Hi Renata – Can a HSR issue a PIN when it is only the members of public are at risk?
The OHS Act is clear at s.60 that the issuing of a PIN is linked directly to a contravention of a provision of the Act or Regulations, however, s.59 constrains an HSR to only use their power in respect of matters that affect members of their designated work group (DWG) or another DWG if the HSR for that DWG is not available.
So, no, an HSR cannot issue a PIN to an employer for exposing only members of the public to a health or safety risk. However, there are other possibilities available to HSRs.
Employers do have a duty at s.23 to ensure that persons other than employees are not exposed to risks – this includes members of the public, clients, students, passers-by, etc.
Consider whether members of your DWG are being affected. For example, if members of your DWG are feeling distressed or stressed by the expectation that they continue to conduct work in a way that presents a hazard to members of the public, then there actually is an uncontrolled risk that is now directly affects members of your DWG. You can seek consultation with your employer – use our Consultation Email template to formalise your request - and if the issue is not satisfactorily addressed you can issue a PIN.
Using a survey to determine the impacts that your DWG members are experiencing (for example Psych Health Survey Tool - OHS Reps or a simple survey developed to suit your situation) will help you to identify and assess any Psychosocial hazards. Consulting with your employer to develop a Prevention Plan for Psychosocial Hazards - OHS Reps can identify controls to protect employees that may have a secondary outcome of reducing risks to the public.
Note also that if the risk issue concerning health and safety arises at a workplace or as a result of the conduct of the employer and the issue concerns work which involves an immediate threat to the health or safety of any person, then under s.74 of the Act HSRs have the power to direct that work cease. An HSR must consult with their employer prior to issuing such a direction but can go ahead with it even if the employer does not agree. We strongly recommend calling your union and WorkSafe for guidance in such a case.
Of course, you can always make a report (anonymously, if you wish) to WorkSafe about such a hazard on 1800 136 089 during work hours or 13 23 60 outside of work hours – you don’t need to be an HSR to do this, or even work at the place where the hazard is occurring. WorkSafe will ask for the address where the hazard is located and some information about what risk it is presenting to people to determine how they may respond.
If you have any questions about OHS we encourage to fill out an Ask Renata query and one of our officials will get back to you shortly. Alternatively give Ask Renatabot a try!