NSW
Work Health &
Safety Act
WHS Act
Session 3
1
Overview of WHS Act
• The parties to an issue include
the PCBU or representative
and workers or representative
• If there is no agreed issue
resolution procedure the
process in the regulations must
be followed
WHS Act
• The issue resolution provisions
apply if there has been no
resolution after reasonable
efforts have been made
2
What WHS Act says PCBUs must do:
• Make reasonable efforts to resolve an WHS issue
• Follow an agreed procedure if there is one in place
• If no agreed procedure follow the process set out in
regulations
WHS Act
• Set out the agreed procedure in writing & communicate
it to all workers
3
What is the likely impact of these changes?
• If you already have an agreed issue resolution
process built into your consultation arrangements
then no change (but review)
• If you have no defined consultative arrangements
establish an agreed procedure or you will need to
use the default procedure if issues arise
WHS Act
• If you have consultative arrangements such as OHS
committee and OHS reps then use them to
develop an agreed procedure
4
Enforcement Measures
The WHS Act provides
graduated enforcement
regime with civil and
criminal prosecutions
Prosecution –
ultimate sanction
Penalty
Notice
Enforceable
Undertaking
Injunctions
WHS Act
the ultimate sanction
Injunctions, and enforceable
undertaking are new in NSW
5
5
Enforceable Undertakings
$$ to focus on positive prevention
action
NOT Available for Category 1 Offences
WHS Act
WorkCover may accept a WHS undertaking in
connection with the matter giving rise to a
contravention or an alleged contravention as
an alternative to a prosecution
6
6
The Right to Prosecute
The right to bring a prosecution under the
WHS Act rests with WorkCover in NSW
A Trade Union can bring a prosecution under the WHS Act
in NSW only if:
2.the offence concerned is a Category 1 or a Category 2 offence
and
WorkCover has (after referral of the matter to the Director of
Public Prosecutions) declined to follow the advice of the DPP
to bring the proceedings
WHS Act
1.the offence concerned is a Category 3
7
7
Power of HSR to issue PIN
• Completed initial training
Can only act • Consulted with the person to whom the notice is issued
if
And
• Must be in writing and may recommend measures to
remedy issue
• PCBU can seek review within 7 days. Inspector may
cancel, confirm or confirm with modification
8
WHS Act
Then only
if
• the representative reasonably believes that a person is
contravening a provision of the Act, has contravened a
provision of the Act in circumstances that make it likely
that the contravention will continue or be repeated
8
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
9
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
10
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
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
$3,000,000
11
Reverse onus of proof removed
The burden of proof (beyond reasonable doubt) rests
entirely upon the prosecution in matters relating to
non-compliance with duties imposed by the Act
WHS Act
Except for civil actions relation to discriminatory conduct and WHS entry
permit holders
12
1
2
What should you do?
• Understand your obligations and what
steps you need to take to ensure
compliance with the WHS Act
• Keep evidence that you have done
everything reasonably practicable to
prevent a contravention
13
WHS
Act
• Understand what you have to do to
prove due diligence
13
The Right to Exercise Entry Powers
• Must be WHS Entry Permit Holder
• Must complete prescribed training
• Must hold relevant entry permit under IR law
• May only seek entry for specified purposes
• 24hrs notice if consulting workers / documents
14
• May enter without notice to investigate a suspected beach
• Must comply with WHS requirements
14
Reasons for Entry:
Entry only be for specified reasons
To enquire in suspected contravention
that relates to a relevant worker
15
Must reasonably suspect that the
contravention has occurred or is
occurring before entering workplace
To consult with & advise workers who
wish to participate in talks about WHS
15
Notice of Entry
A WHS entry permit holder:
May enter a workplace immediately to enquire into a
suspected contravention, but
Must give notice, during usual working hours, of their
intended entry to consult and advise workers at least
24 hours but not more that 14 days before entry
16
 must , as soon as is reasonably practicable, give
notice of the entry and the suspected
contravention to the relevant PCBU
16
Powers onEntry
POWER TO:
Inspect any work system, plant, substance, structure or other
thing relevant to suspected contravention
Consult with relevant workers re suspected contravention
Inspect & make copies of any document relevant to the
suspected contravention
Warn persons exposed to a serious risk emanating from an
immediate or imminent exposure to a hazard, of that risk
.
17
Consult with PCBU about the suspected contravention
17
Breaches Relating to Entry
A person must not:
Recklessly & unreasonably hinder a WHS entry holder in, or
obstruct them from entering the workplace or exercising their rights
A WHS permit holder must not:
Intentionally and unreasonably:
• delay, hinder or obstruct any person
• disrupt any work, or
Use or disclose information or a document obtained for a purpose
unrelated to the enquiry
18
• otherwise act improperly
• Unless a serious risk exists
• Disclosure is necessary part of investigation
18
Resolution of Right of Entry Disputes
Disputes regarding:
• Entry entitlement
• Conduct of WHS Permit Holder
• Conduct of other persons during course of entry
Referred to an Inspector or the Authorising Authority who can
deal with matter in manner determined suitable, including:
19
• Mediation
• Conciliation
• Arbitration
19
Right to Prosecute
THE UNIONS RIGHT QUALIFIED:
A Trade Union can bring a
prosecution under the WHS Act in
NSW only if:
1. the offence concerned is a Category 3
2. the offence concerned is a Category 1
or a Category 2 offence,
WorkCover has (after referral of the
matter to the Director of Public
Prosecutions) declined to follow the
advice of the DPP to bring the
proceedings
20
and
20
What do you have to do?
You need to understand the WHS entry permit provisions as
they may apply in your workplace:
PAY PARTICULAR ATTENTION TO NEW PROVISIONS:
You must allow WHS entry permit holders to enter the
workplace during normal working hours to consult with
members or eligible workers on WHS matter, if given 24 hours
notice
You may be required to consult with union officials about a
suspected contravention
21
Union officials MUST hold a WHS entry permit in order to
enter your workplace on a WHS matter & must produce the
permit if requested
21