1 NSW Work Health & Safety Act Session 3 WHS Act

2 Overview of WHS Act The parties to an issue include the PCBU or representative and workers or representative The issue resolution provisions apply if there has been no resolution after reasonable efforts have been made If there is no agreed issue resolution procedure the process in the regulations must be followed WHS Act

3 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 Set out the agreed procedure in writing & communicate it to all workers What WHS Act says PCBUs must do: WHS Act

4 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 consultative arrangements such as OHS committee and OHS reps then use them to develop an agreed procedure 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

5 5 Enforcement Measures Notice Non Disturbance Improvement Prohibition Injunctions Remedial Enforceable Undertaking Penalty Notice Prosecution – ultimate sanction Notice Action The WHS Act provides graduated enforcement regime with civil and criminal prosecutions the ultimate sanction Injunctions, and enforceable undertaking are new in NSW

6 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 $$ to focus on positive prevention action 6 WHS Act Enforceable Undertakings NOT Available for Category 1 Offences

77 The Right to Prosecute The right to bring a prosecution under the WHS Act rests with WorkCover in NSW 7 WHS Act 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 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

8 Power of HSR to issue PIN 8 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 Can only act if Completed initial training Consulted with the person to whom the notice is issued 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 WHS Act

99 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, s

10 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

11 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. $3,000,000 Category 2$ 150,000$300,000$1,500,000 Category 3$50,000$100,000$500,000 WHS Act s30-34

12 The burden of proof (beyond reasonable doubt) rests entirely upon the prosecution in matters relating to non-compliance with duties imposed by the Act Except for civil actions relation to discriminatory conduct and WHS entry permit holders Reverse onus of proof removed WHS Act 12

13 What should you do? Understand your obligations and what steps you need to take to ensure compliance with the WHS Act Understand what you have to do to prove due diligence Keep evidence that you have done everything reasonably practicable to prevent a contravention WHS Act 13

14 The Right to Exercise Entry Powers 14 Must be WHS Entry Permit HolderMust complete prescribed trainingMust hold relevant entry permit under IR lawMay only seek entry for specified purposesMay enter without notice to investigate a suspected beach24hrs notice if consulting workers / documentsMust comply with WHS requirements

15 To enquire in suspected contravention that relates to a relevant worker 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 Reasons for Entry: Entry only be for specified reasons

16 May enter a workplace immediately to enquire into a suspected contravention, but  must, as soon as is reasonably practicable, give notice of the entry and the suspected contravention to the relevant PCBU 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 Notice of Entry A WHS entry permit holder:

17 Inspect any work system, plant, substance, structure or other thing relevant to suspected contravention Consult with relevant workers re suspected contravention Consult with PCBU about the 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 Powers onEntry POWER TO:

18 Breaches Relating to Entry Intentionally and unreasonably: delay, hinder or obstruct any person disrupt any work, or otherwise act improperly Use or disclose information or a document obtained for a purpose unrelated to the enquiry Unless a serious risk exists Disclosure is necessary part of investigation 18 A WHS permit holder must not: A person must not: Recklessly & unreasonably hinder a WHS entry holder in, or obstruct them from entering the workplace or exercising their rights

19 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: Mediation Conciliation Arbitration 19

20 Right to Prosecute 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, 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 20 THE UNIONS RIGHT QUALIFIED:

21 You need to understand the WHS entry permit provisions as they may apply in your workplace: PAY PARTICULAR ATTENTION TO NEW PROVISIONS: 21 What do you have to do? Union officials MUST hold a WHS entry permit in order to enter your workplace on a WHS matter & must produce the permit if requested 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