Do Health and Safety Representatives (HSR)s have more power or responsibility? 

We held a LinkedIn survey last week, see results in the picture below. Our survey results suggest that people generally think that responsibility is more important than power for HSRs.

Speaking about requirements in Victoria, if we go by the “Vic OHS Act 2004 s58 Powers of health and safety representatives”, I suggest that the correct answer is ‘Power’ (link and copy of section attached below.) You will see that there are various powers and importantly s58.3 states that nothing in the Act or Regs imposes or is taken to impose a function or duty on a HSR in that capacity.

You could argue that all staff (including HSRs) have the responsibility under s25 Duty of employees

  • to take care of their own safety and others who may be affected by their acts or omissions
  • to cooperate with actions of the employer that are made to meet OHS obligations
  • to not recklessly interfere with or misuse anything provided in the interest of OHS

However, these requirements do not relate to the role of HSR, so the answer is still ‘power’. In fact, when you look at the HSR 5-day Initial Course, there is a WorkSafe requirement that there is no assessment of the course, and this is based on s58.3. Learners receive a Certificate of Attendance and are not required to demonstrate that they have met any learning objectives. No actual responsibility. They are actually not even required to attend the course. The employer must provide the course to the HSR if requested, but there is no requirement for the HSR to undertake the course, basically, its optional from their perspective. Once again, no responsibility.

You could also argue that HSRs have responsibility to consult with staff and management. However again I would say that s58.3 tells us that that is not true. I would agree that the employer could impose some internal responsibilities on the HSR based on part 2 of s58 (below). For example, the employer could ask that the HSR:

  • represent the members of the designated work group on OHS matters
  • monitor measures taken to comply with OHS Act or regulations
  • enquire into anything that poses, or may pose, a risk to the health or safety
  • attempt to resolve OHS issues with the employer

The employer may also ask that the HSR be part of an OHS Committee and attend those meetings, which should happen at least quarterly.

The 5-day HSR Initial Course, will also ensure that HSRs are made aware that these are the proactive things an HSR can do with respect to their elected position.

So what are the ‘powers’ that an HSR has?  If you look at s58.2 (below) you will see. Here is a summary. These powers relate the HSRs Designated Work Group (DWG) only.

  • inspect any part of a workplace giving reasonable notice to the employer in the event of an incident or any situation involving an immediate OHS risk
  • take photographs or measurements or make sketches or recordings (other than during an interview with employee or WorkSafe Inspector)
  • accompany an inspector during an inspection
  • require the establishment of an OHS committee
  • if employee consents, be present at an OHS-related interviews involving either the employee or WorkSafe inspector or employer                  
  • whenever necessary, seek the assistance of any person

Additionally, under s60 the HSR can issue a Provisional Improvement Notice (PIN) and under s74 can order work to cease if there is an immediate threat to OHS.

So why does this debate around Power and Responsibility of HSRs matter? Unfortunately, many employers (and employees and HSRs) are not aware of this. Employers often delegate an employee with the ‘role’ of HSR, send them off to the 5-day HSR Initial Course, (which I deliver) and then tell them that they need to manage safety for the organisation.  In reality, the ‘role’ of the HSR is more about acting as a conduit by consulting with the workers and management on safety issues.

If a company needs to find someone to manage safety, it is not an HSR they should be appointing, its an OHS coordinator, an HS advisor or an OHS Manager, and this person should as a minimum hold a Cert IV in WHS.  What is the difference between OHS and WHS you might ask, stay tuned for my next article on Health and Safety terminology! In the spirit of the Act HSRs should not be appointed by management, and should be chosen/elected by the employee group. This is often not the case in the real world.

Link to 2004 OHS Act

https://www.legislation.vic.gov.au/in-force/acts/occupational-health-and-safety-act-2004/038

58   Powers of health and safety representatives

(1) A health and safety representative for a designated work group may do any of the following—

                         (a)  inspect any part of a workplace at which a member of the designated work group works—

                                  (i)  at any time after giving reasonable notice to the employer concerned or its representative; and

                                 (ii)  immediately in the event of an incident or any situation involving an immediate risk to the health or safety of any person;

                       (ab)  take photographs or measurements or make sketches or recordings at any part of a workplace at which a member of the designated work group works, other than during an interview under paragraph (d) or (e);

                         (b)  accompany an inspector during an inspection of a workplace at which a member of the designated work group works;

                         (c)  require the establishment of a health and safety committee;

                         (d)  if a member of the designated work group consents, be present at an interview concerning occupational health and safety between—

                                  (i)  the member and an inspector; or

                                 (ii)  the member and the employer concerned or its representative;

                         (e)  if the health and safety representative is authorised to represent a person mentioned in section 44(1)(e) or 48(1)(e) and that person consents, be present at an interview concerning occupational health and safety between—

                                  (i)  the person and an inspector; or

                                 (ii)  the person and the employer concerned or its representative;

                         (f)  whenever necessary, seek the assistance of any person.

                (2)  However, a health and safety representative may do those things only for the purpose of—

                         (a)  representing the members of the designated work group, or persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, concerning health or safety; or

                         (b)  monitoring the measures taken by the employer or employers in compliance with this Act or the regulations; or

                         (c)  enquiring into anything that poses, or may pose, a risk to the health or safety of members of the designated work group, or of persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, at the workplace or workplaces or arising from the conduct of the undertaking of the employer or undertakings of the employers; or

                         (d)  attempting to resolve (in accordance with section 73) with the employer concerned or its representative any issues concerning the health or safety of members of the designated work group, or of persons mentioned in section 44(1)(e) or 48(1)(e) whom the representative is authorised to represent, that arise at the workplace or workplaces or from the conduct of the undertaking of the employer.

                (3)  Nothing in this Act or the regulations imposes, or is to be taken to impose, a function or duty on a health and safety representative in that capacity.

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