Harmonised jurisdictions

Harmonised work health and safety (WHS) legislation came into effect on 1 January 2012 in the Commonwealth, NSW, Qld, the ACT and NT. Under WHS laws, a person conducting a business or undertaking (PCBU) must consult, so far as is reasonably practicable, with workers likely to be affected by a health or safety matter. Note that the definitions of 'PCBU' and 'worker' are broader than 'employers' and 'employees'. Employers as well as others such as principal contractors and franchisees are all PCBUs. Similarly, the term 'workers' is not limited to employees, but includes others who carry out work in any capacity for the PCBU, such as contractors, sub-contractors and their employees, labour hire workers, volunteers, and work experience students.

 
Overview
 
Harmonised work health and safety (WHS) legislation is now in effect in all Australian jurisdictions except Victoria and Western Australia.
 
Under WHS laws, a person conducting a business or undertaking (PCBU) must consult, so far as is reasonably practicable, with workers likely to be affected by a health or safety matter.
 
Note that the definitions of 'PCBU' and 'worker' are broader than 'employers' and 'employees'. Employers as well as others such as principal contractors and franchisees are all PCBUs. Similarly, the term 'workers' is not limited to employees, but includes others who carry out work in any capacity for the PCBU, such as contractors, sub-contractors and their employees, labour hire workers, volunteers, and work experience students.
 
 
Practicalities of consultation
 
Consultation requires that:
  • relevant WHS information is shared with workers
  • workers are given a reasonable opportunity to express their views and to raise health or safety issues
  • workers are given a reasonable opportunity to contribute to the decision-making process relating to health and safety matters
  • the views of workers are taken into account, and
  • workers are advised in a timely manner of the outcome of any consultation.
Consultation is required when:
  • identifying WHS hazards and assessing risks arising from the work carried out by the business or undertaking
  • making decisions about ways to eliminate or minimise those risks
  • making decisions about the adequacy of facilities for the welfare of workers
  • proposing changes that may affect the health or safety of workers
  • making decisions about the procedures for consulting with workers, resolving WHS issues, monitoring the health of workers or workplace conditions or providing information and training for workers, or
  • carrying out other such activities as may be prescribed by the regulations.
If the PCBU and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

Note that the PCBU bears the ultimate responsibility for making decisions — there is no obligation to make decisions in accordance with the wishes of those being consulted.
 
 
Election of HSRs by work groups
 
A worker who carries out work for a business or undertaking may ask the PCBU to facilitate the conduct of an election for one or more HSRs to represent workers who carry out work for the business or undertaking (s50).
 
If the PCBU receives such a request, he or she must arrange for the workers to be grouped into workgroups, so that each workgroup can elect one of their members to represent them. The number of workgroups, and the workers who are part of a workgroup, are to be determined by negotiation and agreement between the PCBU and the workers.
 
Work groups should be such as to adequately represent the number of workers, considering the nature and location of the work and associated hazards, groups of workers who perform similar types of work, shift arrangements, languages spoken and other relevant factors. The WHS legislation does not specify details, so these arrangements should be negotiated based on what is reasonable and convenient.
 
The Work Health and Safety Act 2011 provides for HSRs as follows:
  • within 14 days after receiving a request for the election of an HSR, the PCBU must commence negotiations with the workers to determine the number and composition of work groups, the number of HSRs and deputy HSRs (if any) to be elected and the workplace or workplaces to which the work groups will apply (s52)
  • work groups may be determined for workers carrying out work for two or more PCBUs at one or more workplaces — a work group may operate across multiple businesses if all parties agree to such an arrangement (s55). The parties are then obliged to share the costs that may be incurred through the HSR’s exercise of his or her functions (s73)
  • the PCBU must negotiate with a worker's representative (such as a union official) if a worker so requests, and must notify the workers of the outcome of the negotiations and of any work groups determined by agreement as soon as practicable after negotiations are complete (s53)
  • if negotiations fail, the PCBU or a work group member can ask the regulator (Worksafe or WorkCover) to appoint an inspector to help with negotiations and determine certain matters if negotiations remain unresolved (s54)
  • the workers in a work group may determine how an election of an HSR for the work group is to be conducted (s61)
  • an election is not required if the number of candidates equals the number of vacancies (s63)
  • if a majority of the workers in a work group so decide, the election may be conducted with the assistance of a union or other person or organisation (s61)
  • where HSRs have been elected, they must always be included in any consultation that affects, or is likely to affect, the health and safety of members of their work group (s48)
  • an HSR for a work group holds office for three years, unless he or she resigns from the position, ceases to be a worker in the work group, is disqualified or is removed by a majority of the members of the work group in accordance with the regulations (s64)
  • any time spent by an HSR exercising his or her powers or functions under this Act must be paid at the person’s usual rate for that period (s70), and
  • an HSR is eligible for re-election (s64).
 The PCBU must:
  • consult with relevant HSRs, so far as is reasonably practicable, on WHS matters (s70)
  • provide any resources, facilities and assistance that are reasonably necessary or are prescribed by the regulations to enable elections to be conducted (s70)
  • allow the HSR time off work (with no loss of pay or entitlements) to attend suitable training (s72)
  • pay for the training and any other reasonable costs associated with the HSR’s attendance at the course of training (s72)
  • give HSRs access to information relating to hazards, risks and other WHS matters relevant to the work group (s70)
  • allow such time as is reasonably necessary for an HSR to exercise his or her functions under this Act (s70)
  • permit an HSR to accompany an inspector on a workplace inspection relevant to the work group (s70)
  • keep an up-to-date list of each HSR and deputy HSR (if any). The list must be displayed such that workers can easily see and understand it (s74), and
  • give the regulator the list of HSRs and their deputies as soon as practicable (s74).
The HSR is empowered (s68) to:
  • represent the workers in the work group in matters relating to WHS
  • monitor the measures taken by the PCBU to comply with the WHS Act in relation to the work group
  • investigate WHS complaints from members of the work group
  • inquire into WHS risks affecting the work group
  • inspect the workplace or any part of it where someone from the work group works
  • accompany an inspector during an inspection of the workplace
  • be present (with the worker’s consent) at an interview concerning WHS between the worker (or a group of workers) and an inspector or the PCBU
  • request the establishment of a health and safety committee
  • receive WHS information concerning the work group, and
  • request the assistance of any person whenever necessary.
     

Notice of inspections
 
Note that an HSR is entitled to inspect the workplace (or any part of the workplace at which a worker in the work group works) at any time after giving reasonable notice to the PCBU. In the event of an incident or situation involving a serious WHS risk from an immediate or imminent exposure to a hazard, the HSR may inspect the workplace without giving notice to the PCBU.
 
The Act details requirements relating to the PCBU’s duty towards a person assisting an HSR.
 
 
Training
 
The PCBU must allow HSRs to attend a course of WHS training that is approved by the regulator and accords with the regulations. The course must be chosen by the HSR in consultation with the PCBU.
 
The PCBU must allow the HSR time off to attend training within three months of receiving the request to do so, and must pay the course fees and other reasonable costs associated with the HSR’s attendance. Time spent in training should be paid at the person’s usual rate. If agreement regarding these matters cannot be reached between the PCBU and the HSR within three months, either party may ask the regulator to appoint an inspector to decide the matter.
 
PINs and the right to stop unsafe work
 
An HSR who has received the required training also has the following rights:
  • to issue a PIN (provisional improvement notice) where consultations with the PCBU about a contravention, or possible contravention, of the Act are not successful in remedying the situation (s90)
  • to direct workers in his or her work group to cease work if the HSR believes there is an immediate risk to health and safety (s85), and
  • to ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work (s89).

If an HSR believes on reasonable grounds that WHS laws are being contravened, or have been contravened and that this is likely to happen again, the HSR should consult with the appropriate person who is in a position to remedy the contravention.
 
If this consultation fails to resolve the issue and the HSR has received the required training, the HSR may issue a PIN. The notice may require a person (eg the PCBU) to remedy the contravention, prevent it from occurring or remedy the things or operations causing the contravention. The notice (unless it is subject to a review by an inspector called in for that purpose) has the same status as a notice issued by an inspector, with the same consequences for a failure to comply with it. The HSR is entitled to make minor changes to a PIN or cancel it.
 
In general, an HSR may only direct a worker to stop unsafe work if the HSR has tried and failed to resolve the matter by consulting with the PCBU. The exception to this requirement applies when the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction to stop work.
 
The HSR must carry out the consultation as soon as practicable after directing that unsafe work be stopped, and must inform the PCBU of any such direction.
 
An HSR is not entitled to direct that unsafe work cease unless he or she has received the training prescribed by the regulations.
 
If a worker stops work when directed to do so by an HSR, the worker must notify the PCBU as soon as practicable and remain available to carry out suitable alternative work. In such circumstances, the PCBU may direct the worker to carry out suitable alternative work at the same or another workplace if that work is safe and appropriate for the worker, until the worker can resume normal duties. The worker’s continuity of engagement should not be affected.
 
The HSR, the worker or the PCBU may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work.
 
 
Confidentiality
 
An HSR is not entitled to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that does not identify the worker.
 
The powers and functions of an HSR are generally limited to the particular work group that he or she represents, unless there is an immediate risk to health and safety, or the HSR is approached by a member of another work group and the HSR (and any deputy HSR) for that work group is not available.
 
 
Protection against discrimination, misrepresentation and coercion
 
HSRs must not be disadvantaged because of their involvement in supporting the implementation of WHS laws. That is, they must not be dismissed, have their contracts terminated, their position altered to their detriment or be otherwise treated unfavourably in order to ‘punish’ them for exercising their powers and functions as HSRs.
 
The WHS Regulations provide further details on:
  • negotiations for and determination of work groups
  • procedures for the election of HSRs
  • removal of HSRs, and
  • training for HSRs.
     


 

[Last updated 21 June 2016]

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