Election of health and safety representatives
Information about the election of health and safety representatives (HSRs).
Division 4 of Part 7, Occupational Health and Safety Act 2004
The Occupational Health and Safety Act 2004 (OHS Act) provides for the election of HSRs and deputy HSRs (DHSRs) to represent the employees in designated work groups (DWGs). Each DWG must have at least one HSR.
HSRs and DHSRs are elected by members of the DWG.
If there is more than one DWG, there needs to be a separate process to elect an HSR in each one. Each DHSR for a DWG should be elected in the same way as an HSR.
HSR election process
It is up to the members of the DWG to determine how an election is to be conducted (if one is required). If the members of the DWG cannot agree on how to conduct the election within a reasonable time, any member can ask WorkSafe to arrange for an inspector to conduct the election. WorkSafe can either arrange an inspector to conduct the election or, if it is more appropriate, the inspector may appoint another person to conduct the election.
The employer's role is to allow and enable the election to take place during ordinary or appropriate working hours (for example, excluding lunch breaks). This may include providing any resources, facilities and assistance that are reasonably necessary to enable the election to be conveniently conducted.
The election process may be informal, for example with a show of hands. Alternatively, it may involve a more formal process, for example, the use of ballots. If a formal process is chosen, ensure the person running the process is impartial and not standing for election. Employees may also choose to ask their union to run the election for them (if there is more than one union representing the members of the DWG, this can be done jointly, by agreement).
Each DHSR for a DWG is elected in the same way as an HSR for the DWG.
Note: An employer must ensure that a written list of each HSR and DHSR for each DWG is prepared and kept up to date.
Example DWG election process
DWG members communicate to agree on a process for the election.
DWG determines who is to conduct the election (for example, DWG itself, employer, union, WorkSafe).
To be eligible for election, a person must be a member of the DWG and must not be disqualified from acting as an HSR.
Ensure all DWG members are given the opportunity to nominate for the position of HSR.
A DWG member may nominate themselves or another member of the DWG to stand for election.
After the nominations have closed an election can be conducted.
Inform all DWG members of the election date as soon as possible.
Ensure all DWG members are given the opportunity to vote in the election in accordance with the agreed process.
If the number of candidates for election as an HSR equals the number of vacancies, the election need not be conducted and each candidate is to be taken to have been elected as an HSR for the DWG.
The election process may be informal, for example, with a show of hands.
Alternatively, it may involve a more formal process, for example, using ballots.
DWG members may also choose to, for example, ask their union to run the election for them (if there is more than one union representing the members of the DWG, this can be done jointly, by agreement).
Ensure all DWG members and the employer are informed of the election outcome, in accordance with the agreed process.
Who is eligible to stand for election?
To be eligible for election, a person must be a member of the DWG and must not be disqualified from acting as an HSR.
DWG members may nominate themselves or another member of the DWG to stand for election as an HSR.
This applies equally to DHSRs.
Can my manager be my HSR?
HSRs represent the health and safety interests of the members of their DWG, not the employer's interests, therefore, it is not recommended that managers and supervisors be an HSR as the HSR role is one of representing the employees, not one of responsibility for meeting workplace health and safety duties.
The OHS Act states that, when negotiating a DWG, the DWG composition should be one that:
- best and most conveniently enables the interests of those employees relating to OHS to be represented and safeguarded
- best takes account of the need for an HSR for the DWG to be accessible to each member of the DWG
WorkSafe encourages workplaces to put in place meaningful representative and consultative arrangements that are consistent with the intent of the OHS Act.
Whilst it is possible under the OHS Act for a manager or supervisor to be an HSR (if they are a member of the DWG, are elected by the DWG members and have not been disqualified from acting as an HSR), having a manager or supervisor as an HSR can create an actual or perceived conflict of interest.
A manager or supervisor who is elected as an HSR could be placed in an awkward or problematic position when, for example, attempting to resolve OHS concerns raised by DWG members, while at the same time, being required to act in their management or supervisory capacity with the responsibility to respond and action OHS concerns on behalf of the employer.
Further, a person nominated by the employer as their representative for the purposes of resolving health and safety issues must not be an HSR. Where an employer has not nominated a representative and that undertaking falls on a manager, then that manager must not be an HSR.
This applies equally to DHSRs.
Example: Conflict of interest arising when a manager is an HSR
A nurse in a small rural hospital experienced an incident of occupational violence and aggression (OVA). His personal duress alarm did not activate as expected. The nurse was able to de-escalate the patient verbally.
The nurse reports the incident to his Nurse Unit Manager (NUM), who is also his HSR, and the following matters are discussed:
- the nurse confirmed that his personal duress alarm was faulty and did not activate when help was required
- the NUM acknowledged that the personal duress alarms used by nurses have previously been reported as faulty and have failed to activate
- the nurse and his NUM disagree on the urgency of the OHS issue and the priority for the need for a functional system. The NUM advises there have been no serious OVA incidents and the current budget does not allow for the personal duress alarms to be fixed, changed or upgraded
Following this discussion, the nurse asked the NUM, in her capacity as HSR, to raise the faulty personal duress alarm system as an agenda item at the next health and safety committee meeting. However, the NUM refuses and again refers to lack of funding.
The nurse then tells the NUM he believes she is making a management decision rather than representing the health and safety issues of the members of the DWG. He believes this is a conflict of interest.
The preferred outcome in this instance is the NUM recognises the conflict of interest in being both the manager and the HSR and resigns as HSR, allowing for the election of a new HSR who will best represent the occupational health and safety interests of the DWG.
Other options for the DWG members are:
Where the NUM has been the HSR for the DWG for more than 12 months:
- If the majority of the members of the DWG resolve in writing that the NUM should no longer represent the DWG, the NUM will cease to hold office as the HSR.
- The DWG can then elect a new HSR that will best represent their interests.
- This option is only available if the NUM has been in the HSR role for at least 12 months.
s.55(2)(d) of the OHS Act - A majority of members of a DWG can resolve (in writing) that their HSR no longer represent them but only after that HSR has been held office for at least 12 months.
More information about when an HSR ceases to hold office is available on this page under the heading Under what circumstances does an HSR cease to hold office?
Where the NUM has been in the role as HSR for the DWG for less than 12 months:
- The DWG members can at any time negotiate a variation of the DWG agreement. Variation of the DWG can include:
- renegotiation of the number of HSRs representing the DWG, and/or
- renegotiation of the manner of grouping and membership of the DWG
More information on DWGs is available in the WorkSafe guidance Designated work groups, under the heading Establishing and negotiating DWGs in workplaces operated by a single employer.
Who can vote in an election?
All members of the DWG are entitled to vote in an election including labour hire workers who meet the extended definition of an 'employee' under section 5A of the OHS Act.
Independent contractors and their employees are not deemed to be members of the single employer DWG even though they may, by agreement, be represented by the HSR of the principal employer. This applies equally to DHSRs.
Are employers able to appoint an HSR?
No.
The role of an HSR is to represent members of their DWG and not the employer. Employees are entitled to determine who is going to represent their health and safety interests and how the election is to be conducted; the employer's role is to allow and enable these elections to take place.
This applies equally to DHSRs.
What if there isn't agreement on how to hold an election?
If the members of the DWG cannot agree on how to conduct the election within a reasonable time, any member can ask WorkSafe to arrange for an inspector to conduct the election. WorkSafe can either arrange an inspector to conduct the election or, if it is more appropriate, the inspector may appoint another person to conduct the election.
What is reasonable time varies depending on the circumstances in the workplace. However, as a guide, WorkSafe considers that two weeks would normally be a reasonable period.
This applies equally to the election of DHSRs.
How long is the term of office for an HSR?
The term of office of each HSR and DHSR (if any) is one of the particulars included in negotiations concerning DWGs; however the term of office of an HSR or DHSR cannot exceed three years.
When their term of office expires after three years, HSRs and DHSRs are eligible to be re-elected.
In choosing the term of office in the DWG negotiations (or in any variation of an agreement), consideration should be given to the need for stability in the representation of the members of the DWG and any other reasons given by those involved in the negotiations.
Under what circumstances does an HSR cease to hold office?
A person ceases to hold office as an HSR for their DWG if:
- the person leaves the DWG (for example, the HSR moves to another section of the workplace covered by a different DWG or ceases to be employed in the workplace)
- the person resigns as the HSR by giving written notice to the employer, or any of the employers, concerned
- the DWG is varied unless, as part of the variation, it is agreed or an inspector determines under section 45 of the OHS Act that the variation is not to affect the remaining term of office of that HSR
- a majority of the members of the DWG resolve (in writing) that the person should no longer represent the DWG (but only if the person has held office for at least 12 months), or
- the person is disqualified by the Magistrates' Court
An offence may be committed if changes are made to an HSRs or DHSRs position in response to the HSR or DHSR exercising their powers under the OHS Act. WorkSafe treats cases of alleged discrimination against an employee seriously and under its compliance and enforcement policy and general prosecution guidelines, will prioritise allegations of discrimination for comprehensive investigation.
This applies equally to DHSRs.
On what grounds can an HSR be disqualified?
An employer may apply to the Magistrates' Court to have an HSR disqualified on the grounds that the HSR has done any of the following intending to cause harm to the employer or the undertaking of the employer (harm may include some type of damage, detriment or loss to either the employer or the business of the employer):
- issued a provisional improvement notice (PIN)
- issued a direction to cease work
- exercised any other powers given to HSRs under the OHS Act, or
- used any information acquired from the employer for a purpose that is not connected with exercising a power as an HSR
If the Magistrates' Court is satisfied grounds exist, it may disqualify an HSR for a specified time or permanently. In making this decision, the Magistrates' Court must take into account what (if any) harm was caused to the employer, the undertaking of the employer, or as a result of the action of the HSR and the past record of the HSR in exercising powers.
Furthermore, an HSR may be disqualified if the Magistrates' Court found the HSR maliciously issues a direction to cease work without reasonable cause which caused harm to the employer due to a loss of production and loss of income.
This applies equally to DHSRs.
Related pages
Information on this page is from the 'Employee representation: A comprehensive guide to Part 7 of the Occupational Health and Safety Act 2004' publication. Find more information from the guide on the main health and safety representatives collection page or download the PDF.