Guide To The WHS Act
Guide To The WHS Act
Guide To The WHS Act
OCTOBER 2012
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TABLE OF CONTENTS
INTRODUCTION 2
WHS REGULATIONS AND CODES OF
PRACTICE ETC. (SECTIONS 274-276)
12
15
24
27
35
AUTHORISATIONS 40
GLOSSARY AND MORE INFORMATION
43
INTRODUCTION
This guide provides an overview of the Work Health and Safety Act (WHS Act). It is
designed to help people generally understand their health and safety duties and rights
at work. Local versions of this guide may also be available at each work health and safety
regulators website.
It is not intended to be read in place of the WHS Act. To assist readers cross-references
to specific sections of the WHS Act are provided after each heading.
protect the health and safety of workers and other people by eliminating or minimising
risks arising from work or workplaces
ensure fair and effective representation, consultation and cooperation to address and
resolve health and safety issues in the workplace
assisting businesses and workers to achieve a healthier and safer working environment
In furthering these aims regard must be had to the principle that workers and other persons
should be given the highest level of protection against harm to their health, safety and
welfare from hazards and risks arising from work as is reasonably practicable.
For these purposes health includes psychological health as well as physical health.
WHS Regulations
The WHS Regulations specify the way in which some duties under the WHS Act must be
met and prescribes procedural or administrative requirements to support the WHS Act (for
example requiring licences for specific activities and the keeping of records).
Codes of Practice
Codes of Practice provide practical guidance on how to meet the standards set out in the
WHS Act and the WHS Regulations. Codes of Practice are admissible in proceedings as
evidence of whether or not a duty under the WHS laws has been met. They can also be
referred to by an inspector when issuing an improvement or prohibition notice.
It is recognised that equivalent or better ways of achieving the required work health and
safety outcomes may be possible. For that reason compliance with Codes of Practice is not
mandatory providing that any other method used provides an equivalent or higher standard
of work health and safety than suggested by the Code of Practice.
Interpretive guidelines
Interpretive guidelines are a formal statement on how WHS regulators believe key concepts
in the WHS Act operate and in doing so provide an indication of how the laws will be
enforced.
Volunteer a person who acts on a voluntary basis regardless of whether they receive
out of pocket expenses.
Volunteer association a group of volunteers working together for one or more community
purposeswhether registered or notthat does not employ anyone to carry out work for
the association.
Worker any person who carries out work for a PCBU, including work as an employee,
contractor, subcontractor, self-employed person, outworker, apprentice or trainee, work
experience student, employee of a labour hire company placed with a host employer
and volunteers.
Work group a group of workers represented by an HSR who in many cases share similar
work conditions (for example all the electricians in a factory, all people on night shift, all
people who work in the loading bay of a retail storage facility).
Workplace any place where a worker goes or is likely to be while work is carried out for
a business or undertaking. This may include offices, factories, shops, construction sites,
vehicles, ships, aircraft or other mobile structures on land or water such as offshore units
and platforms (that are not already covered under the Commonwealths offshore WHS laws).
The glossary contains additional definitions of terms used throughout this guide.
the likelihood of a hazard or risk occurring (in essence the probability of a person being
exposed to harm)
the degree of harm that might result if the hazard or risk occurred (in essence the
potential seriousness of injury or harm)
what the person concerned knows, or ought to reasonably know, about the hazard
the availability of suitable ways to eliminate or minimise the hazard or risk, and
Costs may only be considered after assessing the extent of the risk and the available ways
of eliminating or minimising the risk.
Ordinarily cost will not be the key factor in determining what it is reasonably practicable for
a duty holder to do unless it can be shown to be grossly disproportionate to the risk. If the
risk is particularly severe a PCBU will need to demonstrate that costly safety measures are
not reasonably practicable due to their expense and that other less costly measures could
also effectively eliminate or minimise the risk.
For more information on what is reasonably practicable please refer to the interpretive
guideline on reasonably practicable available at www.safeworkaustralia.gov.au.
Coverage
The WHS Act covers:
People who carry out work in any capacity for a person conducting a business or
undertaking including employees, contractors, subcontractors, self-employed persons,
outworkers, apprentices and trainees, work experience students and volunteers who
carry out work.
The WHS Act does not cover volunteer associations who do not employ anyone.
More information about volunteer organisations and volunteers is available on the
Safe Work Australia website and from local work health and safety regulators.
Duties of a PCBU
Primary duty of care (section 19)
The WHS Act requires all PCBUs to ensure, so far as is reasonably practicable, the health
and safety of:
workers engaged, or caused to be engaged by the person, and
workers whose activities in carrying out the work are influenced or directed by
the person,
while workers are at work in the business or undertaking.
This primary duty of care requires duty holders to ensure health and safety, so far as is
reasonably practicable, by eliminating risks to health and safety. If this is not reasonably
practicable, risks must be minimised so far as is reasonably practicable.
PCBUs owe a similar duty of care to other people who may be at risk from work carried
out by the business or undertaking.
A self-employed person must ensure his or her own health and safety while at work,
so far as is reasonably practicable.
the provision and maintenance of a working environment that is safe and without risks
to health, including safe access to and exit from the workplace
the provision and maintenance of plant, structure and systems of work that are safe
and do not pose health risks (for example providing effective guards on machines and
regulating the pace and frequency of work)
the safe use, handling, storage and transport of plant, structure and substances
(for example toxic chemicals, dusts and fibres)
the provision of adequate facilities for the welfare of workers at work (for example
access to washrooms, lockers and dining areas)
that the health of workers and the conditions of the workplace are monitored to prevent
injury or illness arising out of the conduct of the business or undertaking, and
the maintenance of any accommodation owned or under their management and control
to ensure the health and safety of workers occupying the premises.
acquire and keep up to date knowledge on work health and safety matters
understand the nature and operations of the work and associated hazards and risks
ensure the PCBU has, and uses, appropriate resources and processes to eliminate or
minimise risks to work health and safety
ensure the PCBU has appropriate processes to receive and consider information about
work-related incidents, hazards and risks, and to respond in a timely manner
ensure the PCBU has, and implements, processes for complying with their duties and
obligations (for example reports notifiable incidents, consults with workers, complies
with notices, provides appropriate training and instruction and ensures HSRs receive
training entitlements), and
verify the provision and use of the relevant resources and processes.
An officer may be charged with an offence under the WHS Act whether or not the PCBU
has been convicted or found guilty of an offence under the Act.
For further information on officers please refer to the interpretative guideline on officers
available at www.safeworkaustralia.gov.au.
comply, so far as they are reasonably able, with any reasonable instruction given by
the PCBU to allow the PCBU to comply with WHS laws, and
cooperate with any reasonable policy or procedure of the PCBU relating to health or
safety at the workplace that has been notified to workers.
Duty holder
10
Duty to test
Designers
of plant,
structures or
substances
(section 22)
Manufacturers
of plant,
structures or
substances
(section 23)
A PCBU who is a
manufacturer of any plant,
structure or substance which
is manufactured to be used,
or could reasonably be
expected to be used, at a
workplace must ensure all
workplace activity relating
to it including its handling,
storage and disposal or
dismantling is so far as
is reasonably practicable
without risks to health or
safety when used for its
intended purpose.
Manufacturers
must carry out
or arrange tests
and examinations
sufficient to ensure
that the plant,
structure or substance
is manufactured to
meet work health and
safety requirements
when used for a
purpose for which it
was manufactured.
Duty holder
Importers
of plant,
substances
or structures
(section 24)
Duties of
suppliers
of plant,
substances
or structures
(section 25)
Duties of
people
installing,
constructing or
commissioning
plant or
structures.
(section 26)
Duty to test
Importers must carry
out or arrange tests
and examinations
sufficient to ensure
that the imported
plant, structure or
substance meets work
health and safety
requirements when
used for its intended
purpose.
Alternatively
importers must ensure
that these tests and
examinations have
been carried out.
Suppliers must carry
out or arrange tests
and examinations
sufficient to ensure
that the supplied
plant, structure or
substance meets work
health and safety
requirements when
used for its intended
purpose.
Alternatively suppliers
must ensure that
these tests and
examinations have
been carried out.
n/a
11
A PCBU must notify the regulator as soon as they become aware of a death, serious injury
or illness or dangerous incident that arises out of the conduct of the business or undertaking.
A serious injury or illness means work related injury that results in:
immediate treatment for serious injuries (for example amputation, scalping, a spinal
injury, loss of a bodily function or a serious laceration, burn, head injury or eye injury), or
Trigger
Immediate treatment as
an in-patient in a hospital
Example
Admission into a hospital as an in-patient for any duration,
even if the stay is not overnight or longer.
IT DOES NOT INCLUDE:
Out-patient treatment provided by the emergency
section of a hospital (i.e. not requiring admission as
an in-patient) and immediate discharge.
Immediate treatment
for a serious burn
12
Trigger
Example
Immediate treatment
for the loss of a bodily
function
13
TREATMENT
Treatment means the kind of treatment that would be required for a serious injury or illness
and includes medical treatment (i.e. by a registered medical practitioner), treatment by a
paramedic or treatment by a registered nurse practitioner.
For more information about the kinds of serious injuries or illnesses that are notifiable
contact your local regulator or check out their website.
The regulator must also be immediately notified of any dangerous incident that exposes
a person to a serious health or safety risk from immediate or imminent exposure to:
an electric shock
the collapse, overturning, failure or malfunction of, or damage to, plant that is required
to be licensed or registered
Notice of an incident must be given by the fastest possible means, by telephone or in writing
(including electronic means, where available). If notice is given by telephone, the regulator
may request follow-up written notice of the incident. This must be provided within 48 hours
of the request.
A record of each notifiable incident must be kept by the PCBU for at least five years.
The person with management or control of a workplace at which a notifiable incident has
occurred must ensure the site of the incident is not disturbed until an inspector arrives at
the site or directs otherwise. This does not prevent any action required to protect a persons
health or safety, help someone who is injured or make the site safe.
Further information on notifiable incidents is available on the Safe Work Australia and
regulator websites.
14
PCBUs are responsible for making decisions regarding health and safety, but may not
have a full understanding of the finer detail or subtleties of the work or working conditions.
It is important that PCBUs obtain information from their workers before making changes or
implementing measures which may adversely affect health and safety. It is also important
that the workers are informed of those measures and their significance to health and
safety so that they can implement them and also understand the importance of doing so.
This requires an ongoing exchange of information between the PCBUs and their workers,
directly or through their representatives.
Given the importance of consultation in contributing to work health and safety and the
WHS Act prescribes a general duty to consult.
(sections 47-49)
PCBUs must so far as reasonably practicable consult with workers who carry out work for
the business or undertaking who are, or are likely to be, directly affected by a matter relating
to health and safety. This includes giving workers a reasonable opportunity to express their
views or raise issues about work health and safety at the workplace.
Consultation is a collaborative process between PCBUs and their workers. It involves sharing
information about work health and safety and ensuring that views of workers are taken
into account when making decisions about health and safety at the workplace. It does not
require agreement to be reached.
If there is an agreed consultation procedure then the consultation must be in accordance
with those procedures.
If an HSR represents workers the consultation must involve the HSR.
A PCBU must consult with workers and take their views into account when:
proposing changes that may affect the health and safety of workers, and
Views of workers must be taken into account when consulting under these provisions but
there is no requirement for agreement to be reached.
Workers who have been consulted under these provisions must be advised of the outcome
in a timely manner. There is no particular way this advice must be givenit could for
example be given at a toolbox meeting or posted as an intranet news item.
15
cease unsafe work in certain circumstances (see below for more information)
have health and safety issues at the workplace resolved in accordance with an agreed
issue resolution procedure, and
The PCBU must negotiate about work groups with a workers representative (for example
union) if asked by a worker. The PCBU must also notify workers as soon as practicable of
the outcome of the negotiations.
The parties to a work group agreement may negotiate to change the size or membership
of the work group at any time, for example if it could be re-organised to provide for more
effective representation.
16
Negotiations for the determination and variation of work groups must be aimed at ensuring
workers are grouped in a way that most effectively and conveniently enables their WHS
interests to be represented and allows an HSR to be readily accessible to each worker
in the work group.
If negotiations fail in establishing or varying a work group any person who is a party
to the negotiations can request an inspector to assist in deciding the matter (or if the
matter involves multiple businesses, to assist the negotiations).
represent their work group members in matters relating to work health and safety
at the workplace
monitor risk control measures put into place at the workplace to protect their work
group members
investigate complaints from their work group members relating to work health and
safety, and
inquire into anything that appears to be a risk to the health or safety of work group
members.
In limited circumstances HSRs may represent another work group or work group member for
the business or undertaking, that is if:
there is a serious risk to the health or safety of other workers from an immediate hazard,
or
a worker in another work group asks for their assistance and the HSR for that other
work group is not available.
Each HSR must be allowed to spend such time as is reasonably necessary to exercise
their powers or perform their functions under the WHS Act. This must be paid time based
on the rate they would have otherwise been paid at the time.
In exercising their powers or functions an HSR can:
inspect the workplace or any area where work is carried out by a worker in the work
group
at any time without notice in the event of an incident or any situation involving a
serious risk to health or safety emanating from an immediate or imminent exposure
to a hazard
be present at an interview with a worker that the HSR represents (with their consent)
and the PCBU or an inspector about work health and safety issues
if the interview involves more than one worker, only the consent of one of the HSRs
work group members is required
receive information about work health and safety of work group members but not any
personal or medical information that directly or indirectly identifies a worker without the
workers consent
17
issue a provisional improvement notice (PIN) or direct a person to cease unsafe work in
certain circumstances, but only if they have completed the approved training. (Workers
may also cease work in certain circumstances, without direction from an HSR).
Whenever necessary an HSR may request the assistance of any person in relation to their
role under the Act. The PCBU is not required to meet the associated costs. Assistants access
to the workplace may be refused on reasonable grounds, in which case the regulator may be
asked to appoint an inspector to resolve the access issue (see sections 70(1)(g), 71(3) and
71(6)).
An HSR is not personally liable for anything done or not done in good faith while carrying
out their role.
the majority of members of the group agree the person should no longer represent
them and they are removed from office in accordance with the WHS Regulations.
18
The PCBU may consult with the person making the request, and may consider the
whether there is an entitlement in the circumstances and whether any suggested course is
appropriate taking into account all relevant factors. Reasonable time may also be taken to
allow the PCBU to re-configure its work arrangements to replace the worker while away
on the course or training.
An obligation to share costs applies if multiple PCBUs are involved. Timely consultation
between all relevant PCBUs should be arranged to ensure responsibilities are clear.
HSRs must complete the approved training before they can issue a provisional improvement
notice (PIN) or direct a person to cease unsafe work.
Whether or not the HSR has undergone training, the PCBU must provide the HSR with the
resources, facilities and assistance that are reasonably necessary to enable them to carry
out their functions.
that the HSR believes that a provision of the WHS Act or Regulations is being
contravened or has been contravened in circumstances that make it likely that the
contravention will continue or be repeated
the section of the WHS Act or Regulations considered to have been contravened and
how the section is being or has been contravened, and
the date (at least eight days from the issue date) by which the contravention must be
remedied.
A PIN can include directions on how to remedy a contravention. These directions may refer
to a Code of Practice and offer the person a choice of solutions.
A PIN cannot be issued to override an inspectors decision on a matter.
A person issued with a PIN must display it in a prominent place in the workplace, or part
of the workplace, at which work is being carried out that is affected by the notice. It is an
offence to intentionally remove, destroy, damage or deface the notice, while it is in force.
Within seven days of being issued with a PIN, the affected person (including the PCBU if the
person issued with the PIN is a worker) can ask the regulator to have the notice reviewed by
an inspector. If no review is sought the PIN must be complied withthat is, the contravention
must be remedied within the time allowed or prevented from occurring in the first place
(whichever applies).
If a request is made to review the PIN it ceases to have effect until the inspector makes a
decision on the review. The inspector must either confirm the PIN (with or without changes)
or cancel it. A review may still occur even if the time specified for compliance with the PIN
has expired. A confirmed PIN (with or without changes) must be complied with.
19
The inspector will give a copy of their decision to the person who applied for the review
and the HSR who issued the notice.
20
The constitution of the HSC is determined by agreement between the PCBU and workers
at the workplace although some minimum requirements apply.
At least half of the members of an HSC must be workers that have not been nominated by
the PCBU. An HSR for the workplace can join the committee if they wish and, if a workplace
has more than one HSR, they can choose one or more HSRs to join the committee (if they
consent).
If agreement cannot be reached on how the HSC should be constituted, any party can ask
the regulator to appoint an inspector to decide the matter. An inspector may decide the
constitution of the HSC or that the HSC should not be established.
An HSC must meet at least once every three months and at any reasonable time at the
request of at least half of the members of the committee.
No formal training requirements apply for committee members.
Each committee member must be allowed to spend such time as is reasonably necessary
to attend meetings of the committee or carry out functions as a member of the committee.
This must be paid time based on the rate they would have otherwise been paid at the time.
each PCBU or their representative if the issue involves more than one PCBU
the HSR for a work group or their representativeif the worker(s) affected by the issue
are in a work group, and
the worker(s) or their representativeif the worker(s) affected by the issue are not in
a work group.
The PCBUs representative must not be an HSR and must have an appropriate level of
seniority and be sufficiently competent to act as the persons representative.
A workers representative may enter the workplace for the purpose of attending discussions
with a view to resolving the issue.
If the issue remains unresolved, any party may ask the regulator to appoint an inspector
to attend the workplace to assist in resolving the issue.
While this process is underway workers may still exercise their right to cease unsafe work
and HSRs who have completed the approved training may continue to exercise their powers
to issue a PIN or direct that unsafe work cease.
Inspectors will not undertake conciliation or mediation to resolve the issue but may exercise
any of their compliance powers under the WHS Act to resolve any underlying work health
or safety issues.
21
exercise, have exercised or propose to exercise (or refrain from exercising) a power
under the Act
raise, have raised or propose to raise an issue or concern about work health and safety
ade a complaint or taken other action to get another person to comply with their
m
duties or obligations under the Act.
It is also unlawful to terminate or refuse to enter into a commercial arrangement with another
person for any of these reasons.
It is unlawful to engage in, threaten or organise to take any of the above actions, or to ask,
authorise, assist or encourage another person to do this.
It is unlawful to organise or take, or threaten to organise or take, any action against another
person with intent to coerce or induce the person, or a third person to exercise their rights
under the WHS Act in a particular way.
It is unlawful for a person to knowingly or recklessly make a false or misleading
representation to another person about their:
22
Civil proceedings relating to alleged discriminatory conduct must be lodged within a year
after the date on which the applicant knew or ought to have known that the cause of
action accrued.
In either case a broad range of remedies are available to the designated court or tribunal
including imposition of a penalty or reinstatement.
Alternative anti-discrimination protections may be available under general anti-discrimination
or workplace laws. Limits apply however to ensure persons cannot seek multiple remedies in
relation to a single complaint.
Further information is available in Safe Work Australias interpretive guideline on
discriminatory, coercive or misleading conduct at www.safeworkaustralia.gov.au.
23
A WHS entry permit holder appointed under the WHS Act may enter a workplace to:
inquire into a suspected contravention of the WHS Act that relates to or affects
a relevant worker
A WHS entry permit can be issued to a union official who has completed an approved
training course and holds a valid and current entry permit under the Commonwealths
Fair Work Act 2009 (Fair Work Act) or the relevant state or territory workplace legislation
(whichever applies).
Subject to certain conditions an entry permit allows the holder to inquire into a suspected
contravention of the WHS Act and meet with workers to discuss their work health and safety
rights and obligations.
Entry must relate to workers they represent or are eligible to represent by law.
A WHS entry permit holder may exercise a right of entry only during the usual working hours
at the workplace. There is no right to enter any part of a workplace that is used only for
residential purposes.
While exercising the right of entry a WHS entry permit holder must comply with any
reasonable request to comply with any work health and safety requirements or any other
legal requirement that may apply at the workplace.
A WHS entry permit holder must not contravene a condition of their WHS entry permit.
Permits are valid for three years from the date of issue or cease when the permit holder
ceases to be a union official for the relevant union or their permit under the Fair Work Act or
a state/territory workplace law expires. A permit must be returned within 14 days of expiry.
WHS entry permit holders must show their WHS entry permit and photographic
identification upon request.
24
While at the workplace the WHS entry permit holder may exercise a number of powers
including:
inspecting any work system, plant substance or structure relevant to the suspected
contravention
consult with the relevant PCBU and workers in relation to the suspected contravention,
and
require the relevant PCBU to allow the WHS permit holder to inspect and make copies
of any document that is relevant to the suspected contravention, if the document
is held at the workplace or is accessible from a computer at the workplace.
The PCBU must not, without reasonable excuse, refuse or fail to comply with this request.
A PCBU is not required to allow inspection or copying of documents if this would contravene
a law of the Commonwealth, State or Territory (whichever applies) for example a law relating
to privacy.
The WHS entry permit holder may also warn any person they believe to be exposed to
a serious risk to their health or safety emanating from an immediate or imminent exposure
to a hazard.
documents that are directly relevant that are not held by that PCBU
if 24 hours notice of the entry is given. The notice cannot be given more than 14 days before
the entry and must be made in accordance with the WHS Regulations. The notice must be
given during the usual working hours at that workplace at least 24 hours but not more than
14 days before the entry.
A notice must include the following:
25
refuse or unduly delay a permit holders entry to a workplace under the WHS Act, or
intentionally and unreasonably obstruct them from exercising any rights under
the WHS Act.
Similarly a WHS permit holder exercising their rights must not intentionally and unreasonably
delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in
an improper manner.
A person must not do something with the intention of giving the impressionor be reckless
as to whether the impression is giventhat they can do something under the laws which
they cannot.
A person must not use or disclose information or a document obtained in an inquiry into
a suspected contravention for a purpose that is not related to the inquiry or rectifying
the suspected contravention except in a limited number of circumstances. Disclosure is
permitted for example to report concerns to the relevant authorities, assist any subsequent
investigation or to lessen or prevent a serious risk to a persons health or safety or a serious
threat to public health or safety.
26
monitor and enforce compliance with the WHS Act and WHS Regulations
provide advice and information on work health and safety to duty holders and the
community
foster a cooperative, consultative relationship between duty holders and the people
to whom they owe work health and safety duties, and their representatives
promote and support education and training on matters relating to work health
and safety
engage in, promote and coordinate the sharing of information to achieve the object
of the WHS Act, including the sharing of information with other work health and
safety regulators
collect, analyse and publish statistics relating to work health and safety, and
promote public awareness and discussion of work health and safety matters
in the community.
The written notice must be served on the person requiring them to do one or more
of the following:
provide a signed statement on the required matters within the time and in the manner
specified in the notice
appear before a person appointed by the regulator on a day, and at a time and place
specified in the notice (which must be reasonable in the circumstances), and provide the
required information and documents. The person may attend with a legal practitioner.
The regulator may only require a person to appear in person after taking all reasonable steps
to obtain the required information by other means.
It is an offence to refuse or fail to comply with a request without reasonable excuse.
However a person may refuse to produce a document or information that is subject to legal
professional privilege.
27
to provide information and advice about how to comply with the WHS Act
and Regulations
Inspectors are subject to the regulators directions in the exercise of their compliance
powers.
In performing their functions and exercising powers an inspector at a workplace may require
a person to answer their questions including by providing information about how they can
access particular relevant documents. The inspector may also require a person who has
custody of, or access to, a document, to give it to the inspector while the inspector is at the
workplace or within a specified period. This requirement must be made by written notice
unless the document is provided voluntarily or circumstances require the inspector to have
immediate access to the document.
The inspector may make copies of or take extracts from a document given to them or keep
the document for the period the inspector considers necessary. While in the inspectors
custody it must be made available to the person who produced the document, the
documents owner, or a representative of either, at all reasonable times.
It is an offence for a person to refuse or fail to comply with the inspectors request without
reasonable excuse. However the person may refuse to produce a document or information
that is subject to legal professional privilege.
While inspectors may compel answers self-incriminating answers to questions or information
provided cannot be used as evidence against an individual in civil or criminal proceedings,
other than proceedings arising out of the false or misleading nature of the answer,
information or document.
28
warn the person that failure to comply with the requirement or to answer the question,
warn the person that they are not excused from answering a question or providing
information or a document on the ground that they may incriminate themselves, and
It is not an offence for a person to refuse to cooperate on grounds that they may incriminate
themselves if the inspector has not first given them the required warning.
the inspector finds them committing an offence against the WHS Act
the inspector finds them in circumstances that leads the inspector to reasonably believe
they have committed an offence against the WHS Act, or
the inspector reasonably believes that the person may be able to assist in the
investigation of an offence against the WHS Act.
In making the request the inspector must explain the reasons for the requirement and warn
the person that it is an offence to refuse or fail to comply without reasonable excuse.
If the inspector reasonably believes that the name or residential address is false they may
require the person to provide further evidence as to its correctness.
It is an offence for a person to fail to comply with these requirements without reasonable
excuse.
29
t ake measurements, conduct tests, and make sketches or recordings (for example
photographs, films, audio and video), and
An inspector can require a person at a workplace to give them reasonable help to do these
things. A person asked to assist must not, without reasonable excuse, refuse or fail to comply.
Inspectors may be accompanied by other persons including an interpreter to assist them,
if this is considered to be necessary.
Enforcement measures
Improvement notices (sections 191-194)
An improvement notice is a written notice issued by an inspector requiring a contravention
against the WHS Act or Regulations to be remedied within a certain period or a likely
contravention to be prevented (that is, if there are circumstances that make it likely that
a contravention will continue or be repeated).
An inspector may issue an improvement notice requiring a person to remedy the
contravention, prevent a likely contravention from happening or remedy the things or
operations causing the contravention or likely contravention.
The notice must state the inspectors belief about the contravention or likely contravention,
identify the provision the inspector believes is being or has been contravened, how the
provision is being or has been contravened and a reasonable date by which to fix the
contravention.
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Note that the operation of the notice may be stayed if the decision to issue the notice
is under formal review (see below).
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Internal review
Inspectors decisions are initially subject to internal review by the regulator. Applications
must be brought within the time allowed or a longer period permitted by the regulator.
The time allowed is:
The internal reviewer cannot be the person responsible for the initial decision. The internal
reviewer must make a decision within 14 days after receiving a valid application, although
additional time is allowed if further information is required.
The internal reviewer must confirm the initial decision, vary it, or set it aside in favour of
another course of action. A written decision must be sent to the applicant as soon as
practicable.
The initial decision is taken to be confirmed if the internal reviewer does not make a review
decision in the time allowed, or the applicant fails to provide any additional information
required by the reviewer within time.
External review
If a person is dissatisfied with the internal review decision, they may apply for an external
review of that decision within the time allowed.
Additionally prescribed decisions made under the WHS Act by the regulator are also
externally reviewable.
The application must be made:
if the decision was to forfeit a thingwithin 28 days of the day the decision first came
to the applicants notice
i n any other casewithin 14 days after the day the decision first came to the applicants
notice, or
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if the regulator is required by the external review body to give the applicant a statement
of reasonswithin 14 days after the day the statement is provided.
In general the designated tribunals practices and procedures will apply to the external
review.
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Proceedings for an offence against the Act may only be brought by the regulator or
an inspector acting with the written authorisation of the regulator, as well as the Director
of Public Prosecutions.
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Information
Corporation
Individual as PCBU
or officer
Individual as worker
or other
Category 1
$3 million
Category 2
$1.5 million
$300 000
$150 000
Category 3
$500 000
$100 000
$50 000
restoration orders
injunctions, and
training orders.
Other offences
There are a number of other offences under the WHS Act that relate to specific requirements
and carry their own individual penalties.
fail to keep a record of a notifiable incident for the prescribed period (section 38)
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carry out work without the required licence, permit or authorisation (section 43)
not comply with the conditions of any licence, permit or authorisation (section 45).
not consult with other duty holders on work health and safety matters as required
(section 46)
not consult with workers on work health and safety matters as required (section 47).
fail to negotiate with workers or their representative regarding the formation of work
groups at a workplace (sections 52, 56)
fail to notify workers of the outcome of negotiations regarding the formation of work
groups at a workplace (sections 53, 57).
fail to consult with an HSR on work health and safety matters as required
fail to provide an HSR with access to information the person has relating to hazards
affecting their work group members and work health and safety of work group members
f ail to allow an HSR to attend interviews that they are entitled to attend as
representatives
f ail to provide resources, facilities and assistance that are reasonably necessary for the
election of HSRs, to allow HSRs to carry out their health and safety duties
deny a person assisting an HSR access to the workplace in accordance with entitlements
f ail to allow an HSR time off with pay that is reasonably necessary to attend to their
health and safety duties
refuse to allow an HSR to attend an approved training course they are entitled to attend
fail to keep an up-to-date list of HSRs at the workplace and ensure it is readily accessible
to all workers
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fail to establish an HSC within two months of being requested to do so (section 75)
fail to allow members of the committee time off with pay that is reasonably necessary
to attend committee meetings and carry out functions as a committee member
(section 79).
engage in discriminatory conduct for a reason prohibited under the WHS Act
(section 107)
organise or take, or threaten to organise or take, any action against another person
with intent to coerce or induce that person, or a third person, to exercise or not exercise
a power or perform or not perform a function under the WHS Act (section 108)
Part 6 of the WHS Act also enables a person affected by discriminatory, coercive or
misleading conduct to initiate civil proceedings for a civil remedy.
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r efuse or fail to answer questions and provide information and documentation requested
by the regulator without reasonable excuse (section 155)
tamper with a thing the access to which has been restricted by an inspector (section 177)
refuse or fail to comply with a direction from an inspector, including refusing to provide
ones name and address (section 185)
intentionally hinder or obstruct an inspector while they are carrying out their duties,
or to induce or attempt to induce another person to do so (section 188)
disclose confidential information obtained while exercising a power or function under the
WHS Act (other than in relation to a permit holder entry to a workplace) (section 271)
i mpose a levy or charge on a worker for anything done or provided in relation to work
health and safety (section 272).
enter a workplace unless they also hold an entry permit under the Fair Work Act 2009
(Cth) or the relevant state or territory industrial relations permit (section 124)
fail to have the work entry permit available for inspection (section 125)
nter the workplace outside normal working hours and fail to comply with any
e
reasonable request from the PCBU or person with management or control of the
workplace (section 126)
f ail to comply with any reasonable request to comply with work health and safety
requirements at the workplace (section 128)
enter any part of the workplace that is only used for residential purposes (section 129)
intentionally and unreasonably delay, hinder or obstruct any person or disrupt work
at the workplace (section 146)
give the impression that the taking of some action is authorised under the WHS Act
when it is not (section 147)
disclose information or a document about a suspected health and safety breach for
a purpose that is not related to an inquiry (section 148)
f ail to return the permit to the authorising authority within 14 days of the permit expiring
being revoked or suspended (section 149).
fail to notify the industrial registrar if its entry permit holder resigns and leaves the union,
or the entry permit holder has previously had a permit cancelled or suspended, or the
union ceases to be a registered organisation (section 150).
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AUTHORISATIONS
Authorisations (for example licences, permits and registrations) are required for certain types
of work, some workplaces and the use of some plant.
t ower cranes, including self-erecting tower cranes (except cranes or hoists that are
manually powered, scissor lifts, vertically moving platforms and tow trucks)
hoists with a platform movement exceeding 2.4 metres, designed to lift people
gantry cranes with a safe working load greater than 5 tonnes, or bridge cranes with
a safe working load of greater than 10 tonnes, and any gantry crane or bridge crane
which is designed to handle molten metal or Schedule 11 hazardous chemicals
vehicle hoists
Under the WHS Regulations the following items of plant and equipment are required
to be registered:
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tower cranes, including self-erecting tower cranes (excluding cranes and hoists that
are manually powered)
AUTHORISATIONS
scaffolding
high risk diving work (regulation 183 and 184 WHS Regulations)
PLANT:
maintenance, repair, inspection and testing of registered mobile cranes and tower
cranes (regulation 235 WHS Regulations)
MANAGEMENT OF ASBESTOS:
identification of asbestos at a workplace (regulation 422 WHS Regulations)
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AUTHORISATIONS
IN THE CASE OF ASBESTOS REMOVAL WORK, THE WHS REGULATIONS REQUIRES THE:
removalist to be licensed (regulation 458 WHS Regulations)
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air monitoring during friable asbestos removal work to be undertaken only by a licensed
asbestos assessor (regulation 489 WHS Regulations)
WHS entry permit means a permit issued to a union official under Part 7 of the WHS Act,
allowing them to enter a workplace to inquire into a suspected contravention of the WHS
Act or as prescribed.
WHS undertaking means a written undertaking given by a person (often the PCBU) to
the regulator relating to a breach or alleged breach of the WHS Act.
More information
For further information visit your regulators website and www.safeworkaustralia.gov.au.
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