The election of health and safety reps, their term of office, powers and employers' obligations to them are covered by Part 7 Representation of Employees, Division 4 - Health and safety representatives.
The Guide below is a quick overview of the process for running an HSR election:
Election of OHS reps (Sections 54 & 55)
All members of a DWG are entitled elect an OHS rep, who must be a member of the DWG (and not disqualified from acting as a rep). Any member of the DWG may seek election as the rep - whether the person is permanent, full-time, part-time, or casual. [Note: prerequisite for reps - DWGs must be in place)
It is up to the members of the DWG to decide how to run the election (not the employer) - but if they cannot agree, then they can ask the Authority to arrange for an inspector to conduct the election (or appoint another person to do so). This can include someone from the union. The members of the DWG may decide to hold a meeting and then elect someone with a show of hands, or the election process may be more complex. They may also choose to ask their union to assist them in running the election.
Note: Section 54(6) of the Act says that if the number of candidates for election equals the number of vacancies, then an election does not need to be held and each candidate is to be taken as having been elected.
The term of office for reps is no more than 3 years, but they cease to be a rep if:
- they leave the DWG;
- the Magistrates' Court disqualifies them from being a rep;
- they resign as a rep;
- after at least 12 months, the majority of members of the DWG resolve in writing that the person should no longer represent them; or
- the DWG is varied (unless the variation is agreed or determined not to affect office-holders)
Reps can put their names forward for subsequent elections and be re-elected.
Note: Each DWG must have at least one elected rep. Under the 2004, when the DWGs are being established, there may be agreement regarding more than one rep per DWG and/or deputy reps (more information).
Disqualification of reps (Section 56)
An employer can apply to have a rep disqualified to the Magistrates' Court on the grounds that the rep has exercised his/her powers - such as issuing a PIN or a ceasework - solely in order to 'cause harm' to the employer or the business. If the Magistrates' Court finds that the rep did in fact use the powers simply to cause harm and not for any OHS related purpose, then it may disqualify the rep either for a specified period or permanently.
Deputy OHS reps (Section 57)
As noted above, one of the matters to be negotiated during the establishment of DWGs is whether there will be deputy OHS reps in the DWGs. The provisions in the Act for the election, term of office, training and disqualification of deputy reps are the same as for reps.
If an OHS rep ceases to hold that position or is not able to exercise his/her powers (eg while on leave, or absent), then the deputy rep is able to carry out the role and functions (ie exercise the powers) of the OHS rep.
Powers of OHS reps (Sections 58 & 59)
One of the main features of the OHS Act, since its initial introduction in 1985, is the powers of elected reps. Under Section 58, elected reps have the power to:
- to inspect any part of the workplace where members of the DWG work at any time (after reasonable notice) AND immediately in the event of an incident/situation posing an immediate risk;
- to accompany an inspector during an inspection of the workplace;
- require the establishment of an OHS committee;
- if requested by the member, be present at an interview (concerning OHS) between a member of his/her DWG and either an inspector or the employer;
- whenever necessary, seek the assistance of any person
Under the OHS Regulations, reps also have the right to request a review of specific control measures the employer has implemented to eliminate/minimise any risk.
By exercising these powers, the rep is able to:
- represent members of his/her DWG;
- monitor measures taken by the employer to comply with duties under the Act and regs;
- enquire into hazards and risks at the workplace;
- attempt to resolve issues (as per Section 73).
Under processes for resolving issues, reps also have the power to:
- issue provisional improvement notices (PINs)
- issue a direction to cease work
- call an inspector
More information on Issue Resolution
Important note: While the OHS Act gives HSRs rights and powers, s58(3) makes it clear that HSRs have no legal duties as HSRs:
"Nothing in this Act or the regulations imposes, or is to be taken to impose, a function or duty on a health and safety representative in that capacity."
While these powers are generally restricted to the rep's DWG, a rep may exercise these powers if there is an immediate risk in another DWG, or a member of another DWG seeks the rep's assistance, AND it is not feasible for the rep to refer the matter to that DWG's rep.
Obligations of employers to OHS reps (Section 69)
There are certain obligations that employers have to reps under Section 69. These are to allow the rep:
- access to information relating to actual or potential hazards
- access to information relating to the health and safety of DWG members (if this is MEDICAL information, then this must be either in a form that does not identify an individual OR if it does, then with the permission of that individual)
- to be present at an interview between a DWG member and an inspector and/or the employer
- to take such time off with pay as is necessary to exercise his/her powers, or to attend an accredited training course (in addition to courses under S67)
- provide such other facilities and assistance as are necessary to enable the rep to exercise his/her powers
Training of OHS reps (Section 67)
Both reps and deputies are entitled to attend an approved initial (5 day) training course when they are elected, and a (one day) refresher course each year they hold office. The rep/deputy must give the employer at least 14 days' notice. The employer must:
- allow the rep paid time off work to attend the course - see the advice in the Employee representation guide regarding what this means practically
- pay any associated costs (eg parking, travel, etc)
- allow the rep to attend the course of his/her choice, unless there is a 'reasonable' excuse. If the rep and the employer cannot agree, or if the employer refuses the rep to attend the course of choice, then the rep may ask the Authority to determine a course.
In the case of there being multiple employers, there is an obligation to share the costs.
The employer must:
- allow a person assisting an elected OHS rep access to the workplace, unless the employer considers that person is not suitable due to an insufficient knowledge of OHS. In such cases, the rep may apply to the Magistrates' Court for an order to allow access
- keep and display at the workplace a written list of each rep and deputy for each DWG
- A summary table of the rights of HSRs.
- The 2004 Act can be downloaded (in both pdf and word format) on the Victorian government legislation repository website.
- Information for health and safety representatives - an easy way to access the latest information. The most useful publication is Employee representation - a guide 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. The guide has been updated and is dated March 2021.
- On this site:
Last amended March 2021
Important OHS Act Information