Abbreviations and glossary of terms, Employee representation: A comprehensive guide to Part 7, Occupational Health and Safety Act 2004

Abbreviations

DWG

Designated work group

HSR

Health and safety representative

HSC

Health and safety committee

OHS

Occupational health and safety

PIN

Provisional improvement notice

PINEON

Provisional Improvement Notice Enquiry Outcome Notice

Glossary of terms

For the purpose of WorkSafe's guide, Employee representation: A comprehensive guide to Part 7 of the Occupational Health and Safety Act 2004, terms are given the following meanings:

Access to information

An employer must allow an HSR access to information that the employer has about relevant hazards and the health or safety of people the HSR represents. More information is available in WorkSafe's guidance Obligations of an employer to health and safety representatives.

Agreed procedure

The implementation of procedures for making decisions for any of the following:

1. resolving health and safety issues at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer
2. consulting with employees of the employer on the above
3. monitoring the health of employees of the employer and the conditions at any workplace under the employer's management and control
4. providing information and training to the employees of the employer

Cease work

Work that is 'ceased' is specifically when there is a concern in relation to an immediate threat to health or safety. Employees affected by the direction to cease work should be assigned to suitable alternative work – it does not automatically mean that employees no longer undertake work in the workplace.

Class of independent contractors

A group, type or category of contractors who carry out the same type of work for an employer (for example, electrical, cleaning, administrative or information technology contractors). It might also be a category of independent contractors, for example contractors who will be on site for more than six months.

Coercion

The use of express or implied threats of reprisal or other intimidating behaviour in order to compel a person to act against his or her will that puts a person in immediate fear of the consequences.

Communication to all employees in writing (by the employer in relation to the establishment or variation of a DWG)

A formal statement in writing by the employer setting out all the particulars that have been agreed (or determined by an inspector) in relation to DWGs at the workplace(s) of the employer. This statement is provided to all employees either by letter, or in some workplaces, if all employees have access to and routinely use email, by that means. WorkSafe does not consider that posting a written document on a noticeboard would meet this duty.

Contravention

A breach of a statutory duty or obligation (for example the OHS Act or OHS Regulations).

Cultural and linguistically diverse (CALD) background

Is about those employees working together or sharing the same work environment who may either be born in another country or be part of a family from a country other than Australia, which has diverse value systems, religious beliefs and languages consistent with their country of origin.

Deputy health and safety representative (DHSR)

A person elected to be a deputy to an elected health and safety representative (where DHSRs for a DWG have been agreed to or determined by an inspector). The DHSR has the same initial and refresher training entitlement as the HSR and becomes the HSR and able to exercise all the powers of an HSR, when the HSR is unavailable due to absence or any other reason.

Designated Work Group (DWG)

A grouping of employees who share similar workplace health and safety concerns and conditions.

Election (in relation to HSRs or their deputies)

The process by which a DWG (the electorate) determines who will represent them on OHS matters.

Employee

A person employed under a contract of employment or contract of training (OHS Act section 5). See also the extended definition of an 'employee', (OHS Act section 5A).

Employer

A person who employs one or more persons under contracts of employment or contracts of training (OHS Act section 5). See also the extended definition of an 'employer', (OHS Act section 5A).

Employer and employee (extended definition) – labour hire

A person is taken to be an employer of a worker, and the worker is taken to be an employee of the person, if a provider of labour hire services supplies the worker to, recruits the worker for, or places the worker with the person to perform work for the person (OHS Act section 5A). A labour hire worker is treated as an 'employee' of the host employer for the purposes of the OHS Act.

Health and safety representative

A health and safety representative for a DWG who has been elected and holds office in accordance with Part 7 of the OHS Act.

Host employer

People or organisations who run businesses that use labour hire workers to perform work in their business.

Immediate threat

A situation that is likely to lead immediately or directly to injury or harmful exposure.

Independent contractor

A person who is not directly employed under a contract of employment or training by the principal employer at a workplace, but engaged to provide particular services in return for a fee.

Indictable offence

A serious offence able to be tried before a judge and jury.

Inspector

An inspector appointed under Part 9 of the OHS Act (OHS Act section 5).

Internal review of inspector decisions

Most inspectors' decisions (or non-decisions) can be reviewed and either affirmed, varied or set aside and substituted with another more appropriate decision. An inspector's decision can also be stayed (suspended) while the review is taking place.

For example, an inspector may form an opinion that an activity in a workplace involves a risk to health and safety and issue an improvement notice. The employer may wish to contest the decision and ask for an independent internal review because they believe the activity is safe. Alternatively, an inspector may form an opinion that an activity is safe and take no action. An employee affected by the decision, including an HSR, may wish to contest the decision and ask for an independent internal review because they believe the activity to be unsafe.

The internal review is done by the Internal Review Unit (IRU). The IRU is separate from WorkSafe and decisions made by an Internal Review Officer (IRO) become decisions of WorkSafe Victoria.

More information on the internal review process and how to request a review of an inspector's decision (or non-decision) can be found on the WorkSafe website.

Labour hire provider

Is a business that has an arrangement in place with one or more individuals to supply the individuals to perform work in and as part of a host's business or undertaking and is obliged to pay the individual for the work performed for the host. Under the OHS Act, provider has the same meaning as it has in the Labour Hire Licensing Act 2018.

Labour hire workers

Individuals employed and paid by labour hire providers and supplied to host businesses or organisations on a full-time, part-time or casual basis. Under the OHS Act, worker has the same meaning as it has in the Labour Hire Licensing Act 2018.

Negotiation

A discussion intended to produce an agreement or the activity or business of negotiating an agreement. This means that a position put to one party to elicit comment or feedback would not be a negotiation within the meaning of the OHS Act.

Objects and principles of the OHS Act

The OHS Act contains a statement of its objects; for example, the fundamental matters that the OHS Act seeks to achieve. When seeking to understand the primary outcome a particular section of the OHS Act is intended to deliver, one should have regard to the stated objects of the legislation. The objects of the OHS Act are to:

These objects have regard to the principles of health and safety protection as set out in section 4 of the OHS Act. Refer also to the following information.

It is the intention of the Parliament that in the administration of the OHS Act regard should be had to the principles of health and safety protection. This means that WorkSafe and its inspectors must consider what most effectively advances the achievement of the principles in the OHS Act when making decisions about the application of the law to particular circumstances.

The principles of health and safety protection are:

• secure the health, safety and welfare of employees and other persons at work
• eliminate at the source risks to the health, safety or welfare of employees and other persons at work
• ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons
• provide for the involvement of employees, employers and organisations representing those persons in the formulation and implementation of health, safety and welfare standards
• the importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances
• persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable
• employers and self-employed persons should be proactive and take all reasonably practicable measures to ensure health and safety at workplaces and in the conduct of undertakings
• employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks
• employees are entitled and should be encouraged to be represented in relation to health and safety issues

Person

In general usage, person is used to refer to a natural person; however, under statute law (i.e. the OHS Act) the term person can include an organisation (i.e. the employer), an individual, a body corporate, incorporated body or association, or a partnership.

Plant as defined by the OHS Act includes:

• any machinery, equipment, appliance, implement and tool
• any component of any of those things
• anything fitted, connected or related to any of those things

Principal contractor

If the cost of a construction project is $350,000 or more, the owner is the principal contractor of the workplace where the construction project is to be carried out unless the owner appoints a principal contractor for the construction work performed on their behalf and authorises the principal contractor to manage or control the workplace to the extent necessary to discharge the duties imposed on a principal contractor.

Reasonable grounds

Is based on the principle that a person making the decision possesses a suitable knowledge of OHS and is aware of the inherent safety requirements within their work environments, which:

• were either negotiated and agreed upon by a DWG and the employers, or
• involve a contravention of the OHS Act or OHS Regulations, or
• are a statutory OHS requirement

Reasonable notice

Is considered a period of time within which all stakeholders are provided with sufficient time to receive, examine, understand and be capable of either seeking appropriate counsel and/or providing informed comment.

Reasonable time

Reasonable time varies depending on the circumstances, the issue in the workplace and/or the immediacy of risk, but should not normally be longer than a period of one week for relatively minor matters and two to three weeks for more complex concerns.

Reliable access

That employees have both direct contact (face-to-face) and indirect contact (via email or phone) to an HSR in order to raise any concerns regarding their health and safety, and that they can readily be consulted by the HSR in relation to health and safety matters in the workplace.

Self-employed person

A person, other than an employer, who works for gain or reward other than under a contract of employment or training.

Sufficiently competent

The employer representative has an understanding of the role and powers of HSRs, how the OHS Act and OHS Regulations apply to her/his workplace and is knowledgeable in relation to the operations of the workplace for which the employer representative has responsibility. For more information refer to the publication Employer representative competencies.

Time allowed for HSRs to perform their role

The amount of time necessary for HSRs to perform their role will vary and may depend on what power or entitlement the HSR is exercising. An employer must allow the HSR to carry out their role and to provide such facilities and assistance as is necessary.

Workplace

A place, whether or not in a building or structure, where employees or self-employed persons work. Examples of a workplace can include a ship, car or bus.