November 2012 Industry Update

Model national WHS Act – when and where does it apply?

hile it is important to note that FWBC does not regulate safety, we have heard reports that some people working in the construction industry are confused about the rollout of new model national Work Health and Safety (WHS) laws.

Some states and territories have enacted a WHS Act that reflects the national model WHS Act, while others have not. We have developed this article to explain which laws apply to your workplace and how you can comply with them.

New WHS laws, modelled on the national WHS Act, commenced in New South Wales, Queensland, the Australian Capital Territory, the Commonwealth and the Northern Territory on 1 January 2012. In South Australia and Tasmania, the new WHS laws are set to commence on 1 January 2013. The Victorian and Western Australian governments are yet to make a decision on when the new WHS laws will be implemented. 

Jurisdiction

Legislation

Commonwealth

Work Health and Safety Act 2011 (WHS Act)

NSW, Qld, ACT, NT

Work Health and Safety Act 2011
Each of these States and Territories has enacted a WHS Act that reflects the national model WHS Act.

Vic

Victorian Occupational Health and Safety Act 2005

WA

Occupational Safety and Health Act 1984

SA

Occupational Health, Safety and Welfare Act 1986 which will be replaced on 1 January 2013 by a version that reflects the national model WHS Act.

Tas

Workplace Health and Safety Act 1995 (TAS) which will be replaced on 1 January 2013 by a version that reflects the national model WHS Act.

Workplace entry under the WHS Act

The ways that a union official or authorised employee representative can enter a workplace for health and safety reasons has changed in the states and territories covered by the model WHS Act. 

Definitions
It is important to be familiar with two new expressions used in the WHS Act.  These are:

  • The term “WHS Entry Permit Holder” (EPH) is used to describe union employees or officials who have rights of entry under the WHS Act; and

  • The “relevant person conducting the business or undertaking” (the relevant PCBU) is a person, which includes a company, conducting a business or undertaking to which the EPH is exercising or proposing to exercise a right of entry. 

There may be more than one relevant PCBU at a workplace, so for example, the following entities may all be a relevant PCBU - the principal contractor on a construction site, subcontractors engaged by the principal contractor, subcontractors engaged by the subcontractors (including self-employed contractors), along with the client engaging the principal contractor.

Section of the WHS Act

Purpose for entry

Who gets the notice and when

Notice requirements

117

inquire into a suspected contravention of the WHS Act that relates to or affects a relevant worker

must be given to the relevant PCBU and to the person with management or control of the workplace, as soon as is reasonably practicable after entering the workplace

In addition to the standard requirements below the notice must as far as is practicable, include the particulars of the suspected contravention to which the notice relates and also a declaration stating:
(i) that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union; and
(ii) the provision in the union's rules that entitles the union to represent the industrial interests of that worker; and
(iii) that the suspected contravention relates to, or affects, that worker.

120

inspect employee records or other documents that are directly relevant to the suspected contravention

must be given at least 24 hours, but not more than 14 days before entry, to the person from whom the documents are requested and the relevant PCBU

In addition to the standard requirements below the notice must also include a description of the employee records and other documents, or of the classes of records and documents, directly relevant to the suspected contravention, that are proposed to be inspected and a declaration that the records and documents proposed to be inspected relate to that contravention.

121

consult and advise relevant workers on work health and safety matters

The notice must be given at least 24 hours, but not more than 14 days before entry to the relevant PCBU

In addition to the standard requirements below the notice must include a declaration stating:
(a) that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace proposed to be entered and is a member, or eligible to be a member, of that union; and
(b) the provision in the union's rules that entitles the union to represent the industrial interests of that worker.

For all entries under the WHS Act a notice must be in writing and include the following:
(i) the full name of the WHS entry permit holder;
(ii) the name of the union that the WHS entry permit holder represents;
(iii) the section of the Act under which the WHS entry permit holder is entering or proposing to enter the workplace;
(iv) the name and address of the workplace entered or proposed to be entered;
(v) the date of entry or proposed entry.

Responsibilities of the WHS permit holder

A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act 2009 and the relevant permit issued by the authorising authority in each state or territory.

A WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry, have his or her WHS entry permit and photographic identification available for inspection by any person on request.

A WHS entry permit holder exercising, or seeking to exercise, these 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.  They may only exercise a right of entry to a workplace in relation to:

  • the area of the workplace where the relevant workers work, or

  • any other work area that directly affects the health or safety of those workers.

Responsibilities of persons at the workplace

You must not unreasonably refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace.  You must also not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace.

These are civil penalty provisions which carry serious penalties for anyone found to have breached them.

Further information:

Safe Work Australia – Guide to the Work Health and Safety Act

SafeWork NSW - website

WorkSafe Vic - website

WorkSafe Qld - website

WorkSafe WA - website

SafeWork SA - website

Workplace Standards Tasmania - website

WorkSafe ACT - website

NT WorkSafe - website

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