1. SESSION 3
Key points
Module 6 covers the newly introduced powers in relation to issuing of PINs and ceasing or directing workers to cease unsafe work.
Module 6 continues on from Module 4 and 5 with requirements for consultation, participation and representation in the workplace .
It focuses on actions that can be taken when there is a serious risk to the work health and safety of workers, by workers themselves and their representatives including HSRs, deputy HSRs and unions in the role of WHS entry permit holders.
Background References
Model WHS Act: Part 5 s83-102, Part 7 s
Model WHS Regulations

2. Ceasing unsafe work
There may be times when work is unsafe and serious actions
may need to be taken. Can you think of such a situation?
New provisions under the WHS Act for situations considered to involve unsafe work include:
Rights to cease unsafe work or be directed by a HSR to cease unsafe work; and
HSRs (and deputy HSRs) having the power to issue a Provisional Improvement Notice (PIN).
HSRs can only exercise these powers if they are trained to do so.
Key points
The WHS Act gives very clear definition around the rights of workers to stop work (without penalty) that they consider to be unsafe and poses an immediate or imminent risk. HSRs (and deputy HSRs, when the usual HSR is unavailable or unable) are entitled to direct workers to cease work that they consider to be unsafe and that poses an imminent or immediate risk but only if trained to do so.
Appropriately trained HSRs (and trained deputy HSRs when the usual HSR is unavailable or unable) where the risk is not immediate have the option of issuing a PIN. There are stipulations as to how this is to occur and this is discussed in detail in this module. HSC members, unless they are also elected and trained HSRs or trained deputy HSRs do not have the power to issue PINs or direct the cessation of work.
Background References
Model WHS Act Part 5 s83-103
Model WHS Regulations
WHS Act s83-103

3. Workers’ right to cease work
A worker has a right to cease or refuse to undertake work if:
they have a reasonable concern that doing the work would expose them to a serious risk to their health
and safety from immediate or imminent exposure
to a hazard.
Have you previously experienced situations where you needed to stop work? Would you refuse to work if you had serious concerns about a risk to health and safety?
What actions would you take immediately after stopping or refusing to undertake unsafe work?
Key points
Discuss the following with participants:
A key component for the existence of a strong safety culture in the workplace is for workers to feel secure in being able to stop or not proceed with work that poses a serious and immediate/imminent risk to health and safety without repercussions.
While the right to cease or not proceed with work has always existed under common law, the right to do so is now clearly spelt out in the WHS Act. The WHS Act secures this right by also providing protection for workers from being adversely affected or ‘punished’ for taking such actions.
While it is expected that mechanisms for consultation are utilised in relation to concerns for workers’ health and safety, there may be situations where the risk is so serious and imminent that immediate action is required and consultation is not possible. For example, workers may be working off site and a supervisor is not immediately available to discuss and resolve a serious and immediate risk.
Workers must have reasonable grounds for taking actions to cease or not proceed with work as there can be significant consequences and inconvenience to others for taking such actions. For example, costs for the PCBU when work is halted for prolonged periods or other workers who cannot proceed with their activities.
There may be situations where an inspector has been requested to resolve an issue, but the threat remains so serious and immediate/imminent that the law permits the worker to cease work if considered necessary (s82(3)(a)) before the inspector has reviewed or inspected the matter.
Background References
Model WHS Act s84
Model WHS Regulations
WHS Act s84

4. Requirements when ceasing unsafe work
When a worker ceases unsafe work they must:
notify the PCBU, as soon as practicable, unless directed to stop work by a HSR (in which case the HSR notifies the PCBU);
remain available to undertake alternative work.
Alternative work
A PCBU can direct a worker to do other safe, suitable work at the same or another workplace until normal duties can be resumed.
The worker in doing so retains continuity of engagement.
An inspector may be requested by the worker, PCBU or the HSR to assist in resolving the issue.
Key points
Where a worker has taken action to cease work because of safety concerns, they are required to inform the PCBU as soon as practicable (e.g. they may be working at an isolated site with limited communication).
Where the worker has been directed by a HSR (or a deputy HSR acting when the HSR is unable) to cease work, it is the responsibility of the HSR to inform the PCBU.
Workers are not entitled to leave the work area (unless unsafe) and must remain available to undertake other work as requested by the PCBU. The alternative work must be suitable, safe and appropriate for the workers. Workers cannot be requested to undertake work that they may not be trained or qualified to do or, that is not suitable in its’ nature.
The PCBU is entitled to request the worker to undertake suitable work at another work site if necessary.
If a worker ceases work, the worker cannot be penalised in the continuity of engagement for doing so, as long as they have not unreasonably failed to undertake alternative work that is safe and suitable at the workplace or another workplace.
The worker who has ceased work, the HSR who has directed the cessation or the relevant PCBU is entitled to request WorkCover to appoint an inspector to assist in resolving the issue.
Background References
Model WHS Act s82-89
Model WHS Regulations
WHS Act s83-89

5. Right of HSRs to direct workers
to cease unsafe work
A HSR (if trained) may direct a worker of their workgroup to cease unsafe work:
if they have a reasonable concern that doing the work would expose workers to a serious risk to their health and safety from immediate or imminent exposure to a hazard; and
only after attempting to consult and resolve the matter with the PCBU, unless there is a serious risk to a worker’s health and safety emanating from an immediate or imminent exposure to a hazard (in which case consultation must occur as soon as practicable after the unsafe work has ceased).
The HSR must inform the PCBU of any direction to cease unsafe work.
Key points
The HSR is not entitled to give a direction to cease unsafe work unless they have completed the required training that has been prescribed under WHS legislation or equivalent approved training under a corresponding WHS law e.g. NSW WHS laws.
A HSR, if trained, is then entitled to direct workers of the workgroup they represent to cease work if they have serious concerns for their immediate health and safety. They are only permitted to do so after:
they have consulted on the matter with the relevant PCBU for who the workers are undertaking the work (e.g. a PCBU at another workplace where the worker is a contractor);and
they have attempted to resolve the matter in accordance with the WHS Act’s requirements for issue resolution.
The HSR is, however, entitled to direct unsafe work to cease without consultation if the risk is so serious and immediate that it is unreasonable to consult. In this instance, consultation with the PCBU must occur as soon as practicable after directing the cessation of work.
The HSR must inform the PCBU of any direction they have given to cease work.
A HSC member, if not a trained HSR or deputy HSR, is not entitled to direct unsafe work to cease.
Background References
Model WHS Act: s85-89
Model WHS Regulations
WHS Act s85-89

6. Provisional Improvement
Notices (PINs)
A PIN can be issued by a suitably trained HSR if they believe a person:
is breaching a provision of the WHS Act
has breached a provision of the WHS Act and is likely to continue to or to repeat this breach.
A PIN issued by the HSR may require the person to:
remedy the breach
prevent a likely breach from occurring
remedy the things or operations causing the breach/likely breach.
See Fact Sheet 5 for additional information.
Key points
The power to issue a PIN is a new concept under NSW WHS laws.
The only person who can issue a PIN is a HSR who has been elected for a workgroup (or the deputy HSR) and who has received training prescribed under WHS legislation or that is equivalent to that training under a corresponding WHS law and approved by the regulator e.g. NSW WHS laws.
This training provides HSR and deputy HSRs with the knowledge and skills needed to determine if and when a PIN is to be issued, the process for issuing a PIN and the information that must and may be included in the PIN.
PINs are only permitted to be issued after the HSR has consulted with the PCBU on the matter.
A PIN is to be issued where a contravention of the WHS Act is occurring; or has occurred and it is reasonably assumed that the breach is likely to be continued or repeated.
The PIN must be issued in writing.
An example of a situation where a HSR might issue a PIN is as follows:
Training is not being provided to workers of the HSR’s workgroup for new work activities they are expected to undertake other than in a short, informal and ad hoc manner; there is no proposed schedule for training; and the PCBU has indicated in discussions that training is not likely to occur in the near future as no allowances have been made for this in budgets or in work scheduling.
The HSR is entitled to issue a PIN for the purpose of helping to resolve the matter, indicating the part of the WHS Act that has been breached, the circumstances around the breach and to suggest remedies to prevent the breach from continuing or recurring at a later date.
Background References
Model WHS Act s90
Model WHS Regulation
Fact Sheet 5: Issuing of PINS
WHS Act s90

7. Provisional Improvement
Notices (PINs)
A PIN cannot be issued to a person if:
the HSR has not received the required training;
the HSR has not firstly consulted with the person; or
an inspector has already issued (or decided not to issue) an improvement or prohibition notice for the same matter.
Note: HSR training provides the knowledge and skills required to issue a PIN and to direct unsafe work to cease.
What information is required to be contained in a PIN?
Key points
Reference in the WHS Act to issuing of a PIN is to a person. This can be the PCBU or any other person such as a worker (remembering the wider definitions of workers to include contractors, labour hire etc.) that is breaching or, has breached and is likely to do so again, a provision of the WHS Act.
As mentioned previously, the HSR must be suitably trained.
The HSR is required to consult with the person before they can issue a PIN. This may involve consultation with a worker, a PCBU for a different workplace or other workers. For example, where a worker is working at a workplace controlled by another PCBU and an issue arises with other contract workers, the HSR would need to consult with the relevant PCBUs and the other workers.
In a situation where an inspector has already reviewed the issue and has either decided to:
issue an improvement or prohibition notice or proceed to another form of enforcement available under the WHS Act or
has decided to take no further action
the HSR cannot issue a PIN for the same matter.
Discuss with the group what sort of information they think must be included and anything else that could be included when issuing a PIN.
Remind participants that a PIN is issued to provide an opportunity for a health and safety issue to be resolved before any harm to workers can occur.
Background References
Model WHS Act s90
Model WHS Regulations
Fact Sheet 5: Issuing of PINS
WHS Act s90

8. Provisional Improvement
Notices (PINs)
A PIN must be in writing and state:
the HSR believes a person is in breach of the WHS Act, or is likely to continue or repeat the breach;
what that provision is and how it is being breached; and
a date as to when the breach is to be remedied.
A PIN may also state:
directions on what is required to remedy or prevent the breach (this may include a reference to a Code of Practice);
the cause or likely cause of the breach; and/or
a choice of ways in which the breach could be remedied.
Key points
The intent of issuing a PIN to a person is to provide that person with a clear indication of what the HSR believes the person is contravening in regard to the requirements of the WHS Act and a timeframe in which the situation is to be remedied. The date as to when the breach is to be remedied is to be at least 8 days after issue of the notice.
The PIN must describe how this provision is being breached. For example, the WHS Act requires a PCBU to provide training and information (what is being breached) and at a new workplace, there has been no training in specific work activities and or no site inductions (how the breach is occurring).
The PIN must include a date, no less than 8 days from the issue of the PIN, to allow the breach to be rectified.
Whilst it is not mandatory for inclusion in the written PIN, the WHS Act has provision to allow HSRs to include in the PIN information on:
What the HSR believes to be the likely cause of the breach. Using the example from above, inductions haven’t been updated and are therefore are not applicable to the new site. No individual has been allocated responsibility to maintain the inductions.
Directions on how the contravention is to be remedied. For example, if the workplace had inadequate facilities the HSR may direct the person to utilise the Code of Practice: Managing the Work Environment and Facilities and Code of Practice: Facilities for construction sites for guidance.
Based on consultation with various parties, including union representatives with wide experience across many workplaces in a given industry, the HSR may suggest a number of ways in which a breach could be remedied.
Background References
Model WHS Act s91-99
Model WHS Regulations
Fact Sheet 5: Issuing of PINS
WHS Act s91-99

9. Provisional Improvement Notices (PINs) - requirements
Issuing a PIN
A notice can be delivered personally or by post, fax or electronically.
Display
A person who is issued a PIN must display it, as soon as practicable upon receipt, in a prominent place at or near the workplace or work areas affected by the PIN.
Cancellation
A HSR can at any time cancel a PIN in writing to the person issued the PIN.
Irregularities
A notice is not invalid because of a formal defect or irregularity (e.g. in the wording, section breach or name of the person identified in the PIN) unless it is likely to cause a substantial injustice.
Compliance
A PIN must be complied with, within the time specified on the PIN.
Key points
The requirements for delivery of notices including the issuing of PINs are addressed in s209 of the WHS Act (additional information to this slide is also provided in Fact Sheet 6).
As soon as practicable after being issued, a PIN must be displayed in a prominent place at or near the workplace or in the part of the workplace where work is being carried out that is affected by the notice.
A displayed notice, while in force, must not intentionally be removed, destroyed, damaged or defaced by any person.
A HSR may at any time, provided they do so in writing, cancel a PIN.
Discuss with participants why this might occur e.g. the person to whom the PIN was issued has remedied the issue; or a chemical that was the subject of a PIN has been removed from site and is not to be used again.
A PIN does not become invalid because of a formal defect such as reference to the wrong section of the WHS Act or an irregularity (e.g. minor detail in the wording of the breach, incorrect address, incorrect spelling of a name) unless the information is likely to cause a substantial injustice.
A HSR may make minor changes to a PIN for the purposes of:
clarification e.g. how the breach is actually occurring providing more detail
correcting errors or references
reflecting changes of address or other changed circumstances.
Where a PIN has been issued and the regulator decides that an inspector is not required to attend the workplace, the person issued the PIN must comply with the notice within the timeframe specified. This provision is intended to streamline activities to remedy health and safety issues in the workplace, given there are only a limited number of inspectors available to attend site and the issue may readily be resolved without their attendance.
Background References
Model WHS Act s209,
Model WHS Regulations
Fact Sheet 5: Issuing of PINS
WHS Act s209, 97-99

10. Improvement Notices (PINs)
Review of Provisional
Improvement Notices (PINs)
Requirements under the WHS Act relating to a PIN include:
request for review by the person to whom the PIN was issued;
inspector’s review; and
possible outcomes of a review by an inspector.
Fact Sheet 6 provides a flowchart for the issuing of PINs and some additional information on the requirements for PINs.
Key points
The person issued a PIN may, within 7 days of being issued the notice, request the authority for a review of the PIN.
Where a PIN is issued to a worker, the PCBU in control of the workplace where the worker is carrying out their activities can request a review.
The request is to be made to WorkCover to appoint an inspector. WorkCover is then required (under the WHS Act) to ensure that an inspector attends the workplace as soon as practicable after the notice is issued.
The inspector will then review the PIN and make inquiries into the circumstances involved in the issuing of the PIN. The inspector is still permitted to review the PIN when the period for compliance with the notice as recorded on the PIN has expired.
Outcomes of review:
The WorkCover inspector must after reviewing the suspected breach and investigating either:
Confirm the PIN,
Confirm the PIN with changes; or
Cancel the PIN.
A PIN that is confirmed (with or without changes) by an inspector is taken to be an Improvement Notice issued by an inspector under the WHS Act and must be complied with.
Background References
Model WHS Act s209,
Model WHS Regulations
Fact Sheet 5: Issuing of PINS
WHS Act s

11. Definitions relating to
WHS entry
Definitions related to workplace entry by WHS entry permit holders include:
Official of a union:
a person who holds an office or is an employee of the union
Relevant union:
the union that the WHS entry permit holder represents
Relevant worker:
a worker:
who is a member or eligible to be a member of a relevant union; and
whose industrial interests the relevant union is entitled to represent; and
who works at the workplace.
Key points
Some additional definitions have been included in section 116 of the WHS Act to clarify the requirements for unions and their representatives.
Note that a worker does not have to be a member of the union but must be eligible to be a member of that particular union or be a worker whose industrial interests the union is entitled to represent.
With the broader definition of workers (as qualified above), union representatives from industries that may not usually be represented at a workplace may be entitled to enter as WHS entry permit holders.
Background References
Model WHS Act: s116
Model WHS Regulation
WHS Act s116

12. WHS entry permits
A WHS entry permit holder is a person who holds a WHS entry permit.
A WHS entry permit is issued to an eligible person for the purpose of:
inquiring into a reasonably suspected contravention of the WHS Act that has or is occurring that relates to/affects a relevant worker.
consulting and advising on work health and safety matters to one or more relevant workers who wish to participate in the discussions.
Term: A WHS entry permit is valid for 3 years from the date of issue.
Key points
A WHS entry permit holder is the new terminology for an eligible representative of a relevant union for workers at a workplace (currently referred to as an authorised representative).
To enter a workplace a WHS entry permit holder must have reasonable grounds to suspect that a contravention of the WHS Act is occurring or has already occurred and that a recurrence is likely. The matter must relate or directly affect a relevant worker.
WHS entry permit holders are also entitled to enter a workplace to hold discussions with persons they represent and advise on work health and safety issues. They may also enter at the request of the HSR to assist.
A WHS entry permit has a limited term of 3 years and can be terminated for various reasons (discussed later).
There are eligibility criteria for persons to be issued a WHS entry permit that are stated in the legislation.
Background References
Model WHS Act: s117,121
Model WHS Regulations
Fact Sheet 6: WHS entry permit
WHS Act s117, 121

13. Requirements for WHS entry permit holders
A WHS entry permit holder (union representative) is required to:
Complete approved training
Exercise their rights only in the areas relevant to or directly affecting the relevant workers.
Exercise their rights only during usual working hours.
Notify the PCBU of their entry in relation to a suspected contravention after entering, except where this would defeat or hinder the purpose.
Notify the PCBU 24 hours prior to entering to consult and advise workers.
A WHS entry permit holder:
Is not required to disclose to the PCBU the name of any worker at the workplace without the worker’s consent.
Must not enter residential premises.
Key points
To be a WHS entry permit holder the union must apply on behalf on that individual person for a WHS entry permit. The permit may be issued with conditions attached. The permit, if approved, is only a permit for that individual for entry to a workplace on a WHS matter.
The individual whose name appears on the application must also hold an entry permit under the Fair Work Act 2009 s Many of the requirements for the right to entry under this legislation are mirrored in the WHS Act e.g. notification, access to records, inspections etc.
An eligible person must:
be an official of the union
have satisfactorily completed approved training
hold or will hold an entry permit under the Fair Work Act 2009 (Cth) or relevant industrial law.
Another key requirement of being granted a WHS entry permit is that the individual has satisfactorily completed training prescribed under the WHS legislation and approved by WorkCover. Clarification around the content of training will be provided by Safe Work Australia and WorkCover in the coming months.
Entry without notice: WHS entry permit holders can enter the workplace if there is a suspected contravention without prior notice to the PCBU but must notify the PCBU as soon as possible after entering unless to do so would defeat the purpose e.g. cause something to be altered, removed or replaced prior to entry.
Prior notice of entry: With the newly introduced right to enter to advise and consult on WHS issues, the WHS entry permit holder is required to give the PCBU 24 hours prior notice, an approach that can encourage cooperation and consultation between the PCBU, workers and their union representatives.
Remind participants that WHS entry permit holders are entitled to exercise their rights under WHS legislation e.g. inspect plant, documentation etc. only in the relevant areas. They are not entitled to apply these rights in areas that do not directly affect the workers they represent.
Protection of identity: Workers can feel assured of confidentiality when requesting assistance and advice from a WHS entry permit holder as they are afforded protection under the WHS legislation that the WHS entry permit holder is not required to provide names without the worker’s consent.
Background References
Model WHS Act s
WHS Act s

14. requirements for PCBUs
WHS entry permits
requirements for PCBUs
A PCBU:
is not required to allow a WHS entry permit holder to inspect or copy documents if to do so would contravene any law e.g. Privacy Act 1988
Persons must not however, without reasonable excuse,
refuse entry to the relevant workplace
refuse or allow inspection or copying of relevant documentation.
Note: Where employee records e.g. training records, or other relevant documentation is held by someone other than the PCBU, 24 hours notice to inspect and copy is required.
Key points
A PCBU is protected from having to provide information that may infringe on other state and Commonwealth laws.
A request may also be made by a worker to the PCBU not to disclose certain information e.g. based on privacy concerns and the PCBU may then reasonably refuse the request from the WHS entry permit holder.
In some instances, records pertaining to the suspected breach or work health and safety issues may be held by another organisation. For example training records, certificates and training content may be held by a Registered Training Organisation (RTO); or worker health records may be held offsite at a medical facility.
If it is determined that the information directly related to the suspected breach is required and permitted to be inspected and/or copied, the WHS entry permit holder is required to give 24 hours notice of the request to the relevant organisation.
Background References
Model WHS Act: s118
Model WHS Regulation
Fact Sheet 6: WHS entry permits
WHS Act s118

15. WHS entry permit holder
As a WHS entry permit holder, the union representative is entitled to:
Inquire into a suspected contravention of the WHS Act that relates to relevant workers (as defined);
Inspect any work, plant, substances, structure or relevant thing at the workplace in relation to the contravention;
Inspect and copy any document directly related to the suspected breach;
Consult and advise with relevant workers on work health and safety;
Consult with the PCBU about the suspected contravention;
Warn any person who may be exposed to a serious and immediate health and safety risk.
Key points
Once the WHS entry permit holder has entered the workplace in relation to a suspected contravention to do with relevant workers, they are then entitled to inspect any relevant thing in relation to the suspected contravention or about which workers have health and safety concerns.
The WHS legislation requires that the PCBU must not, without reasonable excuse, refuse or fail to comply with the requirement to permit inspection and copying of relevant documentation. This includes documentation that may be held either at the workplace or be accessible from a computer at the workplace e.g. through the organisation's server.
WHS entry permit holders have additional rights under the WHS Act (not previously available under current NSW OHS legislation) to:
consult with relevant workers (i.e. workers that the union represents or is entitled to represent) and
warn any person (that is any worker or other person at the workplace and not just those from the union the workers belong to) when the WHS entry permit holder reasonably believes there is a potentially serious and immediate or imminent threat to health and safety of those persons.
Background References
Model WHS Act s
WHS Act s

16. Actions not permitted in relation to WHS entry permits
A person must not:
Refuse or unduly delay entry of a WHS permit holder into a workplace they are entitled to enter, without reasonable cause
Intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or exercising their rights.
A person must also not:
Give the impression they are doing something under the WHS Act, that is not authorised (unless they believe otherwise)
Use or disclose information/documentation obtained in an inquiry, unrelated to the inquiry except in certain circumstances e.g. illegal activities are suspected, serious risk could be reduced.
Key points
A person, whether they be a representative of a PCBU, a worker or other person at the workplace, must not hinder or delay access by the WHS permit holder to the workplace or in any way hinder them exercising their rights.
This might include delaying access to an area of concern; or hindering and delaying access to relevant information or access to relevant workers who may be involved.
A person, for example, WHS entry permit holder, HSR, HSC member is prohibited from taking any action and giving the impression that it is their right or function to do so if any action is not authorised under their role or duties in the WHS legislation.
The only time this prohibition does not apply is if the person mistakenly believes the action they are taking is authorised in their role.
This highlights the importance of people being trained in prescribed training and in keeping up to date with information pertaining to the rights and responsibilities of their role under WHS legislation.
If a dispute arises regarding a WHS permit holder exercising a right of entry, the authorising authority:
can be requested by any party to the dispute for appointment of an inspector to attend the workplace and assist in resolving the dispute;
deal with the issue how it sees fits including through mediation, conciliation or arbitration;
if dealing with the dispute through arbitration, may make one or more orders (See Fact Sheet 7)
Any party to a dispute regarding the right of entry of a WHS entry permit holder is entitled to request WorkCover to appoint an inspector to attend the workplace and assist in the resolution of the dispute.
An application to the authorising authority to assist in resolving a dispute about a right of entry can also be made by the WHS entry permit holder or the relevant union; the relevant PCBU; any other person in relation to whom the WHS entry permit holder has exercised their rights or person affected by the exercise of those rights. For example, a worker, another PCBU or worker engaged by another PCBU; or WorkCover.
Background References
Model WHS Act: s
Model WHS Regulations
Fact Sheet 6: WHS entry permits
WHS Act s ,

17. Other functions under the WHS Act
A worker’s representative (e.g. union representative) is entitled to:
Negotiate on an agreement for work groups on behalf of a worker with the PCBU and for multiple businesses including negotiating for a variation of an agreement.
Request the assistance of an inspector
where these negotiations fail.
Assist with the election of a HSR.
Assist the HSR in their role when requested by the HSR – the PCBU is required to allow a person assisting a HSR to have access to the workplace where necessary.
Key points
A union representative is also entitled to assist workers in areas other than those that are functions of the WHS entry permit holders. This includes the following:
s52 Negotiation for agreement for work group: These provisions allow for a ‘worker’s representative’, at the worker’s request, to negotiate with a PCBU to determine work groups from which HSR/s will be elected. The ‘workers’ representative’ is also entitled to be party to any negotiations for a variation in any agreements made on workgroups. The PCBU is prohibited from excluding the ‘workers’ representative’ from any of these negotiations once the request has been made by the worker.
s54 Failure of Negotiations: Where these negotiations fail, any party to the negotiations including the ‘workers representative‘ is entitled request the assistance of an inspector in the negotiations.
s56 Negotiation for agreement for work groups of multiple businesses: These provisions allow for a ‘workers’ representative’ at the workers’ request to negotiate with the PCBUs to determine workgroups from which HSR/s will be elected. The ‘workers’ representative’ is also entitled to be party to any negotiations for a variation in any agreements made on workgroups. The PCBUs are prohibited from excluding the ‘workers’ representative’ from any of these negotiations once the request has been made by the worker. Where these negotiations fail, any party to the negotiations including the ‘workers’ representative is entitled to request the assistance of an inspector in the negotiations.
s61 Procedure for election of HSRs: Where the majority of workers in a workgroup agree, the union can provide assistance in conducting the election.
s68 Powers and functions of HSRs: Whenever necessary, the HSR can request the assistance of any person e.g. a union representative. The PCBU is not required to finance this request.
Background References
Model WHS Act s52,54,56,61,68
WHS Act s52,54,56,61,68

18. Roles of unions under the WHS Act
Participate in the issue resolution process on behalf of a workgroup or worker if requested, and enter the workplace to participate in discussions aimed at resolving the issue.
Request the assistance of an inspector if the issue resolution process fails.
In NSW, under the WHS Act the unions may:
Prosecute Category 1 and Category 2 offences where WorkCover elects not to prosecute a breach identified by the Department of Public Prosecutions (DPP).
Prosecute Category 3 offences.
Key points
Facilitators should continue to discuss the following activities the unions may undertake in representing their members or potential members.
s80 Parties to an issue: Where a worker or workers affected by a work health and safety issue are not part of a work group, they are entitled to have a representative (e.g. Union representative) to participate in the issue resolution process on their behalf.
s81 Resolution of health and safety issues: A person representing any of the parties (e.g. union representative, officer of the PCBU, HSR of another PCBU) involved in the issue resolution process is entitled to enter the workplace for the purpose of attending discussions intended to resolve the issue.
s82 Referral of issue to regulator for resolution by inspector: After attempts to resolve an issue have failed, any party to the matter can request an inspector to attend the workplace and assist in resolving the matter.
s Prosecutions: The unions have retained the right to prosecute in NSW in certain circumstances.
Union are entitled to prosecute Category 3 offences.
Provision exists for a person who considers a Category 1 or 2 offence has been committed to make a written request to the regulator for the prosecution to be brought.
If WorkCover advises the person that a prosecution will not be brought that person is then entitled to request the regulator to refer the matter to the DPP for consideration.
If WorkCover does not follow up on a breach identified by the DPP for a Category 1 or Category 2 offence ,the union may proceed with a prosecution themselves.
Background References
Model WHS Act s80-82, s
WHS Act s

19. activities of your union
Work Health and Safety
activities of your union
Unions will continue to contribute to improvements in work health and safety under WHS legislation.
Activities your union may undertake in your workplace include:
consultation and providing advice on WHS issues to workers and PCBUs;
provision of information on WHS issues;
support for HSRs and deputy HSRs in their roles; and
pursuing matters of potential prosecution where the union believes further actions than those already taken by WorkCover are required.
Key points
This slide provides an opportunity to explore with participants the strong role unions will continue to play and their ability to now enter the premises to consult and provide advice on WHS issues. This enhances the ability to educate and support workers in their understanding of WHS issues prior to a situation arising.
Discuss what activities the unions are currently undertaking in the participants’ workplaces and what additional activities they can see might occur in the future.
Background References
Model WHS Act s209,
WHS Regulations
Fact Sheet 6: Issuing of PINS
WHS Act

20. Resolution of health and
safety issues
Under the WHS Act, the issue resolution process applies where a work health and safety issue remains unresolved.
PCBUs are expected to establish and utilise issue
resolution procedures in consultation with
workers and other relevant parties.
Where an issue resolution procedure is not in place, the WHS Regulation provides a default procedure.
See Fact Sheet 7 for the issue resolution requirements and flowchart
See Fact Sheet 5 for the issue resolution requirements and flowchart
Key points
The issue resolution process of the WHS Act applies where an issue about work health and safety at the workplace or arising from the activities of a business or undertaking remains unresolved after reasonable attempts to resolve the matter.
Fact sheet 7 presents a flow chart where an issue is unresolved. All parties must firstly make a reasonable attempt to achieve a solution that is timely, final and effective. Any interim measures need to be based on a final solution being implemented within a reasonable time.
It is important that workplaces aim to establish a written issue resolution procedure (an agreed procedures) prior to this type of situation arising. The procedure may cover all of the steps of the default issue resolution procedure outlined in the WHS Regulation.
Where there is no established procedure the resolution process is to occur in accordance with the default procedure stipulated in the WHS Regulations.
Background References
Model WHS Act: s
Model WHS Regulations
How to consult on work health and safety: Code of Practice
WHS Act s

21. Resolution of health and
safety issues
Under the WHS Act ‘parties’ involved in relation to an issue include:
A PCBU or their representative;
Where more than one business or undertaking is involved, the PCBU for each or their representative;
Where workers of a workgroup are affected, their HSR or their representative;
Where the worker/s are not in a workgroup, the worker/s or their representative (this can be a union representative).
The person representing the PCBU must:
Have a level of seniority and competency to act as the PCBUs’ representative.
Not be a HSR.
Key points
A person representing any of the parties (e.g. union rep, officer of the PCBU, HSR of another PCBU) involved in the issue resolution process is entitled to enter the workplace for the purpose of attending discussions intended to resolve the issue.
Note that a union representative is able to participate in the issue resolution and is entitled to enter the workplace for discussions to help resolve the issue.
Note that the person representing the PCBU must be of a seniority and competency that allows them to act on behalf of the PCBU. This will help ensure the streamlining and effectiveness of the process.
Background References
Model WHS Act: s
Model WHS Regulations
How to consult on work health and safety: Code of Practice
WHS Act s

22. Conduct in relation to health
and safety matters
With the new powers and duties of various persons under the WHS Act, provisions have been made to protect anyone acting in good faith for the purpose of ensuring health and safety in the workplace.
What type of conduct do you think may occur that requires protection under the law?
Key points
As discussed previously, all persons having duties under the WHS Act, require the protection of the law to enable an open safety culture where people are not afraid to report or raise concerns with respect to health and safety in the workplace.
The provisions of the WHS Act prohibit any conduct which will deter people from active involvement in various activities associated with the management of health and safety e.g. risk management, consultation, issue resolution, investigations, issuing of PINs.
The WHS Act provides that a person who engages in unlawful discrimination towards another person for the prohibited reasons (i.e. for the purposes of ensuring health and safety in the workplace) can face significant penalties e.g. an individual $100,000 and a body corporate $500,000.
Discuss with participants the type of conduct that may be the subject of unlawful discrimination. Again the broadening of duties to include all workers and PCBUs ensures that persons such as contractors are not penalised where they have taken actions to ensure work health and safety e.g. cease unsafe work, issuing of a PIN.
Background References
Model WHS Act s
Model WHS Regulations
WHS Act s

23. Conduct in relation to health
and safety matters
Persons that are protected under the WHS Act include persons who are, have or will:
Act, perform/or not perform their functions or exercise their powers (where applicable ) as HSRs, deputy HSR, HSC members, WHS entry permit holders or any other role in accordance with the WHS Act.
Assist or give information to persons using a power or performing a function under the WHS Act.
Raise an issue or concern about work health and safety with PCBU/s, other workers, persons with roles and functions or an inspector.
Be involved in resolving a work health and safety issue.
Take action to seek compliance with WHS duties and obligations.
Key points
The conduct that is protected from discriminatory behaviour under the WHS Act includes the activities of persons who are undertaking their role under the WHS Act e.g. a HSR directing unsafe work to cease or a person who cooperates or assists with this direction; a worker providing information to a person who is undertaking activities permitted under their role.
Discuss with participants examples of each of the actions covered that may be particular to their workplace.
Background References
Model WHS Act s106
Model WHS Regulations
WHS Act s106

24. Conduct in relation to health
and safety matters
Provisions are also in place to ensure that persons with powers do not abuse them.
What type of behaviours may be considered as:
Discriminatory?
Coercive?
Misleading?
See Fact Sheet 7 for information on discriminatory, coercive or misleading behaviour.
Key points
Provide and seek examples from participants in relation to the following points.
A person only commits an offence under the WHS Act if the dominant reason for the discriminatory behaviour is conduct by a person in relation to health and safety activities.
Discriminatory conduct is considered to be if a person does, organises or threatens to:
In regards to a worker:
dismiss or terminate a contract for services with a worker; or alter the position of a worker to the worker's detriment; or
In regards to a prospective worker:
refuse or fail to offer to engage a prospective worker; or
treat a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement; or
Terminates, refuses or fails to enter into a commercial arrangement with another person.
The WHS Act also makes it clear that is illegal for a person to request, instruct, induce, encourage, authorise or assist a person in discriminatory behaviour.
Coercion or inducement: A person must also not organise or threaten to take actions against another person with the intent of coercing or inducing them in relation to performing (or not performing) their role; exercising or not their powers; or from taking or continuing in a role under the WHS Act e.g. a person attempting to persuade individuals not to take a role as a HSR or to cease unsafe work.
Misrepresentation: To support the prohibition of coercion or inducement under the WHS Act, a person can be fined for knowingly or recklessly making false or misleading representation to another person about the other person’s:
rights or responsibilities; or
ability to initiate or participate in a process or proceedings e.g. request the election of a HSR or the establishment of a HSC, cease unsafe work; and/or
ability to make a complaint or inquiry to a person or other body e.g. WorkCover, that has the power to seek compliance with the WHS Act.
Background References
Model WHS Act s
WHS Act s