In the lead up to harmonisation of work health and safety laws,
many were worried about the provisions included in the Work Health
and Safety Act about health and safety representatives (HSR),
particularly the potential for HSRs to misuse their new powers and
create workplace disruptions.
HSRs now exist in all Australian states and territories. While
Western Australia and Victoria have had HSRs for some time, the
harmonised states have only recently seen their introduction. There
is very little evidence to suggest that HSRs have been abusing
their powers and creating large-scale workplace disruptions as
initially feared by some organisations.
Unfortunately, some managers have over-reacted to the involvement
of their HSRs.
In a recent Federal Court decision, Automotive, Food,
Metals, Engineering, Printing and Kindred Industries Union v Visy
Packaging Pty Ltd (No 4)  FCA 930, substantial fines
were imposed on an employer and manager for taking adverse action
by investigating, suspending and then issuing a final warning on a
The HSR had tagged two forklifts, which he considered to be
unsafe and posed an immediate risk to occupational health and
safety because they had deficient reversing beepers. Temporary
measures were proposed by a number of managers in meetings but they
were rejected by the HSR as he did not consider them to be
After the HSR refused to return the forklifts to service, an
investigation was conducted into his conduct during the meetings
and he was suspended from work. A manager was of the opinion that
the HSR failed to cooperate or engage in reasonable discussion
during the meetings and that he also lied to a WorkSafe Inspector.
Following the investigation, the HSR was issued with a final
The HSR subsequently commenced proceedings against his company
and manager alleging adverse action. During the hearing, the
employer and manager failed to establish that the HSR's refusal
to return the forklifts to service was not a substantial and
operative factor in their decision to investigate, suspend and
issue the final warning. The Court held that the HSR's rights
or duties under the Occupational Health and Safety Act were
workplace rights and that the subsequent conduct of the employer
and manager amounted to adverse action.
The employer was fined $23,100 for conducting the investigation
and $24,750 for issuing the final warning to the HSR. The manager
was also fined $4,620 for suspending the HSR, conducting an
investigation and his part in issuing the final warning.
Lessons for employers
Employers can challenge decisions by HSRs but only if there is a
real and genuine belief that a HSR has acted inappropriately. This
decision demonstrates that rational and measured communication
between employers and HSRs is imperative. Before looking at ways of
reprimanding HSRs, it may be more appropriate to consult with HSRs
and find out why they have concerns and discuss the options to
resolve the issue.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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