Requesting assistance from an inspector

Note

As of 29 July 2024 there are changes to the issue and dispute resolution process, along with the role of the inspector as a result of the Work Health and Safety and Other Legislation Amendment Act 2024.

Under the Work Health and Safety Act 2011 (the WHS Act) certain people at workplaces may request the regulator to appoint an inspector to attend their workplace:

to make a decision on an issue
help in resolving an issue.

Note:

Reasonable efforts must have been made to resolve the issue internally prior to making the request for an inspector to be appointed.

These requests under the WHS Act can only be made by parties to the issue. Parties to an issue are defined as follows:

The person conducting the business or undertaking (PCBU) or the person's representative.
If the issue involves more than one business or undertaking, each PCBU or the person's representative.
If the worker or workers affected by the issue are in a work group, the health and safety representative (HSR) for that work group or his or her representative.
If the worker or workers affected by the issue are not in a work group, the worker or workers or their representative.

A relevant union for a worker affected by the issue can become a party to the issue if the union notifies the PCBU, in writing, that the union wants to be a party to the issue.

A PCBU must ensure that the person's representative (if any) is not a HSR, is an appropriate level of seniority, and is sufficiently competent to act as the person's representative.

Phone 1300 362 128 to request the assistance of an inspector with any of these issues or disputes.

Issues an inspector can decide

Inspectors have a range of powers when appointed to assist with an issue. In some circumstances the inspector has the power to make a decision to resolve the issue in others the inspector may only assist in the resolution through consultation and mediation.

Work groups (single business)

If there is a failure of negotiations concerning an agreement or a variation to an agreement for work group(s) within a single business or undertaking, an inspector can be appointed to assist the parties in resolving the matter. Once appointed, an inspector may make a decision if the parties are not able to reach an agreement within seven days of appointment.

An inspector may decide:

the number and composition of work groups
the number of health and safety representatives and deputy health and safety representatives to be elected
the workplace(s) to which the work group(s) will apply
the business or undertaking to which the work group(s) will apply
anything which is the subject of the proposed variation
that the work group should not be formed
that the agreement should not be varied.

If the request is being made by a person authorised to represent a worker, or group of workers, verbal or written confirmation of the authorisation will be required.

Work groups (multiple businesses)

If there is a failure of negotiations concerning an agreement or a variation to an agreement for work group(s) within multiple businesses or undertakings, an inspector can be appointed to assist with negotiations (i.e. the inspector is not able to make a decision).

If the request is being made by a person authorised to represent a worker, or group of workers, verbal or written confirmation of the authorisation is required.

Health and safety representative (HSR) training

If agreement cannot be reached between the PCBU and the HSR on a matter regarding HSR training, an inspector can be appointed to assist in resolving the matter.

Health and safety committees

A PCBU must establish a health and safety committee as soon as practicable, but no later than 28 days, after the request is made. If a party to the issue reasonably believes that agreement cannot be reached regarding the constitution of a health and safety committee within this 28 days period, the party may request that an inspector be appointed to assist the parties in resolving the matter. Once appointed, an inspector may make a decision on whether the committee should be stablished, or the constitution of the committee, if the parties are not able to reach an agreement within seven days of appointment.

An inspector may also be appointed to decide any matters related to the constitution of committees under repealed legislation which have not been adjusted to comply with the WHS Act.

Provisional improvement notices (PIN)

Within 3 days of a PIN being issued, the person to whom it was issued or the PCBU at the workplace, if the person is a worker, may request an inspector be appointed to review the notice. The operation of the PIN is stayed until the inspector makes a decision on the review. An inspector can review a PIN even if the period for compliance with the notice has expired.

The inspector will review the PIN and will enquire into the circumstances of the PIN. The inspector will either:

confirm the PIN
confirm the PIN with changes
cancel the PIN

A copy of the decision will be given to the person who requested the review and HSR who issued the notice.

The person requesting the review of the PIN will need to provide information confirming that:

the PIN is within the 3 day period after it was issued
the HSR, who issued the PIN, is duly elected under the WHS Act
the health and safety representative has completed PIN training.

Issues an inspector can assist in resolving

People assisting a HSR

If a PCBU refuses access to a workplace to a suitable entity assisting a HSR, the HSR may request that an inspector be appointed to assist in resolving the matter. Confirmation that the request is being made by a HSR and details of the 'reasonable efforts' made to resolve the issue will be required.

A work health and safety issue

If an issue about work, health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue, an inspector may be appointed to attend the workplace to assist in resolving the issue. The parties must first make reasonable efforts to achieve a timely, final and effective resolution of the issue by discussion and the use of an agreed issue resolution procedure. If there is no agreed procedure in place, the parties must make reasonable efforts to resolve to the issue in accordance with the default procedure prescribed under the Work Health and Safety Regulation 2011 before a party may request an inspector be appointed.

Details of the 'reasonable efforts' that have been made to resolve the matter will be required when making a request for an inspector to be appointed.

Work cessation

The HSR, the PCBU, or an affected worker may ask for an inspector to be appointed to assist in resolving an issue in relation to the cessation of work. Confirmation will be required that the PCBU has been informed of the work cessation and that the HSR has been elected and has completed training which entitles him or her to direct work to cease.

Right of entry and workplace access

If a dispute arises about right of entry by a work health and safety entry permit holder, any party to the dispute can ask for an inspector to be appointed to assist in resolving the dispute.

Work groups (multiple businesses)

If there is a failure of negotiations concerning an agreement or a variation to an agreement for work group(s) within multiple businesses or undertakings, an inspector can be appointed to assist with negotiations. If only one business or undertaking is involved, an inspector can make a decision on arrangements.

If the request is being made by a person authorised to represent a worker, or group of workers, verbal or written confirmation of the authorisation is required.