Can the employer deny an HSR's request for their deputy HSR to assist them?
I have asked my employer to allow me to have my deputy HSR present with me in discussions using section 70. The employer refused my request.
At the time Worksafe was on site inquiring into a disputed PIN, so I asked the inspector about Section 70. Their reply was this only applies to "experts" so the employer can refuse to allow a Deputy HSR to assist me, as they are not an expert, such as an engineer, hygienist etc. I pointed out that section 70 does not specify the person must be an “expert”, just that they should have knowledge of OH&S. The inspector responded by stating that this is how Worksafe interprets the section. What are your thoughts on this?
Our response:
It is our opinion that you are correct, and it would appear that this is WorkSafe’s view too! I recommend that you refer both the employer rep and the inspector to WorkSafe’s own guidance Employee Representation guide (revised and reviewed in 2022). These are the relevant excerpts:
Section 7. Powers of HSRs (pp 42 & 43)
Who can the HSR turn to for assistance? How does this work?
An HSR has the power to seek assistance from any person. The person may be within the workplace, for example another HSR or employee, or a person with sufficient knowledge of OHS (see below) outside the workplace, for example, an OHS consultant, a union official or an authorised representative of a registered employee organisation (ARREO).
…
This power enables HSRs to have access to independent advice when necessary to assist in carrying out their role, for example inspections of the workplace, injury/illness/incident/investigations etc. For example, the actions an HSR may take include, but are not limited to, seeking:
- assistance to conduct an inspection of a part of the workplace at which a member of the DWG works
- technical advice on a particular hazard or risk, in order to ensure they can effectively represent DWG members on health and safety issues
- assistance when negotiating agreed procedures or completing a provisional improvement notice.
The HSR may choose the person who will provide assistance….
Sufficient knowledge of OHS
When considering whether a person has sufficient knowledge of OHS, an employer should have regard to matters including the person’s capacity and ability to:
- apply Victorian health and safety legislation as relevant to the workplace
- identify hazards, assess risks and contribute to the design of risk controls in the workplace
- participate effectively in the investigation of injuries, illnesses and incidents and contribute constructively to these processes when they are undertaken by the employer
- communicate effectively on health and safety issues with a range of colleagues, employer representatives and external specialists, including inspectors
- facilitate or assist in the resolution of health and safety issues.
Whether a person has sufficient knowledge of OHS to assist an HSR depends on the nature of assistance being sought by the HSR. Relevant matters for consideration include:
….
The definition of the standard for which sufficient knowledge applies is subjective. A person is likely to have sufficient knowledge of OHS to assist an HSR if they have a general knowledge of OHS. For example, if they:
- have attended an approved initial course of training for HSRs and their deputies
- hold an entry permit pursuant to Part 8 of the OHS Act (an ARREO who has therefore completed a course of training approved by WorkSafe and has been issued an entry permit by the Magistrates’ Court)
- have completed a Certificate IV in Work Health and Safety, or • have practical experience managing OHS in the workplace
It goes on to say that a person may also have sufficient knowledge if they have specialist knowledge or experience….
So for the inspector to say that WorkSafe interprets this section as covering only technical experts, and that the employer can deny an HSR assistance from anyone other than a technical expert is clearly not correct.
