From 1 May 2009 workplace health and safety representatives (WHSR) for the first time can issue a Provisional Improvement Notice (PIN) in their own workplace under new Queensland laws.
A Provisional Improvement Notice (PIN) is a tool to improve health and safety in a workplace, encouraging employers and workers to openly discuss health and safety hazards and risks in their workplace. A PIN is a written direction from a workplace health and safety representative (WHSR) to an employer or employer representative requiring them to fix a workplace health and safety problem. A PIN should only be used if agreement to fix the problem cannot be reached through the normal consultation processes.
In late 2008 Workplace Health and Safety Queensland (WHSQ) introduced provisions into the Workplace Health and Safety Act 1995 (PDF, 766 KB) (the Act) to allow elected WHSRs to issue PINs in their area of representation.
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A WHSR is a worker, elected by their co-workers in their area of representation, to represent them in the process of workplace consultation ? fostering cooperation and developing partnerships between the relevant person (e.g. employer, principal contractor) and workers to ensure workplace health and safety.
WHSRs are entitled to carry out inspections and review the circumstances of workplace incidents. They are also entitled to participate in the workplace health and safety committee. A WHSR does not need any experience or special qualifications but is entitled to attend a training course prescribed under the regulation and have all reasonable costs of that course met by the employer. An employer must allow a WHSR to exercise their entitlements during their ordinary working hours.
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Allowing WHSRs to issue PINs provides an alternative option to attendance by a WHSQ inspector. The involvement of WHSRs means the action would be local, immediate and well informed about the workplace.
WHSRs can foster consultation between workers and employers about achieving workplace health and safety at a workplace. They provide a process for employers, principal contractors and workers to identify and resolve issues that affect the workplace health and safety of persons at workplaces.
The entitlement to issue a PIN is simply another 'tool' in the toolkit for WHSRs to carry out their existing function. The difference is that this tool is enforceable and typically a WHSQ inspector will only become involved if there is a dispute or non-compliance with the PIN.
Click on each process within the flowchart diagram below to access more information.
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PINs can only be issued by a qualified workplace health and safety representative (WHSR). A qualified WHSR is a representative who has completed training in the giving of PINs.
Existing WHSRs who have completed 30630QLD Course in Functioning as a Workplace Health and Safety Representative will only be required to complete a standalone PINs training module. New representatives will undertake PINS training through the revised version of 30630QLD that incorporates the standalone PINs training module. Registered Training Organisations (RTO) wishing to deliver the standalone PINS training module should contact Workplace Health and Safety Infoline on 1300 369 915.
WHSRs are advised to keep a copy of their Statement of Attainment issued by the RTO that conducted their training, as evidence they are qualified to issue PINs in the workplace.
See section 81 of the WHS Act.
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A WHSRs 'area of representation' is the workplace, or where there is more than one WHSR, the area negotiated with the WHSR's employer. A WHSR is only entitled to issue a PIN in respect of a contravention committed in their area of representation.
A PIN may be issued if the WHSR:
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Before a WHSR issues a PIN, the WHSR needs sufficient evidence to form a 'reasonable belief' of the breach.
A reasonable belief is formed by making observations, asking questions, taking measurements, accessing records etc and then weighing up that information to make the decision to issue a PIN.
It is important that the problem is clearly and specifically identified when forming a reasonable belief.
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Examples (These examples are indicative and provided as guidance only)
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NOTE: For serious issues that are an immediate threat to the health and safety of any persons (e.g. extreme or major consequences such as death, permanent disablement, toxic release of chemicals, extensive injuries) instead of issuing a PIN to fix the problem, other action should be taken such as bringing the matter immediately to the attention of your employer. If your employer does not take appropriate action, you should contact Workplace Health and Safety Infoline on 1300 369 915.
Examples could include: risk of falling objects from height, risk to public from falling objects, unsafe operation of cranes, unguarded plant, working unprotected at heights, and inappropriate removal of asbestos.
See sections 81B and 81C of the WHS Act.
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Any person who breaches an obligation under the Workplace Health and Safety Act 1995 or breaches a provision of the Workplace Health and Safety Regulation 2008 which affects the health and safety of workers in a WHSRs area of representation can be issued with a PIN.
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A vital first step that must be undertaken by the WHSR is to consult with the person to try and resolve the problem. It may also be appropriate for WHSR to consult with the workplace health and safety officer (WHSO) (if appointed at the workplace) or take the matter to workplace health and safety committee (if established) where the issue may affect multiple parts of the workplace.
Workplace Health and Safety Queensland will consider that consultation has occurred prior to the issue of a PIN if the WHSR has:
Consultation can have occurred even if the relevant person does not respond to the WHSR in a reasonable time or there is no agreement. There does not have to be a two-way exchange, only the opportunity for this to occur. The time period for consultation or degree of consultation required will depend on the circumstances and must be reasonable for the relevant circumstances. An indicative procedure for resolution of an occupational health and safety issue is outlined below.
If, after taking all reasonable steps to fix the problem by consultation, the WHSR still considers that the problem has not be satisfactorily resolved, then the WHSR may issue a PIN requiring the person to fix the breach.
See section 81C of the WHS Act.
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The WHSR should give the PIN to the person to whom it was issued (i.e. the person who committed the breach).
However, if the WHSR cannot give it to the person, they may leave it for them at the workplace to which the PIN relates. The person with whom the PIN is left with must:
See section 81J of the WHS Act.
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A PIN must specify:
A WHSR may also provide directions in the PIN about fixing the problem but is not required to do so. Directions may refer to a code of practice and provide a number of options for correcting the breach. However, a person may decide on other ways to correct the issue. They have no obligation to comply with the measures suggested stated in the PIN.
Download the PIN template (PDF, 69 KB).
See sections 81D and 81E of the Act.
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No. A separate PIN should be completed for each breach of the Act or regulation. This is because certain information must be set out for each breach, including the:
Putting more than one element in each box on a PIN form could make the PIN difficult to understand. It would also leave the PIN open to challenge because it may not be clear which reason, possible remedy and time limit applies to which breach.
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This depends on the type of mistake. A PIN must contain all three points of information outlined above and may be invalid if it does not contain them.
However a PIN is not invalid merely because of:
A formal defect or irregularity does not automatically invalidate the PIN. If the information given is not misleading, does not cause a substantial injustice and sufficiently identifies the person to whom the PIN issued, then the PIN remains valid. However, if the defect or irregularity, when viewed objectively, may mislead the person to whom it is issued, then the PIN will be invalid.
Examples of a defect or irregularity that could mislead the person receiving the PIN and that could cause a substantial injustice include the writing on the PIN being illegible or capable of multiple meanings.
If a WHSQ inspector has been called to a workplace on the basis of the PIN having been issued, they will enquire into the issue that is the subject of the PIN and take whatever action they consider appropriate regardless of the validity of the PIN.
See section 81K of the WHS Act.
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The person issued with a PIN must bring it to the attention of everyone whose work is affected by it. They must also display (if possible) a copy of it in an obvious position in the workplace. Obvious means open display in a place where the notice will be seen without prior knowledge that it is there, and where the relevant people will come across it in the normal course of events and be able to examine it (e.g. on a staff noticeboard, a broadcast email to all staff).
Employers are advised to develop procedures to ensure that any PIN issued to management or supervisory staff is passed on promptly, as it is the employer?s responsibility to deal with the PIN.
See section 81F of the WHS Act.
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The recipient of a PIN must comply with it within the specified time frame (must be at least eight calendar days). Failure to comply with the PIN within the timeframe given is an offence.
WHSQ will consider compliance with a PIN has been achieved where appropriate action has been taken by the relevant person by the remedy date. For example, an employer has received a PIN in relation to risks associated with poor housekeeping in the warehouse. As a result the employer has purchased (and has evidence such as an invoice) a racking system to ensure adequate and safe storage of materials in the warehouse. However, the supplier is unable to supply and install the racking system by the remedy date specified in the PIN. In this case WHSQ would consider appropriate action has been taken by the remedy date to address the issue. At the workplace the employer should inform the WHSR of the matter and in some cases the WHSR may decide to re-issue a PIN with a new remedy date.
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The person who has been issued with the PIN may request it to be reviewed by a WHSQ Inspector. The review must be requested within seven calendar days of the PIN being issued. The PIN will then be suspended until the WHSQ inspector makes a decision. At the same time the employer should inform the WHSR that the PIN has been referred to WHSQ for further investigation.
A review of a PIN enquiry can be requested by completing Form 42 - Request for a PIN enquiry (online or by fax/mail (PDF, 681 kB)).
See sections 81G and 81H of the WHS Act.
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The WHSQ inspector will visit the workplace as soon as practicable after the request is made to review the PIN. It would be expected that a WHSQ inspector will contact the person who made the request within two working days. At that time the inspector will advise the person (e.g. employer or WHSR) of the proposed visit date.
The WHSQ inspector must enquire into the circumstances relating to the issuing of the PIN and may either affirm, modify or cancel the PIN. In doing this, the WHSQ inspector will give written notice to the WHSR who issued the PIN and to the person it was issued to in the form of a PIN enquiry outcome notice. The decision of the WHSQ inspector is also a reviewable decision - this is the same as an improvement or prohibition notice issued by a WHSQ inspector.
The WHSQ inspector's notice will state:
The recipient of a PIN affirmed by a WHSQ inspector must comply with the PIN. Failure to do so is an offence.
Depending on the circumstances, a WHSQ inspector may also issue an improvement, prohibition or infringement notice at the same time.
See sections 81H and 81I of the WHS Act.
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If the WHSR thinks there has been a delay in resolving the problem (e.g. issue has not been fixed by the remedy date) or that the action taken is inadequate, the WHSR should complete Form 42 - Request for a PIN enquiry (Online or by fax/mail (PDF, 681 kB)). An inspector will enquire into the circumstances relating to the issuing of the PIN.
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A PIN remains in force until the matter has been resolved, unless:
See sections 81L of the WHS Act.
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A person (including a corporation or body corporate), whose interests are affected by a decision made by an inspector (or other person under the Act), can apply for a review of the decision.
You must complete the form ?Application for Review of Decision? and lodge the form at a Workplace Health and Safety Queensland district office. Download Form 17 ? Application for review of a decision (PDF, 144kB) or by calling Workplace Health and Safety Infoline on 1300 369 915. You must apply for a review of a decision within 14 days after you are told of the decision. There is no application fee.
After lodging the form written confirmation of your application will be sent to you. Your application will be reviewed within 14 days of being confirmed. A new decision will be made that either confirms or varies the original decision, or sets aside the original decision and makes a decision in its place.
You will receive written confirmation of the result within 14 days after the new decision has been made. This will include the reasons for the decision and explain your rights to appeal against the decision.
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An employer must not dismiss a worker, or otherwise act to the detriment of a worker, for the substantial reason that the worker is, or has performed a function as, a workplace health and safety representative.
Examples of acting to the detriment of a worker include:
An employer is guilty of an offence if they act to the detriment of the worker.
See section 174 of the WHS Act.
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Yes. Where a person considers that a WHSR has issued a PIN unreasonably, the WHSR can have their entitlement to issue a PIN cancelled or suspended. For example, if a qualified WHSR issues a PIN to harm an employer rather than to fix a dangerous work situation.
The relevant person or the Director-General of the Department of Justice and Attorney-General may apply to the Industrial Relations Commission for suspension or cancellation of the representative?s entitlement if they have a reasonable belief that the WHSR has issued a PIN unreasonably.
The Industrial Commission can take action, if satisfied, on the balance of probabilities, that the WHSR has issued a PIN unreasonably. Further information on the processes involved in settling a dispute through the Queensland Industrial Relations Commission.
See Subdivision 4B of the WHS Act
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A quick start to the Workplace Health and Safety Act 1995 (PDF, 127 KB)
PINs and Compliance and Enforcement Policy presentation (PDF, 220kB)
Download PIN template (PDF, 66kB)
Form 42 - Request a PIN enquiry (submit online)
Form 42 - Request a PIN enquiry (submit by fax) (PDF, 681 kB)
Legislation links:
Workplace Health and Safety Act 1995 (PDF, 766 KB)
Workplace Health and Safety Regulation 2008
For more information contact:
Queensland Government
Workplace Health and Safety Infoline 1300 369 915
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© The State of Queensland (Department of Justice and Attorney-General) 2009.
