Provisional improvement notices (PINs)

Allowing HSRs to issue PINs provides an alternative option to attendance by a WHS inspector. The involvement of HSRs, well informed about the workplace, means the action would be local and immediate.

The entitlement to issue a PIN is simply another 'tool' in the toolkit for HSRs to carry out their existing function. The difference is that this tool is enforceable and typically a WHS inspector will only become involved if there is a dispute or non-compliance with the PIN.

A PIN may be issued if the HSR:

• has attempted to resolve the problem by consulting with the person
• 'reasonably believes' that a person is breaching or has breached a provision of the WHS Act in circumstances that make it likely that the breach will continue or be repeated.

The HSR cannot issue a PIN to a person unless he or she has first consulted the person.

A vital first step that must be undertaken by the HSR is to consult with the person to try and resolve the problem. It may also be appropriate for the HSR to take the matter to the health and safety committee (if established) where the issue may affect multiple areas of the workplace.

Workplace Health and Safety Queensland will consider that consultation has occurred prior to the issue of a PIN if the HSR has:

• verbally or in writing provided information to the person about the contravention and ways to remedy the contravention or likely contravention or the things or operations causing the contravention or likely contravention
• allowed the person an opportunity to express their views and to contribute within a reasonable time to remedy the alleged contravention or resolve the matters or activities causing the alleged contravention
• taken into account the view of the person before issuing the PIN
• advised the person of the outcome of consultation in a timely manner.

Consultation can have occurred even if the relevant person does not respond to the HSR 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.

The HSR cannot issue a PIN in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice for the same matter.

Before a HSR issues a PIN, the HSR needs sufficient evidence to form a 'reasonable belief' of the contravention.

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.

PINs can only be issued by a qualified HSR.

A qualified HSR is a representative who has completed training in the giving of PINs.

HSRs are advised to keep a copy of their Statement of Attendance, issued by the RTO that conducted their training, as evidence they are qualified to issue PINs in relation to their workgroup.

A HSR is only entitled to issue a PIN in respect of a contravention committed that affects the workgroup for which they represent.

The Safe Work Australia website provides information on the powers and duties of HSRs in relation to the issuing of PINs and is outlined in the Worker Representation and Participation Guide.

Delivery of the PIN

The HSR should give the PIN to the person to whom it was issued (i.e. the person who committed the contravention).

However, if the HSR 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:

• be at least 16 years old
• be, or appear to be, in control of the workplace or the work to which the notice relates (it should be given directly to the employer or their representative e.g. a manager or supervisor, rather than to a worker).

See section 209 of the Work Health and Safety Act 2011.

NOTE: If the HSR has a reasonable concern that to carry out the work would present a serious risk to the worker's health and safety, from an immediate or imminent exposure to a hazard, then instead of issuing a PIN to fix the problem other action – such as bringing the matter immediately to the attention of the worker and the PCBU – should be taken.

Examples include:

• risk of falling objects from height
• risk to public from falling objects
• unsafe operation of cranes
• unguarded plant
• working unprotected at heights
• inappropriate removal of asbestos.

A HSR can issue a PIN to any person they reasonably believe is contravening or has contravened a provision of the Work Health and Safety Act 2011 (WHS Act), provided that the alleged contravention to which the PIN relates is a matter that affects, or may affect, the health or safety of workers in the work group represented by the HSR.

The power of the HSR to issue a PIN is not limited to the PCBU who determines the work group that the HSR represents.

A HSR is unable to issue a PIN to a PCBU they reasonably believe is contravening or has contravened a provision of the WHS Act where the alleged contravention does or did not affect the health or safety of workers in their work group.

A PIN must state:

• that the HSR believes the person is contravening, or has contravened, a provision of the WHS Act or regulations in circumstances that make it likely that the contravention will continue or be repeated
• the provision of the WHS Act or regulations that the HSR believes is being, or has been, contravened
• briefly, how the provision is being or has been contravened
• the day (at least four days after the notice is issued) by which the person is required to remedy the contravention or likely contravention.

An HSR may suggest a range of options that they reasonably believe will remedy the situation. Duty holders are not required to implement these options where other measures resulting in the same or better safety outcomes can be applied.

Download Form 44 - Provisional improvement notice (PIN) (PDF, 0.16 MB).

Note: A separate PIN should be completed for each contravention of the WHS Act or Regulation. This is because certain information must be set out for each contravention, including the:

• part of the legislation being contravened (if known)
• reasons for the belief about the contravention
• the date by which to comply with the PIN.

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 contravention.

A PIN must contain all of the required 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 in the notice (e.g. the information in the PIN is inaccurate or incomplete in some way)
• a failure to use the correct name of the person to whom the notice is issued (as long as the notice sufficiently identifies the person).

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 is issued, 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.

The person issued with a PIN must:

• bring it to the attention of everyone whose work is affected by it
• display a copy of it in a prominent place at or near the workplace or part of the workplace where work is being carried out that is affected by the notice
• provide a copy of the PIN and details on its status to the Regulator at WHSnotification@oir.qld.gov.au or by calling 1300 362 128 as soon as practicably possible.

Note: a prominent place 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 97 of the Work Health and Safety Act 2011.

Compliance

The recipient of a PIN must comply with it within the specified timeframe (must be at least four 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 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 HSR of the matter and in some cases the HSR may decide to re-issue a PIN with a new remedy date.

The HSR may change the timeframe for compliance with the PIN with the agreement of the person the PIN was issued to. If the PIN was issued to a worker, the HSR will need to obtain agreement from the PCBU to change the time for compliance.

Review

The person who has been issued with the PIN may request it to be reviewed by a WHS inspector. The review must be requested within three calendar days of the PIN being issued. The PIN will then be suspended until the WHS inspector makes a decision. At the same time the employer should inform the HSR that the PIN has been referred to WHSQ for further investigation.

A review of a PIN enquiry can be requested by contacting the Workplace Health and Safety Infoline on 1300 362 128.

See section 100 of the Work Health and Safety Act 2011.

The WHS inspector will visit the workplace as soon as practicable after the request is made to review the PIN. It would be expected that a WHS inspector will contact the person who made the request within two working days. At that time the inspector will advise the person (e.g. PCBU or HSR) of the proposed visit date.

The WHS inspector must enquire into the circumstances relating to the issuing of the PIN and may either confirm, confirm with changes or cancel the PIN. In doing this, the WHS inspector will give written notice to the HSR who issued the PIN and to the person to whom it was issued in the form of an inspection report, if the WHS inspector attended the workplace. If the WHS inspector resolved the issue by distance and did not attend the workplace, they will advise the parties of the outcome through written correspondence.

The WHS inspector's inspection report or written correspondence will state:

• the inspector's decision
• the reasons for the decision
• that the person may apply within 14 calendar days for the decision to be reviewed
• how the person may apply for the review.

If the WHS inspector confirms the PIN or confirms the PIN with changes, the PIN is taken to be an improvement notice issued by the WHS inspector. The decision of the WHS inspector is also a reviewable decision –this is the same as an improvement or prohibition notice issued by a WHS inspector.

The recipient of a PIN affirmed by a WHS inspector must comply with the PIN. Failure to do so is an offence.

Depending on the circumstances, a WHS inspector may also issue an improvement, prohibition or infringement notice at the same time.

If the HSR 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 HSR should contact Workplace Health and Safety Infoline on 1300 362 128. An inspector will enquire into the circumstances relating to the issue of the PIN, and offence provisions apply if, all other circumstances taken into account, the person has not complied with the PIN.

A PIN remains in force until the matter has been resolved, unless:

• the HSR who issued the PIN cancels the notice in writing to the person (which they may do at any time)
• a WHS inspector has been called to the workplace and cancels the PIN.

See section 92 and 102 of the Work Health and Safety Act 2011.

A person (including a corporation or body corporate), whose interests are affected by a decision made by an inspector (or other person under the WHS Act), can apply for a review of the decision.

You must complete an Application for Internal Review of Decision form. Download Form 17 – Application for internal review of a decision (PDF, 0.27 MB) or phone the Workplace Health and Safety Infoline on 1300 362 128. You must apply for a review of a decision within 14 calendar 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 calendar 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 calendar 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.

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:

• demotion of the worker
• unwarranted transfer of the worker
• reducing the worker's terms and conditions of employment.

An employer is guilty of an offence if they act to the detriment of the worker.

See section 105 of the Work Health and Safety Act 2011.

Where a person considers that a HSR has issued a PIN unreasonably, the HSR can have their entitlement to issue a PIN cancelled or suspended, or be disqualified from being a HSR altogether.

Example, if a qualified HSR issues a PIN to harm an employer rather than to remedy a dangerous work situation.

The person affected by the decision or the regulator may apply to the Queensland Industrial Relations Commission for the disqualification of the representative's entitlement.