ASK RENATA

Students began a protest encampment at the University where I’m a Health and Safety Representative (HSR). Management claims the encampment poses Occupational Health and Safety (OHS) risks and must be removed. However, no risk assessment has been performed, nor has there been any consultation with HSRs, which makes me worried that management is using OHS as a pretext for suppressing the protest. What can I do?

We share your concern. When OHS is used as a pretext for other agendas, workers become justifiably cynical and disengaged, viewing workplace safety as merely a tool to control worker behaviour.

The best way to combat this is to hold employers accountable when they cite OHS concerns. This involves ensuring genuine consultation with HSRs and conducting proper risk assessments.

Genuine consultation requires providing meaningful information about hazards and proposals to eliminate or control associated risks, informed by the hierarchy of controls and the notion of reasonable practicality, as required by section 20 of our OHS Act.

Under section 35 of the OHS Act, your employer has a duty to consult with affected workers whenever a hazard is identified. If management is concerned that the protest encampment constitutes a risk to your Designated Work Group (DWG), section 35 requires that they consult with the relevant HSR.

According to Regulation 24 - Procedure for reporting issues - if a safety issue arises at a workplace and a worker wishes to raise it for resolution, the employee must report the issue to the HSR, if there is one, or to the employer, if there is no HSR (our paraphrasing).

In either case, via section 35 of the Act, or Regulation 24, any issue or hazard affecting your DWG should be brought to the attention of the relevant HSR. All hazards or incidents should involve consultation with the relevant HSR.

As an elected HSR, you have the power, under section 58 of the OHS Act, to inquire into any matter that poses a risk or potential risk to members of your DWG. Additionally, under section 69(1)(a), your employer has a duty to "allow a HSR access to information the employer has relating to actual or potential hazards" (our paraphrasing).

Using these rights and powers, we encourage you to request that management share with you any risk assessment they’ve conducted, in writing. It's always a good idea to keep your DWG informed and secure their endorsement. We have a record of consultation proforma here that might suit your purposes, and a consultation email template here.

Should your request not result in the prompt provision of the information you require, we'd encourage you to issue a Provisional Improvement Notice (PIN) for breach of section 69 – obligations of employers to HSRs.

The wording should be simple, for example: "My employer refuses to hand over OHS records they have about actual or potential hazards affecting my DWG."

Section 69 of the OHS Act states:

(1) An employer, any of whose employees are members of a designated work group MUST

(a) allow a health and safety representative for the designated work group to have access to information that the employer has relating to—

(i) actual or potential hazards arising from the conduct of the undertaking of the employer, or the plant or substances used for the purposes of that undertaking; and

(ii) the health and safety of the members of the designated work group, or persons mentioned in section 44(1)(e) or 48(1)(e) whom the health and safety representative is authorised to represent.

Your request is perfectly reasonable and proportionate to the legitimate aim of having a functional occupational health and safety system that engages with employees on workplace health and safety through duly elected and recognised HSRs.

Page 34 of WorkSafe’s excellent Employee Representation Handbook provides the following helpful guidance:

Incidents

HSRs, through the exercise of their powers, make important contributions to health, safety, and welfare outcomes in the workplace in the event of an incident. These powers include:

  • Inspecting any part of their DWG immediately after an incident or in any situation involving an immediate risk to the health or safety of any person
  • Requesting access to information relating to incidents that have occurred in their DWG (including the written record of a notifiable incident provided by the employer to WorkSafe)
  • Accompanying a WorkSafe inspector during an inspection of a workplace at which a member of their DWG works
  • If a member of their DWG (for example, an injured party) consents, being present at an interview concerning occupational health and safety between:
  • the member and an inspector, or
  • the member and the employer concerned or its representative
  • Being consulted about any decisions being made about the measures to be taken by the employer to control risks to health or safety resulting from the incident
  • Attempting to resolve with the employer concerned (or their representative, for example, a manager/supervisor), any issues concerning the health or safety of members of the DWG as per agreed workplace procedure, or in the absence of an agreed procedure, as per the Issue Resolution regulations.

An HSR exercising their powers may do any of the above for the purpose of:

  • Representing the members of their DWG
  • Monitoring the measures taken by an employer to respond to an incident
  • Inquiring into anything that poses a risk to members of their DWG, for example, a potential, ongoing risk that has been highlighted by the incident.

An HSR for the DWG is entitled to access incident records or information regarding any hazard.

As always, we strongly encourage workers to contact their Union for expert advice and assistance. Your Union employs experienced OHS Officers who can provide additional support and advice should you require it.

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