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
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
Investigate complaints from workers regarding WHS matters;
Investigate potential risks concerning the WHS of represented
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
Formation of work groups – the number and
composition of workgroups must be determined. This must be
negotiated with workers.
Nominations – once workgroups and the number
of HSR positions are finalised, employers must notify all employees
that nominations have opened and the closing date.
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
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.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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