Representation of employees

Designated work groups

Establishment of designated work groups (single employer) (section 43–46)

Any employee or group of employees may ask their employer to establish or vary a designated work group (DWG) of employees at one or more of the employer’s workplaces. The employer must do everything reasonable to ensure that negotiations start within 14 days. An employer may also start negotiations with employees to establish a DWG.

Negotiations about DWGs must only deal with:

• how to group employees at one or more workplaces into one or more DWGs in a way that best allows for their OHS interests to be represented and protected and gives group members access to an HSR
• the number of HSRs and deputy HSRs for each DWG. There must be at least 1 HSR per DWG
• the term of office of each HSR and deputy HSR, which must not exceed 3 years, and
• whether HSRs will represent independent contractors and their employees.

The negotiations, and any inspectors’ decisions about them, must consider:

• the number of employees at the workplace
• the nature of the work
• the number and grouping of employees that do the same or similar work and the areas they work in
• the nature of hazards
• overtime or shiftwork arrangements
• the languages spoken at the workplace.

If parties cannot agree about DWGs, either party can ask WorkSafe to provide an inspector to decide on the particulars in writing. The parties must comply with the inspector’s decision, or one party may seek a review of the decision under section 127 of the OHS Act.

An employee or group of employees may authorise any person to represent them at these negotiations.

Once agreed, the employer must establish the DWG as agreed by giving written notice to employees. Either party can ask to vary the agreement at any time. If an agreement is varied, the employer must notify employees about the variations in writing.

Employers must also update the HSR list with the altered DWG structure and display it in the workplace or have it accessible to all employees of the employer (section 71).

It is an offence not to comply with these sections and penalties apply.

Designated work groups for multiple employers (section 47–52)

DWGs can also represent employees of more than one employer. In these cases, negotiations about DWGs must involve each employer and their employees.

Negotiations to create one or more DWGs for multiple employers must focus on the same factors considered for DWGs for a single employer. Once agreed, employers must create each DWG as agreed by giving written notice to employees. Any party can ask to vary the DWG. If an agreement is varied, the employers must notify employees about the variations in writing.

Any parties in a DWG agreement with multiple employers, or who are in the negotiation stage may withdraw at any time by giving reasonable notice in writing. If a party does withdraw:

• the other parties must negotiate a variation to the agreement
• the withdrawal does not affect the validity of the agreement between the other parties in the meantime.

It is an offence not to comply with these sections and penalties apply.

Prohibition of coercion in relation to DWGs (section 53)

It is an offence for a person to try to force or coerce someone:

• not to make, or to withdraw, a request for a DWG
• during negotiations about DWGs including variations to an agreement
• about being represented in negotiations about DWGs.

Health and safety representatives (HSRs)

Election of HSRs (sections 54-55)

The members of each DWG elect the HSR for the group. All DWG members can vote in a HSR election. To be eligible for election as a HSR, a person must be a member of the DWG and not disqualified from acting as a HSR.

Members of the DWG may decide how to conduct a HSR election. But it must follow any procedures (if any) set out in the regulations. If members of the DWG cannot agree, a member can ask WorkSafe to conduct the HSR election or appoint someone to do so.

If the number of candidates for the election as HSRs equals the number of vacancies, then the candidates are elected unopposed.

The term of office for a HSR cannot exceed 3 years from when the HSR was elected. They cease holding office at 3 years, or if:

• they cease to be a member of the DWG
• the Magistrates’ Court disqualifies them from being an HSR
• they resign as a HSR
• after the HSR has held office for 12 months or more, most DWG group members decide that the person should no longer represent them
• the DWG is varied, unless the variation is agreed, or an inspector decides that the variation does not affect the remaining term of office of the HSR (section 45).

HSRs can be re-elected.

Deputy HSRs (section 57)

The provisions of the OHS Act for election, term of office, training and disqualifying deputy HSRs are the same as for HSRs.

If a HSR ceases to hold office or is unable to use powers (for example, because they are away), the deputy HSR may use those powers.

HSR training (sections 67–68)

Employers must, if requested, allow HSRs and deputy HSRs to attend an initial course in OHS after their election and refresher courses at least once a year for as long as they hold office. Training requests must be made at least 14 days before the training starts.

The employer must pay for the course and related costs. They must give the HSR and deputy HSRs paid time off work to attend the course. If the HSR’s DWG includes employees of multiple employers, those employers must share the costs.

Courses must be approved or conducted by WorkSafe, be relevant to the DWG’s work or the HSR’s role and agreed in consultation with the employer. See the WorkSafe website for approved provider list.

If the employer and HSR do not agree on a course or the employer refuses to allow the HSR to attend, the HSR can ask WorkSafe to choose a course, which starts no less than 14 days after the decision. It is an offence to refuse to allow a HSR attend a course chosen by WorkSafe.

Obligations of employers to HSRs (sections 69–71)

Employers must allow HSRs to access information about real or potential hazards, and the health and safety of group members and other represented people (for example, independent contractors) who the HSR represents. Any medical information must be non-identifying, unless it is released with the member’s consent.

If the represented person agrees, employers must allow HSRs attend interviews about OHS between anyone they represent and an inspector or employer.

Employers must allow HSRs paid time off work to use their powers or to do training. They must also offer any other facilities and support needed to allow HSRs use their powers.

Employers must also give workplace access to any person helping the HSR. An employer may only refuse entry to the person helping an HSR if they lack knowledge about OHS. If the employer refuses access to the person, the HSR may ask the Magistrates’ Court to make an access order.

Employers must keep a written, up-to-date list of HSRs and deputy HSRs for each DWG. That list must be displayed at each workplace or readily accessible to employees in another way.

It is an offence not to comply with these sections and penalties apply.

HSR powers (sections 58-59)

The OHS Act does not impose any function or duty on a HSR. However, a HSR for a DWG may:

• inspect any part of a workplace that a member of their DWG works, on reasonable notice to the employer, or without delay if there is an incident or immediate risk to health or safety
• go with an inspector during a workplace inspection involving their DWG
• take photos and measurements, or make sketches and recordings, other than during an interview with an inspector
• require a health and safety committee to be set up
• attend interviews on health or safety matters between a member of the DWG and an inspector or employer if that person consents
• go to interviews about health and safety matters between an independent contractor and an inspector or employer, if the HSR is authorised to represent that person and they consent
• seek the help of any person when necessary.

The powers may only be used to:

• represent members in relation to OHS
• monitor compliance with the OHS Act and regulations
• look into real or potential risks to members of the DWG or other represented people
• try to resolve health and safety issues with the employer.

HSRs are only allowed to act on matters that affect, or may affect, members of their own DWG. The only exception is when there is an immediate risk to a member of another DWG, or when a person in another DWG asks for help and the matter cannot be referred to their own HSR.

Authorised representatives assisting HSRs

A HSR can request the assistance of any person, including an authorised representative in accordance with section 58(1)(f) of the OHS Act.

If the HSR requests assistance from an authorised representative, the authorised representative does not need to hold an entry permit under the Fair Work Act 2009 to enter the workplace. This is because they are entering the workplace as a person assisting a HSR. As such the authorised representative cannot exercise their powers under Part 8 of the OHS Act.

If an authorised representative wishes to exercise any of their powers under Part 8 of the OHS Act, they must arrange to re-enter the workplace as an authorised representative. They will need to hold both an entry permit issued under the OHS Act and a Fair Work entry permit to do so and will need to comply with all other OHS Act and Fair Work Act requirements.

Provisional improvement notices issued by an HSR (sections 60–62)

A HSR may issue a provisional improvement notice (PIN) to a person if the following conditions are met:

1. they reasonably believe that the person:
   1. is contravening the OHS Act or regulations, or
   2. has contravened the OHS Act or regulations where it is likely that the contravention will continue or be repeated.
2. they have tried to fix the contravention through consultation with the person.

A PIN must:

• state the belief that the notice is based on and the grounds for that belief
• include the provision of the OHS Act or regulations thought to have been contravened or is likely to be contravened
• include the date (at least 8 days from the issue date) by which the contravention or likely contravention should be fixed.

The PIN may also contain directions about how to fix the contravention or likely contravention.

If the PIN is given to an employee, then the employee must inform their employer about the PIN. When an employer or self-employed person receives a PIN, they must:

1. notify all people whose work is affected by the notice
2. display it in an obvious place at the workplace it applies to.

A person must comply with a PIN issued to them. It is an offence not to comply with a PIN and penalties apply.

Inspector attendance after the issue of a provisional improvement notice (sections 63–65)

Within 7 days of a PIN being issued, any person issued with a PIN, or their employer, can ask WorkSafe to send an inspector to look into the circumstances surrounding the PIN.

WorkSafe must, after a request has been made, send an inspector as soon as possible, and before the compliance date in the PIN. The inspector must either affirm, with or without changing it, or cancel the PIN. A PIN that is affirmed must be complied with.

A PIN or a notice issued by an inspector affirming or cancelling a PIN is not invalid just because of an error, unless this error would lead to significant injustice.

Resolving health and safety issues (section 73)

The employer or their representative and employees affected by an OHS issue, or the HSR (where one is elected), must try to resolve health or safety issues using agreed internal processes. If there are no processes, they must use the processes under the regulations.

Anyone representing an employer in attempts at resolving OHS issues must be senior and competent enough to act for the employer. They must also not be an HSR.

If the parties cannot resolve a health and safety issue in a reasonable time, either party can ask WorkSafe to send an inspector to look into the issue. The inspector may use any powers they need to resolve the issue.

It is an offence not to comply with this section and penalties apply.

Direction to cease work (sections 74–75)

If an issue about health and safety arises at a workplace from the conduct of the undertaking of an employer, the employer or a relevant HSR can, after consulting each other, direct employees to cease work if the following conditions are met:

• The OHS issue involves an immediate threat to health or safety and
• The type of threat and the level of risk means that the procedures to resolve the issue are not appropriate.

If the issue that is the subject of the direction to cease work cannot be resolved, either party can ask WorkSafe to send an inspector to look into the issue. The inspector may use any powers they consider necessary in the circumstances. The inspector must look into the circumstances surrounding the direction to cease work as soon as possible after a request is made.

If, after looking into the issue, the inspector issues a prohibition notice or finds reasonable cause for employees to be concerned for their health or safety, employees affected by the cease work direction are entitled to be paid.

Disqualification of a HSR (section 56)

An employer can apply to the Magistrates’ Court to disqualify a HSR who has intended to cause harm to an employer or their business by:

• issuing a PIN where the HSR could not reasonably have believed there were grounds for issuing the notice
• issuing a direction to cease work or using any other power to cause harm to the employer, or
• using information from the employer for a purpose not connected with their powers as a HSR.

A magistrate can disqualify a HSR either permanently or for a specified time. The magistrate must consider the harm, if any, caused to the employer or their business and the HSR’s past record in using their powers.

Representation of employees

Health and safety committees (section 72)

An employer must start a committee within 3 months of a HSR requesting them to, or when required by regulations.

Not every DWG at a workplace needs to have a committee. More often, health and safety committees cover the workplace as a whole, and the HSRs from the different workplace DWGs should discuss with each other. However, a large DWG with unique or specific work risks or hazards may need its own committee.

At least half of the committee members must be employees. As far as reasonably practicable, they should be HSRs or deputy HSRs. WorkSafe recommends that management representatives on the committees should be senior managers of the employer.

The committee must meet at least every 3 months, and at any other time if half of the committee members ask for a meeting. The committee may set its own operational procedures, but they must be in line with the OHS Act and Regulations.

The functions of a committee include:

• helping employers and their employees to cooperate when starting, developing and carrying out measures to ensure health and safety at work
• formulating, reviewing and distributing, in other languages if appropriate, the OHS standards, rules and procedures for the workplace
• any other such function prescribed or agreed upon by the regulations or agreed between the employer and employees.

It is an offence not to comply with this section and penalties apply.

Discriminating against employees or prospective employees prohibited (sections 76 & 78)

An employer must not dismiss, injure, negatively change the position of, refuse to hire a person or otherwise negatively affect their employment or threaten to do any of those things to an employee because they:

• are, or were, a HSR or a health and safety committee member
• used a power as a HSR or a health and safety committee member
• helped an inspector, a HSR or a health and safety committee member
• raised a health or safety issue with the employer, an inspector, a HSR or a health and safety committee member.

It is an offence not to comply with this section and penalties apply. However, the employer can only be found guilty of this offence if the employee’s involvement in OHS issues is the main reason for the employer’s conduct.

If an employer or a prospective employer is found guilty of such an offence, as well as a penalty, the court can order the offender to:

• pay damages
• employ the prospective employee in the position for which they applied, or a similar position
• reinstate the employee in their former or similar position.

Civil actions for discriminatory conduct

Prohibition of discriminatory conduct or authorising or assisting it, and prohibited reasons (sections 78A–78C)

An employer or prospective employer must not discriminate for a prohibited reason, including:

• dismissing or injuring the employee or changing their position to their disadvantage, or threatening to do any of those things
• refusing or failing to offer a prospective employee employment or being unfair to them.

Discriminating for prohibited reasons includes where an employee or prospective employee:

• is or was a HSR or member of a health and safety committee
• uses or used a power as a HSR or member of a health and safety committee
• helps or helped or gives information to an inspector, WorkSafe, an authorised representative of a registered employee organisation (ARREO), HSR or member of a health and safety committee
• raises or raised a health and safety issue or concern to an employer, an inspector, WorkSafe, an ARREO, HSR or member of a health and safety committee or one of the employer’s employees.

An employer may be found to have engaged in discriminatory conduct if a prohibited reason is the main reason for the employer’s conduct.

Civil action for discriminatory conduct and procedures (sections 78D–78E)

An eligible person can ask the Industrial Division of the Magistrates’ Court to make an order against an employer or potential employer who has breached section 78A:

• to pay damages to compensate the employee or potential employee who was discriminated against
• to make the employer reinstate or re-employ the employee in the same or a similar position, or employ a potential employee for the same or similar position they had applied for
• any other order the court considers appropriate.

A proceeding for a discriminatory conduct action must be started no more than a year after the date the plaintiff became aware of the conduct. If the facts of the alleged conduct are proved, then the accused has the onus to prove that the alleged reason was not a substantial reason for it.

It is a defence if the accused can prove that the conduct was reasonable in the circumstances or complied with the Workplace Injury Rehabilitation and Compensation Act 2013.