Hi Renata – “The OHS department at my workplace have decided to change the structure of the first aiders at work without any consultation with the HSR's of the designated work group. I enquired and was told that they do not have to consult. I believe that it is a breach of Section 35 of the OHS Act. They also claim that HSR's do not need to be involved in workplace inspections when hazards etc. are identified.”
You are correct – your employer does have a duty to consult with employees and/or their HSRs about changes that may affect the health or safety of members of your DWG, and thus includes first aid facilities in the workplace. On our OHS Reps page First Aid – what are the requirements, you will find information and links on this topic. Consultation requirements are covered at s.35 of the OHS Act.
There is nothing specifically legislated in relation to what first aid facilities employers must provide, however there is guidance for employers in WorkSafe’s Compliance Code for First Aid in the workplace. Compliance codes are not law, but when employers follow compliance codes they can be sure that they are complying with their duties and obligations under the OHS Act.
At paragraph 21 of the Code it is stated that “employers must, so far as is reasonably practicable, consult with employees and HSRs, if any, on matters related to health and safety that directly affect, or are likely to affect them”. Paragraphs 22 – 26 then go on to advise employers what and how they must consult, including –
- Sharing information about the matter with employees, including HSRs and relevant contractors
- Giving them an opportunity to express their views
- Taking those views into account before making their decision
You can find more information about what consultation should look and sound like in the WorkSafe publication Employee representation: a comprehensive guide to part 7 of the OHS Act 2004 – page 6 includes specific instruction for employers of how they should be consulting.
If your employer refuses to consult on the First Aid facilities I recommend that you send them an email requesting consultation – you can use our Consultation Email template – this will put them on notice and provide solid evidence of your attempts to consult should you need to escalate the issue resolution procedure to raise a PIN for failure to consult. And of course, it is good practice to keep a record of all consultation when it happens – Record of Consultation template. It is also worth considering issuing a second PIN if the restructure has been actioned and as a result created a risk to health and/or safety as a result.
On the matter of failure to allow HSRs to participate in workplace inspections, whilst we would always encourage managers and HSRs to work collaboratively, an employer is not obliged to include you in their inspection. However HSRs do have the power to inspect their workplace separately under s.58(1)(a) of the Act. Also, as soon as the conversation moves on to risk controls, as discussed above, the consultation requirements are enlivened.
If your employer does not respond to the suggested points above, I recommend contacting your union directly for support and guidance through escalating this process.
