Where an issue or concern is raised, the Work Health and Safety Act 2012 (SA) (WHS Act) requires that all parties must meet or communicate with each other to help resolve it, taking into account the:
- immediacy of the risk
- number and location of workers affected
- resolution measures, either temporary and/or permanent, that must be implemented and who will be responsible.
Every workplace should have procedures in place to deal with issues identified or raised to help achieve their timely and effective resolution.
If an issue is resolved, details of the issue and the resolution must be set out in a written agreement, if any party to the issue asks for it. If an agreement is prepared:
- all parties must be satisfied that it accurately reflects the resolution
- it must be provided to everyone involved and, if requested, and if one exists, to the Health and Safety Committee at the workplace.
Where issues are unable to be resolved, despite reasonable efforts by all parties, any party to the issue can ask us to appoint an Inspector to help by calling our Help Centre on 1300 365 255.
A request for an inspector’s involvement does not prevent a worker from ceasing unsafe work, or a trained Health and Safety Representatives from either directing the cessation of work or issuing a provisional improvement notice (PIN).
Agreed issue resolution procedures should:
- relate only to workplace health and safety issues
- be in writing and outline the steps for resolving issues
- be developed through genuine consultation
- be communicated to all workers
- be consistent with the legislation
- not remove the power of a Health and Safety Representative (HSR) to issue a provisional improvement notice or exercise any of their powers under the WHS Act.
The parties involved in resolving an issue may be:
- the person conducting business or undertaking (PCBU) with whom the issue was raised
- any other PCBU involved in the issue
- where at least one worker in a work group is affected by the issue, their HSR or their representative
- where a worker or workers affected by the issue are not in a work group, the worker or workers or their representative.
Workers can still bring an issue to the attention of their HSR at any stage of the issue resolution process. If your HSR considers that the issue is not related to health and safety, they should refer you to someone else at the workplace who can help resolve it.
If requested a representative, such as from a union or employer organisation, may enter the workplace to attend discussions with a view to resolving an issue. PCBUs must ensure that their representative is not an HSR, is sufficiently competent to act as their representative and has the appropriate level of seniority.
The WHS Act prohibits discriminatory conduct directed at anyone who raises work health and safety issues or who carries out legitimate safety-related functions or activities, such as HSRs.
The law enables trained HSRs to issue a provisional improvement notice (PIN) when, in their opinion, work health and safety laws are being contravened. They must have completed an approved HSR training course, or previously completed that training when acting as an HSR of another work group.
Before issuing a PIN, consultation must take place between an HSR and the PCBU or the person they believe is contravening the WHS Act or Regulations. HSRs should:
- provide information, either verbally or in writing, about fixing the alleged contravention or activities causing the contravention
- give the person an opportunity to express their views and take those views into account
- allow adequate time for the contravention to be fixed.
It will be considered that consultation has taken place even if:
- there is no response within a reasonable time, or not at all
- no agreement has been reached on the contravention and how to fix it.
Issuing a PIN
A PIN may be issued to any person including:
- a PCBU, which can be either an organisation or an individual
- a person with management or control of the workplace.
- be in writing – it’s not compulsory to use a specific form, but we have provided a sample template
- state the reasons why the HSR considers the laws are being contravened, or the contravention is likely to continue or be repeated
- be given directly to the PCBU or their representative who has responsibility for the specified contravention
- specify a time limit of at least 8 days after the date of issue for the contravention to be remedied.
If there is more than one contravention, a separate PIN must be written for each.
PINs cannot be issued for matters already being addressed by one of our inspectors through Improvement or Prohibition Notices.
Complying with a PIN
Unless we have appointed an Inspector to review a PIN, the person issued with it must take all reasonable steps to remedy the identified contravention by the due date on the notice or, if no date has been specified, as soon as possible.
The person issued with a PIN must display the notice in a prominent place close to affected workers and/or parts of the workplace(s).
PINs must not be intentionally removed, damaged or defaced while they are in force.
A PIN remains in force until the matter has been resolved. However the HSR who issued it may cancel it, by written notice, at any time.
Reviewing a PIN
The person issued with a PIN, or their PCBU if they are a worker, can ask us to appoint an inspector to review the notice. This request must be made within 7 days of when the PIN was first issued. We will attend your workplace as soon as practicable after your request has been made. Call our Help Centre on 1300 365 255 to request our involvement.
A PIN is temporarily suspended while the inspector enquires into the circumstances surrounding the issue and determines the matter. This review can take place even if the compliance period has expired. After the inspector has reviewed the PIN, they may either:
- confirm the PIN, considered to be an Improvement Notice issued by the inspector
- confirm the PIN with changes, in which case the PCBU must comply with the PIN
- cancel the PIN.
This decision is a reviewable decision listed in the WHS Act.
The law enables workers to stop or refuse to carry out unsafe work if there is a reasonable concern they would be exposed to a serious health or safety risk arising from an immediate or imminent exposure to a workplace hazard.
A trained HSR - one who has completed an approved HSR training course, or previously completed that training when acting as an HSR of another work group - can direct workers in their work group to immediately stop work if the risk is so imminent that there is no time to consult.
As soon as practicable after doing so, HSRs must consult with their PCBU to control the identified risk.
Where the risk is not serious, immediate or imminent, HSRs must first consult with their PCBU which may involve following an agreed issue resolution procedure or, if there isn’t one, the default procedure in the WHS Regulations.
HSRs, PCBUs and workers can ask us to provide an inspector to help resolve an issue arising from the cessation of work. Call our Help Centre on 1300 365 255.
If you stop or refuse to carry out unsafe work without the involvement of your HSR, or if you don’t have a HSR, you must:
- notify your PCBU as soon as practicable
- remain available to carry out suitable alternative work.
You may direct workers to carry out suitable alternative work at the same or another workplace until they can resume normal duties. The work must be safe and appropriate for the worker.
We can provide support and advice to help PCBUs, HSRs and workers. Upon request we can appoint a WHS Inspector to assist in the resolution of an issue arising from the cessation of unsafe work, or a health and safety issue that is unable to be resolved, despite reasonable efforts.
For help phone us on 1300 365 255.