nsw work health & safety act
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NSWWork Health &
Safety Act
Session 3
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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
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• 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:
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What is the likely impact of these changes?
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Enforcement Measures
NoticeNon Disturbance
Improvement
Prohibition
Injunctions
Remedial
Enforceable Undertaking
Penalty Notice
Prosecution – ultimate sanction
Notice
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
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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
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Enforceable Undertakings
NOT Available for Category 1 Offences
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The Right to Prosecute
The right to bring a prosecution under the WHS Act rests with WorkCover in NSW
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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
andWorkCover has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings
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Power of HSR to issue PIN
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Health and Safety Duties
Offences and penaltiesA 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; andwithout 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 dutyA 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 dutyA 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
IndividualIndividual conducting a PCBU or Officer of a
PCBU
Body Corporate
Category 1$300,000 or 5 years imprisonment or both
$600,000 or5 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
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The burden of proof (beyond reasonable doubt) rests
entirely upon the prosecution in matters relating to
non-compliance with duties imposed by the ActExcept for civil actions relation to discriminatory conduct and WHS entry
permit holders
Reverse onus of proof removed
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What should you do?
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The Right to Exercise Entry Powers
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Reasons for Entry:
Entry only be for specified reasons
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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
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Notice of EntryA WHS entry permit holder:
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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
.
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Powers onEntryPOWER TO:
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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
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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
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Resolution of Right of Entry DisputesDisputes 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
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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
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THE UNIONS RIGHT QUALIFIED:
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You need to understand the WHS entry permit provisions as they may apply in your workplace:
PAY PARTICULAR ATTENTION TO NEW PROVISIONS:
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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
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