..as an OHS rep. Is that right?
The answer is 'no - absolutely not'! This also applies if your employer has 'directed' you to undertake any particular task, or 'directed' you to undertake your role in any particular manner.
The Occupational Health and Safety Act, 2004 is very clear and unambiguous on this - reps have an important role in the workplace and they have powers in order to be able to fulfill their role. Employers have obligations to health and safety reps. A duty statement implies that elected reps have duties as representatives - and this is not the case. Section 58(3) states:
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.
The Act gives elected representatives powers under Division 5 (s58 - 66). These include:
- inspecting the workplace at any time after giving reasonable notice, or immediately in the event of an accident or where there might be immediate risk to the health and safety of any person;
- accompanying an inspector;
- requiring the establishment of a health and safety committee (as per s72)
- being present at an interview between either the employer or an inspector and a member of the DWG, if the member so wishes;
- seek the assistance of any person;
- issue provisional improvement notices (PINs) to any duty holder; and
- in certain circumstances, order that the work cease.
The regulations also give reps the right to request a review of specific control measures the employer has implemented to eliminate/minimise the risk caused by specific hazards.
The Act gives reps these rights so that they are able to:
- represent the members of their DWG in any OHS related matter;
- monitor the measures the employer is taking to comply with the Act or the regs;
- enquire into anything that may pose a risk to the health and/or safety of DWG members;
- resolve any OHS issues with the employer or the employer representative.
Employers have the following obligations to health and safety representatives:
- To consult with them prior to any changes in the plant, substances or systems of work at the workplace. This duty to consult covers a wide range of matters, and the regulations provide detail on how the employer must involve reps in the consultation process. Read more.
- To allow reps (and deputies) to attend an initial course of training after being elected, and a refresher course at least once each year after that. The reps have the right to choose the course they wish to attend, though they must first consult with their employer about the course and give at least 14 days' notice of their intention to attend. The employer must allow the reps to attend on paid leave, and also pay the cost of the course and reasonable expenses associated with attending the course. Read more.
- To allow access to information relating to actual or potential hazards in the workplace and the health and safety of DWG members.
- To give the reps time off with pay, and such other facilities and assistance, in order to exercise his or her powers - read more.
Remember: The rep is elected by the members of his or her designated work group - and is their rep, not the employer's rep. He or she has to satisfy those members and is answerable to them. In terms of duties an elected rep has the same duties as any other employee of the employer - no more, no less. These are specified in Section 25 of the Act - read more.
Last amended May 2021