Our workplace is psychosocially unsafe. We want to survey our Designated Work Group (DWG), but our employer insists that all surveys must be approved by the CEO before sending them out. Is this correct? How can we proceed without facing adverse actions from our boss?
Under section 58(1)(a) of the Occupational Health and Safety (OHS) Act, Health and Safety Representatives (HSRs) have the right to inspect areas where DWG members work. This can be done immediately if there’s an imminent risk or an incident, or at any other time, provided reasonable notice is given to the employer.
The definition of 'reasonable notice' depends on the circumstances. For the purposes of section 58, a psychological health survey is considered a form of inspection. You should cite section 58(1) of the Act when asserting your right to conduct this survey.
There is no requirement in the Act for manager approval when taking time 'off task' to exercise your HSR powers and survey your DWG. You are only obligated to give them reasonable notice, which is distinct from requiring their authorisation.
We respectfully but firmly disagree with the employer’s directive that all surveys must be approved by the CEO, as this directive impinges upon the powers granted to HSRs under section 58 of our OHS Act.
Regarding concerns of adverse action from the boss, please refer to our webpage on the Prohibition on Discrimination against HSRs. Section 76 of the Act expressly prohibits dismissal, discrimination, or unfavourable treatment of employees based on their role as an elected HSR, committee member, or for raising OHS issues.
If you experience any adverse action due to exercising your HSR powers, document the details, including what was said, where, and when, and gather support from members of your DWG. If your boss is silly enough to put such threats in writing, this will significantly strengthen a case for breach of section 76.
Any allegation of discrimination against an HSR is a serious matter, and seeking advice from your Union is crucial.
Worth noting: under section 58(1)(f), HSRs have the power to seek assistance from any person necessary, whether within the workplace (another HSR, deputy HSR, or DWG member) or externally (like your Union’s OHS Officer).
Section 58 provides HSRs with the means to access support in carrying out various tasks, including workplace inspections such as your psychological survey. You can choose the person who will assist you, and in some cases, more than one person's assistance may be necessary.
For further details, please refer to page 37 of WorkSafe's Employee Representation Guide and our OHS representatives and deputies webpage.
We encourage you to cite these provisions of the Act in writing to your employer. If this approach is unsuccessful, complete a record of consultation form and attach a screenshot of their rejection, granting them 24 hours to reconsider their stance.
If necessary, consider issuing a Provisional Improvement Notice (PIN), seeking assistance from your union, or requesting intervention from a WorkSafe Inspector. Our Resolution of Issues webpage provides valuable guidance in such situations.
It's important to note that section 69(1)(e) of the OHS Act requires employers to provide necessary assistance to HSRs to exercise their powers, and under section 70, employers have obligations to persons assisting HSRs.
