Regulatory guide - Inspector assistance: cessation of work
We publish this regulatory guide to assist the organisations and entities we regulate.
In situations where there is a concern about a serious risk to a worker’s health or safety emanating from an immediate or imminent exposure to a hazard, division 6 of part 5 of the Work Health and Safety Act 2011 (WHS Act) provides that a worker may cease work or refuse to carry out work or that a health and safety representative (HSR) may direct a worker to cease work.
Where an issue arises in relation to cessation of work, section 89 of the WHS Act allows persons involved in the issue to request Comcare to appoint an inspector to assist in resolving it.
Provisions like section 89 have the effect of creating opportunities for inspectors to engage with persons at workplaces. There is no bright line between inspectors’ activities under these provisions and their other functions such as providing information and advice about compliance with the WHS Act or monitoring compliance with the WHS Act.
In the course of engagement with people at workplaces, inspectors should consider and evaluate whether it may be appropriate to undertake other activities within the range of their functions and powers.
1. Concerns about serious risks
Division 6 of part 5 of the WHS Act relates to concerns about a serious risk to a worker’s health or safety emanating from an immediate or imminent exposure to a hazard (‘serious risk’).[1] The language is similar to the definition of ‘dangerous incident’ in section 37, although the specific types of hazard in that section are not listed.
If a worker has a reasonable concern that to carry out certain work would expose the worker to a serious risk, the worker may cease, or refuse to carry out, that work.[2]
In addition, a HSR has the power to direct a worker in their work group to cease work if the HSR has a reasonable concern that to carry out the work would expose the worker to a serious risk.[3] However, unless the risk is so serious and immediate or imminent that it is not reasonable to do so, the HSR must first attempt to resolve the matter by:
- consulting with the relevant person conducting a business or undertaking (PCBU)
- attempting to resolve the matter by means of an issue resolution procedure.[4]
If a worker ceases work, either pursuant to their own concern about a serious risk or pursuant to a direction by a HSR, the worker must remain available to carry out suitable alternative work and the PCBU may direct the worker to carry out alternative work that is safe and appropriate for the worker.[5]
If there is an issue in relation to cessation of work, section 89 provides that the worker, the HSR or the PCBU may ask Comcare to appoint an inspector to assist in resolving the issue.[6]
2. Inspector is appointed and provides assistance
If Comcare is requested to appoint an inspector under section 89, it will appoint an inspector as soon as practicable in light of the precise nature of the dispute and the availability of inspectors given Comcare’s other regulatory activities.
The inspector is not specifically required to attend the workplace to provide assistance on an issue in relation to cessation of work. However, if the issue in dispute is whether there is a serious risk emanating from an immediate or imminent exposure to a hazard, it is very likely that the inspector will attend. In doing so, the inspector will have the option of using the powers that are available upon entry.[7] In such a case, it is likely that inspector will go beyond a facilitation role and will conduct independent inquiries.
An issue may be ‘in relation to’ cessation of work in a broad range of circumstances. It is not necessary that a worker has ceased work or a HSR has issued a direction. For example, a HSR may have identified a risk and be in the process of considering whether it is a serious risk and whether it is appropriate to issue a direction.
This makes section 89 a flexible mechanism for persons at a workplace to bring concerns about workplace risks to Comcare’s attention. It is also always possible for persons at a workplace to express concerns to Comcare without specifically relying on section 89.
References
[1] WHS Act, sections 84–85.
[2] WHS Act, section 84.
[3] In order to exercise this power, the HSR must have completed specified training: WHS Act, section 85(6).
[4] WHS Act, section 85.
[5] WHS Act, sections 86–87.
[6] WHS Act, section 89.
[7] For example, section 165 of the WHS Act gives an inspector general powers such as power to inspect, examine and make inquiries at the workplace; section 171 gives an inspector the power to require a person who has custody of, or access to, a document to produce that document to the inspector; and section 176 gives an inspector the power to seize the workplace or part of the workplace if the inspector reasonably believes there is a hazard that is likely to cause serious injury or illness or a dangerous incident to occur.
