Employee representation: A comprehensive guide to Part 7 of the Occupational Health and Safety Act 2004

Representation of employees in the workplace

This guide is concerned with the representation of employees in the workplace. Research shows that when employees have input before decisions are made about health and safety matters, workplaces have better health and safety outcomes. Employee representation provides a means for involving employees and giving them a voice in health and safety matters. One of the five principles of health and safety protection in the Occupational Health and Safety Act 2004 (OHS Act) states that 'employees are entitled, and should be encouraged, to be represented in relation to health and safety issues'. (section 4(5) OHS Act).

The OHS Act was amended on 22 March 2022 to improve the rights and protections of labour hire workers by extending the definitions of 'employee' and 'employer' in relation to labour hire arrangements.

Extending the definitions of 'employee' and 'employer' will ensure that under the OHS Act:

The sections in the OHS Act regarding representation of employees are also designed to facilitate the duty of employers to consult with their employees about health and safety issues. In general, Part 7 of the OHS Act provides for representation of employees through:

• designated work groups (DWGs)
• health and safety representatives (HSRs) and deputy health and safety representatives (DHSRs)
• health and safety committees (HSCs)

The duty to consult with employees under the OHS Act recognises the key role HSRs play in representation, communication and the implementation of workplace health, safety and welfare initiatives.

The OHS Act also facilitates multiple options for representation arrangements including:

• the ability to elect more than one HSR per DWG
• the ability to elect DHSRs
• the representation of independent contractors engaged by an employer
• by agreement, enabling multiple employers to establish DWGs of all their employees and independent contractors

In addition to facilitating multiple options for representation, the OHS Act includes:

• a prohibition on coercion in relation to DWG negotiations
• prescribes a maximum term of office for HSRs
• HSR training requirements
• protection for HSRs against discrimination, including the threat of discrimination

It is the intention of Parliament that WorkSafe Victoria (WorkSafe) administers the OHS Act in a manner that best advances the objects of the OHS Act in accordance with the principles of health and safety protection outlined in the OHS Act.

WorkSafe exercises its powers and perform its functions to best advance the objects and principles of the OHS Act, including the active encouragement and promotion of the entitlement of employees to be represented in relation to health and safety issues.

A note on consultation and HSRs and Part 7 of the Occupational Health and Safety Act 2004

One of the objectives of the OHS Act is to promote greater involvement and co-operation between employers and employees, including HSRs on occupational health and safety (OHS) matters.

Whilst this guide is specifically in relation to Part 7 of the OHS Act, WorkSafe Victoria believes it is important to include the legal duty of an employer to consult with employees under Part 4 of the OHS Act.

Why consult with HSRs

HSRs facilitate communication and consultation, providing a crucial link between employers and employees.

Involving HSRs in health and safety issues can result in safer workplaces. HSRs have the experience and knowledge to help identify hazards, assess risks and develop workable solutions.

Consultation about health and safety can result in:

• healthier and safer workplaces as employee input is valuable in identifying hazards, assessing risks and developing ways to control or remove risks
• better decisions about health and safety as decisions are based on the input and experience of a range of people in the organisation, including employees who have extensive knowledge of their own job and the business
• stronger commitment to implementing decisions or actions as employees have been actively involved in reaching these decisions
• greater co-operation and trust as employers and employees talk to each other, listen to each other and gain a better understanding of each other's views

When to consult with HSRs

In general, the OHS Act requires employers to consult with employees so far as is reasonably practicable who are, or who are likely to be, directly affected by a health and safety matter.

Where employees are represented by HSRs, employers must involve the HSRs in consultation, with or without the involvement of the employees directly

Employers must consult with employees when:

• identifying or assessing hazards or risks to health or safety arising from activities of the business
• making decisions about the measures to be taken to control risks to health or safety at a workplace
• making decisions about the adequacy of facilities for the welfare of employees
• making decisions about procedures to
  • resolve health and safety issues
  • consult with employees on health and safety
  • monitor employees' health and workplace conditions
  • provide information and training
• determining the membership of any health and safety committee
• proposing changes that may affect the health or safety of employees to any of the following
  • the workplace
  • plant, substances or other things used in the workplace
  • the work performed at the workplace
  • any other thing prescribed by the regulations

How to consult with HSRs

Consultation does not mean telling the HSR about a decision or action on a health and safety matter after it has been taken. Consultation means giving employees and HSRs the chance to shape health and safety decisions and actions taken by their employer.

When consulting with an HSR, an employer must:

Share information with the HSR about the OHS matter

For consultation to be meaningful, employers must share all relevant matters involving employees' health and safety with employees and HSRs. This information should be provided in a timely way so that the employees and HSRs have adequate time to consider the matters, discuss them and then provide feedback to their employer.

Unless it is not reasonably practicable, employers must provide this information to HSRs at a reasonable time before it is provided to employees.

Relevant information should be in a form that employees and HSRs can easily understand. Employees and HSRs may need information such as technical guidance about workplace hazards and risks (plant, equipment and substances), and information about how work is organised (systems, data reports, procedures and guidance material).

Information should not be withheld just because it is considered technical or difficult to understand.

Employees and HSRs should be given time to process and seek advice on any information they have been provided.

Employers should also have a way to consult with employees from culturally or linguistically diverse backgrounds.

Give the HSR a reasonable opportunity to express their views about the matter

Opportunities must be provided for employees and HSRs to express their views about health and safety matters.

Where there are HSRs, the employer must invite and meet with the HSRs or meet with the HSRs at their request.

A number of meetings may be required, depending on the matters involved.

Employees and HSRs should be encouraged to ask questions, raise concerns, propose options, make recommendations and be part of the problem-solving process.

Take the HSRs views into account

Employers must take employees' and HSRs' views into account.

Before a final decision is made, employers need to respond to concerns and questions raised by employees and HSRs and give feedback to employees and HSRs about options that were considered. They should explain to employees and HSRs the final decision or course of action and why it has been taken.

While the employers, HSRs and employees should aim to reach agreement through the process of consultation, agreement is not a required outcome under the OHS Act. Ultimately the responsibility to identify hazards and control risks in the workplace rests with the employer.

Following consultation, once a final decision is made, the employer should inform the HSR of the decision.

For more information about an employer's duty to consult, refer to the WorkSafe publication A guide for Victorian workplaces – Consultation.