Under the OHS Act, an elected rep has the right to issue a person with a Provisional Improvement Notice (PIN) if a person is contravening a provision of the Act or the regulations. This can only be done if the rep has already consulted with the person about remedying the contravention (see How to use a PIN for more information). A person to whom a PIN has been issued must either comply with the PIN within the required time or within 7 days after the notice is issued, require an inspector to attend the workplace (Sections 62 & 63).
If an inspector is called to a workplace to inquire into a 'disputed PIN', WorkSafe must ensure that an inspector attends the workplace as soon as possible and before the day specified on the PIN for it to be complied with.
Note: If an inspector does not attend the workplace the day before the compliance date, there is no power for an inspector to affirm, modify or cancel the PIN. So this means making sure that if your employer is going to challenge the PIN they contact WorkSafe. If unsure, then contact WorkSafe (or your union) yourself.
What can an elected OHS rep expect from a WorkSafe inspector who has been called into the workplace because of a disputed PIN?
According to the WorkSafe publication How inspectors deal with specific issues and our interpretation this is what should happen:
- When requested, an inspector must attend the workplace as soon as possible but before the day specficied in the PIN as being the day by which the notice must be complied with.
- 'Where possible' the inspector will notify both the rep and who issued the PIN and the person who received the PIN that he or she will be attending the workplace before the compliance date specified in the PIN. The inspector should try to arrange a mutually convenient time to attend the workplace.
- Unless the parties agree to meet jointly, the inspector will meet first with the rep to get the background and details of the issue leading to the PIN and then with the person to whom the PIN was issued to obtain details of why the PIN is disputed. Do not feel pressured to meet jointly with the employer without having met with the inspector first.
- The inspector may seek further information from other relevant persons if necessary. This may include a follow up meeting with the HSR to discuss any discrepancies or matters in dispute.
- If you wish to have other workers or a union rep present at the meeting/s to discuss the issue/provide more information, this should be acceptable.
- If the relevant rep is for some reason not be available (for example on leave), the inspector may gather information from other affected workers or reps/deputies. Generally however, this should not happen, and inspectors should not determine the PIN until they have spoken to the rep who issued the PIN.
If you are the rep who issued the PIN and you find out later that an inspector has been to the workplace and not spoken to you, make sure you contact that inspector to arrange for him or her to return to speak with you. - After speaking with the rep, the inspector will meet with the person to whom the PIN was issued and obtain details of why the PIN is disputed. (As noted above, if all parties are agreeable, joint meetings may be held.)
- The inspector may also seek further information from any other relevant person.
- After discussions with all parties the following may apply:
- The HSR no longer supports the PIN - IF this is the case, then the HSR may choose to withdraw the PIN. The decision to do so is the HSR's only.
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Resolved: it is agreed that the PIN issue has been or can be resolved and there is no longer a dispute over the PIN. In this case the inspector will document a summary of the issues and the agreed measures in an Entry Report, and provide this to the rep and the person to whom the PIN was issued.
Note: At this point either the employer or the inspector may suggest that as the matter has been resolved the PIN can be withdrawn. Do not withdraw the PIN - insist that the PIN stand: write 'resolved' on it, together with what the agreed measures are. -
Not resolved: if the PIN remains in dispute, the inspector will determine which of these four actions will be taken:
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Not Valid: A PIN is not valid if:
- it does not affect the members of the rep's DWG (unless it is issued under s59 - where another rep has acted because a rep is unavailable);
- the rep had not first consulted with the dutyholder about remedying the issue;
- it does not state the rep's belief there has been a contravention and the reasons for that belief
- does not specify the provision of the Act or the regs
- does not specify a day (being at least 8 days after the issue of the PIN) by which the matter is to be remedied
- has not been given to the person in a way listed in s64 of the Act
Note that s65 the Act states that certain 'formal irregularities or defects' do not make a PIN invalid.
If the PIN is in fact 'invalid' then the inspector may in these circumstances suggest to the rep that the it should be withdrawn.
The rep then has the option of re-issuing a corrected, valid, PIN.
If the PIN is determined to be invalid, then the inspector will deal with the 'substantive issue' raised in the PIN. If the inspector believes the dutyholder is contravening the Act or regs, and 'voluntary compliance' is not achieved, then the inspector should issue an Improvement Notice.
- Affirm: if the PIN is valid and the inspector supports the stated contravention, the compliance date and the measures to remedy it, then the inspector should affirm it.
- Affirm with modifications: The inspector may modify the PIN if there are things like multiple contraventions on the one PIN, or inappropriate compliance date, etc.
- Cancel: the inspector will cancel the PIN if there has been no contravention or if the person to whom the PIN has been served is not the correct dutyholder.
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Not Valid: A PIN is not valid if:
- The inspector will complete and issue an 'Entry Report' that will address the matters regarding the issuing of the PIN, the matters in dispute and the decision of the inspector.
- The inspector will also complete a PIN Enquiry Outcome Notice, and sign and date the disputed PIN, recording on it the PIN Enquiry Notice Outcome Notice Number, and whether the PIN was 'Not valid'; 'Affirmed', 'Affirmed with Modifications' or 'Cancelled'.
- The inspector will give the Entry Report and PIN Enquiry Outcome Notice to both the person to whom the PIN was issued and the OHS rep.
- The inspector will advise the parties that the decision is reviewable under s127 of the OHS Act
- NOTE: where a PIN has been affirmed or affirmed with modifications, or the inspector has issued an Improvement Notice, then the inspector should organise a follow up visit on or soon after the relevant compliance date.
- WorkSafe Victoria Inspectors - How Inspectors support and enforce health and safety at work. Revised April 2012
- How inspectors deal with specific issues - This 2016 document provides information about how WorkSafe OHS inspectors deal with specific issues when performing their functions, including investigating a disputed or non-complied with PIN.
Last amended June 2019