Obligations of an employer to health and safety representatives

About the Division 6 of Part 7, Occupational Health and Safety Act 2004

Under the Occupational Health and Safety Act 2004 (OHS Act), employers have a number of specific obligations to or in relation to HSRs. These are outlined in the following information.

• An employer must allow an HSR for the designated work group (DWG) to have access to information that the employer has relating to: *
  • actual or potential hazards arising from the conduct of the business or plant and substances used in the workplace
  • the health and safety of members of the DWG that the HSR is authorised to represent, which may include independent contractors and their employees
• An employer must, if a member of the DWG consents, allow an HSR for the DWG to be present at an interview concerning occupational health and safety (OHS) between: *
  • the member and an inspector
  • the DWG member and the employer (or employer's representative)
• An employer must allow an HSR – if authorised to represent independent contractors and their employees, and with the person's consent – to be present at an interview concerning health and safety between: *
  • the independent contractor (or its employee) and an inspector, or
  • the independent contractor (or its employee) and the employer (or employer's representative)
• An employer must allow an HSR to take such time off work with pay as is necessary or prescribed by the Occupational Health and Safety Regulations 2017 (OHS Regulations) for: *
  • exercising their powers under Part 7 of the OHS Act, or
  • taking part in any course of training relating to OHS that is approved or conducted by WorkSafe and of which the employer is given at least 14 days' notice (More information follows)
• An employer must provide such other facilities and assistance to an HSR for the DWG as are necessary or prescribed by the OHS Regulations to enable the HSR to exercise their powers under Part 7 of the OHS Act. *
• An employer must allow a person assisting an HSR access to the workplace unless the employer considers that the person is not a suitable person to assist the HSR because of insufficient knowledge of OHS.
• An employer must ensure that a written list of each HSR and deputy HSR (DHSR) for each DWG is prepared and kept up-to-date. A copy of the list must be displayed at each workplace or otherwise be readily accessible to all employees.

In addition, an HSR is given powers under the OHS Act (for example, to inspect the workplace, to be present at an interview on OHS) and each of these powers coincides with a corresponding obligation on the employer. Refer to WorkSafe's guidance Powers of health and safety representatives for more information.

* Penalties apply to contraventions of these provisions

Access to information

An employer must allow an HSR to have access to certain information.

As described in section 69(1)(a) – this relates to information the employer has about relevant hazards and the health or safety of people the HSR represents. However, this does not include access to medical information. (More information is available on this page under the heading Can an HSR have access to an employee's medical information?)

Access for these purposes may include receiving a copy of written information or it may involve the HSR studying reports and taking notes as required.

In view of the range of information that may be involved, the employer should consult with the HSR on the type of information required and the procedures for ensuring proper access. It may be more efficient to agree to provide the HSR with some information as it becomes available or enters the workplace as a matter of routine. While information required will differ between workplaces, examples of what the HSR could request affecting their DWG include:

• information relating to any incident or occupational disease, including any statistical records, for example, the injury register
• records of incidents, near misses and investigations
• inspector entry reports and notices
• safety data sheets (SDS) relating to hazardous substances and/or dangerous goods used in the workplace
• technical specifications of processes producing noise, vibration or emitting radiation
• results of occupational hygiene measurements taken in the workplace, for example, noise levels, dust emissions or chemical fumes
• reports on OHS matters written by consultants engaged by the employer
• minutes of HSC meetings
• information provided by manufacturers relating to personal protective equipment
• specifications by manufacturers for safe working procedures for plant and equipment
• information passed to the employer by manufacturers and suppliers of plant, equipment and substances
• information on substances that are stored or issued at the workplace
• information on health monitoring of employees and conditions at the workplace

Can an HSR have access to an employee's medical information?

An employer must not allow an HSR to have access to any medical information concerning an employee in their DWG without the employee's consent, unless the information is in a form:

• that does not identify the employee, or
• from which the employee's identity cannot reasonably be ascertained

Note: penalties apply to contraventions of these provisions

'Medical information' could include information regarding an illness or condition or details of conditions treated by a health practitioner.

Note: the HSR does have a right to access the injury register.

For example, an employee falls in the workplace and sustains an injury. The incident report includes information that the injured employee has a pre-existing medical condition. The HSR requests to view the incident report. In this instance, details of the pre-existing medical condition must not be shared with the HSR without the employee's consent. If the employee does not consent to sharing this information, the employer must redact any information relating to the pre-existing medical condition prior to sharing the incident report with the HSR.

Can an HSR be present at an interview concerning OHS between a DWG member and an inspector or their employer (or its representative)?

Yes.

Where an employee consents to the presence of an HSR at an interview concerning OHS, the employer cannot prevent the HSR from being present.

The HSR should be informed of any such interview and the HSR and employee may wish to consult before and/or after the interview.

An employer must allow an HSR to take time off work with pay as necessary for exercising their powers under the OHS Act. What does this mean in practice?

The guiding principle is for the HSR not to be disadvantaged in any way for taking on the role of HSR.

WorkSafe's position on payment is that the HSR, when exercising their powers as an HSR, using their entitlements or carrying out their role the OHS Act gives them, must be paid as if at work, including shift or other allowances to which an employee is entitled.

The amount of time necessary for HSRs to perform their role will vary between workplaces and across situations. HSRs must have ready access to the employer (or its representative) and the employees of the DWG to discuss OHS matters as they arise. Matters that may be relevant to the employer and HSR in determining how much time is required for the HSR to fulfil their role include:

• the type of work or proposed work in the workplace
• the level of risk involved in the work
• the effectiveness of risk controls
• the individual needs of employees in the DWG relevant to their health and safety, for example, disabilities or the need to communicate in different languages
• attendance at meetings, for example, HSC meetings, meetings of DWGs and meetings with other HSRs
• the size and complexity of the DWG
• the size and complexity of the workplace
• the number of HSRs in the workplace and in the DWG

It is not expected that HSRs carry out their role outside of their core work hours but this may happen from time to time.

Who is responsible for costs if the DWG covers more than one employer?

If an HSR, or DHSR (if any), represents a DWG of employees of more than one employer, the costs of the HSR exercising their powers under Part 7 of the OHS Act and the costs associated with the HSR or DHSR attending courses (for example, course fees, time-off costs, transport, accommodation) must be apportioned equally between each of the employers unless they agree otherwise.

Any agreement to apportion the costs in another way may be varied at any time by negotiation between each employer.

What facilities and assistance is the employer required to provide to the HSR?

The employer must provide such other facilities and assistance to an HSR for the DWG as are necessary or prescribed by the OHS Regulations to enable the HSR to exercise their powers under part 7 of the OHS Act.

What is reasonable in the particular circumstances will depend on a range of factors, including the nature of the work and the working environment, hazards present and the composition of the DWG. Such facilities may include:

• access to a private room, desk and chair for discussions or interviews
• facilities for filing, for example, a lock-up filing cabinet and shelves
• ready access to a telephone, internet and email
• access to computers and photocopying facilities
• access to meeting rooms for meetings of HSRs and meetings of the DWG
• access to relevant technical equipment (for example, a camera or noise meter)
• use of noticeboards
• transport or travel expenses to commute between workplaces, if required

Does the employer have to keep a written list of HSRs?

Yes.

Note: penalties apply to contraventions of this provision.

An employer must ensure that a written list of each HSR and DHSR for each DWG is prepared and kept up to date. A copy of the list must be displayed at each workplace or otherwise be readily accessible to all employees. This can be done by displaying or keeping the list in a central location, for example, a breakroom, or by pinning it on a communal noticeboard. For very large enterprises, a number of notices should be placed in appropriate locations.

This list must be updated whenever required to reflect any changes in HSRs or DHSRs.

The purpose of such a list is to enable all employees within the workplace to know who the HSRs and DHSRs (if any) are.

HSR training

Initial and refresher OHS training

To exercise powers and rights as an HSR effectively, it is important that HSRs (and if applicable, any DHSR) receive training. This will provide HSRs with the appropriate skills, knowledge and confidence to represent the members of their DWG.

HSRs have an entitlement to attend initial and refresher training if they request to do so, however it is not compulsory for HSRs to be trained. WorkSafe actively encourages HSRs to take up their training entitlements.

Is an employer required to allow HSRs and DHSRs to attend training?

Yes.

Employers must, if requested by an HSR or DHSR, allow the HSR or DHSR time off work with pay to attend:

• an HSR initial OHS training course after being elected
• an HSR refresher OHS training course at least once in each year the HSR or DHSR holds office after completing the initial course of training

This obligation applies provided that the request to attend training is made no less than 14 days before the course commencement date.

The costs associated with HSR training should be integrated into the overall training budget of the organisation.

Initial and refresher OHS training courses must be:

• approved or conducted by WorkSafe
  • WorkSafe has approved a number of courses, including courses conducted by trade unions, employer associations, TAFE colleges and others. A list of course providers can be found on the WorkSafe website
• relevant to the work of the members of the DWG or the role of the HSR
  • the courses must be either relevant to the work of the members of the DWG in terms of dealing with hazards or risks found in the DWGs workplace or to the role of the HSR
• selected by the HSR in consultation with the employer

When can refresher training be taken?

Refresher training can be undertaken at least once in each year, after completing the initial course of training, that an HSR holds office.

This entitlement to time off work with pay to attend refresher training only applies to those HSRs (and DHSRs) who have completed an initial training course.

Can HSRs choose which course they attend?

The OHS Act requires initial and refresher training courses to be chosen by the HSR in consultation with the employer. An HSR should therefore:

• inform the employer of the proposed course
• give the employer the opportunity to present views about the suitability of the proposed course

It is desirable for HSRs and employers to agree on which course the HSR should attend. Issues that might be considered include:

• timing of attendance – the sooner HSRs attend training after being elected, the more effective they may be in performing their role
• cost of courses, where prices differ substantially
• costs of attendance for remotely located workplaces, including travel and accommodation expenses (in such circumstances, the arrangements that would apply for any other work-related professional development courses may determine what is reasonable)
• the relevance of any hazard-specific course to the DWG
• the total number of employees requiring training

How much notice must an HSR (or DHSR) give to the employer prior to attending a health and safety training course?

At least 14 days' notice is required, but ideally HSRs should give the employer as much notice as possible. This is so the employer can ensure that an HSRs absence is managed and does not cause unnecessary inconvenience to the business.

It is not acceptable for business requirements to be used repeatedly as a reason by an employer for delaying attendance.

What happens if an employer refuses to allow an HSR (or DHSR) to attend training?

If an employer refuses to allow an HSR to attend an approved initial or refresher training course, or they cannot agree on a particular course, the HSR may ask WorkSafe to determine a specified course that the HSR may attend. When requesting a determination, initial contact is to be made through WorkSafe's Advisory Service.

Reasons for disagreement may include:

• timing of attendance – the sooner HSRs attend training after being elected, the more effective they will be in performing their role
• cost of courses, where prices differ substantially
• costs of attendance for remotely located workplaces, including travel and accommodation expenses (in such circumstances, the arrangements that would apply for any other work-related professional development courses will determine what is reasonable)
• the relevance of any hazard-specific course to the DWG
• the total number of employees requiring training

It is an offence under the OHS Act for an employer to refuse, without a reasonable excuse, to allow an HSR to attend a course determined by WorkSafe and penalties may apply.

If WorkSafe is asked to determine a specified course that an HSR may attend, it will first seek to gain agreement between the employer and the HSR about which course the HSR may attend. In determining a course, the following may be considered:

• the issues that are in dispute
• that the person requesting training is entitled to the training
• has the HSR given at least 14 days' notice?
• the course preference of the HSR
• whether the course being requested is a Worksafe-approved training course
• relevance of the proposed course to the work of the DWG or to the role of the HSR
• the cost of attending the course, including associated costs

In some circumstances, the following actions may be taken:

• If the HSR has given less than 14 days' notice WorkSafe will determine a course that is to be held more than 14 days from that date.
• If the HSR proposes a course that has not been approved by WorkSafe, WorkSafe will nominate an approved course to be held more than 14 days from that date.
• If the issue relates to the relevance of the particular course to the work of the DWG or to the role of HSRs, a relevant course will be selected.

However, if the HSR did give 14 days' notice, the course is approved by WorkSafe, and the course is relevant; then it is highly likely that WorkSafe will affirm the course as chosen by the HSR.

Any determination made by WorkSafe must be made in writing and WorkSafe must ensure that it is not made less than 14 days before the specified course is to start.

Must the employer pay the HSR (and DHSR) their normal salary for the days they attend training?

Yes.

An employer must allow each HSR (or DHSR) time off work to attend training courses with such pay equivalent to what they would otherwise be entitled to receive from the employer for working during that period. HSRs should not be disadvantaged in any way as a result of attending approved training under the OHS Act.

HSR training is part of normal work-related activity. HSRs are entitled to receive their normal/expected earnings during course attendance. Normal/expected earnings include pay entitlements relating to shift work, regular overtime, higher duties, allowances or penalty rates that would have applied had the HSR been at work. All time spent at a course by an HSR (including casual employees) must be treated by the employer as time at work. HSRs must be paid as if they had been at work for the relevant time.

There are circumstances in which HSRs may need to attend a course that is being conducted outside their normal working hours. For example, this might apply when an HSR:

• normally works two days a week and attends a five-day course run on consecutive days
• has a rostered day off during the course
• normally works night shift
• has a shift that does not overlap or overlaps only marginally with the course's hours

Employers should alter rosters or shifts to accommodate any HSR who attends training. If it is necessary for the HSR to work hours in excess of the normal weekly hours, additional hours must be compensated in the same manner as other additional hours are treated. When the HSR and the employer agree, time off work may be taken in lieu of payment.

Who pays for the costs associated with attendance at training?

The employer.

HSR training is a work activity and employers must pay course fees for each HSR. The employer must also pay costs associated with an HSRs attendance at a course.

WorkSafe recommends that all costs associated with an HSRs attendance at an approved course should be discussed between the HSR and their employer as part of course selection. Associated costs may include:

• travel to and from the approved course (where it is greater than travel to the normal workplace)
• accommodation, meals and other incidental expenses where an approved course is remote from the workplace

If, when establishing a DWG, the employer and employees agreed to the election of multiple HSRs and DHSRs, the employer should ensure sufficient funds are available to cover the costs outlined for all HSRs and DHSRs.

What if there are multiple employers?

If the HSR or DHSR represents a DWG of the employees of more than one employer, the costs of the HSR (and DHSR, if any) exercising their powers under Part 7 of the OHS Act, and the costs associated with training outlined previously, for which the employers are liable, must be divided equally between each of the employers unless they agree otherwise.

Any agreement to apportion costs in another way may be varied at any time by negotiation between each employer.

If any of those employers complies with section 67 concerning the training of HSRs (and DHSRs, if any), then each of those employers is taken to have fulfilled this obligation.

Is an HSR (or DHSR) entitled to attend another initial training course after being re-elected in the same DWG?

No, not generally.

Every HSR (and every DHSR) has only one entitlement for initial training.

If the HSR (or DHSR) is re-elected in the same DWG and has already participated in an initial training course, they do not generally have an entitlement to time off work with pay to attend a further initial training course. However, in a situation where the nature of an HSRs role or workplace changes substantially, there may be an entitlement to attend another initial training course if appropriate.

The absence of an entitlement does not prevent an employer who recognises the benefits of HSRs receiving training from allowing them to attend additional courses.

Are there circumstances in which an HSR (or DHSR) can attend initial training a second time?

Yes.

If an HSR is elected in another DWG, for example, an HSR who changes employer and is then elected HSR by a new DWG, they will be entitled to time off work with pay to attend a further initial training course, if the HSR chooses to, and this initial training course is appropriate.

Other approved HSR OHS training

Are HSRs entitled to any other OHS training?

Yes.

Under section 69(1)(d)(ii) of the OHS Act, an employer must allow an HSR to attend any course of training relating to OHS that is approved or conducted by WorkSafe in addition to the initial and refresher training, provided that the HSR has given the employer at least 14 days' notice.

DHSRs are not entitled to training under this section, unless they are acting in the role of the HSR at the time of the training. An employer can, however, choose to make this training available to DHSRs and pay the appropriate costs.

If an HSR or DHSR (where appropriate) attends further training relating to OHS under this section, the employer is required to provide the HSR with time off work with pay as is necessary to attend the WorkSafe-approved or conducted course. However, the employer is not required to pay for the cost of the course or associated expenses, but may choose to do so.

What happens if an employer refuses to allow an HSR to attend a course of training under section 69 of the OHS Act?

If an employer refuses to allow an HSR to attend a course of training under section 69, the HSR should attempt to resolve the issue in accordance with the agreed issue resolution procedure or if there is no procedure, the issue resolution procedures prescribed in Part 2.2 of the OHS Regulations.

If the matter is not resolved under section 73 within a reasonable time, any of the parties attempting to resolve the issue may ask WorkSafe to arrange for an inspector to attend at the workplace. Refer to WorkSafe's guidance Resolution of health and safety issues for more information on resolution of health and safety issues.

Penalties can apply if an employer refuses to allow an HSR to take time off work with pay as is necessary to attend a course of training under section 69.

HSR Tip - The HSR also has the option of issuing a provisional improvement notice (PIN).