Australia: Health and safety representatives have no right to tinker with worker classification, IRC rules

Last Updated: 11 September 2019
Article by Michael Selinger

In an important decision delivered last month, the NSW Industrial Relations Commission (IRC) has upheld an employer's discretion to negotiate health and safety representative (HSR) work groups based on a combination of geographical regions and occupational classifications.

What happened?

In Mark Rolph v SafeWork NSW and Anor (2019), the IRC heard proceedings commenced by Mr Mark Rolph who is currently an HSR for Sydney Trains. He sought an external review of a decision made by SafeWork NSW under Section 54 (2) of the Work Health and Safety Act 2011 regarding the formation and organisation of work groups at Sydney Trains. SafeWork NSW had considered and approved the manner in which Sydney Trains had created the work groups.

Background to HSRs at Sydney Trains

Sydney Trains operates in Sydney with more than 1,700 employees in a division called Customer Delivery. Sydney Trains considered two elements in their process to determine work groups. Those were classification of occupational and geographical boundaries.

The three classifications were wage station workers, salaried station workers, and cleaning station workers. There were then 14 geographical boundaries based on 14 electoral areas.

In 2014, the Australia Electoral Commission held elections of HSRs in each of the three work classifications in each of the 14 electoral areas. After the election, the 14 electoral areas were combined to create six geographical boundaries across the network.

Elected HSRs then represented their relevant station workers within one of the six geographical boundaries where their electoral area existed. This resulted in some geographical boundaries having a greater number of HSRs and deputy HSRs than other geographical boundaries. Sydney Trains then implemented a number of vertical forums in which safety issues could be resolved through the input of the HSRs.

The dispute

The key area of dispute between Mr Rolph and Sydney Trains arose in 2018 when Mr Rolph challenged whether geographical boundaries should be imposed, or not, upon the formation of work groups. Mr Rolph was of the opinion that the work groups should only be defined by classification of station workers namely, salaried, wage and cleaning.

Legislation

The legislation relevantly provides that negotiations for and determination of work groups must be directed at ensuring that the workers are grouped in a way that:

  • most effectively and conveniently enables the interest of the workers, in relation to work health and safety, to be represented
  • has regard to the need for a health and safety representative for the work group to be readily accessible to each worker in the work group.

The legislation then sets out a number of relevant, but non-exhaustive factors to take into account; including the number of workers, their views, the nature and the type of work performed by the workers, the area or places where each type of work is carried out, the pattern of work and the nature of risks involved at the particular workplace.

Submissions

The key submission made by Mr Rolph was that the station workers were unique in terms of the dangers they faced due to the mobility of the station staff workforce.

He submitted that nearly half of the workforce operated at varying locations around the network and, unlike the other workers are not based in a regular geographical location.

This position was further compounded by the regular offering of overtime shifts at locations other than the workers' home stations. The concern expressed by Mr Rolph was the potential for workers to be deprived of their right to representation by an HSR, as they would be working outside their nominated work group's geographical boundary.

In response, Sydney Trains contended that the risk profile across the rail network would vary, with each station, or at least each region having its own unique characteristics.

In their view, the more familiar an HSR was with those unique risks, the better they would be able to represent the interests of the workers. This analysis supported work groups being established along geographical as well as occupational lines.

Decision

After careful consideration, the IRC was not persuaded that the geographical boundary proposed by Sydney Trains would reduce the accessibility of workers to an HSR, or detrimentally affect the workers abilities to be represented in relation to WHS issues.

In particular, the IRC noted there was no evidence of any particular or pervasive problems with HSRs not being available to assist employees. The IRC therefore upheld the decision by SafeWork NSW that the proposed system by Sydney Trains remains in place.

Lessons for employers

This decision, although applying to a much larger organisation, indicates that the Court's overriding concern is that the arrangements of work groups and representation by HSRs should ensure that employees can best raise work health and safety laws issues with their representatives and have access to an HSR.

Importantly, it gives an impetus for all organisations to review the effectiveness of their consultation arrangements, including their HSR arrangements.

The decision also comes off the back of the recent review of the work health and safety laws which recommended the simplification of the selection process for HSRs.

This recommendation was due to feedback the review received that indicated difficulties in negotiating work groups and the concerns of small businesses regarding the artificiality in some cases of having multiple work groups.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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