Hi Renata – Our previous HSR and management say that DWG members are ‘required by law to notify their HSR about safety concerns and developments’. Management often use this as an excuse to not have to notify HSRs themselves, saying ‘you should already know and be aware’. Is there any legitimacy to this under OHS legislation?
Whilst it is true that the OHS Issue Resolution Procedure outlined at r.24 of the OHS Regulations requires employees to notify an HSR of health and safety issues that the employee wishes to raise for issue resolution, this requirement is not a complete answer to your question.
Not all OHS hazards are identified by DWG members, and not all DWGs have only one HSR – often a management audit or inspection will identify hazards or employees may report to other HSRs. Or an employee may raise this issue as a question for the employer rather than seeking issue resolution.
Further, the OHS Issue Resolution Procedure as defined in the OHS Regulations (shown in flowchart form here on the WorkSafe website) requires management to meet with HSRs as soon as possible after a safety issue has been reported to try and resolve the issue – this would require them to inform HSRs of the issue in order for the required consultation to follow.
This requirement is backed up in the OHS Act by the s.35 duty for employers to consult with employees when doing any of the following things –
- Identifying or assessing hazards or risks
- Making decisions about measures taken to control risks
(Both of the above actions are a part of the Risk Management Process that underpins the Issue Resolution Procedure.)
- Making decisions about the adequacy of facilities for employee welfare
- Making decisions about procedures for any of the following –
- Resolving OHS issues
- Consulting with employees
- Monitoring employee and workplace health and conditions
- Providing information and training to employees
- Determining membership of the OHS committee
- Proposing changes, that may affect employee health and safety, to any of the following
- The workplace
- The plant, substance or other thing used at the workplace
- The conduct of work performed at the workplace
- Any other thing prescribed by the regulations
At s.35(4) it says, “If the employees are represented by a health and safety representative, the consultation must involve that representative.”
It would be impossible for your employer to comply with either the Issue Resolution Process or their Duty to Consult without promptly informing HSRs about all OHS matters.
This should be read in conjunction with another very significant part of Occupational Health and Safety Act 2004 that supports an HSRs right to be informed by management about OHS issues. Section 69(1)(a) obliges employers to allow an HSR for a DWG to have access to information that the employer has relating to actual or potential hazards and the health and safety of the DWG members the HSR represents.
WorkSafe publishes a handbook for employers about employee representation that includes a very helpful section at the beginning about HSRs, consultation and issue resolution - Guide to Part 7 - Employee representation handbook for workplaces – I recommend that your employer access this publication. It confirms that for consultation to be meaningful, employers must share all relevant information relating to health and safety with the employees and HSRs. Information should be provided in a timely way so that the employees and HSRs have adequate time to consider the matters, discuss them and then provide feedback to their employer. Unless it is not reasonably practicable, employers must provide this information to HSRs at a reasonable time before it is provided to employees.
