Referring an issue to the regulator

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.

Discussion and issue resolution procedure

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
  • 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.

A section 82 request to the regulator is made via the application form, 

Regulator’s decision to appoint an inspector

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.

Inspector appointed to resolve the issue

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.

Timeframe to resolve the issue

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.

Right to cease work and health and safety representative powers unaffected

The request to WorkSafe and the inspector’s attendance does not prevent workers or health and safety representatives (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.

Review

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.

Further information

Visit the Work Health and Safety Tribunal website for information on submitting a review request.