By Michael Selinger
A key question businesses often have when considering their consultation requirements is whether they need a health and safety representative (HSR).
Or if HSRs are already in place, how to assess if they are effective.
Role of an HSR
It is important to remember that the role of an HSR is not to fix health and safety problems, nor be an expert on Workplace Health and Safety (WHS) issues.
An HSR’s role is to represent workers in relation to WHS issues which often requires them to actively communicate with the business and engage in consultation with managers on a range of matters directly affecting their work group, such as identifying hazards, risk control measures and issue resolution.
Do you need HSRs?
Should your organisation encourage people to become HSRs?
HSRs can certainly provide an effective way of linking the business to the workforce when it comes to improving safety.
If you have properly trained HSRs in place who hold the trust and respect of the workers and managers, then they are an effective resource in the WHS management system.
This is particularly helpful in a larger organisation with diverse workers.
An HSR can provide an additional set of eyes to see how the health and safety system is actually operating.
A business may have the very best health and safety systems on paper, but when it comes to implementing those systems, an empowered and proactive worker who is aligned with the business’ goal of improving productivity in a safe manner cannot be overestimated.
HSRs are also a clear demonstration of your organisation’s commitment to safety.
Protection from discrimination
It is important that HSRs are given the freedom to do their job and are not discriminated against for raising workplace safety issues.
The WHS Act has specific protections for HSRs in this regard with civil penalties able to be imposed for a breach.
Of course, HSRs cannot misuse their powers and the recent case of Marc Waters v Mt Arthur Coal Pty Ltd (2018) FWC 3285 is an example of that limitation.
In this case, a coal mine operator was found to have fairly dismissed an employee who made several Facebook posts in the lead up to Christmas regarding whether the mine was operating on Christmas and Boxing Day.
The final Facebook post from Mr Waters was made on Christmas Eve and stated that “Xmas & Boxing days [sic] shifts are off for good”.
The Facebook post was made in the context of safety concerns raised by a number of workers regarding operations at the mine on Christmas and Boxing Day and numerous oscillating decisions and announcements from Mt Arthur Coal Pty Ltd regarding whether the shifts would go ahead.
There was no evidence that the Facebook post disrupted Mt Arthur’s operations, however, the Commission accepted that the Facebook post had the potential to disrupt the mine’s operations.
Mt Arthur argued that it had a valid reason to dismiss Mr Water for conduct which breached several terms of the applicable workplace Code of Conduct and Charter of Values.
Importantly, Mr Waters was aware of, and was trained in, these policies.
The Commission found that Mt Arthur had a valid reason to dismiss Mr Waters and that the dismissal was not otherwise ‘harsh, unjust or unreasonable’ for any of the reasons set out in section 387 of the FW Act. Mr Water was recently refused leave to appeal of the decision.
Flexibility in how HSRs operate in your business is critical in achieving the best outcome.
So while the legislation in each jurisdiction does not necessarily deal with all processes in detail for HSRs, some important matters to keep in mind are the following:
- an HSR does not need to become a member of a Health and Safety Committee, but if you have such a committee it is beneficial to both the HSR and the business if they do so;
- the power of an HSR to issue a provisional improvement notice (PIN) is not limited to your organisation. The PIN can also be issued to a designer, a manufacturer or a supplier of plant, substances or structures which is related to your workplace. This is important to keep in mind as there will be commercial arrangements in place with those organisations which will be impacted by the fact that a PIN is issued. HSRs must of course receive approved training if they wish to exercise special powers to direct that unsafe work to cease or issue a PIN;
- the person receiving a PIN does not have to follow any directions given by the HSR if they can implement other measures that result in the same, or better, desired safety outcome;
- the period of time an HSR needs to spend to carry out their functions will vary depending on the workplace and the number of other HSRs. It’s not a case of one size fits all and will also depend on the nature of the workplace and whether there are high risk activities or not.
For your organisation, the decision to use HSRs will depend on a number of factors. Once in place, it is important to assess whether they are being effective or not. Some ways to assess this is to:
- Check their training is up to date.
- Ensure they have adequate time to consult and review processes in the organisation.
- Consider their contribution to the Health & Safety Committee.
- Receive feedback from workers and managers about the contribution of the HSR.