Colin Radford Q&A Answers

During the 2021 HSR Conference Q&A, WorkSafe CEO, Colin Radford, was asked some questions which were taken on notice. WorkSafe later provided the following responses:

Question 1: Does a HSR need permission from employer to take photographs?

WorkSafe is currently updating the Employee Representation Handbook with guidance on the new powers given to HSRs.

Generally speaking, if an HSR is taking a photo for the purposes of discharging or performing their role as an HSR, they don’t need to obtain permission. This is because the power is vested in the HSR directly by the OHS Act.

However there are some restrictions. HSRs cannot take photos when participating in an interview between an employee member they represent and an inspector or the employer.

Further, in circumstances where taking photographs of a workplace is restricted or prohibited because of the operation of some other legislation, that other legislation is likely to prevail. This includes high security workplaces such as courts, prisons, airports and the like.

Question 2: What happens if a photograph is taken using an employer-issued phone? 

The use of phones for work purposes will often be governed by the Employer’s industrial relations policies.

However there is some comfort that could be given to HSRs around issues that might stem from the use of employer devices when taking photographs, including the following:

  1. Section 69(1)(a) of the OHS Act requires an employer to allow an HSR to have access to information that the employer has relating to actual or potential hazards at the workplace. Photographs taken on a work device are likely to be captured by this provision.
  2. Section 69(1)(e) requires an employer to provide facilities and assistance to HSRs that are necessary to enable  them to exercise their powers. In our view this would include this new power to take photographs.
  3. All else failing, section 100 of the OHS Act allows a WorkSafe inspector to call upon documents or information held by the employer, which would capture any photographs taken on a work device.