Can an employer remove a HSR?
The short answer is ‘no.’
The OHS Act clearly outlines the circumstances under which an HSR ceases to hold office. A person stops being an HSR for their designated work group (DWG) if:
- They leave the DWG, such as when the HSR moves to a different section of the workplace covered by a different DWG or is no longer employed in the workplace.
- They resign as the HSR by providing written notice to the employer or any of the employers involved.
- The DWG is modified, unless it is agreed or an inspector determines that the variation will not affect the HSR's remaining term of office.
- A majority of the DWG members resolve in writing that the person should no longer represent the DWG (but only if the person has held office for at least 12 months).
- The person is disqualified by the Magistrates' Court
To be disqualified by a Magistrates' Court, they must prove in court the HSR intentionally caused harm to the employer or the employer's business by doing things like maliciously issuing a PIN, giving directions to stop work, or using other powers given to HSRs under the OHS Act.
If the Magistrates' Court finds valid reasons, they can disqualify the HSR for a specific period or permanently. When making this decision, the court looks at the harm the HSR's actions caused to the employer or their business, as well as the HSR's history of using their powers. The court can also disqualify an HSR if they find that the HSR purposely issued a direction to stop work without a good reason, which resulted in harm to the employer through lost production and income. This rule applies to dHSRs as well.
Refer to WorkSafe’s excellent Employee Representation Handbook for more information.
Given all the above, you probably won’t be surprised to hear we’re not aware of a single instance of HSR disqualification in the almost 20 years our OHS Act has been in place.