Hi Renata – In my workplace some DWGs do not have an HSR to represent them. Some staff from that DWG have spoken to me about a current safety issue and how to solve it without an HSR. Are they allowed legally to ask me to represent them since they have no rep of their own? If so, where in the legislation does it give that permission?
HSR powers are typically limited to matters that affect the HSR’s own DWG members – however, s.59 of the OHS Act expands on that jurisdiction - if there is an immediate risk that affects a member of another DWG, or if a member of another DWG asks for your assistance, and it is not feasible to refer the matter to that DWG’s HSR – for example, they are not present or available. That means that if a DWG is currently unrepresented, they are enabled by this section of the Act to request assistance from another DWG’s HSR.
Looking to the long-term representation of that group of workers, we suggest that you (and other HSRs if there are any) consult with each other and with that group of workers about their future representation. If that group are not already a recognised DWG, now is the time to get that happening. If they are an actual DWG, but just don’t have representation, you can encourage them to elect an HSR.
If the unrepresented group are having trouble identifying anyone who is prepared to nominate for the HSR role, a little information may bring them around – you and other HSRs may need to help the DWG with a little quiet campaigning and education about what it means to be an HSR. The right to employee representation in workplace health and safety matters is a hard-won right that we must collectively work to protect at all costs. And at your worksite it sounds like the new HSR will be well supported by more experienced HSRs!
VTHC has a comprehensive guide for workers that goes over the essentials of OHS for workers such as issue resolution, employee representation, forming DWGs, electing HSRs and issuing PINs. Download Getting Representation Right – A workers’ guide to occupational health and safety and share it with your coworkers.
WorkSafe also covers these topics very well in their publication Employee representation: A comprehensive guide to part 7 of the OHS Act, which includes lots of frequently asked questions. I highly recommend a copy for your employer, and it is also good to leave a couple in the staff lunchroom so that employees can browse at their convenience.
Both of these representation publications will tell your workmates about what it means to be an HSR – understanding the role can help encourage colleagues to step forward and nominate to be HSR. If you are looking for something very brief, try our HSR information booklet - OHS Reps . This document was handed out to the HSRs at one of our HSR Conferences as a handy tool to introduce themselves and their role to DWG members.
A key point to ensure DWG members understand is that, as per s.58(3) of the OHS Act, HSR is a voluntary role with no imposed duty or responsibility for safety outcomes – the duty for ensuring workplace safety belongs to the employer and their representatives.
Once the DWG are confident that they have at least one nominee, they should notify management that the DWG will be conducting the election process. Of course, they may wish to have management circulate notices about the nomination and election process, but requests for their assistance in communicating with the full workforce does not cede control of the process to them. Alternatively, they may prefer for the HSRs / employees to manage the communication steps of this process and simply require management to provide an up-to-date list of DWG employees and their contact information to enable them to do so.
When HSR coverage is not adequate to ensure proper representation of all employees it may be worth re-visiting the details of the DWGs at your workplace. Just because there is no dispute over the fact that you are the HSR of your DWG, do not assume that the parameters of your DWG are clear and universally agreed! Many DWGs were established long ago and are overdue for a review. As defined in s.44(3) of the Act the parties to an agreement concerning a designated work group or groups may, at any time, negotiate a variation of the agreement. Under s.43(3) of the Act, your employer must do everything reasonable to ensure that negotiations start within 14 days after the request.
During negotiations consideration must be given to how representation is achieved for DWGs without an HSR and also to how it is maintained during periods when HSRs are on any type of leave – an example of how some workplaces achieve this is to document in their negotiations the provision of s.59 of the OHS Act - powers generally limited to the particular designated work group – that during an HSR’s absence DWG members may call upon the HSR of another DWG to attend. At s.59 the exceptions provided are for when there is an immediate risk to health and safety that affects a member of another DWG, or when a member of another DWG asks for that HSR’s assistance, and it is not feasible for the requested HSR to refer the matter to the other DWG’s HSR. Although it is clear in the OHS Act, having it documented in a DWG Record Template can save future disputes with management about HSR jurisdiction.
Matters to consider in your specific situation include whether supervisors or managers are included in the DWG (WorkSafe’s Guide to Part 7 linked above have a few things to say about this) or, if there are no HSR nominees, do they roll into another DWG?
Electing HSRs or negotiating a DWG variation is an area where unions can provide advice – we encourage you and your colleagues to contact your union organiser for support or guidance in your negotiations with your employer.
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!