Hi Renata – Our workplace covers worksites in Victoria, Queensland and NSW. There has been a designated work group formed covering and including workers in all 3 states, with the HSR in NSW and the deputy in Victoria. Multiple PINs have been issued, I believe in both jurisdictions, but the HSR in NSW has resigned and the deputy in Victoria is off work, meaning the DWG is currently unrepresented. What would be your advice?
This is indeed a complex situation involving multiple jurisdictions. You're dealing with three different OHS/WHS legislative frameworks: In Victoria the Occupational Health and Safety Act 2004 (Vic.), in the Work Health and Safety Act 2011 (NSW) and in Queensland the Work Health and Safety Act 2011 (Qld).
Simply put, a single DWG spanning multiple jurisdictions is not possible.
Victorian OHS legislation and the WHS Model Laws are different systems with different provisions applying in their own jurisdictions.
Having a DWG Spanning 3 jurisdictions is a significant concern. Under Victorian OHS legislation, DWGs are established under Part 7 of the OHS Act 2004 and relate to employees of employers in Victorian workplaces. Similarly, under WHS Model Laws (NSW/Qld), work groups are established under different provisions and terminology.
If you are elected under one state law, you cannot use the rights and powers granted under that law for a group covered by different law in a different state. For example, a PIN issued by a Victorian HSR to a PCBU in Albury would be deemed invalid because HSR powers conferred under the Victorian OHS Act do not apply in a jurisdiction covered by the Work Health and Safety Act 2011 (NSW).
Our advice is that each state's workers need to negotiate their own properly established work groups under the correct legislation and then elect new representatives in each jurisdiction as a priority. We recommend that you take action immediately to contact your union for support. Document everything – particularly the current DWG arrangements for consideration in the re-negotiation of jurisdiction-specific DWGs – you can use our DWG Record Template.
Please note that in the meantime, under the Victorian OHS Act workers can still raise OHS issues directly with the employer using the issue resolution procedures (Regulations 23–25). Similar principles apply interstate.
With regard to the PINs that have been issued under the existing arrangements, based on what you have told us, those PINs have been issued under the wrong legislation, or by a representative whose authority doesn't extend to that jurisdiction. Even in the circumstance where the HSR has issued a PIN in their home state, it does not remedy the issue with the parameters of the DWG. The regulator is likely to be cancel those PINs if the employer challenges them. It is likely that these PINs will have to be re-issued after HSRs have been elected by jurisdiction-specific DWGs.
You should also report this issue to your company’s health and safety committee for a collective discussion and to ensure that any procedures developed by the company make it clear to workers who to contact in relation to OHS issues in specific locations. We note that there is nothing stopping your employer from creating a national representation structure on top of those statutory arrangements — for example, a national HSR network or committee — but that doesn't necessarily give a Victorian HSR the statutory powers of an HSR in NSW, Queensland or WA. In fact, this may even be desirable.
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!