Dear Renata
Can a manager appoint himself HSR with no consultation with the DWG? Is this in breach of the OHS Act. When I spoke to him about this, his response was that it’s fine as he is “approachable”!
The OHS Act is very clear in that the members of a DWG (both permanent and casual employees) have the right to elect their own HSR. A manager cannot appoint himself, or any other person, as the HSR. So, yes, your manager has breached the Act.
There is already an DWG in place. The members of the DWG have the right under the Act to decide how to elect their own HSR - they do not need to involve the employer, or the employer's rep in the process. They can decide to call a meeting, seek the assistance of the union to run the election or, if they wish, ask the employer for assistance (which I do not recommend as it gives the employer a role they need not have).
Any member of the DWG can nominate to be the HSR. Note: if the manager is an employee and is a member of the DWG, then the manager may also nominate for the position. It is then up to the members of the DWG to elect their HSR (and deputy HSR if this has been agreed). However, if the manager acts as the employer representative when OHS issues arise (as per s73 of the Act), then he cannot also be the health and safety representative.
The process for the election of HSRs is under sections 54 & 55 of the OHS Act - go to this page for more information, and you'll also find a tool to assist you to let your employer know that you've had a proper election and the identity of the new HSR.
This is what I suggest you do now:
- Inform your employer formally that the DWG does not accept the manager as the HSR, explaining that the Act clearly gives the DWG the right to elect their HSR. Do this in writing – an email or a letter signed by several DWG members
- Discuss with the DWG how you will run the election – I see you’re a member of a union, so you may decide to contact your organiser for assistance in running the election. Otherwise, you could organise something yourselves. This could be a meeting or done electronically, as long as all members of the DWG are given the opportunity to vote.
- Inform your employer that the DWG will be holding an election, and that the employer will be notified of the result of the election.
- If the employer does not accept this or insists that there is already an HSR (the manager) then inform them that you will be contacting WorkSafe and also the union.
In addition, you should still contact your union, at least to let them know of what’s going on, as well as for expert advice and assistance.