Establishing and negotiating designated work groups

Division 1 of Part 7, Occupational Health and Safety Act 2004

A DWG is a negotiated and agreed grouping of employees who, for example, perform the same or similar types of work or share similar workplace health and safety interests and conditions. It may consist of:

• employees of an employer at one or more workplaces, or
• employees of multiple employers at one or more workplaces

A DWG is established to form the electorate that may elect health and safety representatives (HSRs). An HSR is a person who has been elected by the members of the DWG to represent them on occupational health and safety (OHS) issues.

Establishing and negotiating DWGs in workplaces operated by a single employer

Division 1 of Part 7

DWGs may be established and negotiated in workplaces operated by a single employer at one location, or at multiple locations, for example, catering companies or businesses with branches.

Who can initiate negotiations for establishing single employer DWGs?

Any employee can initiate negotiations, by asking their employer to establish a DWG. Alternatively, an employer may initiate negotiations with employees to establish a DWG.

After a request is made to establish a DWG, how long does an employer have to start negotiations?

An employer must do everything reasonable to ensure that negotiations start within 14 days after the request.

For example, this might mean organising a meeting and ensuring that all employees are informed of the purpose of the meeting as well as setting a date and time in consultation with employees so that all employees are able to attend.

Note: employers should start negotiations as soon as possible following the request. Penalties can apply to a failure to start negotiations within 14 days after the request is made.

Who can negotiate a DWG?

A DWG can only be negotiated between employees (or their representative) and the employer (or their representative).

Can anyone represent an employee or group of employees?

In negotiations concerning a DWG (including negotiations for a variation of an agreement), an employee or group of employees may be represented by any person authorised by them.

For example, if employees cannot all meet at the same time to negotiate the particulars of the DWG (for example, employees undertake shift work at different times) they can authorise a representative to engage in the negotiation process on their behalf.

An authorised person may be any individual, for example, a member of an employee representative organisation, such as, a trade union official.

In multi-union workplaces where several unions may be representing a number of employees at a single site, there could be a number of representatives, for example, one representative from each union.

Effective communication is vital to ensure that the views of the members are represented accurately to ensure their workplace health, safety and welfare.

Who can represent an employer?

An employer can authorise any person to represent their interests. This could include an official from an industrial association or employer body.

What particulars must be included in the negotiations for DWGs?

Negotiations concerning DWGs must only be directed at:

• how to group employees at one or more workplaces in a manner that best and most conveniently enables the OHS interests of those employees to be represented and safeguarded
• how best to group employees at one or more workplaces so that the HSR is accessible to each member of the group
• the number (which must be at least one) of HSRs for each DWG
• the number of deputy HSRs (DHSRs) (if any) for each DWG
• the term of office (not exceeding three years) of each HSR and DHSR (if any)
• whether the HSRs are authorised to also represent independent contractors, or a class of independent contractors, engaged by the employer and any employees of the independent contractors, who work at a workplace at which members of the designated work group or groups work

Can other particulars form part of a DWG agreement?

No.

The particulars listed in section 44(1) of the Occupational Health and Safety Act 2004 (OHS Act) (stated previously), are the only particulars that can be part of a DWG agreement under Part 7 of the OHS Act.

Note: Although other elements may be agreed too, such elements fall outside the scope of Part 7 of the OHS Act.

What matters must be taken into account when negotiating a DWG?

In determining how best to group employees into DWGs, the most fundamental issue that should be considered is how the grouping affects the health and safety of the employees. An ideal grouping is one that assists in securing the health and safety of employees.

The following matters must be taken into account in negotiations concerning a DWG (including negotiations for variation of an agreement):

• the number of employees at the workplace(s)
• the nature of each type of work performed
• the number and grouping of employees who perform the same or similar types of work or who work under the same or similar working arrangements (for example, working hours, job grade, licence requirements, or employment contract/certified agreement)
• the areas at the workplace(s) where each type of work is performed
• the nature of any hazards
• any overtime or shift work arrangements
• whether other languages are spoken by the employees

Languages other than English

Languages spoken in the workplace must be considered when negotiating DWGs. This is to ensure that the interests of employees from culturally and linguistically diverse (CALD) backgrounds are properly represented. In a multilingual workplace, the parties involved in DWG negotiations should identify the language preferences of employees and endeavour to structure DWGs and their representation (multiple HSRs or DHSRs) to cater for their language needs.

For more information refer to the compliance code Communicating occupational health and safety across languages.

Why do HSRs need to be readily accessible to the DWG?

HSRs are a crucial link between members of the DWG and their employer to ensure that health and safety issues are raised and dealt with in a timely manner and in consultation with employees.

Direct access to an HSR can enable members of a DWG to promptly raise health and safety issues, and enables the HSR to consult readily with the members. WorkSafe considers accessibility to mean both direct contact (for example, face-to-face) and indirect contact (for example, email or phone).

However, it is desirable that there is as much opportunity for face-to-face contact as possible.

Can there be more than one HSR in a DWG?

Yes, but there must be at least one HSR for each DWG.

More than one HSR may be beneficial where, for example, members of a DWG undertake shift work or where there are large numbers of members in a DWG.

Who should employees speak to about a health and safety issue if the DWG has multiple HSRs and DHSRs, and one of the HSRs is absent?

When there is more than one HSR in a DWG, it is important that they jointly clarify how their roles work, for example, in situations when an HSR is absent. The outcome of such discussions should be communicated to everyone in the DWG. This information should be included in any issue resolution procedure.

What happens when the particulars of a DWG are agreed?

When negotiations result in agreement, the employer must establish the DWG or DWGs by giving written notice to the employees. Penalties can apply if an employer fails to give written notice. The notice to the employees should occur as soon as possible.

Employers have a duty to keep records relating to the health and safety of employees.

HSR Tip - As a matter of best practice, keep a copy of the written notice given to employees from the employer.

Examples of DWG negotiations in different circumstances

Can the agreed DWG be varied at any time?

Yes, subject to negotiation and agreement.

Variations to the DWG agreement may be needed if circumstances change or if the arrangements in the agreement are found to be unsatisfactory.

Negotiations for a variation to the DWG agreement occur in the same way as the initial DWG negotiations, however, these negotiations must include the HSR and any DHSRs (refer to previous information).

When the DWG is varied, it can be agreed that the remaining term of office of any existing HSR is unaffected.

If a variation is agreed, the employer must vary the agreement by giving written notice to the employees. Penalties can apply if an employer fails to give written notice. The notice to the employees should occur as soon as possible.

What happens if there isn't agreement on the particulars of a DWG?

Any of the parties involved in the negotiation may ask WorkSafe to arrange for a WorkSafe inspector to assist if agreement has not been reached within a reasonable time.

What is considered reasonable time varies depending on the circumstances in the workplace. However, as a guide, WorkSafe considers that a period of two weeks from the time negotiations begin would be a reasonable period.

The inspector must determine the particulars as set out in section 44(1) of the OHS Act that are unresolved (refer to previous information). An inspector can take into account the views of the parties as well as the matters listed in section 46 of the OHS Act which best and most conveniently promote the objects and principles of health and safety protection under the OHS Act and which best and most conveniently enables the interests of those employees relating to OHS to be represented and safeguarded.

Once the inspector arrives at a decision about the unresolved particulars, written notice must be given by the inspector to the parties and they must give effect to the determination. In other words, the parties are bound by the inspector's decision.

Negotiating a variation to the particulars of a DWG

Can the inspector's determination regarding DWGs be appealed?

Yes.

The OHS Act allows for an inspector's decision to be reviewed by WorkSafe's Internal Review Unit. An employee or employer whose interests are affected by the inspector's decision may apply for review.

If one of the parties then seeks review of the outcome of the internal review decision, they may take the matter to the Victorian Civil and Administrative Tribunal (VCAT).

Can DWGs stand alongside other workplace structures?

Yes.

DWGs can stand alongside other workplace structures, for example, joint consultative committees, workplace advisory committees, enterprise consultative committees and HSCs.

Labour hire workers

Are labour hire workers entitled to be part of establishing a DWG, electing HSRs or to be elected as an HSR at the host employer’s workplace?

Yes, provided that they meet the extended definition of an 'employee' under section 5A of the OHS Act.

Labour hire workers who meet the extended definition of an 'employee' in section 5A of the OHS Act are considered employees, and the host organisation is considered their employer. This means that labour hire workers have the same rights, responsibilities and entitlements as direct employees under the OHS Act, including the same rights to representation under Part 7 of the OHS Act.

Can labour hire workers be represented by more than one HSR?

Yes.

Employees of labour hire providers may negotiate DWGs, elect HSRs and be elected as an HSR with their labour hire provider. In addition, labour hire workers may also negotiate DWGs, elect HSRs and be elected as an HSR at the host employer's workplace.

DWG labour hire case study

Background

A labour hire provider (the provider) placed 15 Vietnamese-born, casual chicken boners (chicken boners) at a poultry processing plant (the host employer). Only one of the 15 chicken boners speaks English.

The 120 direct employees of the host employer are represented by HSRs via a number of DWGs, which reflects work done at the plant.

Issue

During induction, a co-worker mentioned that the chicken boners should establish their own DWG because their job has a number of unique hazards.

When the English-speaking chicken boner asked his supervisor if he could establish a DWG, he was told not to bother as it would be too much trouble.

A few weeks later, one of the chicken boners had a near miss that could have resulted in a severe injury. Concerned, the English-speaking chicken boner contacted the provider to ask what to do.

Next steps

The provider director met with the chicken boners and heard they want to establish a DWG like the direct employees at the plant.

To support them, she arranged a meeting with the host employer's general manager and the chicken boners' supervisor.

The provider director communicated the chicken boners' concerns about a number of hazards specific to their role and that they wanted to establish their own DWG and elect their own HSR to represent their health and safety concerns.

The general manager was also made aware of the previous request to establish a DWG and that the chicken boners had been told it was too much trouble and no negotiations had commenced. The general manager spoke with the supervisor involved regarding their duty under legislation for negotiating and setting up DWGs and to refer any future matters to him directly.

A meeting was arranged between the labour hire provider, the host employer, the direct employees and the chicken boners to review existing DWG arrangements. The direct employees of the poultry processing plant authorised their union to represent them at these negotiations. The 15 chicken boners authorised the English-speaking chicken boner to represent them.

Outcome

The general manager agreed to establish a new DWG within 14 days of the request, given the chicken boners' work was unique. The English speaking chicken boner nominated for the role and was elected by the chicken boners as the HSR for their DWG. The general manager ensured that a translator would be available to attend the site should a matter require attention when the chicken boners' HSR was unavailable. Translated health and safety information was also provided to the chicken boners in Vietnamese.

The general manager consulted with their direct employees and the chicken boners and set up regular meetings and open dialogue on how to report and manage the chicken boners’ unique health and safety workplace hazards. The general manager kept records of health and safety issues discussed in these meetings and coordinated with the provider so they had access to the information.

Independent contractors

Can independent contractors be represented by an HSR for a DWG?

Yes.

In modern workplace structures, employees often work side-by-side with independent contractors and employees of independent contractors.

For example, a contractor may have its employees working alongside the employees of the principal employer – therefore, working in similar conditions, using similar work practices and being exposed to similar hazards and risks. 

The OHS Act allows for the employer and its employees to agree that an HSR for a DWG can represent independent contractors, or a class of them, on health and safety matters in that workplace.

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

In such a case, the most effective way to safeguard the health, safety and welfare of everyone may be for the HSR to represent direct employees, the independent contractors and any employees of the independent contractors.

This is consistent with other sections of the OHS Act. An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer, independent contractors and employees of such independent contractors a working environment that is safe and without risks to health. An employer must, so far as is reasonably practicable, consult with employees of the employer, independent contractors and any employees of such independent contractors on certain matters.

The independent contractors and their employees who are to be represented by the HSR on health and safety matters should be consulted before it is agreed that they will be represented in that way while working in that workplace.

Can independent contractors (and their employees) be part of establishing a DWG or electing HSRs at a principal employer's workplace?

No.

An HSR of a principal employer may represent independent contractors (and their employees) in a DWG, but only the employees of the principal employer can be involved in establishing the DWG and electing HSRs.

Employees of an independent contractor may initiate the establishment of a DWG in relation to their direct employer.

Can an independent contractor (and their employees) be represented by more than one HSR?

Yes.

The OHS Act provides the right for every Victorian employee to be represented on health and safety matters to their direct employer. This means that the employees of contractors may negotiate DWGs and elect HSRs in relation to their interactions on health and safety with their direct employer.

In addition, where contractors and their employees are working in other workplaces, if the workplace parties have agreed, they may also take concerns about health and safety matters to the HSRs in that workplace for representation to the employer at the other workplace who has a duty to ensure the health and safety of every person in that workplace.

Establishing and negotiating DWGs in a multiple employer situation

Division 2 of Part 7

A DWG may consist of employees of more than one employer at one or more workplaces if all the parties agree.

This allows multiple employers and their employees, by agreement, to establish DWGs to cover employees who work for different employers. Negotiations concerning DWGs of multiple employers must only be directed at the particulars outlined in section 48 of the OHS Act. For example, the manner of grouping, into one or more DWGs, employees of an employer with multiple workplaces that best and most conveniently enables the interests of those employees relating to OHS to be represented and safeguarded.

The matters that must be taken into account when determining particulars in DWG negotiations for employees of multiple employers are outlined in section 49 of the OHS Act. These matters are the same as those outlined in relation to negotiations concerning a DWG for employees of a single employer.

What is the purpose of multiple employer DWGs?

Multiple employer DWGs increase the options for workplace representation.

This does not limit arrangements between multiple employers and their employees where health and safety representation arrangements in addition to the OHS Act are preferred by the parties.

The establishment of DWGs for multiple employers does not affect existing DWGs within the businesses of individual employers, and does not prevent the establishment of any other DWGs (single or multiple employer) of the employees concerned. However, to avoid confusion, there should be very clear agreements regarding the roles of HSRs in situations where DWGs overlap and cover the same employees.

In what situations might multiple employer DWGs be suitable?

Multiple employer DWGs may be suitable where there is more than one employer on a single site, many employers on multiple adjacent sites, or multiple employers on multiple diverse sites.

The following examples serve to illustrate these scenarios.

• More than one employer on a single site:
  • Construction sites can have many different employers and different types of hazards and risks that may only exist for a defined period of time because of the dynamic nature of the work.
• Many employers on multiple adjacent sites:
  • Groups of small employers may work close together in areas such as shopping centres or industrial estates. Where it may not be practical for businesses with a small number of employees to form a DWG, it may be possible that the employees of all employers on an industrial estate (with their employers' agreement) could together elect an HSR from amongst themselves. This arrangement enables the cost of training and the provision of facilities to support the HSR in their role to be shared – by agreement – by the employers.
• Multiple employers on multiple diverse sites:
  • An industry, for example, the clothing and textile industry, may have many employers in multiple small workplaces. In other situations, for example, farms or shearing sheds, the workplaces may also be remote. Employees working in these types of workplaces may be best represented by an HSR that is elected from the overall workforce.

Who can request that a multiple employer DWG be established?

The OHS Act does not prescribe who may suggest that a multiple employer DWG be formed. However, the particulars of the DWG may only be negotiated between the employers concerned and their employees (or authorised representative of either party).

Do all the employees have to participate in the negotiations?

Each of the proposed employer parties and their employees must have the opportunity to participate in the negotiations. However, employees and employers (either individually or in a group) may choose to authorise a person to represent them in these negotiations, rather than be directly involved.

What happens if there isn't agreement on the DWGs?

Multiple employer DWGs are to be established by agreement between employers and their employees. If agreement cannot be reached, a DWG covering multiple employers cannot be formed.

There is no provision under the OHS Act for an inspector to determine unresolved particulars about the formation of multiple employer DWGs.

Where any of the parties request assistance in working through the detail involved in establishing a multiple-employer DWG, WorkSafe can provide guidance on the negotiation process which takes into account the manner of grouping that:

• best and most conveniently enables the interest of those employees relating to occupational health and safety to be represented and safeguarded
• best takes account of the need for an HSR to be accessible to each member of the DWG

The initial request should be made through WorkSafe's Advisory Service.

What if one of the employers or their employees decides they no longer want to be part of the multiple employer DWG?

Any party may withdraw from negotiations or an agreement after giving reasonable notice (in writing) to the other parties. WorkSafe considers that reasonable notice in this situation would require giving at least one month's notice.

If a party withdraws from an agreement concerning a DWG, the other parties must negotiate a variation to the agreement in accordance with section 48 of the OHS Act. The withdrawal does not affect the validity of the agreement between the other parties in the meantime.

Independent contractors in multiple employer DWGs

In line with the principle stated in the OHS Act that representation is an entitlement and should be encouraged, the legislation provides for greater flexibility in representation arrangements.

An independent contractor, who is also an employer, can participate with their direct employees in negotiations for a multiple employer DWG, along with any other employers and their employees. In such a case, the employees of the independent contractor become members of the DWG and can participate in an election of an HSR for that DWG.

Prohibition on coercion

Division 3 of Part 7

The OHS Act prohibits coercion of a person when they are attempting to establish or negotiate DWGs, vary DWG agreements and in relation to representation in negotiations. Coercion is a serious offence; significant penalties apply to breaches of this provision.

The intent is to ensure that negotiations and the resulting arrangements are consensual and that the OHS Act is not abused by any person to force or attempt to force a particular outcome.

It is an offence under the OHS Act to, for example:

• pressure someone not to make a request to establish a DWG
• pressure someone to withdraw a request for establishing a DWG
• intimidate someone in the negotiations concerning a DWG
• intimidate someone into not being represented in DWG negotiations, or
• intimidate someone into being represented by a particular person

WorkSafe treats any allegation of coercion (including any attempt to coerce) seriously and, under its Compliance and Enforcement policy and General Prosecution Guidelines, will prioritise allegations of coercion for comprehensive investigation.