Hi Renata – Can my boss say "No" to my request to have a support person with me in a meeting? Also, can they refuse a union rep or an HSR to be a support person in a meeting if I have requested it? Is either rep allowed to speak on behalf of me if I have requested it? Sometimes my boss seems to expect the support person to just be a silent witness, but does this also apply to reps? What legislation covers this?
No - employers cannot deny an employee the right to be accompanied by a support person in a meeting with the employer, so long as the request for support is not unreasonable – e.g. your support person is unavailable for an unreasonable amount of time or not available at a reasonable location. This is a basic workplace expectation and is referenced on the Fair Work Ombudsman’s page discussing performance management and in their Managing underperformance best practice guide - Fair Work Ombudsman.
A support person could be anyone – including your HSR or your union delegate. HSRs are given the right at s.58 of the OHS Act to be present at an interview concerning OHS matters between a DWG member and an employer and/or WorkSafe inspector.
When the person you want as support in a meeting is an HSR or a union delegate it is important to be clear about their status during the meeting – are they there as a support person or are they acting as your representative. This will determine the level of input they may have in the meeting.
A support person may speak in a meeting with the consent of the person they are supporting – e.g. to clarify a point on the person’s behalf, to speak on the person’s behalf, to ask a question on the person’s behalf.
But an HSR or a union delegate may also advocate for the person they are representing, they may contribute relevant information or ask questions relevant to the issue at hand. The provisions of the Fair Work Act and the OHS Act that empower HSRs and union delegates to represent employees, empower them to speak on behalf of the employees they represent.
It’s in their names – representative and delegate. The dictionary definition of representative is serving to represent and standing or acting for another especially through delegated authority. And that of delegate is a person acting for another. Requiring silence would negate the purpose of a representative or delegate and breach one of the principles of the OHS Act – employees are entitled, and should be encouraged, to be represented in relation to health and safety issues, as well as one of the objects of the Fair Work Act – ensuring that persons are free to be represented or not represented by industrial associations.
Should your employer persist in denying the right to a support person in meetings or denying the right of representatives to speak, I strongly urge you to reschedule the meeting and contact the IEU urgently for support and guidance.
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!