If a pcbu cannot resolve a whs issue with his or her workers, what party may the regulator appoint?

If an issue about health and safety arises at a workplace, it is required in the first instance that the parties make reasonable efforts to attempt to resolve the matter, under Issue resolution—part 5, division 5, of the Work Health and Safety Act 2020 (WHS Act). The parties must discuss the matter and then go through an issue resolution procedure to attempt to resolve the issue.

If the parties have failed to resolve the issue after going through an issue resolution procedure, section 82 of the WHS Act allows any party to the issue to request the regulator to appoint an inspector to make a decision resolving the issue. Before doing so, you are encouraged to contact WorkSafe to discuss the consultation you have undertaken so far, and other options available to resolve the issue. 

In the course of engagement with persons at workplaces, inspectors will also consider whether it is appropriate to undertake other activities within the range of their functions and powers.

If an issue about health and safety arises at a workplace, the parties to the issue are required to discuss the matter and attempt to resolve it. The relevant parties are:

• any person conducting a business or undertaking (PCBU) that is involved in the issue;
• any representative of the PCBU in relation to the issue;
• any worker affected by the issue;
• any representative of a worker or workers affected by the issue.

If the matter is not resolved after discussion, the parties must engage in an issue resolution procedure, making reasonable efforts to achieve a timely, final and effective resolution of the issue (Section 81).

Part 2.2 of the Work Health and Safety (General) Regulations 2022 and the Work Health and Safety (Mines) Regulations 2022 and Part 1, Division 3 of the Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations 2022 (‘WHS Regulations’) provide the minimum requirements for an issue resolution procedure. This applies by default unless a written agreed procedure (which includes at least all the steps in the default procedure) is in place. Under the default procedure:

• any party to the issue may commence the issue resolution procedure by telling each other party:
  • that there is an issue to be resolved and
  • the nature and scope of the issue
• as soon as parties are told of the issue, all parties must meet or communicate with each other to attempt to resolve the issue
• the parties must have regard to all relevant matters, including:
  • the degree and immediacy of risk to workers or other persons affected by the issue
  • the number and location of workers and other persons affected by the issue
  • the measures (both temporary and permanent) that must be implemented to resolve the issue
  • who will be responsible for implementing the resolution measures.

If the parties have made reasonable efforts but have not been able to achieve an effective resolution of the issue, Section 82 provides that any party may ask the regulator to appoint an inspector to make a decision resolving the issue.

In making a section 82 request to the regulator, please ensure that you detail the specific issues that are unresolved, your preferred outcome on each issue, and outline the consultation that has occurred (for example, meetings or correspondence). 

If the regulator is requested to appoint an inspector under section 82, it will generally appoint an inspector as soon as practicable.

The regulator may refuse to appoint an inspector if not satisfied that there have been reasonable efforts made to resolve the issue at the workplace, under Section 82(5) of the WHS Act.

In such cases, the parties will be advised to make further efforts to resolve the issue, in accordance with the WHS Regulations.

The inspector will first confirm the nature and scope of the issue and the efforts the parties have already made to resolve it. The inspector will facilitate further discussions between the parties as to any risks to work health and safety and what measures might be available to eliminate or minimise the risks.

Under Section 82, the inspector is not specifically required to attend the workplace. The inspector will attend the workplace, where practicable, where this will assist in assessing and/or resolving the issue that has been raised.

Depending on the nature of the risks that are the subject matter of the issue between the parties, the inspector may go beyond a facilitation role and pursue independent inquiries.

Where practicable, the inspector will make a decision resolving the issue within two days of the request. Where this is not practicable, for example due to the complexity of the issue, the remote location of the workplace, or the need to liaise with numerous parties, the regulator will apply to the Tribunal for additional time to resolve the issue.

The request to WorkSafe and the inspector’s attendance does not prevent workers or HSRs from exercising other rights or powers, such as:

• a worker’s right to cease work
• a HSR’s power to issue a provisional improvement notice
• a HSR’s power to issue a direction to cease work.

Part 12 of the WHS Act provides that certain decisions made under the Act are reviewable. These include decisions made under Section 82(3) or 82(5) (decision resolving issue or refusal of request to appoint inspector to resolve issue).

Persons eligible to request a review include:

• A worker whose interests are affected by the decision
• A person conducting a business or undertaking whose interests are affected by the decision
• A health and safety representative who represents a worker whose interests are affected by the decision
• A union, provided 1 or more eligible persons in relation to the reviewable decision were members of the union when the decision was made.

For: Employers and managers Information seekers

A ‘person conducting a business or undertaking’ (PCBU), who is usually the employer, has the primary duty of care under the Work Health and Safety Act 2011 (WHS Act) to ensure the health and safety of workers and others at the workplace, so far as is reasonably practicable.

The term ‘person conducting a business or undertaking’ (PCBU) captures all types of working arrangements or structures. A PCBU can be a company, an unincorporated body or association, a sole trader or self-employed person. Persons who are in a partnership that is conducting a business or undertaking will individually and collectively be a PCBU.

The term PCBU relates to an organisation or person who is more commonly known as ‘the employer’. A person who is engaged solely as a worker or an officer in a business or undertaking is not a PCBU.

In some cases, there will be multiple PCBUs involved in work at the same workplace who will share duties under work health and safety laws in relation to the same matter. For example, a principal contractor and sub-contractors at a construction site.

PCBUs under the WHS Act

PCBUs within the scope of the WHS Act include the Commonwealth, Commonwealth public authorities and certain corporations that are licensed for self-insurance under the Safety Rehabilitation and Compensation Act 1988 (SRC Act).

The Commonwealth and public authorities are generally represented by Commonwealth agencies, bodies corporate and companies that are responsible for conducting government businesses and undertakings, controlling government activities, and managing and controlling Commonwealth workplaces.

A list of current and former self-insured licensees is maintained on the Safety, Rehabilitation and Compensation Commission website.

A PCBU that is not the Commonwealth, a public authority or a self-insured licensee can also be covered by the Commonwealth WHS Act. This can arise in many situations, including as a PCBU that:

• manages or controls a workplaces
• manages or controls fixtures, fittings, or plant at workplaces
• designs, manufactures, imports, or supplies plant, substances, or structures
• installs, constructs or commissions plant or structures.

For more information about PCBUs and their duties see our Regulatory Guides regarding:

• Primary duty of care
• Other Duties of PCBUs.

The primary duty of care requires PCBUs to ensure, so far as is reasonably practicable, the:

• provision and maintenance of a safe work environment
• provision and maintenance of safe plant and structures
• provision and maintenance of safe systems of work
• safe use, handling and storage of plant, structures, and substances
• provision of accessible and adequate facilities (for example access to washrooms, lockers, and dining areas)
• provision of any instruction, training, information, and supervision
• monitoring of workers health and conditions at the workplace and
• maintenance of any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises.

Definition of 'reasonably practicable'

‘Reasonably practicable’ is defined in the WHS Act as that which is, or was at a particular time, reasonably able to be done taking into account and weighing up all relevant matters including:

• the likelihood of the hazard or risk occurring
• the degree of harm that might result
• what the duty holder knows or ought to reasonably know about the hazard or risk and ways of eliminating or minimising the risk
• the availability and suitability of ways to eliminate or minimise the risk
• the cost of the available ways, including whether the cost is grossly disproportionate to the risk.

For more information, see Safe Work Australia's guide on how to determine what is reasonably practicable to meet a health and safety duty.

Primary duty of care towards workers and other persons

The PCBU must ensure, so far as is reasonably practicable, the health and safety of workers who are engaged or caused to be engaged by the PCBU and of any workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are at work in the business or undertaking.

‘Worker’ is defined in the WHS Act as a person who carries out work in any capacity for a PCBU, including work as an employee, contractor, subcontractor, labour hire worker, outworker (for example, home based), apprentice, trainee, work experience student or volunteer.

The PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. Other persons can include customers, clients, delivery persons, visitors, and members of the public.

For more information, see our Regulatory Guide - Primary Duty of Care.

Exercising due diligence

The PCBU’s officers have a duty under the WHS Act to exercise due diligence  to ensure that the PCBU complies with the duties it has under the WHS Act.

For more information, see our Senior Managers and Executives guidance.

Duty of care for psychological health

The WHS Act defines ‘health’ as including both physical and psychological health. A PCBU must therefore ensure, so far as is reasonably practicable, that workers and other persons are not exposed to risks to their psychological health at work or from work carried out as part of the conduct of the business or undertaking.

The PCBU must implement control measures for psychosocial hazards related to job characteristics, design and management, and the working environment and equipment. These can include:

• high or low job demands
• low job control
• poor support
• traumatic events or material
• remote or isolated work
• lack of role clarity
• poor organisational change management
• inadequate recognition
• poor organisational justice
• poor environmental conditions

The PCBU must also implement control measures for psychosocial hazards related to harmful behaviours. These can include:

• violence and aggression
• bullying
• harassment including sexual harassment or gender-based harassment
• conflict or poor workplace relationships and interactions

For guidance, refer to the Model Code of Practice: Managing psychosocial hazards at work.

Notify the regulator

PCBUs have a duty to notify Comcare of notifiable incidents.

A PCBU must notify the regulator, by the fastest possible means as soon as they become aware of a notifiable incident.

The PCBU must ensure workers are aware of:

• the need for them to report incidents according to internal policies and procedures
• the PCBU’s obligations to immediately notify the regulator of deaths, serious injuries and illnesses, and certain dangerous incidents that arise out of work or in relation to a workplace
• the obligation of the person with management or control of the workplace to preserve the incident site and not disturb it until a Comcare inspector attends the site or advises otherwise.

Consultation and communication

A safe workplace is more easily achieved when everyone involved in the work communicates with each other to identify hazards and risks, talks about health and safety concerns, and works together to find solutions. This includes cooperation between duty holders, the people who manage or control the work and those who carry out the work or who are affected by the work.

Consultation is a legal requirement under the Work Health and Safety Act 2011 (WHS Act) and an essential part of managing health and safety risks.

PCBUs must promote and foster open lines of communication and consultation about health and safety across the organisation. This can be achieved by:

• creating and nurturing joint partnerships with:
  • workplace work groups and representatives
  • health and safety representatives
  • other relevant PCBUs
• ensuring effective consultation processes are built into the business through its systems, policies and procedures
• engaging with senior managers and workers by being visible and open to feedback and ideas.

When consultation is required

The WHS Act identifies specific matters that trigger the need for consultation. These include when:

• identifying hazards and assessing risks arising from work
• making decisions about ways to eliminate or minimise those risks
• making decisions about the adequacy of facilities for the welfare of workers
• proposing changes that may affect the health or safety of workers
• making decisions about the procedures for resolving health or safety issues
• monitoring the health of workers or workplace conditions, information and training or consultation with workers.

It may also be necessary to consult workers about matters that are not listed above, for example when conducting investigations into incidents or ‘near misses’.

For more information see the approved Work Health and Safety Consultation, Co-operation and Coordination Code of Practice 2015.

Ensure authorisations are in place

A PCBU has the overall duty to ensure that any licences, registrations and authorisations required for high risk work or plant are in place before any work or plant commences.

Authorisations are required for activities that are of such high risk that they require demonstrated competency or a specific standard of safety.

Manage a HSR listing

PCBUs are required to:

• have an up-to-date list of HSRs and Deputy HSRs (if any) for each work group and display this list in the workplace
• submit this list and any changes to Comcare—email the list and updates to .

Set up work health and safety committees

Under the WHS Act a health and safety committee brings together workers and management to develop and review health and safety policies and procedures for the workplace.

Where a health and safety representative (HSR), or five or more workers, at a workplace request the creation of a health and safety committee, the PCBU must create one within two months of the request.

A PCBU may create a health and safety committee at any time.

For more information, see:

Support work health and safety entry permit holders

The WHS Act allows for union officials who have completed an approved training course to apply for a work health and safety entry permit.

Work health and safety entry permit holders are entitled to enter workplaces and exercise certain rights, including to inspect things and talk to workers, while at the workplace.

A person must not, without reasonable excuse:

• refuse or unduly delay a permit holder’s entry to a workplace under the WHS Act, or
• intentionally and unreasonably obstruct them from exercising any rights under the WHS Act.

Manage contractors

When a PCBU contracts other people or businesses to do work for it, such as contracting workers, cleaning and maintenance, or consultants, the PCBU won’t necessarily have the sole responsibility for health and safety requirements.

The person a PCBU contracts has responsibilities as a worker and may be a PCBU in their own right, with responsibilities to not put workers and others at risk from the work they do.

This is termed shared duties and both PCBUs need to ensure they consult, cooperate and coordinate the activities they undertake.

For more information about managing contractors, including strategies and practical examples, see:

Efficiently managing work health and safety risks in the workplace involves:

Governance - effective and relevant policies and procedures

A PCBU needs to develop and embed organisational work health and safety policies and procedures that clearly define and articulate:

• roles and responsibilities in the workplace relating to work health and safety
• consultation and communication processes and practices
• safe work practices and expectations
• work health and safety reporting requirements.

Prevention

The first step to achieving a culture with a focus on prevention is to ensure that there is commitment to compliance with work health and safety legislation. This includes preventing harm and injury at work by identifying and eliminating hazards and the risks they pose before they enter the workplace.

Workers should be encouraged to identify and report hazards and risks as well as unsafe work practices or work environments.

PCBUs should include policies and procedures that directly relate to the work being performed and should adopt a reasonably foreseeable approach to the management of risk

Response

If a health and safety incident occurs, a PCBU must use a reasonably practicable approach to remove the hazard that caused it, and implement changes to stop it from happening again.

Information relating to incident investigation, notification requirements, emergency preparedness and response (including first aid) should be included in any relevant policies and procedures and communicated effectively to all workers.

Managing hazards

An effective risk and hazard management policy enables PCBUs to identify hazards before they cause injury or illness.

The policy should outline the process for identifying hazards including the risk, any control measures and resources needed to manage specific hazards.

Recovery

PCBUs should ensure that they have processes in place that promote early intervention and rehabilitation for workers with a work-related injury or illness.

Build a strong health and safety culture

A strong health and safety culture can support a stable workforce, promote low absenteeism and help reduce compensation costs.

Strategies to build a strong health and safety culture include:

Focus on innovation

Compliance with legislative requirements is a great foundation but it does not lead to performance improvement alone. Encourage an environment of innovation in health and safety and share successes across the organisation.

Engage employees in a collaborative conversation and develop resilient cultures

Providing employees with an understanding of work practices and the need for change will lead to significantly better work health and safety outcomes, such as more effective management of hazards and risks.

Improve work health and safety skills and knowledge

Education around health and safety should cover a broad-based curriculum including:

• business strategy
• change management
• influencing
• safe working behaviour
• technical work health and safety components.

Upgrade data quality and availability

This will enable insightful decision-making at strategic and operational levels.

Create learning forums for business leaders

These forums should focus on health and safety strategy and topics such as:

• safe behaviour
• culture change
• change management
• innovation and transformation.

Support technology development

Support or implement new technologies that can effectively reduce and eliminate risks and hazards within the workplace.

Support research

Support research to understand best practice at a global level and how these practices might best be applied in the Australian context. For example, how people see and understand risk and what drives appropriate safety behaviours.

For more information, see:

Ensure effective leadership style and attitude

Management attitude, behaviour and style can have a very powerful effect on workforce health and safety. Specific qualities and attributes that signal leadership commitment and contribute to a good health and safety culture include:

Trust

Interpersonal trust between management and workers is important for many organisational variables such as quality of communication, performance and co-operation.

Communication style

Frequent and informal communications between workers and management on safety issues is critical for improved performance. These behaviours demonstrate a manager’s concern for safety and provide opportunities for early recognition of hazards.

Involvement

Management commitment and involvement in safety programs is associated with good safety performance. Involvement includes making a personal contribution to work health and safety consultation and frequent contact between workers, management and supervisors.

Inclusive management

People work more safely when they are involved in the decision-making process, have specific and reasonable responsibilities and have immediate feedback about their work.

Management styles characterised by openness and encouragement of worker participation are likely to be the most effective in promoting a positive safety culture.

Locus of control

The degree that control over work organisation and task structure is centralised is an important consideration in the culture of safety, with greater decentralisation making for better health and safety outcomes.

Investment in work health and safety promotion

Better health promotion and work health and safety programs have also been found to improve worker health directly and to ‘immunise’ against workplace injury.

Investment in these areas has been found to foster perceptions of organisational commitment and build worker loyalty in areas such as safety behaviour. This may be because these programs are seen by workers as evidence of management’s concern for their wellbeing.

For more information about the training we offer, see Training and learning.

Page last reviewed: 15 September 2022