Powers of health and safety representatives

Division 5 of Part 7, Occupational Health and Safety Act 2004

The responsibility for providing a healthy and safe workplace rests with the employer. The HSR, however, has an important role as established under the Occupational Health and Safety Act 2004 (OHS Act), in representing members of their designated work group (DWG) and bringing issues to the attention of their employer. To assist the HSR, the OHS Act sets out specific powers that may be exercised by an HSR.

The purpose of an HSR's powers is to:

• represent members of the DWG concerning health or safety
• monitor measures taken by the employer or employers in compliance with the OHS Act and Occupational Health and Safety Regulations 2017 (OHS Regulations)
• enquire into anything that poses, or may pose, a risk to the health or safety of members of the DWG at the workplace or workplaces
• attempt to resolve (in accordance with section 73 of the OHS Act) with the employer concerned or its representative any issue concerning the health or safety of members of the DWG that arise at the workplace or workplaces or from the conduct of the undertaking of the employer

The previous list extends to independent contractors and their employees if the HSR is authorised to represent them.

Powers of an HSR

An HSR elected for a DWG may, under the OHS Act, do any of the following:

• inspect any part of a workplace at which a member of the DWG works at any time after giving reasonable notice to the employer and immediately in the event of an incident or any situation involving an immediate risk to the health or safety of any person
• take photographs or measurements or make sketches or recordings (including audio and video) at any part of a workplace at which a member of the DWG works
  Note: An HSR is not permitted to take photographs or measurements or make sketches or recordings during interviews referred to in section 58(1)(d) or 58(1)(e) of the OHS Act. This includes during an interview between a member of the HSR’s DWG and an inspector or the employer.
• accompany an inspector during a workplace inspection where a member of their DWG works
• require the establishment of a health and safety committee (HSC)
• if a member of the DWG consents, be present at an interview concerning occupational health and safety (OHS) between the member and an inspector or the member and the employer
  Note: an HSR is not permitted to take photographs or measurements or make sketches or recordings during these interviews.
• if the HSR is authorised to represent an independent contractor and that person consents, be present at an interview concerning OHS between the person and an inspector or the person and the employer
  Note: an HSR is not permitted to take photographs or measurements or make sketches or recordings during these interviews.
• wherever necessary, seek the assistance of any person
• issue a provisional improvement notice (PIN)
• issue a direction to cease work after consultation has taken place with the employer

Does an HSR need permission from their employer to take photographs or measurements or make sketches or recordings?

If an HSR is taking photographs or measurements or making sketches or recordings for the purpose of performing their role as an HSR, generally they do not need to obtain permission from their employer.

However, HSRs are not permitted to take photographs or measurements or make sketches or recordings when present during an interview concerning occupational health and safety between an employee they represent and an inspector or the employer. s58(1)(ab)

Further, in some workplaces taking photographs or making recordings may be restricted or prohibited because of the operation of some other legislation. For example, sensitive locations such as airports, courts, and military facilities may be subject to unique conditions in relation to photography or recordings for reasons such as security and the administration of justice. In these workplaces, an HSR may be restricted in whether or how they can exercise their powers.

Can an HSR still take photographs or make recordings if an employer has a 'no photographs' policy or a ban on mobile phones in the workplace?

Generally, an employer's policy cannot remove the right of HSRs to take photographs or make recordings unless there are clearly defined reasons. For example, the policy or ban may have been implemented because of the operation of some other legislation which restricts or prohibits taking photographs or making recordings in that workplace. There may also be a health and safety reason for a ban on mobile phones in a workplace or part of a workplace. If this is the case, the employer:

• should provide information to the HSR about the reason for the 'no photographs' policy or ban on mobile phones
• is still required to work with the HSR to provide the HSR with the facilities and assistance necessary to enable the HSR to exercise their powers. S69(1)(e)

Does an HSR need to obtain permission before taking someone’s photograph or recording someone?

If an HSR is taking a photograph or making a recording of a person for the purpose of performing their role as an HSR, generally they do not need to obtain permission from that person. However, an HSR must seek permission before taking a photograph or recording a private activity or a private conversation, as defined in the Surveillance Devices Act 1999 (Vic).

HSRs should also keep in mind that recording or photographing individuals in an unreasonable, unnecessary or excessive manner (such as where there is no link between a photograph or recording of a person and a health and safety matter) may amount to the HSR exceeding their powers and could also breach other laws such as those in relation to privacy, health records and surveillance.

HSRs also cannot take photographs or make recordings of a person when present during an interview concerning occupational health and safety between an employee they represent and an inspector or the employer.

Is an HSR required to give their employer a copy of any photographs, measurements, sketches or recordings taken or made?

There is no express requirement under the OHS Act for HSRs to give their employer a copy of any photographs, measurements, sketches or recordings taken or made by the HSR. However an HSR may decide to share photographs, measurements, sketches or recordings they have taken or made with their employer such as for the purpose of raising health and safety concerns affecting their DWG with their employer, and attempting to resolve those issues, or as part of their role monitoring measures taken by their employer in compliance with the OHS Act and regulations.

Is an HSR required to give their employer a copy of any photographs, measurements, sketches or recordings taken or made?

There is no express requirement under the OHS Act for HSRs to give their employer a copy of any photographs, measurements, sketches or recordings taken or made by the HSR. However an HSR may decide to share photographs, measurements, sketches or recordings they have taken or made with their employer such as for the purpose of raising health and safety concerns affecting their DWG with their employer, and attempting to resolve those issues, or as part of their role monitoring measures taken by their employer in compliance with the OHS Act and regulations.

Is an HSR responsible for ensuring health and safety in the workplace?

No.

The responsibility for providing a healthy and safe workplace rests with the employer and those with management or control. The role of an HSR is voluntary and although HSRs have certain powers, there are no duties or functions imposed by the OHS Act or OHS Regulations on the HSR other than those imposed on all employees in the workplace under section 25 of the OHS Act.

Therefore, it is not appropriate for employers to, for example:

• nominate or choose HSRs
• give HSRs duty statements
• request or instruct HSRs to conduct inspections or undertake risk assessments on behalf of the employer
• task HSRs to write or develop policies and procedures on behalf of the employer

Noting that HSRs do have the power to conduct inspections of the relevant areas of the workplace under section 58 of the OHS Act, and must be consulted in identifying or assessing hazards or risks and making decisions on how to control those risks under section 35 of the OHS Act.

When and how can a DHSR exercise the powers of an HSR?

It may not always be possible for the elected HSR of a particular DWG to be available to represent their DWG when needed.

If the HSR for a DWG ceases to hold office or is unable (because of absence or any other reason) to exercise the powers of an HSR, the powers may be exercised by a deputy HSR (DHSR) for the DWG. For example, the HSR may be away from the workplace, on leave (due to illness or annual leave), on call, attending a course or working a different shift.

Under such circumstances, the DHSR is deemed to be the HSR, and:

• may exercise the powers of the HSR
• the employer obligations as outlined in Part 7 of the OHS Act apply

Arrangements for example the term of office, grounds for disqualification and an entitlement to training apply equally to both HSRs and DHSRs.

Workplace inspections

Workplace inspections play an important part in ensuring workplace safety. A safe workplace is more easily achieved when employers and employees, including HSRs, talk to each other about potential problems and work together to find solutions.

Inspections by an HSR of a workplace at which a member of the DWG works can take various forms, and at any time after reasonable notice is given to the employer or its representative including:

• scheduled inspections of the workplace with or without an employer representative
• scheduled inspections of particular activities, processes or areas
• specific inspections arising from complaints or concerns by members of the DWG
• inspections before and following substantial change to the workplace (for example to plant or work processes)
• immediately after an incident or any situation involving an immediate risk to health and safety of any person

An HSR can also inspect any part of a workplace where a member of their DWG works, immediately after an incident or any situation involving an immediate risk to health and safety of any person.

It is important to remember that the HSR role is one of representation, not one of responsibility for meeting workplace health and safety duties, including undertaking workplace inspections. The duty to provide and maintain a safe working environment rests with the employer, including undertaking workplace inspections to identify and control hazards.

It is a good idea for HSRs and their employers to discuss the number and type of inspections to be carried out and the process for addressing any health and safety matters identified during the inspection. This will be informed by the workplace. More frequent inspections may be needed in high-risk industries and workplaces subject to frequent change.

Health and safety matters identified during inspections may be resolved between the employer and the HSR (or the employees, if there is no HSR present) at the time the issue was identified. If it is not practicable to rectify the hazard identified during the inspection, it may be necessary for further consultation to occur as to how the hazard is to be controlled. If this doesn't lead to a resolution, the issue should be addressed in accordance with any agreed procedure, or if there is no agreed procedure, in accordance with 'Part 2.2—Issue resolution procedures' of the OHS Regulations. More information is also available in the WorkSafe guidance Resolution of health and safety issues.

Actions available to the HSR where this does not lead to an issue being resolved include the issuing of a PIN. More information about PINs appears on this page under the heading Provisional improvement notices (PINs) and on the WorkSafe website.

An HSR may also deal with health and safety matters identified during inspections by:

• seeking the assistance of another person
• attempting to resolve the matter through an issue resolution procedure, or
• calling in an inspector if the issue cannot be resolved through the issue resolution procedure

Is an HSR entitled to inspect any part of the workplace where members of their DWG work at any time?

Yes, after giving reasonable notice to the employer.

What is reasonable notice depends on the circumstances in any given case, and on what the employer and HSR jointly consider is reasonable. In any case, WorkSafe considers it should be within 24 hours.

HSRs may choose to conduct inspections independently or jointly with the employer or their representative (for example, a manager of appropriate seniority and knowledge of OHS). The HSR can during any inspection discuss health and safety issues with the members of the DWG. Where joint inspections are arranged, it may be appropriate for the employer's safety officer or relevant senior manager to be available during and after the inspection to discuss health and safety issues that have been raised in the inspection.

Can an HSR accompany an inspector during an inspection?

Yes.

Inspectors are required to take all reasonable steps to notify HSRs as soon as they arrive if members of a DWG are affected in any way by the entry, unless this defeats the purpose of the visit or causes unreasonable delay. For example, in an immediate risk situation or if the HSR already knows about the visit. However, it is expected that such circumstances would be the exception and that, as a rule, the inspector notifies the HSR upon entry to the workplace.

Employers are required to display or make accessible to all employees an up-to-date list of HSRs and DHSRs for each DWG. This should assist the inspector in identifying the relevant HSRs.

HSRs have the right to speak to the inspector and participate in the inspection.

Where an inspection crosses a number of DWGs, or there is more than one HSR in the DWG, the employer needs to facilitate access to all relevant HSRs, and must permit them to leave their work in order to accompany the inspector. Following an inspection, the inspector must provide a written report (including information on the purpose of the visit, a summary of observations) as soon as practicable to the occupier of the workplace and the relevant HSRs. Ideally, the inspector delivers the report to the HSR personally or in accordance with a mutual arrangement between the HSR and the inspector.

Incidents

HSRs, through the exercise of their powers make important contributions to health, safety and welfare outcomes in the workplace in the event of an incident. These powers include:

• inspecting any part of the workplace at which a member of their DWG works immediately after an incident or in any situation involving an immediate risk to the health or safety of any person
• requesting access to information relating to incidents that have occurred in their DWG (including the written record of a notifiable incident provided by the employer to WorkSafe)
• taking photographs or measurements or making sketches or recordings (including audio and video) at any part of a workplace at which a member of the DWG works, except in certain situations, such as during an interview between a member of the HSR’s DWG and an inspector or the employer
• accompanying a WorkSafe inspector during an inspection of a workplace at which a member of their DWG works
• if a member of their DWG (for example, an injured party) consents, being present at an interview concerning occupational health and safety between:
  • the member and an inspector, or
  • the member and the employer concerned or its representative
• being consulted about any decisions being made about the measures to be taken by the employer to control risks to health or safety resulting from the incident
• attempting to resolve with the employer concerned (or their representative, for example, a manager/supervisor), any issues concerning the health or safety of members of the DWG as per agreed workplace procedure, or in the absence of an agreed procedure, as per the Issue Resolution regulations

An HSR exercising their powers may do any of these things for the purpose of:

• representing the members of their DWG
• monitoring the measures taken by an employer to respond to an incident
• enquiring into anything that poses a risk to members of their DWG, for example, a potential, ongoing risk that has been highlighted by the incident

An HSR is not permitted to take photographs or measurements or make sketches or recordings during interviews concerning occupational health and safety between:

• the member, or a person the HSR is authorised to represent, and an inspector, or
• the member, or a person the HSR is authorised to represent, and the employer concerned or its representative

An HSR for the DWG is entitled to access incident records or information regarding an injury (for example, injury register).

Note: an employer must not allow an HSR to have access to any medical information concerning an employee without the employee's consent unless the information is in a form that:

• does not identify the employee, or
• from which the employee's identity cannot reasonably be ascertained

Notifiable incidents

In addition to the previous information, where a notifiable incident (in accordance with s.37 of the OHS Act) occurs, this must be reported to WorkSafe by the employer or self-employed person when they become aware of the incident.

An employer must make a copy of the notifiable incident record available for inspection by an HSR that relates to any members of their DWG.

HSR Tip - if you are concerned that your employer has not notified WorkSafe check with your employer. You can also call the WorkSafe Advisory Service.

More information about incident notification is available on the WorkSafe website.

Can an HSR immediately inspect any part of the workplace in the event of an incident or situation involving an immediate risk to health and safety?

Yes.

An HSR may immediately inspect any part of a workplace where members of their DWG work in the event of an incident or any situation involving an immediate risk to the health or safety of any person. To enable this, the employer needs to inform any relevant HSRs of such an event.

The threat may be one that affects a member of the DWG or any other person in that part of the workplace.

Such inspections may include a visual inspection of any process, equipment, machinery or substance involved. Depending on the nature of the threat and the degree of risk identified following an inspection, a direction may be given by the employer or by the HSR after consultation with the employer, to cease work.

Incidents or work practices that might have led to an injury or illness should be reported, so that action can be taken to eliminate or control the risk. The injury register record of incidents may also give an indication of immediate health and safety risks.

Should an HSR be made aware if a member of their DWG is injured?

Yes.

The information provided by the employer to the HSR needs to be specific in relation to:

• the area and/or tasks being performed at the workplace where the injury occurred
• the actual or potential workplace hazards leading to the injury

For example, an HSR may immediately inspect any part of a workplace where a member of their DWG is injured. To enable this the employer needs to inform any relevant HSRs if a DWG member is injured at work.

In addition, an employer must allow an HSR access to information in relation to the health and safety of the members of the DWG, which includes providing an HSR with information if a DWG member is injured at work. Refer to WorkSafe's guidance Obligations of an employer to health and safety representatives for more information.

It is WorkSafe's expectation that an employer would provide an HSR for his/her DWG with information regarding any workplace injury of members of the DWG. This would include physical and psychological injuries.

This information must not disclose any medical information of the injured person unless the employer has the injured person's consent.

In what circumstances may an HSR be present at an interview involving a member of the DWG?

If a DWG member consents, an HSR may be present at an interview concerning OHS between the member and an inspector or the member and the employer or its representative.

The DWG member may wish to consult with the HSR before and/or after an interview.

Interviews like these may occur, for example, in the course of inspections, after incidents, for return-to- work purposes or as part of issue resolution processes.

An HSR is not permitted to take photographs or measurements or make sketches or recordings during these interviews.

Who can the HSR turn to for assistance? How does this work?

An HSR has the power to seek assistance from any person. The person may be within the workplace, for example, another HSR or employee, or a person with sufficient knowledge of OHS outside the workplace, for example, an OHS consultant, a union official or an authorised representative of a registered employee organisation (ARREO). Information about sufficient knowledge appears on this page under the heading Sufficient knowledge of OHS.

This power enables HSRs to have access to independent advice when necessary to assist in carrying out their role, for example, inspections of the workplace, injury/illness/incident/investigations etc. For example, the actions an HSR may take include, but are not limited to, seeking:

• assistance to conduct an inspection of a part of the workplace at which a member of the DWG works
• technical advice on a particular hazard or risk in order to ensure they can effectively represent DWG members on health and safety issues
• assistance when negotiating agreed procedures or completing a provisional improvement notice

The HSR may choose the person who will provide assistance. In some cases, the assistance of more than one person may be required.

The OHS Act does not require an employer to pay for the person providing assistance to the HSR.

Where payment is likely to be an issue, the parties should reach agreement on payment before the person is engaged. If the employer does not agree to pay, the cost is the responsibility of the HSR.

Sufficient knowledge of OHS

When considering whether a person has sufficient knowledge of OHS, an employer should have regard to matters including the person's capacity and ability to:

• apply Victorian health and safety legislation as relevant to the workplace
• identify hazards, assess risks and contribute to the design of risk controls in the workplace
• participate effectively in the investigation of injuries, illnesses and incidents and contribute constructively to these processes when they are undertaken by the employer
• communicate effectively on health and safety issues with a range of colleagues, employer representatives and external specialists, including inspectors
• facilitate or assist in the resolution of health and safety issues

Whether a person has sufficient knowledge of OHS to assist an HSR depends on the nature of assistance being sought by the HSR. Relevant matters for consideration include:

• the matter the HSR seeks assistance with and whether it is consistent with the purposes for which an HSR can seek assistance in section 58
• the level of knowledge of OHS a person needs to assist the HSR, and whether they would need any specific qualifications or experience
• whether the person has experience, qualifications or training that would indicate that they have the sufficient knowledge of OHS to assist the HSR

The definition of the standard for which sufficient knowledge applies is subjective. A person is likely to have sufficient knowledge of OHS to assist an HSR if they have a general knowledge of OHS. For example, if they:

• have attended an approved initial course of training for HSRs and their deputies
• have completed an ARREO training course approved by WorkSafe
• hold an entry permit pursuant to Part 8 of the OHS Act (an ARREO who has therefore completed a course of training approved by WorkSafe and has been issued an entry permit by the Magistrates' Court)
• have completed a Certificate IV in Work Health and Safety, or
• have practical experience managing OHS in the workplace

A person may also have sufficient knowledge of OHS to assist an HSR, if they have specialist knowledge or experience relevant to the assistance being sought. For example:

• a licensed asbestos removalist may have sufficient knowledge to assist an HSR in regards to issues relating to asbestos in the workplace
• an ergonomist may have sufficient knowledge to assist an HSR with a workplace manual handling issue

An ARREO is taken to have sufficient knowledge of OHS.

Does the employer have to allow the person assisting an HSR access to the workplace?

Yes.

An employer must allow the person assisting the HSR access to the workplace.

Employers can only deny a person assisting an HSR access to the workplace where they consider the person has insufficient knowledge of OHS to provide assistance to the HSR.

What options does an HSR have if the employer does not allow a person assisting an HSR access to the workplace?

If an employer does not allow a person assisting an HSR access to the workplace, then the HSR may apply to the Magistrates' Court for an order directing the employer to allow access and specifying the terms and conditions of access.

If an HSR makes an application to the Magistrates' Court for an order, the HSR may seek a person from outside the workplace, including a representative of any union, to support them through this process.

An inspector has no power to enforce access to the workplace of a person assisting an HSR but can recommend that access be granted if the inspector forms the opinion that the person has sufficient knowledge of OHS.

Are there any circumstances where an HSR may exercise their powers outside their DWG?

Yes.

An HSR may exercise their powers outside their DWG where:

• there is an immediate risk to health or safety that affects or may affect a member of another DWG, or
• a member of another DWG asks for the HSRs assistance and
• it is not feasible for the HSR to refer the matter to an HSR for the other DWG – for example, if the HSR for that DWG is absent or not appropriate in relation to the issue of concern

Provisional improvement notices (PINs)

A PIN is an important tool an HSR can use if consultation between them and, for example, their employer fails to resolve a workplace health and safety issue.

What is a PIN?

A PIN is a written direction requiring a person (typically the employer) to remedy the contravention or likely contravention. The object of a PIN is to direct action to be taken to remove a risk.

HSR Tip - PINs are legal instruments so it is important to fill them out correctly. If you have concerns about how to fill a PIN in correctly, you can seek assistance from, for example, the WorkSafe Advisory line on 1800 136 089, other HSRs or your union.

A PIN form can be downloaded from the WorkSafe website. It is not compulsory to use a form to issue a PIN, but it may assist in ensuring that the required information is included.

Note: If an issue arises at the workplace that involves an immediate threat to anyone's health or safety, a PIN might not be an appropriate means to address the situation. Refer to WorkSafe's guidance Resolution of health and safety issues for more information on a direction to cease work.

Note: The definition of a person is outlined in the WorkSafe guidance, Abbreviations and glossary of terms, Part 7, Occupational Health and Safety Act 2004.

Who can a PIN be issued to?

An HSR can issue a PIN to any person who has duties under the OHS Act or OHS Regulations.

In general usage, person is used to refer to a natural person, however, under the OHS Act the term person can include an organisation (your employer), an individual, a body corporate, incorporated body or association, or a partnership.

Typically, a 'person' is the employer at the HSR's workplace. However, a PIN could also be issued to another person where the contravention affects members of the HSR's DWG, for example, a contractor erecting scaffolding in an unsafe manner.

When can an HSR issue a PIN?

Only elected HSRs have the power to issue a PIN.

If an HSR believes on reasonable grounds that a person is contravening a provision of the OHS Act or the OHS Regulations, or has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated, the HSR may issue a PIN.

However, the HSR may only issue a PIN after consulting with the person who has management responsibility for remedying the contravention or likely contravention.

Examples of contraventions could include:

• excessive noise levels in the workplace
• an ongoing requirement to manually lift heavy objects
• personal exposure to chemicals used in the workplace on an ongoing basis
• unguarded plant
• a lack of consultation with employees (or HSRs where there is an HSR) on OHS matters

Refer to WorkSafe's guidance Powers of health and safety representatives for information about when a DHSR can exercises the powers of an HSR.

Consultation prior to issuing a PIN

Consultation is important as it ensures that all parties are given an opportunity to discuss their concerns and allows for consideration of all relevant facts. Good consultation may achieve a resolution without the need to issue a PIN or require the involvement of WorkSafe.

If an HSR does not consult before issuing a PIN, the PIN will not meet the requirements of the OHS Act.

Consultation prior to the issue of a PIN is considered by WorkSafe to have occurred if the HSR has:

• verbally or in writing provided information to the person (for example, employer representative if the person is an employer) about the provision of the OHS Act or OHS Regulations the HSR believes is being contravened or likely to be contravened, and how the HSR believes the contravention or matters or activities causing the contravention can be remedied
• allowed the person the opportunity to express their views and to contribute in a timely fashion to remedy the alleged contravention or resolve matters or activities causing the alleged contravention
• taken into account the views of the person before issuing the PIN

HSR Tip – Keep a written record of the consultation that occurred prior to issuing a PIN.

What happens if the person does not respond?

Consultation has still occurred if the person does not respond to the HSR in a reasonable time. In this case, the HSR can take failure to respond into account before deciding to issue the PIN. There does not have to be a two-way exchange, only the opportunity for this to happen. The time period for consultation or degree of consultation required will depend on the circumstances and must be reasonable for the relevant circumstances. Further, consultation can still be said to have occurred if there is no agreement between the HSR and the person.

Where can an HSR get a PIN form?

PIN forms can be downloaded from the WorkSafe website.

It is not compulsory to use a form to issue a PIN, but it may assist in ensuring that the required information is included.

HSR Tip – Keep a copy of the PIN.

What information must be included in a PIN?

A PIN must:

• state the HSR's belief on which the issue of the notice is based and the grounds for that belief
• specify the provision of the OHS Act or the OHS Regulations that the HSR believes has been or is likely to be contravened
• specify a day (at least eight days after the day on which the notice is issued) before which the person is required to remedy the contravention or likely contravention or the activities causing it

An HSR may also provide directions in the PIN about how to fix the problem, however this is optional. Directions may refer to a compliance code and provide a number of options to remedy the issue (for example, by the addition of a guard to a plant, increasing the distance between the plant and operators, or replacing the plant).

Can an HSR make minor changes to a PIN after it has been issued?

Yes. After consulting with the person issued with the PIN, the HSR can make minor changes to a PIN , for example:

• to simplify language
• to correct an error or reference
• to extend a compliance date

HSR Tip – Keep a copy of the PIN and any amended PINs.

Can more than one contravention be put in a PIN?

No.

A separate PIN must be completed for each contravention of the OHS Act or OHS Regulations. This is because a number of interlinked elements must be set out for each contravention, including:

• the provision of the OHS Act or the OHS Regulations being contravened
• the reasons for the belief about the contravention
• the time in which to comply with the PIN

What happens if there is a mistake in a PIN?

A PIN will not meet the requirements of the OHS Act if it does not contain all of the requirements listed in section 60 of the OHS Act.

A formal defect or irregularity will not automatically mean that a PIN does not satisfy the requirements of the OHS Act. If the information given is not misleading, does not cause substantial injustice and sufficiently identifies the person to whom the PIN is issued, then the PIN will likely meet the requirements of the OHS Act.

A PIN will still be considered to satisfy the requirements of the OHS Act even if:

• there is a formal defect or irregularity in the notice, provided that the defect or irregularity does not or is not likely to cause a substantial injustice (for example, provided that the PIN does not contain inaccurate or incomplete information in some way), or
• the PIN uses the incorrect name of the person to whom the notice is issued, provided that the notice sufficiently identifies the person and is issued to the person in accordance with section 64 of the Act

However, if the defect or irregularity, when viewed objectively, may mislead the person to whom it is issued, then it is likely that the notice will not be considered to satisfy the requirements of the OHS Act.

Examples of a defect or irregularity that could mislead the person receiving the PIN and that could cause a substantial injustice might be where:

• the PIN states the wrong section of the OHS Act or particular OHS Regulation (for example, section 21(2)(a) rather than section 21(2)(e)) and the person receiving the PIN would be led into giving the plant extra maintenance rather than putting in place training and instruction for employees
• the writing on the PIN is illegible, unclear and/or ambiguous
• the wrong date by which the person must remedy the contravention is listed and does not accord with the date on the PIN. This makes the actual compliance date unclear

If an inspector has been called to a workplace on the basis of a PIN having been issued, and determines that the PIN does not meet the requirements of the OHS Act, the inspector will still enquire into the issue that is the subject of the PIN and take whatever action they consider appropriate.

How must a PIN be issued?

An HSR can issue a PIN on a person, typically your employer, by:

• delivering it personally to the person or sending it by post or fax to the person's usual or last known place of residence or business address
• delivering it personally, or sending it by post to the head office, registered office or principal place of business of the body corporate if the person to whom a notice is to be issued is a body corporate
• leaving it for the person at the person's usual or last known place of residence or business with a person who is apparently over 16 years old and who apparently resides or works there
• leaving it for the person at the workplace to which the notice relates with a person who is apparently over 16 years old and who is apparently the occupier for the time being of the workplace
• sending it by electronic communication (for example, by e-mail) to the person at the person's usual or last known e-mail address

Additionally, an HSR can issue a PIN to a body corporate (Note: the most common form of body corporate is a company or corporation established under the Corporations Act 2001) by:

• delivering it personally, or sending it by post to the head office, registered office or principal place of business of the body corporate
• sending it by electronic communication (for example, by e-mail) to an employee, agent or officer of the body corporate

What must the person who is issued with the PIN do after receiving it?

If the person is an employee, they must bring the PIN to the attention of their employer. Employers should develop procedures to ensure that any PIN issued to a manager or supervisory staff is passed on promptly, as it is the employer's responsibility to deal with the PIN.

Employers or any other person (for example, a manufacturer, a designer, a partner in a business) who is issued with a PIN must:

• bring the PIN to the attention of all other persons whose work is affected by the notice
• display a copy of the notice in a prominent place in that work area. Note: penalties apply to breaches of these provisions

WorkSafe considers that prominent display means open display in a place where the notice will be seen without prior knowledge that it is there, and where the relevant people will come across it in the normal course of events and be able to examine it.

The intention is to ensure that both the employer and employees affected by the PIN are aware that it has been issued. This supports an objective of the OHS Act to improve workplace consultation processes, as it ensures the sharing of vital information about workplace health and safety. It also ensures other persons who might be impacted are aware of the PIN.

HSR & Employer Tip - As a matter of best practice, keep a copy of the PIN, even after the PIN has been complied with.

What choices does the person issued with a PIN have?

The recipient of a PIN must either:

• comply with it within the specified time frame, or
• if they wish to dispute the PIN, they can contact WorkSafe and WorkSafe will arrange for an inspector to attend the workplace. However, this request must be done within seven days of the PIN being issued

Should the person issued with a PIN fail to call in an inspector within seven days and fail to comply with the notice in the time specified, then that person is guilty of an offence under the OHS Act.

What can an HSR do if a PIN is not complied with?

If an HSR issues a PIN and it is not complied with within the specified timeframe the HSR can contact WorkSafe and arrange for an inspector to attend the workplace.

The inspector will attend the workplace as soon as possible and enquire into the circumstances of the PIN to determine whether it meets the requirements of section 60 of the OHS Act. If the PIN meets the requirements of the OHS Act and has not been complied with, WorkSafe will then commence a comprehensive investigation into the non-compliance, which may lead to prosecution.

What will the inspector do if a PIN is disputed?

The inspector must:

• enquire into the circumstances that are the subject of the PIN. This may include making enquiries about why the PIN has been disputed
• affirm (with or without modifications) or cancel the PIN by giving written notice of the HSR who issued it and the person to whom it was issued

As part of the inspector's enquiries, the inspector will:

• make contact with the HSR who issued the PIN
• where the HSR is not available (for example, due to extended leave) make enquiries with the DHSR and/or employees within the DWG

The inspector will determine whether the PIN meets the requirements of the OHS Act and do one of the following:

• affirm the PIN if the inspector believes that the OHS Act or OHS Regulations have been contravened, or if there are circumstances that make it likely that the contravention will continue or be repeated, or
• affirm the PIN with modifications if it is necessary to correct formal defects and/or include more appropriate details or information (for example, more appropriate directions could be included to remedy the contravention), or
• cancel the PIN if the inspector believes that the recipient is not contravening or has not contravened the OHS Act or OHS Regulations or if the PIN has been issued to the wrong person

In doing this, the inspector will give a written notice, referred to as a PIN enquiry outcome notice (PINEON), to the HSR who issued the PIN and to the person it was issued to. This PINEON must include:

• the basis for the inspector's decision to affirm or cancel the PIN
• if the PIN is affirmed, the penalty for contravening the affirmed PIN
• how the person may seek a review of the inspector's decision

Note: penalties apply to contravention of a PIN.

The recipient of a PIN affirmed by an inspector must comply with the PIN. Failure to do so is an indictable offence.

If an inspector has been called to a workplace on the basis of a PIN having been issued, they will still enquire into the issue that is the subject of the PIN and take whatever action they consider appropriate (this may include issuing notices), regardless of whether the PIN meets the requirements of the OHS Act. If the HSR or an eligible person (for example, an employer or employee) does not agree with the inspector's final decision they can request that an internal review of the inspector's decision be conducted. Refer to the WorkSafe guidance Request a review of an OHS inspector decision for further information about the internal review process.

How must a PIN enquiry outcome notice (PINEON) be issued?

A PINEON can be issued by:

• delivering it personally to the person or sending it by post or fax to the person's usual or last known place of residence or business address
• delivering it personally, or sending it by post to the head office, registered office or principal place of business of the body corporate if the person to whom the notice is to be issued is a body corporate
• leaving it for the person at the person's usual or last known place of residence or business with a person who is apparently over 16 years old and who apparently resides or works there
• leaving it for the person at the workplace to which the notice relates with a person who is apparently over 16 years old and who is apparently the occupier for the time being of the workplace, or
• sending it by electronic communication (by e-mail) to the person at the person's usual or last known e-mail address

Filling out a PIN and examples

PINs are legal instruments so it's important that HSRs fill them out correctly.

The PIN form

Download the from:

The image shows a sample PIN form.

PIN explanatory notes

Completed forms

Once completed make sure you give the PIN to the person listed in section 4.

Also, retain a copy of the completed PIN for your records.