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 call an inspector within 7 days after the notice is issued (Sections 62 & 63).
If an inspector is called to a workplace to enquire into a 'disputed PIN', the VWA 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.
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 draft procedures in the VWA 'Field Operations Manual', this is what should happen:
- Once a request has gone in to WorkSafe, an inspector will be in contact with both the rep who issued the PIN and the person who received the PIN to arrange a mutually convenient time to attend the workplace.
- Upon entering the workplace, the inspector will take reasonable steps to notify the employer and the relevant OHS rep who issued the PIN
- The inspector will seek to
first meet with the rep to obtain details of the issue and its 'history' leading up to the issuing of the PIN. The inspector will expect that the rep may also want other workers to to discuss the issue with them. Though this should not happen, the relevant rep may not be available, and in these cases the inspector may gather information from other affected workers or reps/deputies. However, inspectors have been advised not to 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, 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. (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:
- 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.
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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 inspector believes the PIN is invalid, but considers that the rep has raised a 'substantive issue', then the inspector should advise the parties and recommend they address the issue. 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 modification: The inspector may modify the PIN if there are things like multiple contraventions on the one PIN, or inappropriate compliance date, etc.
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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 Equiry 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.