Regulatory guide - Inspector assistance: health and safety issues
We publish this regulatory guide to assist the organisations and entities we regulate.
If a matter about health and safety arises at a workplace, it is expected in the first instance that there will be discussions between the parties to attempt to resolve the matter, under Issue resolution—part 5, division 5, of the Work Health and Safety Act 2011 (WHS Act). The parties must discuss the matter and then go through an issue resolution procedure to attempt to resolve the issue.
If parties have failed to achieve effective resolution of an issue after going through an issue resolution procedure, section 82 of the WHS Act allows any party to the issue to request Comcare to appoint an inspector to assist in resolving the issue.
Provisions like section 82 have the effect of creating opportunities for inspectors to engage with persons at workplaces. There is no bright line between inspectors’ activities under these provisions and their other functions such as providing information and advice about compliance with the WHS Act or monitoring compliance with the WHS Act.
In the course of engagement with persons at workplaces, inspectors should consider and evaluate whether it may be appropriate to undertake other activities within the range of their functions and powers.
1. Discussion and issue resolution procedure
If a matter about health and safety arises at a workplace, the parties to the issue are expected to discuss the matter and attempt to resolve it. The relevant parties are:
- each person conducting a business or undertaking involved in the issue
- if the worker or workers affected by the issue are in a work group—the health and safety representative (HSR) for that work group
- if the worker or workers affected by the issue are not in a work group—the worker or workers.[1]
There is no restriction on the type of ‘matter’. It may relate to any aspect of work health and safety.
If the matter is not resolved after discussion, the parties must engage in an issue resolution procedure, making reasonable efforts to achieve a timely, final and effective resolution of the issue.[2]
An issue resolution procedure is set out in the Work Health and Safety Regulations 2011 (WHS Regulations), which applies by default unless a written agreed procedure (which includes at least all the steps in the default procedure) is in place.[3] Under the default procedure:
- any party to the issue may commence the issue resolution procedure by telling each other party:
- that there is an issue to be resolved
- the nature and scope of the issue
- as soon as parties are told of the issue, all parties must meet or communicate with each other to attempt to resolve the issue
- the parties must have regard to all relevant matters, including:
- the degree and immediacy of risk to workers or other persons affected by the issue
- the number and location of workers and other persons affected by the issue
- the measures (both temporary and permanent) that must be implemented to resolve the issue
- who will be responsible to implementing the resolution measures.[4]
If the parties have made reasonable efforts but have not been able to achieve an effective resolution of the issue, section 82 provides that any party may ask Comcare to appoint an inspector to assist in resolving the issue.[5]
2. Inspector is appointed and provides assistance
If Comcare is requested to appoint an inspector under section 82, it will appoint an inspector as soon as practicable in light of the precise nature of the dispute and the availability of inspectors given Comcare’s other regulatory activities.
Under section 82, the inspector is not specifically required to attend the workplace to provide assistance.[6] However, if the issue in dispute is whether there is a serious risk emanating from an immediate or imminent exposure to a hazard, it is very likely that the inspector will attend the workplace.[7]
The inspector will first confirm the nature and scope of the issue and the efforts the parties have already made to resolve it. The inspector will facilitate further discussions between the parties as to any risks to work health and safety and what measures might be available to eliminate or minimise the risks.
Depending on the nature of the risks that are the subject matter of the issue between the parties, it may be appropriate for the inspector to go beyond a facilitation role and pursue independent inquiries.
As the inspector does not make any decision under section 82, there is no reviewable decision that can be reviewed under part 12 of the WHS Act.
The request to Comcare and the inspector’s attendance does not prevent workers or HSRs from exercising other rights or powers, such as:
- a worker’s right to cease work
- a HSR’s power to issue a provisional improvement notice
- a HSR’s power to issue a direction to cease work.[8]
References
[1] WHS Act, section 80. The parties may appoint representatives.
[2] WHS Act, section 81(2).
[3] WHS Regulations, regulations 22–23.
[4] WHS Regulations, regulation 23(4).
[5] WHS Act, section 82.
[6] Under WHS Act, section 82(2), the inspector is appointed ‘to attend the workplace’.
[7] WHS Act, section 82(4) expressly states that the inspector may exercise compliance powers. These include powers under section 165 (for example, power to inspect, examine and make inquiries at the workplace), section 171 (for example, power to require a person who has custody of a document to produce that document to the inspector) and section 176 (power to seize the workplace or part of the workplace).
[8] WHS Act, section 82(3).
