More and more businesses have health and safety representatives (HSRs) in the workplace. HSRs are appointed by election and have specific powers and functions under the Work Health and Safety Act 2011 (NSW) (the WHS Act), including:
- the ability to investigate complaints from workers relating to health and safety;
- the ability to monitor measures taken by the business to be compliant with the WHS Act; and
- the power to issue a provisional improvement notice (PIN) to a business that they believe has contravened the WHS Act.
Irrespective of their employment type, businesses must allow HSRs time to perform their functions under the WHS Act. HSRs are also entitled to their usual pay when performing those functions. Both obligations are often easily addressed by allowing an HSR time during their usual shift or workday to perform HSR functions.
However, what happens if an HSR proposes to monitor compliance or conduct an investigation outside of their normal work hours? Does the business have any say?
Those questions were recently considered by the Industrial Relations Commission of NSW in .
The following Q&A may help you understand how HSRs can operate in your business:
Can I give the following direction to an HSR: “You’re not to perform your HSR functions outside of your normal work hours”?
No, in accordance with the reasoning in Arnott, the exercise of an HSR’s functions (so long as they are validly performed under the WHS Act) cannot be subject to the discretion of the employer.
But what if that direction is provided in response to an HSR's notice of a proposed out of hours site inspection? Or what if there was another HSR available to perform their functions during normal work hours? The answer remains the same.
Importantly, the requirement for an HSR to give the business “reasonable notice” of an inspection is distinct from a request for permission (or the duty to consult). The requirement to provide notice does not create an opportunity for the business to direct that the inspection does not occur at the date and time proposed by the HSR.
An HSR is empowered to unilaterally decide when to conduct investigations.
Additionally, seeking to restrict an HSR’s exercise of their rights would breach the requirement to allow HSRs to spend such time as is reasonably necessary to carry out their functions and powers. Non-compliance with that requirement attracts financial penalties.
Can I still consult with HSRs about how much time they require to perform their functions?
Yes, and this is best practice. The aim of this consultation is to agree, to the extent possible, on how much time is needed to perform any anticipated task or functions as an HSR. This form of consultation is particularly useful for a business when seeking to support and accommodate the performance of HSR functions and powers
during normal work hours.
Can an HSR choose to perform their functions outside of normal hours?
Yes, provided they are exercising a power or performing functions set out in the WHS Act. However, if they are doing so for an
“improper purpose” they risk being disqualified as an HSR.
Although yet to be tested, an HSR that sought to deliberately schedule their hours with a view to maximise possible compensation (as opposed to properly exercising their powers and functions under the WHS Act), could provide grounds for disqualification.
Can an HSR simply assert they’re performing their functions in order to get paid for additional hours?
There is no general obligation to pay an HSR on every occasion on which an HSR asserts they are exercising their rights and duties. An HSR is only entitled to payment for the time they actually spend for the purposes of exercising their powers or performing their functions under the WHS Act.
How can I be satisfied that an HSR is performing their functions?
It will come down to an assessment of the facts of each particular exercise of the HSR’s powers and functions under the WHS Act.
Understandably, being issued what amounts to an invoice by an HSR may not satisfy the business. Prior to declining payment, the business should make reasonable enquiries to satisfy themselves that an HSR has (or has not) performed their functions as claimed.
For example, if an HSR asserts they spent three hours conducting an inspection on a worksite outside of their normal work hours, ask the following questions:
- What were the health and safety concerns giving rise to the inspection?
- If documents were produced as part of the inspection (eg notes or photographs), can copies be provided?
Both questions are also relevant to the business’ primary duty of care – so should be asked in any event.
If that inquiry reveals an HSR is not performing their functions, the business may argue:
- there is no entitlement to payment; and/or
- the HSR should be disqualified from their position.
Should an argument arise that an HSR is not entitled to pay, businesses should seek legal advice before making a decision to deny payment. It will always be necessary to look at the specific circumstances to determine whether an HSR is merely making assertions (to obtain payment) vs actually performing their functions under the WHS Act.
Can an HSR issue a PIN in relation to the non-payment of HSRs?
Yes.
What should businesses do?
Businesses need to ensure they are complying with their obligations under the WHS Act with respect to HSRs. In doing so, businesses must not conflate the requirement to consult with HSRs in relation to WHS issues, with a discretion to direct HSRs how and when to exercise their powers or perform their functions as an HSR.
If you require assistance in getting your business across the work health and safety law relevant to HSRs, get in touch on 1300 565 846 or email info@ablawyers.com.au.
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