Hi Renata – My workmates don’t think their HSR is any good and they want to replace them. What is the process and is there a template or some documentation for how this works?
Thank you for your question about HSRs and s.55 of the OHS Act – Term of office.
At s.55(2)(d) the OHS Act states – “…a person ceases to hold office as a health and safety representative for a designated work group if … a majority of the members of the designated work group resolve (in writing) that the person should no longer represent the designated work group but only if the person has held office for at least 12 months”.
The short and easy answer to your question is that the members of the DWG determine the process to establish “the majority”. For this determination to be in writing each member will need to sign a document to the effect that they have lost confidence in the HSR and wish to elect a replacement – these could be individual statements or a group statement with signatories named. I am not aware of any existing documentation or templates to help in this situation, but a simple dated statement should suffice.
In the absence of more information about the specifics of the issue in your workplace, I should point out a few factors to be considered, and a potential alternative path –
- HSRs must be allowed at least 12 months in the role before any decisions are made about removing or replacing them.
- Before removing an HSR it is important that there is another DWG member who is ready and willing to nominate for election as the replacement HSR – without this assurance the DWG will be left unrepresented. To give the DWG members a clear understanding of the role and how representation works I recommend both the OHS Reps publication Getting OHS Representation Right - A Guide for Workers, and WorkSafe’s Guide to Part 7 - Employee representation handbook for workplaces. Both of these documents contain comprehensive information about how representation works, what good consultation looks and sounds like, and the rights and powers of HSRs.
- Do the DWG members have good reason to wish to remove their current HSR from the role? Some DWG members do not understand the HSR role or the legislation and become frustrated when the HSR will not or cannot act on all of their concerns. Check that the HSR is not being expected to take actions that are not within the scope of their role and powers.
- If the DWG members’ concerns about the current HSR are valid, arrange for someone to have a quiet chat with the HSR about these concerns. The HSR may wish to stay in the role, step up and be more active - or they may elect to resign as per s.55(2)(c). Taking this path can avoid workplace division and allows the HSR to save face. Of course, if the HSR is a “management pick” or was otherwise not honestly elected by the DWG members, and that is the cause of the issue that the DWG members are objecting to, then this approach will clearly not work.
Consider the alternative approach of negotiating a variation of the DWG agreement. Many DWGs were established long ago and are overdue for a review to determine whether they are still adequately serving the requirements of s.44 Negotiation of agreement concerning designated work groups and considerations of s.46 Matters to be taken into account of the OHS Act.
Does the DWG structure still “best and most conveniently enable the interests of those employees relating to occupational health and safety to be represented and safeguarded” and “best take account of the need for a health and safety representative for the designated work group or groups to be accessible to each member of the group”? How many HSRs does the DWG require? Has the nature of the work or hazards, or the arrangement of work locations or shifts changed? Is the DWG too large, or do the shift patterns make it logistically difficult for the HSR to consult adequately with all DWG members?
It is important to review DWGs regularly to ensure that the arrangements are still appropriate and effective, and if not, then to renegotiate the DWG agreements. The first step is to ask your employer for a copy of the DWG agreement – they should have this in writing as per s.44(4). You can use the OHS Reps DWG Record Template as a guide to the details that should be on record.
If the DWG members believe that the current DWG agreement (if one exists that was negotiated with employees) does not adequately serve the purpose of representation, they may request their employer to begin negotiation to vary the agreement. The employer will have 14 days to ensure that negotiations begin – see s.43(3). I recommend contacting your union directly for guidance and support through this process.
Renegotiating the DWG agreement will void existing arrangements and necessitate an HSR re-election.
If you have any questions about OHS we encourage to fill out an Ask Renata query and one of our officials will get back to you shortly. Alternatively give Ask Renatabot a try!