NSW Work Health & Safety Act

1. NSWWork 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 afterreasonable effortshave been made • If there is no agreed issue resolution procedure the processin the regulations must be followed WHS Act

3. 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 • Set out the agreed procedure in writing & communicate it to all workers WHS Act

4. What is the likely impact of these changes? WHS Act

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

6. Enforceable Undertakings WHS Act NOT Available for Category 1 Offences 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

7. 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: • the offence concerned is a Category 3 • 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

8. Power of HSR to issue PIN WHS Act

9. 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

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 WHS Act s30-34

12. 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 Except for civil actions relation to discriminatory conduct and WHS entry permit holders WHS Act

13. What should you do? WHS Act

14. The Right to Exercise Entry Powers

15. Reasons for Entry: Entry only be for specified reasons

16. Notice of Entry A WHS entry permit holder: 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

17. 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 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 .

18. 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 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 A WHS permit holder must not:

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

20. Right to Prosecute THE UNIONS RIGHT QUALIFIED: A Trade Union can bring a prosecution under the WHS Act in NSW only if: • the offence concerned is a Category 3 • the offence concerned is a Category 1 or a Category 2 offence, and WorkCoverhas (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings

21. 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: 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