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Contents (2011 - 674)
Work Health and Safety Regulation 2011
Repealed version for 1 July 2017 to 31 August 2017 (accessed 22 November 2017 at 18:08)
Chapter 2
Chapter 2 Representation and participation
Part 2.1 Representation
Division 1 Work groups
16   Negotiations for and determination of work groups
Negotiations for and determination of work groups and variations of work groups must be directed at ensuring that the workers are grouped in a way that:
(a)  most effectively and conveniently enables the interests of the workers, in relation to work health and safety, to be represented, and
(b)  has regard to the need for a health and safety representative for the work group to be readily accessible to each worker in the work group.
Note.
 Under the Act, a work group may be determined for workers at more than 1 workplace (section 51 (3)) or for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces (Subdivision 3 of Division 3 of Part 5 of the Act).
17   Matters to be taken into account in negotiations
For the purposes of sections 52 (6) and 56 (4) of the Act, negotiations for and determination of work groups and variation of agreements concerning work groups must take into account all relevant matters, including the following:
(a)  the number of workers,
(b)  the views of workers in relation to the determination and variation of work groups,
(c)  the nature of each type of work carried out by the workers,
(d)  the number and grouping of workers who carry out the same or similar types of work,
(e)  the areas or places where each type of work is carried out,
(f)  the extent to which any worker must move from place to place while at work,
(g)  the diversity of workers and their work,
(h)  the nature of any hazards at the workplace or workplaces,
(i)  the nature of any risks to health and safety at the workplace or workplaces,
(j)  the nature of the engagement of each worker, for example as an employee or as a contractor,
(k)  the pattern of work carried out by workers, for example whether the work is full-time, part-time, casual or short-term,
(l)  the times at which work is carried out,
(m)  any arrangements at the workplace or workplaces relating to overtime or shift work.
Division 2 Health and safety representatives
18   Procedures for election of health and safety representatives
(1)  This clause sets out minimum procedural requirements for the election of a health and safety representative for a work group for the purposes of section 61 (2) of the Act.
(2)  The person conducting the election must take all reasonable steps to ensure that the following procedures are complied with:
(a)  each person conducting a business or undertaking in which a worker in the work group works is informed of the date on which the election is to be held as soon as practicable after the date is determined,
(b)  all workers in the work group are given an opportunity to:
(i)  nominate for the position of health and safety representative, and
(ii)  vote in the election,
(c)  all workers in the work group and all relevant persons conducting a business or undertaking are informed of the outcome of the election.
19   Person conducting business or undertaking must not delay election
A person conducting a business or undertaking at a workplace must not unreasonably delay the election of a health and safety representative.
Maximum penalty:
(a)  in the case of an individual—$3,600, or
(b)  in the case of a body corporate—$18,000.
20   Removal of health and safety representatives
(1)  For the purposes of section 64 (2) (d) of the Act, the majority of the members of a work group may remove a health and safety representative for the work group if the members sign a written declaration that the health and safety representative should no longer represent the work group.
(2)  A member of the work group nominated by the members who signed the declaration must, as soon as practicable:
(a)  inform the following persons of the removal of the health and safety representative:
(i)  the health and safety representative who has been removed,
(ii)  each person conducting a business or undertaking in which a worker in the work group works, and
(b)  take all reasonable steps to inform all members of the work group of the removal.
(3)  The removal of the health and safety representative takes effect when the persons referred to in subclause (2) (a) and the majority of members of the work group have been informed of the removal.
21   Training for health and safety representatives
(1)  For the purposes of section 72 (1) of the Act, a health and safety representative is entitled to attend the following courses of training in work health and safety:
(a)  an initial course of training of 5 days,
(b)  1 day’s refresher training each year, with the entitlement to the first refresher training commencing 1 year after the initial training.
(2)  In approving a course of training in work health and safety for the purposes of section 72 (1) of the Act, the regulator may have regard to any relevant matters, including:
(a)  the content and quality of the curriculum, including its relevance to the powers and functions of a health and safety representative, and
(b)  the qualifications, knowledge and experience of the person who is to provide the course.
(3)  The regulator may revoke or vary an approval under this clause.
(4)  The regulator may impose conditions on an approval under this clause and may vary those conditions.
Note.
 This clause prescribes courses of training to which a health and safety representative is entitled. In addition to these courses, the health and safety representative and the person conducting the business or undertaking may agree that the representative will attend or receive further training.
Part 2.2 Issue resolution
22   Agreed procedure—minimum requirements
(1)  This clause sets out minimum requirements for an agreed procedure for issue resolution at a workplace.
(2)  The agreed procedure for issue resolution at a workplace must include the steps set out in clause 23.
(3)  A person conducting a business or undertaking at a workplace must ensure that the agreed procedure for issue resolution at the workplace:
(a)  complies with subclause (2), and
(b)  is set out in writing, and
(c)  is communicated to all workers to whom the agreed procedure applies.
Maximum penalty:
(a)  in the case of an individual—$3,600, or
(b)  in the case of a body corporate—$18,000.
23   Default procedure
(1)  This clause sets out the default procedure for issue resolution for the purposes of section 81 (2) of the Act.
(2)  Any party to the issue may commence the procedure by informing each other party:
(a)  that there is an issue to be resolved, and
(b)  the nature and scope of the issue.
(3)  As soon as parties are informed of the issue, all parties must meet or communicate with each other to attempt to resolve the issue.
(4)  The parties must have regard to all relevant matters, including the following:
(a)  the degree and immediacy of risk to workers or other persons affected by the issue,
(b)  the number and location of workers and other persons affected by the issue,
(c)  the measures (both temporary and permanent) that must be implemented to resolve the issue,
(d)  who will be responsible for implementing the resolution measures.
(5)  A party may, in resolving the issue, be assisted or represented by a person nominated by the party.
(6)  If the issue is resolved, details of the issue and its resolution must be set out in a written agreement if any party to the issue requests this.
Note.
 Under the Act, parties to an issue include not only a person conducting a business or undertaking, a worker and a health and safety representative, but also representatives of these persons (see section 80 of the Act).
(7)  If a written agreement is prepared all parties to the issue must be satisfied that the agreement reflects the resolution of the issue.
(8)  A copy of the written agreement must be given to:
(a)  all parties to the issue, and
(b)  if requested, to the health and safety committee for the workplace.
(9)  To avoid doubt, nothing in this procedure prevents a worker from bringing a work health and safety issue to the attention of the worker’s health and safety representative.
Part 2.3 Cessation of unsafe work
24   Continuity of engagement of worker
For the purposes of section 88 of the Act, the prescribed purposes are the assessment of eligibility for, or the calculation of benefits for, any benefit or entitlement associated with the worker’s engagement, including 1 or more of the following:
(a)  remuneration and promotion, as affected by seniority,
(b)  superannuation benefits,
(c)  leave entitlements,
(d)  any entitlement to notice of termination of the engagement.
Part 2.4 Workplace entry by WHS entry permit holders
25   Training requirements for WHS entry permits
(1)  The prescribed training for the purposes of sections 131 and 133 of the Act is training, that is provided or approved by the regulator, in relation to the following:
(a)  the right of entry requirements under Part 7 of the Act,
(b)  the issue resolution requirements under the Act and this Regulation,
(c)  the duties under, and the framework of, the Act and this Regulation,
(d)  the requirements for the management of risks under section 17 of the Act,
(e)  the meaning of reasonably practicable as set out in section 18 of the Act,
(f)  the relationship between the Act and this Regulation and the Fair Work Act and the Industrial Relations Act 1996.
(2)  The training must include providing the participant with information about the availability of any guidance material published by the regulator in relation to the Act and this Regulation.
(3)  For the purpose of approving training, the regulator may have regard to any relevant matters, including:
(a)  the content and quality of the curriculum, including its relevance to the powers and functions of a WHS permit holder, and
(b)  the qualifications, knowledge and experience of the person who is to provide the training.
(4)  The regulator may revoke or vary an approval under this clause.
(5)  The regulator may impose conditions on an approval under this clause and may vary those conditions.
26   Form of WHS entry permit
A WHS entry permit must include the following:
(a)  the section of the Act under which the WHS entry permit is issued,
(b)  the full name of the WHS entry permit holder,
(c)  the name of the union that the WHS entry permit holder represents,
(d)  a statement that the WHS entry permit holder is entitled, while the WHS entry permit is in force, to exercise the rights given to the WHS entry permit holder under the Act,
(e)  the date of issue of the WHS entry permit,
(f)  the expiry date for the WHS entry permit,
(g)  the signature of the WHS entry permit holder,
(h)  any conditions on the WHS entry permit.
27   Notice of entry—general
A notice of entry under Part 7 of the Act must:
(a)  be written, and
(b)  include the following:
(i)  the full name of the WHS entry permit holder,
(ii)  the name of the union that the WHS entry permit holder represents,
(iii)  the section of the Act under which the WHS entry permit holder is entering or proposing to enter the workplace,
(iv)  the name and address of the workplace entered or proposed to be entered,
(v)  the date of entry or proposed entry,
(vi)  the additional information and other matters required under clause 28, 29 or 30 (as applicable).
28   Additional requirements—entry under section 117
A notice of entry under section 119 of the Act in relation to an entry under section 117 must also include the following:
(a)  so far as is practicable, the particulars of the suspected contravention to which the notice relates,
(b)  a declaration stating:
(i)  that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union, and
(ii)  the provision in the union’s rules that entitles the union to represent the industrial interests of that worker, and
(iii)  that the suspected contravention relates to, or affects, that worker.
Note.
 Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.
29   Additional requirements—entry under section 120
A notice of entry under section 120 of the Act in relation to an entry under that section must also include the following:
(a)  so far as is practicable, the particulars of the suspected contravention to which the notice relates,
(b)  a description of the employee records and other documents, or of the classes of records and documents, directly relevant to the suspected contravention, that are proposed to be inspected,
(c)  a declaration stating:
(i)  that the union is entitled to represent the industrial interests of a worker who is a member, or eligible to be a member, of that union, and
(ii)  the provision in the union’s rules that entitles the union to represent the industrial interests of that worker, and
(iii)  that the suspected contravention relates to, or affects, that worker, and
(iv)  that the records and documents proposed to be inspected relate to that contravention.
Note.
 Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.
30   Additional requirements—entry under section 121
A notice of entry under section 122 of the Act in relation to an entry under section 121 must also include a declaration stating:
(a)  that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace proposed to be entered and is a member, or eligible to be a member, of that union, and
(b)  the provision in the union’s rules that entitles the union to represent the industrial interests of that worker.
Note.
 Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.
31   Register of WHS entry permit holders
For the purposes of section 151 of the Act, the authorising authority must publish on its website:
(a)  an up-to-date register of WHS entry permit holders, and
(b)  the date on which the register was last updated.
Note.
 The authorising authority in NSW is the Industrial Relations Commission—see section 4 of the Act.