New powers of health and safety representatives

Changes to HSR powers under the OHS Act

On 22 September 2021 powers of HSRs under Part 7 of the Occupational Health and Safety Act 2004 (OHS Act) were amended.

Section 58(1) of the OHS Act now allows HSRs to take photographs or measurements or make sketches or recordings (including audio and video) at any part of a workplace at which a member of the HSR's designated work group (DWG) works, except in certain situations.

This power will support HSRs to undertake their role under the OHS Act and can only be used for a purpose specified under the OHS Act.

Limits on powers

As per section 59 of the OHS Act, HSR powers (including the new power to take photos, measurements, sketches or recordings) are generally limited to an HSR’s particular DWG or a person who they are authorised to represent, unless:

• there is an immediate risk to health or safety that affects or may affect a member of another DWG, or
• a member of another DWG asks for the HSRs assistance, and
• it is not feasible for the HSR to refer the matter to the HSR for the other DWG

An HSR is not permitted to take photographs or measurements or make sketches or recordings during interviews referred to in section 58(1)(d) or 58(1)(e) of the OHS Act. This includes during an interview between a member of the HSR’s DWG and an inspector or the employer.

As with the exercise of any HSR powers, an HSR must only use or disclose photographs, measurements, sketches or recordings taken in the workplace for the purposes set out in section 58(2) of the OHS Act, which are:

• making enquiries into anything that may pose a health and safety risk at the workplace
• attempting to resolve any issues concerning workplace health and safety
• representing members of the DWG or other persons they are authorised to represent about workplace health and safety
• monitoring measures taken by employers regarding workplace health and safety

An HSR may, for example, use or disclose photographs, measurements, sketches or recordings with:

• their employer, to support discussion and resolution of health and safety issues
• any person assisting an HSR under section 58(1)(f)
• WorkSafe, to assist in resolving a health and safety issue

Sharing photographs, measurements, sketches or recordings through media or social media are unlikely to be considered purposes permitted by the OHS Act.