Part 7, Division 8 - Resolution of health and safety issues
There are a number of ways to resolve OHS issues. There are a number of questions and a number of steps that must be followed.
The first question to ask is:
'Is there an immediate risk to health or safety in this situation?' and 'Does the nature of the threat and degree of risk mean that it's not appropriate to follow the normal procedures?'
If the answer to these questions is YES, then under Section 74, the rep has the right to STOP THE JOB ('direct that work shall cease') either with or without the agreement of the employer rep. The OHS rep must, however, consult with the employer prior to issuing this direction - see details below.
If the answer is No (there is not an immediate risk) then the rep must follow first attempt to resolve the issue (as per Section 73) and if not resolved, then proceed - see the information below: Non-immediate risk.
Section 73 Resolution of health and safety issues
If an issue comes up, then the rep and the employer or the employer representative must try to agree on how to fix the problem, according to either the agreed workplace procedures - or if there are no agreed procedures, according to the issue resolution requirement under Chapter 2.1 of the consolidated 2007 OHS regulations. There is also advice to reps in the Worksafe publication Employee Representation. [if there is no elected rep then consultation must take place between the employer/employer rep and the employees affected by that issue]
NOTE: if an employer does appoint a representative to act on its behalf for the purposes of resolving ohs issues in the workplace, then the employer must ensure that its representative:
- is not a health and safety representative; and
- has an appropriate level of seniority, and is sufficiently competent, to act as the employer's representative.
WorkSafe has produced a document: Employer Representative Competencies that gives employers advice regarding the appropriate level of seniority and competencies that employer reps should have.
Section 74 Direction to Cease Work
1 - Where the issue concerns work that is a threat to the health or safety of anyone and -
- the treat is immediate; and
- the normal process cannot be followed,
then the employer and the rep for the DWG can by agreement, or if agreement in not reached, either can direct that the work shall cease. (We have developed a form reps can fill in and give to the employer: download here.)
2 - When work has been stopped, the boss can give the workers other suitable work.
Section 75 Inspector may be required to attend workplace
1 - If the issue is not resolved within a reasonable time, or if work has been ordered to stop, then either the rep or the employer can request the attendance of an inspector.
2 & 3 - The inspector must come as soon as possible, enquire into the issue and can take action under this Act to resolve the situation.
4 - If the inspector -
- issues a prohibition notice; or
- thinks there was enough reason to be concerned,
then any workers who did not work must be paid for that time.
NB: WorkCover has a 24 hour Emergency Response Service which can attend any workplace incident that results in fatalities or serious injuries - the phone number is 13 23 60. It has the power to issue prohibition notices to ensure that site safety is secured. It can also be requested to resolve disputed stop-work over health and safety issues.
If the answer is NO - the risk is not immediate, then under Section 73, the rep and the employer must try to resolve the issue by negotiation and following the right procedure. This does not mean that if the boss does not want to do anything about it, then there is nothing that can be done. The rep has the right to issue what is known as a Provisional Improvement Notice.
Sections 60 - 66: Provisional Improvement notices
Provisional improvement notices are legal documents that the rep can use in cases where negotiation with the employer (or 'person') has not led to the problem being resolved.
Section 60 Provisional improvement notices
When a rep believes someone is breaking the law ('contravening a provision of this Act or any regulations') then the rep can issue a provisional improvement notice (PIN). The PIN must state that the rep thinks there is a contravention, the reasons for this, the part of the Act or regulations, and the date by when it must be fixed (at least eight days after the day of issue)
However, before issuing a PIN, the rep must consult with the person about fixing the problem.
If the person is an employee, they must bring the notice to the employer's attention. The employer who then gets a PIN must:
- bring the notice to the attention of anyone whose work is affected; and
- display a copy of the notice in the workplace.
Once an employer has received a PIN, the employer cannot ignore it - the only two options are to either call an inspector (see Section 63 - must be within 7 days); or do what the PIN requests - otherwise the employer is breaching the Act (see Section 62)
Section 61 PINs may include directions
This section states that the rep can put on the PIN what he/she thinks should be done to fix the problem. The rep can refer to a compliance code and/or offer a 'choice of ways'.
Section 62 Offence to contravene a PIN
If the person to whom a PIN has been issued does not call an inspector, and does not comply with PIN, then that person has committed an indictable offence.
Section 63 Employer may require inspector to attend at workplace
If the employer does not intend to comply with the PIN (make the changes, etc), then he must call an inspector before 7 days pass. The inspector must attend the workplace as soon as possible. The inspector can do one of three things with the PIN:
- affirm (agree with) the notice
- affirm it, but make some changes to it
- cancel the notice (that is disagree with it)
If the inspector decides 1) or 2) then the employer must do it - unless they request a review of the inspector's decision.
If the either the employer or the rep, or any other worker whose work may be affected does not agree with the inspector's decision, then that party is able to apply for that decision to be reviewed by the Authority. This is a new right for reps and workers under the 2004 OHS Act - see the separate information page on Reviewable Decisions. If the inspector decides to cancel the notice, the rep should call the Union.
Section 64 Service of PIN or inspector's notice
This section describes how both PINs and inspector notices can be 'served' - that is:
- In person, by post, or fax to the person's last known residence or business (note: a PIN cannot be emailed);
- Leaving it for the person with someone apparently over 16 who apparently resides or works there;
- leaving it for the person at the workplace with someone apparently over 16 who is apparently the occupier of the workplace.
Section 65 Formal irregularities or defects in PINs
In the past, some OHS reps have found their PINs being cancelled because they had been completed 'incorrectly'. The 2004 Act now makes it clear under this section that a PIN, or an inspector's notice, is NOT invalid merely because of a formal defect or irregularity as long as this does not cause substantial injustice. The PIN is also not invalid if due to failure to use the correct name of the person to whom it has been issued, as long as it sufficiently identifies the person it is issued to. If any OHS reps have a problem with this, they need to contact their union for advice and assistance.
- Advice for reps - A PIN: How to use it
- Part 2.2 of the consolidated regulations: Issue Resolution Procedures.
- WorkSafe Victoria Inspectors - How Inspectors support and enforce health and safety at work. [pdf] Revised April 2012
- Overview of how inspectors deal with specific issues [pdf] - This document provides information about how WorkSafe OHS inspectors deal with specific issues when performing their functions, including attending the workplace to deal with issue resolution, investigating disputed or non-compliance with PINs, Work Cessations, etc
The 2004 Act can be downloaded (in both pdf and Word format) on the Victorian government legislation repository website - Victorian Law Today - and searching for the Act.
Last amended July 2014