17 May 2012 Health & Safety Representatives: introduction to the workplace

By Warwick Ryan, Partner and Nathan Huynh, Law Clerk

In Brief

Following on from our earlier article regarding the new Work Health and Safety Act 2011 (NSW) (WHS Act), this article addresses the introduction of the Health & Safety Representative ('HSR') and how this impacts employers.

HSR Roles & Functions 

Employers have an express duty to consult workers on WHS issues. HSRs represent workers on WHS issues, reflecting their views and concerns. HSRs have the power to:

  • Monitor actions taken by the employer regarding WHS matters;
  • Investigate complaints from workers regarding WHS matters; and
  • Investigate potential risks concerning the WHS of represented workers.

Upon completing regulator-approved training, HSRs can also:

  • Direct the cessation of unsafe work practices (provided there are reasonable concerns); and
  • Issue 'Provisional Improvement Notices' requiring WHS concerns to be addressed.
Do all workplaces require a HSR?

No. A workplace will only need to appoint HSRs if members of a workgroup request representation by a HSR. Once requested, employers are obliged to facilitate the election of HSRs. Workgroups will generally consist of workers sharing similar WHS conditions and concerns.

Who can be a HSR?

Any worker who is a member of a work group is eligible to be elected as a HSR (unless they are disqualified by a court/tribunal for improper use of power or information). 

Steps involved when electing a HSR
  1. Formation of work groups – the number and composition of workgroups must be determined. This must be negotiated with workers. 
  2. Nominations – once workgroups and the number of HSR positions are finalised, employers must notify all employees that nominations have opened and the closing date. 
  3. Elections – If the number of nominations equals the number of positions vacant all nominees are elected by default. Otherwise an election will be held. Employers are must notify all workers of the outcome as soon as practicable.
Can employers appoint a HSR? 

No. Because it is intended that HSRs act in a representative capacity, only workers may elect and appoint HSRs. Note that HSRs do not replace safety managers and are not personally liable for any action/failure to act done in good faith.

Recently, BHP Billiton Mitsubishi Alliance ('BMA') has been locked in battle with the unions over attempts by BMA to remove the rights of employees to have a representative of their choice. Under the proposed enterprise agreement, safety officer roles traditionally held by union members will become company-appointed positions.

This case highlights the deep concerns that some employers have that unions will use this position as a way to carry out – what amounts to – "unlawful" industrial action; by cloaking it in the rights of HSR under this legislation to shut down a site or part thereof.

What should employers do?

We strongly recommend that employers seek proper advice to ensure that existing procedures and structures meet the new consultation obligations. A failure to do so may lead to non-compliance and owners, directors and senior management may all be subject to severe penalties under the new Act.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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