The establishment of Designated Work Groups (DWGs) is covered in Part 7 of the Act, REPRESENTATION OF EMPLOYEES. This part also includes the election and powers of health and safety representatives (and deputies), provisional improvement notices, health and safety committees and resolution of OHS issues. See the individual items in the table below for more detail on each of these matters.
Establishing DWGs in the workplace is the first step to ensuring that workers are properly represented in OHS. After the DWGs have been established, then the members of each DWG have the right to elect an OHS rep. There must be a minimum of one elected health and safety rep in each DWG. By agreement with the employer, the new Act also allows for more than one rep per DWG and/or a deputy rep for each rep.
The 2004 OHS Act provides some flexibility in how DWGs can be established, in an attempt to take account of increasingly complex working arrangements where worksites may have a number of employers, contractors and so on. The Act provides for DWGs for single employers (Sections 43 - 46) or DWGs for multiple employers (Sections 47 - 52).
If DWGs were established some time ago at your workplace, then now might be a good time to re-negotiate them - this means asking for a variation to the DWGs. The parties to an agreement for DWGs (that is the employer/s and the workers) may 'at any time, negotiate a variation of the agreement'.
If during either negotiation of new DWGs, or negotiation for a variation to the DWGs, there are any 'unresolved matters', then 'any of the parties to the negotiation ask the Authority to arrange for an inspector to determine the particulars that are unresolved.'
Matters applying to the establishment of DWGs for both single and multiple employers
There are a number of matters which apply to the establishment of DWGs irrespective of whether the DWGs are for single or multiple employers. These are repeated in the Act, but they apply to both situations.
Any employee may ask his or her employer to establish designated work groups, and the particulars of the groups are to be determined by negotiation and agreement between the employer and the employees. These negotiations should commence within 14 days of the request. An employer may also be the one to initiate negotiations.
Criteria: There are two key criteria which must be used as guidance to decide the number and location of any DWGs - that they:
- best and most conveniently enable the interests of employees (in the DWG) to be represented and safeguarded, and
- best takes account of the need for an HSR to be accessible to each member of the group.
In other words - the DWGs should not be too large. What's most important is for the HSR to know the members of their DWG and to be available to represent them.
The negotiations/agreement must also include:
- the number (at least one) of HSRs for each DWG
- the number (if any) of deputy HSRs
- the term of office of HSRs and deputies (no more than 3 years)
- whether the HSR/s are also authorised to represent independent contractors and their employees (very important in some industries/workplaces)
Matters which must be taken into account in negotiations for the DWGs:
- number of employees
- nature of each type of work
- number and grouping of employees performing the same or similar type of work or who work under the same or similar work arrangements - eg are there independent contractors, agency staff or people working for contractors?
- areas at the workplace where each type of work is performed - eg is the workplace spread over several locations?
- the nature of any hazards (and risks)
- overtime or shiftwork arrangements
- languages other than English
Section 53 makes it an offence to coerce or try to coerce someone:
- not to make, or withdraw, a request for a DWG;
- during negotiations about DWGs, or variations to DWGs;
- about being represented in negotiations about DWGs.
Make sure you seek the assistance of your union when negotiating or re-negotiating DWGs.
Sections 43 - 46 Establishment of DWGs (single employer)
An employee or group of employees (or someone authorised to represent them, like a union official) have the right to ask their employer to establish (or vary) DWGs at one or more of the employer's workplaces. Employers may initiate negotiations without a request having been made. The Act says the employer should do everything reasonable to ensure that negotiations begin within 14 days of the request.
If the negotiations result in agreement, then the employer must establish (or vary) the DWGs as agreed and give written notice to the employees. If agreement is not reached within a reasonable time, then any of the parties to a negotiation may ask the Authority to arrange for an inspector to determine the particulars that are unresolved. The inspector must take into account the matters as outlined (a-g) above.
Sections 47 - 52 Establishment of DWGs (multiple employers)
DWGs can also be established to represent employees of more than one employer. Negotiations must be between EACH of the employers and the employees. Any party involved in the negotiation or agreement of multiple employer DWGs can withdraw by giving reasonable notice, in writing, to the other parties. Such a withdrawal means that the other parties must negotiate a variation to the DWG. In the meantime, however, the withdrawal does not affect the agreement. The multiple employers at a workplace may include the 'main' employer and other employers who are contractors or sub-contractors - eg if a company has contracted out certain functions, such as cleaning, security, maintenance, etc.
These DWGs can be established alongside single employer DWGs.
Representatives: Also to be negotiated and agreed are the following:
- the number (at least one) of reps for each DWG
- the number of deputy reps (if any) for each DWG
- the term of office (not more than 3 years) of reps and deputies
- whether rep or reps are authorised to also represent independent contractors (and their employees) who work at the workplace (that is workers who are not employees of the employer)
The 2004 Act can be downloaded (in both pdf and word format) on the Victorian government legislation repository website.
For advice from WorkSafe: Employee representation - for OHS reps, deputies, and workers wanting to know how to ensure they are represented. Also for employers who need to ensure they understand employees' rights to representation, and the powers and functions of reps.
Last amended October 2019