Part 7, Division 8 - Resolution of health and safety issues
There are a number of ways to resolve OHS issues. There are a number of questions and a number of steps that must be followed.
The first question to ask is:
'Is there an immediate risk to health or safety in this situation?' and 'Does the nature of the threat and degree of risk mean that it's not appropriate to follow the normal procedures?'
If the answer to these questions is YES, then under Section 74, the rep has the right to STOP THE JOB ('direct that work shall cease') either with or without the agreement of the employer rep. The OHS rep must, however, consult with the employer prior to issuing this direction - see details below.
If the answer is No (there is not an immediate risk) then the rep must follow first attempt to resolve the issue (as per Section 73) and if not resolved, then proceed - see the information below: Non-immediate risk.
Section 73 Resolution of health and safety issues
If an issue comes up, then the rep and the employer or the employer representative must try to agree on how to fix the problem, according to either the agreed workplace procedures - or if there are no agreed procedures, according to the issue resolution requirement under Chapter 2.1 of the consolidated 2007 OHS regulations. There is also advice to reps in the Worksafe publication Employee Representation. [if there is no elected rep then consultation must take place between the employer/employer rep and the employees affected by that issue]
NOTE: if an employer does appoint a representative to act on its behalf for the purposes of resolving ohs issues in the workplace, then the employer must ensure that its representative:
- is not a health and safety representative; and
- has an appropriate level of seniority, and is sufficiently competent, to act as the employer's representative.
WorkSafe has produced a document: Employer Representative Competencies that gives employers advice regarding the appropriate level of seniority and competencies that employer reps should have.
Section 74 Direction to Cease Work
1 - Where the issue concerns work that is a threat to the health or safety of anyone and -
- the threat is immediate; and
- the normal process cannot be followed,
then the employer and the rep for the DWG can by agreement, or if agreement in not reached, either can direct that the work shall cease. (We have developed a form reps can fill in and give to the employer: download here.)
2 - When work has been stopped, the boss can give the workers other suitable work.
Section 75 Inspector may be required to attend workplace
1 - If the issue is not resolved within a reasonable time, or if work has been ordered to stop, then either the rep or the employer can request the attendance of an inspector.
2 & 3 - The inspector must come as soon as possible, enquire into the issue and can take action under this Act to resolve the situation.
4 - If the inspector -
- issues a prohibition notice; or
- thinks there was enough reason to be concerned,
then any workers who did not work must be paid for that time.
NB: WorkCover has a 24 hour Emergency Response Service which can attend any workplace incident that results in fatalities or serious injuries - the phone number is 13 23 60. It has the power to issue prohibition notices to ensure that site safety is secured. It can also be requested to resolve disputed stop-work over health and safety issues.