In a NSW decision that sets a worrying precedent, an employer has successfully argued that its workplace should only have one work group instead of the five determined by the WHS Regulator.
In July last year, the head teacher of Fairfield High School started negotiations with the Principal to form WGs (our version of DWGs) and elect HSRs for the 170 staff onsite. Agreement could not be reached on structures and so the regulator was called in. The SafeWork inspector decided to divide the school’s workers into five DWGs, with a total of 10 health and safety representatives covering different staff categories, a decision that was supported at internal review.
The State Department of Education requested an external review of SafeWork NSW's decision, submitting that one work group at the school, with one health and safety representative and one deputy was sufficient. Commissioner O’Sullivan ultimately ruled in favour of the Department finding that a single work group would effectively identify risks and streamline safety processes.
This decision upends decades of thinking about creating robust structures that best and most conveniently support worker representation and safety. Whilst this has no direct bearing on the Victorian OHS Act, the fact that the considerations on how to set up WGs are broadly similar gives us pause to consider how this may be used in our jurisdiction.
WorkSafe NSW are yet to announce whether they intend to appeal this problematic decision.
Read the NSW Industrial Relations Commission’s finding here.