if a volunteer director or officer is also engaged as a 'worker' of the community organisation
they can be prosecuted for a breach of the duties they owe as a worker under the Act.
A director or officer will still be classed as a volunteer where they receive repayment from the
organisation for out-of-pocket expenses incurred as a result of their position.
What duties do directors and officers owe?
Directors and officers of a community organisation must exercise due diligence to ensure that the
organisation complies with its WHS obligations.
Due diligence requires reasonable steps to:
 acquire and keep up-to-date knowledge on WHS matters
 gain an understanding of the nature of the organisation's operations and the risks and hazards
associated with those operations
 ensure the organisation uses appropriate resources and processes to eliminate or minimise health
and safety risks
 ensure the organisation has appropriate processes for receiving and considering information
regarding incidents and hazards, and responding to that information in a timely way, and
 ensure that the organisation implements processes for complying with any duty or obligation under
the WHS Act.
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12
If you take on a paid position as an ‘officer’ in a community organisation, you may have
responsibilities under the WHS Act and are potentially liable if something goes wrong. Therefore,
it is a good idea to make sure you are aware of your organisation’s obligations under the WHS Act and the
measures that are being put in place to eliminate or minimise the risk.
In many cases, a breach of a duty in the WHS Act will be found when a community organisation (and its
officers) do not take reasonably practicable steps to eliminate or reduce a risk. You should ensure that
WHS is seriously discussed regularly at the committee meetings so that you can satisfy yourself that all
reasonably practicable steps are being taken to ensure a safe working environment for people involved in
your community organisation.
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What does ‘reasonably practicable’ mean?
Many of the duties within the NSW WHS Laws require that employers do as much as is 'reasonably
practicable' to ensure they have met their obligations to provide a safe and healthy working
environment for workers.
This standard of care requires employers to eliminate potential risks to health and safety, or where
this is not reasonably practicable to do, to reduce the risks to an acceptable level. Whether or not it is
reasonably practicable to do so will depend on taking into account and weighing up all of the relevant
matters. These matters include, but are not limited to:
 the likelihood of the hazard or risk concerned occurring
 the degree of harm that might result from the hazard or the risk
 what the person concerned knows, or ought reasonably to know about the hazard or risk and any
ways of eliminating or reducing the hazard or risk
 the availability and suitability of ways to eliminate or reduce the hazard or risk, and
 after assessing the extent of the risk and the available ways of eliminating or minimising the risk,
the cost of eliminating or reducing the hazard or risk, including whether the cost is grossly
disproportionate to the risk.
In Australia, the courts have confirmed that:
 they are likely to try to find that an available way of addressing a workplace risk is reasonably
practicable
 something will not be 'reasonably practicable' simply because it is physically possible
 what is 'reasonably practicable' is judged according to what was known at the time of the alleged
breach, and
 to determine what is 'reasonably practicable', it is necessary to balance the likelihood of the risk
occurring against the cost, time and difficulty involved in removing that risk.
Safe Work Australia advises that organisations undertake a four stage process to identifying,
assessing and controlling WHS risks. This process requires community organisations to:
1. identify any hazards within the workplace
2. assess the risks that may result as a consequence of the hazards
3. decide on appropriate control measures to prevent and minimise the level of the risks, and
4. implement, monitor and review the control measures.
For more detailed information on each of these steps refer to the How to Manage Work Health and
Safety Risks Code of Conduct.
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The cost of eliminating or minimising risks may be a relevant factor for many community
organisations with limited resources. However, if there is an incident in the workplace, it is not a
defence to a breach of the WHS Act to claim that “We are a not-for-profit group and we couldn’t afford to
reduce that risk.”
To reduce your chance of being found liable for a breach of the WHS Act, your organisation needs to be able
to show that it has identified and considered risks and then took practical steps within its resources to
eliminate or reduce those risks. Documentary evidence of these procedures is ideal. Often the measures
introduced do not need to be expensive or elaborate. For example, if your volunteers are lifting items, you
may not need to buy an expensive hydraulic lifting machine, but you could train volunteers in safe lifting
practices and post reminder notices around the premises.
Your community organisation may wish to review its approach to risk management, as well as review
the appropriate insurance options. Not-for-profit Law has produced a separate guide to risk
management and insurance which is located at www.nfplaw.org.au/riskinsurance.
What are the obligations of workers?
Workers have a duty to take reasonable care for their own health and safety and for the health and
safety of others to ensure they are not adversely affected by their actions while at work.
Workers must also comply with the reasonable instructions given by the organisation to allow
compliance with the WHS Act, and must cooperate with any reasonable WHS policies and procedures
of the organisation.
It is important to note that these obligations apply not only to employees but also contractors,
apprentices/trainees and volunteers.
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There is no ‘one size fits all’ response to a WHS incident or complaint. The best and most appropriate
response will largely depend on the nature of the incident, however, there are some incidents that
require immediate responses and notification to the NSW WorkCover Authority under NSW OHS laws.
There are significant penalties for employers who fail to follow the correct procedures following a
serious workplace incident. These procedures are discussed below.
Immediately after a workplace incident, an organisation should assess the seriousness of the incident
and find out whether an injury has occurred to any person.
If the injury has occurred, you should seek immediate, appropriate medical treatment for the injured
person.
It is a good idea to have one or two people in your organisation (an officer or a manager) who agree
to be responsible for the co-ordination of the response to a workplace incident. This does not mean
that the person is solely responsible – just that it is helpful to have one person to co-ordinate the response
so that the incident can be dealt with appropriately. That person should be aware of the responsibilities of the
organisation under the WHS Act (including notification and preservation requirements, as outlined below).
While all workplace incidents should be recorded by all community organisations no matter how large
or small, there are particular legal obligations on community organisations for the reporting of
incidents which result in death or serious injury.
The immediate reporting requirement
An organisation must notify the NSW WorkCover Authority immediately after they become aware of the
occurrence of an incident that is considered a 'notifiable incident'. A ‘notifiable incident' is defined in
the following section.
‘Notifiable incidents'
WorkCover NSW requires immediate notification of the following notifiable incidents:
 the death of a person
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 a serious injury or illness of a person. This includes injury or illness requiring the person to have:



immediate treatment as an in-patient in a hospital
immediate treatment for amputation, a serious head injury, serious eye injury, a serious burn,
spinal injury, loss of bodily functions, serious lacerations or the separation of skin from tissue,
and
medical treatment within 48 hours of exposure to a substance.
 a dangerous incident. This includes an incident that exposes a worker or any other person to a
serious risk to their health and safety emanating from immediate or imminent exposure to:

an uncontrolled escape or leakage of a substance

an uncontrolled implosion, explosion or fire

and uncontrolled escape of gas or steam

electric shock

collapse or partial collapse of a structure or excavation collapse, overturning, failure or
malfunction or damage to any plant

inrush of water, mud or gas in an underground excavation or tunnel, and

fall or release from a height of any plant, substance or thing.
Only incidents related to work or a workplace are notifiable. For example, WorkCover NSW notes
that the following that would not be a notifiable incident:
 a worker or another person suffers a heart attack while at work which is unrelated to work or the
workplace
 a person driving to work is injured in a car accident (where driving is not part of their work), or
 a person with a known history of epilepsy has a seizure at work.
If you believe that an incident has occurred which requires
notification to WorkCover, your organisation must telephone
WorkCover as soon as it becomes aware of the incident on 13 10
50.
Any delay in reporting the incident could mean that your
organisation is in breach of the NSW WHS Laws, which require
immediate reporting of a notifiable incident.
In addition to notifying
WorkCover, you should also notify
your Scheme Agent and/or
insurer within 48 hours of the
workplace incident occurring.
When giving notice by telephone you must give details of the incident as requested by WorkCover.
WorkCover has indicated that the following details will ordinarily be requested at the point of initial
notification:
 an overview of the incident and what occurred
 the date and time of when the incident occurred
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 the location of the incident, such as the site address and description of the particular equipment or
structures involved (if any)
 the name, contact details and occupation of the injured person
 descriptions of the injuries and where the injured person has been taken for treatment
 the organisation's legal name and business address
 any steps being taken to avoid recurrence of the event, and
 the name and contact details of the person who is notifying WorkCover.
If required by WorkCover, you must also give written notice of the incident within 48 hours. This notice
can be given by facsimile, email or other electronic means.
Failure to notify WorkCover of a serious workplace incident can result in penalties of up to $10,000 for
individuals and $50,000 for organisations.
Your community organisation must keep a record of each notifiable incident that has occurred for at
least 5 years from the day that notice of that incident is given to WorkCover NSW.
Failure to keep these records may lead to individuals incurring fines of up to $5000 and organisations
incurring fines up to $25,000.
The NSW WHS Laws require that incident sites where serious workplace incidents have occurred be
preserved to allow inspection of the site, and a full investigation to occur (if required). If a notifiable
incident does occur within your organisation, you must ensure as far as is reasonably practicable that
the site is not disturbed until a WorkCover NSW inspector arrives at the workplace, or unless you have
been directed otherwise by WorkCover NSW.
However, there are exceptions to this which allow a site to be disturbed, including where disturbance
is required to:
 assist an injured person
 remove a deceased person
 make the site safe where there is risk of further notifiable incidents
 facilitate any police investigation, or
 in accordance with the authorisation of an inspector or WorkCover.
The requirement to preserve a site only applies to the immediate area where the incident occurred
and not the whole of the workplace. If you are unsure as to whether you are allowed to enter the
incident site, or the extent to which you can disturb the location, you should telephone WorkCover on
13 10 50 to discuss your concerns.
Community organisations and work health and safety law
© 2014 Justice Connect. This information was last updated on July 2014 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
18
Register of injuries
NSW laws require an employer to keep a Register of Injuries in
which employees should record any workplace incidents or injuries,
no matter how serious they appear to be at the time. The employer
must also inform its employees about how to access this Register.
The Register of Injuries must include the following information:
 the name of the injured worker
 the address of the injured worker
Include notices around your
workplace about incident
procedures and who to contact
when an incident occurs. Your
organisation should hold regular
training for staff and managers
on these issues as well.
 the worker's age at the time of injury
 the worker's occupation at the time of injury
 the industry in which the worker was engaged at the time of injury
 the time and date of the injury
 the nature of the injury
 the cause of the injury, and
 how the injury or illness happened.
Following an incident, community organisation employers should investigate the circumstances of how
the incident occurred in the first place. Notes should be recorded and witness accounts should be
taken to provide the employer with a clear picture of how and why the incident occurred.
The NSW WHS Laws require an employer to consult with employees regarding the identification of any
risks and possible resolution of any health and safety issues. On the basis of this investigation,
employers should work with employees and volunteers to set measures in place (both remedial and
precautionary) to ensure that a similar incident does not occur in the future.
These health and safety systems, including any plans to prevent incident occurrence, should be
regularly reviewed and updated by the community organisation.
For further information on how organisations can undertake risk assessments and invest in
appropriate insurance go to Not-for-profit Law’s Insurance and Risk page on the Information Hub.
For more information on director’s duties read Not-for-profit Law’s Duties Guide on the Governance
page of the Information Hub.
Community organisations and work health and safety law
© 2014 Justice Connect. This information was last updated on July 2014 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
19
The NSW WorkCover Authority inspectors have various powers of entry into and inspection of the
workplace under the NSW WHS Laws. These powers apply to workplaces that community
organisation’s might occupy and are briefly summarised below.
WorkCover inspector’s power to enter a workplace
An inspector may at any time enter a place that is, or the inspector reasonably believes is, a
workplace. This entry may be made without the consent and prior notification of the organisation that
has management or control of the workplace.
As soon as is practicable after entering the workplace, the WorkCover inspector must take all
reasonable steps to notify the organisation, any person with management and control of the
workplace, and any health and safety representatives of his or her presence. Once inside a workplace,
a WorkCover inspector is permitted to:
 make enquiries
 inspect and examine the workplace and anything in the workplace including documents
 require a person at the workplace to give the inspector reasonable help to carry out the above
powers
 bring any equipment or materials to the workplace that may be required
 require a person to tell the inspector who has custody of or access to a document, to produce a
document, or to answer any questions put to them by the inspector
 make copies of or take extracts from documents given to the inspector and keep that document for
a period that the inspector considers necessary
 take measurements, conduct tests and make sketches or recordings (photographs, film, video,
audio, digital or other recordings)
 seize anything (including a document) if the inspector reasonably believes the thing is evidence of
an offence under the WHS Act
 take and remove for analysis a sample of any substance or thing without paying for it
 seize any plant, substance, structure or part of a workplace if the inspector reasonably believes
that it is defective or hazardous to a degree likely to cause serious injury, illness or a dangerous
incident to occur
 require the name and residential address of a person if the inspector finds the person committing
an offence against the WHS Act, or has information or circumstantial evidence leading them to
reasonably suspect the person has committed an offence under the WHS Act, and
 exercise any compliance power or other power reasonably necessary to be exercised by the
inspector.
Community organisations and work health and safety law
© 2014 Justice Connect. This information was last updated on July 2014 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
20
A WorkCover inspector may also be accompanied by an assistant (such as an interpreter) in order to
assist the inspector in the performance of his or her duties.
There are a number of penalties for persons who impede the work of WorkCover inspectors. In
particular, fines can be imposed on individuals and organisations who:
 fail to give help to the inspector, when requested, without reasonable excuse
 intentionally hinder or obstruct an inspector in exercising his or her duties, or inducing another
person to do so, and
 directly or indirectly assaulting, threatening or intimidating an inspector or person assisting an
inspector (note that this can lead to criminal penalties for individuals as well).
WorkCover notices
Improvement notices
A WorkCover inspector has the authority to issue an Improvement Notice to an employer if they believe
that the employer has contravened the WHS Act or regulations, or believes an existing contravention is
likely to continue or be repeated.
An Improvement Notice may contain directions on how to remedy the breach, prevent a likely breach
from occurring or remedy things or operations causing the breach.
If your community organisation receives a Improvement Notice you should take it very seriously and
any directions provided to your community organisation should be followed as soon as possible. There
are penalties for failing to comply with an Improvement Notice, including a fine of up to $50,000 for
individuals and up to $250,000 for organisations.
Prohibition notices
If a WorkCover inspector reasonably believes that an activity is
occurring, or may occur, in the workplace that involves a serious risk
to the health or safety of a person emanating from an immediate or
imminent exposure to a hazard, they may give the organisation a
direction prohibiting the carrying on of that activity. This may be
given initially as an oral warning but must be followed up in writing.
Your organisation may wish to
speak to a lawyer if it receives an
Improvement, Prohibition, or
Non-disturbance Notice.
If your community organisation receives a Prohibition Notice you should take it very seriously as there
are significant penalties that can be imposed for non-compliance – a maximum $100,000 fine for
individuals and maximum $500,000 fine for organisations.
Non-disturbance notices
A WorkCover inspector can issue a non-disturbance notice which requires a person to preserve a site
on which a notifiable incident has occurred, or prevent disturbance at a particular site. These orders
can only be made for a maximum of 7 days. Fines of $50,000 for individuals and $250,000 for
organisations can be imposed for non-compliance with a non-disturbance notice.
Community organisations and work health and safety law
© 2014 Justice Connect. This information was last updated on July 2014 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
21
Related Not-for-profit Law Resources
Insurance and risk
This page gives guidance to organisations on background checks, negligence, Personal Property
Securities Register and criminal conduct.
The people involved
This page sets out the special legal obligations and rights that apply to an organisation’s relationships
with employees, volunteers, funders, donors and service users.
Governance
This page features resources on the legal duties for people who hold positions on the governing body
of a not-for-profit community organisation.
Volunteers
This page has resources on discrimination in the recruitment of volunteers and employees, Working
with Children Checks and volunteer liability.
Related legislation
Work Health and Safety Act 2011 (NSW)
This Act sets out the legal obligations that must be complied with to provide for the health and safety
of workers.
Work Health and Safety Regulation 2011 (NSW)
This page within the ACNC website provides a summary of the steps to take should you wish to register
your not-for-profit as a charity.
Other Related Resources
WorkCover NSW
A NSW government agency established to promote productive, healthy and safe workplaces.
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© 2013 Justice Connect. This information was last updated on 13 June 2013
and does not constitute legal advice, full disclaimer and copyright notice
at www.nfplaw.org.au/disclaimer.