Resolution of health and safety issues

Division 8 of Part 7, Occupational Health and Safety Act 2004

The Occupational Health and Safety Act 2004 (OHS Act) seeks to facilitate the resolution of health and safety issues as they arise. Health and safety issues may include any number of matters (for example, the detection of a potential workplace hazard, the identification of a health and safety breach or the proposed introduction of new plant/equipment or work processes). A health and safety issue does not necessarily imply the existence of a dispute.

Issue resolution procedure flow chart

What must the parties do if a health and safety issue arises in the workplace?

The employer or its representative and the employees who are affected by the issue or, if the issue relates to a designated work group (DWG), their health and safety representatives (HSRs) must attempt to resolve the issue in accordance with an agreed procedure. If there is no such procedure, the procedure prescribed in Part 2.2 of the Occupational Health and Safety Regulations 2017 (OHS Regulations) must be used.

Other provisions in the OHS Act also relate to resolving issues. HSRs have the power to seek assistance from any person, for example, for health and safety advice and to issue provisional improvement notices (PINs). Refer to WorkSafe's guidance Powers of health and safety representatives for more information.

If an issue is not resolved 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 to enquire into the issue. In this context, a reasonable time is what parties believe is reasonable in the circumstances.

What is an agreed procedure?

An agreed procedure is an agreed process or outline of the steps to be used in resolving health and safety issues in a workplace. The agreed procedure should provide practical guidance and aim to facilitate a timely and effective resolution. It must contain the following four criteria:

• The procedure must be agreed. This means that it is consensual and there has been genuine consultation and agreement between the employer and the HSRs and employees. The procedure must not be imposed by one party or the other or arise out of a flawed process for reaching agreement. A flawed process for reaching agreement may be one:
  • where only a select group of employees participated and agreed with the employer, or
  • where agreement is reached through an unrepresentative process, for example, not all HSRs or all health and safety committee (HSC) members or all relevant employee representatives were able to participate in the agreement process
• The agreed procedure must outline a process or steps for resolving issues. A procedure does not specify the outcome of health and safety issues that arise.
• The agreed procedure must be able to facilitate the resolution of issues and not merely set out a process for employees to notify an HSR or their supervisor of a health and safety issue.
• The agreed procedure must relate to health and safety issues. It must not be a procedure that exists for any other purpose, for example, a grievance or complaint procedure, unless such a procedure is agreed to be utilised for health and safety issues.

In addition, an agreed procedure must be consistent with the OHS Act – for example, it cannot include an agreement to remove the power of an HSR to issue a PIN or to exercise any other of their powers under the OHS Act.

If a procedure does not meet these criteria it is not considered by WorkSafe to be an agreed procedure.

If an inspector forms the view that a procedure is inadequate and was not agreed, the inspector will advise the relevant parties that the purported agreed procedure is not an agreed procedure and reflect this in their Entry Report for the visit. The inspector will also advise that the OHS Regulations will apply until or unless the workplace parties reach agreement on a procedure to follow.

The inspector will provide guidance to the relevant workplace parties on what new agreed procedures could look like or how the existing procedures could be altered to meet the previously listed criteria.

If either the employer or a majority of employees have concerns about an agreed procedure, they are entitled to withdraw their agreement and, unless or until a new one is developed, the OHS Regulations will apply.

HSR and Employer Tip - Keep a record of the agreed procedure, including when and by whom it was agreed.

What might an agreed procedure look like?

Given that work situations differ vastly from one industry or workplace to another, there may be advantages for employers and employees in negotiating a formal agreement for resolving health and safety issues. The objective of an agreed procedure should be the most speedy and effective resolution of all health and safety issues. As far as possible, they should be resolved as and when they arise.

If there is an HSC, it may be the forum used to develop an issue resolution procedure. One of the functions of an HSC is to formulate, review and disseminate to the employees, standards, rules and procedures relating to occupational health and safety (OHS) that are to be carried out or complied with at the workplace. Even if the HSC is not used to develop the procedure, it is recommended that an issue resolution procedure be presented to the HSC for consultation and endorsement and then to the HSRs and the rest of the employees.

An agreed procedure should provide a description of the steps to be taken and who is to be involved once an issue arises. For example, an agreed procedure might include:

What is meant by a prescribed procedure?

Where there is no agreed procedure at a workplace the prescribed procedure contained in Part 2.2 of the OHS Regulations must be implemented to resolve health and safety issues. These regulations identify the parties to the resolution of issues and provide a procedure for reporting and resolving health and safety issues.

Can anyone be an employer representative in a health and safety issue resolution process?

If the employer appoints its own representative for the purpose of issue resolution, the employer must ensure the person is not an HSR. The employer representative must also have an appropriate level of seniority and must be sufficiently competent to act as the employer's representative.

Penalties apply to contraventions of this provision.

For effective issue resolution to occur, an employer representative should have the necessary authority to resolve any OHS issues on behalf of the employer. This should be reflected in the employer representative's position in the organisational hierarchy and position description so as to avoid any confusion.

In this guidance, sufficiently competent for the purpose of health and safety issue resolution means that the employer representative has an understanding of how the OHS Act and OHS Regulations apply to their workplace and is knowledgeable in relation to the operations of the workplace for which the employer representative has responsibility.

In order to carry out their role under the OHS Act, an employer representative needs to have the following competencies:

• a general knowledge of the OHS Act
• understanding of the health and safety issue resolution process and the role of agreed procedures and regulations
• understanding of the employer duties under OHS Act, OHS Regulations, and the concept of reasonable practicability
• understanding of the role and powers of HSRs and authorised representatives of registered employee organisations
• understanding of the role of inspectors, their powers and issue resolution functions
• understanding of how the workplace operates
• communication, consultation and negotiation skills
• understanding of the process of resolution when an inspector arrives on site
• general understanding of OHS issues and systems specific to that workplace
• understanding of the hazard identification and risk assessment processes and, in particular, the ability to identify appropriate risk control measures available to the employer
• ability to get access (within the organisation and externally) to expert technical information and advice in relation to specific hazards

There are many ways in which employer representatives can attain these competencies. These include OHS training, general management training, work experience and mentoring programs.

It is the employer's responsibility to determine the competence of the employer representative prior to the appointment of that person. The employer representative's competency in these matters should be incorporated into performance appraisal systems.

In line with its functions under section 7 of the OHS Act, WorkSafe will promote education and training to support section 73 as one option for employers to improve the skills of their representatives.

However, as noted previously, the competencies may be achieved by other means.

The OHS regulations provide that at any stage in the resolution of an issue, the employer may seek the assistance of any relevant organisation of employers to assist in resolving the issue.

Direction to cease work

What if there is an immediate threat to health or safety?

If a health or safety issue arises at the workplace or from the conduct of the undertaking of an employer:

• that concerns work that involves an immediate threat to anyone's health or safety and
• where it is not appropriate to implement issue resolution procedures under section 73 given the nature of the threat and degree of risk

a direction to cease work may be made by an employer, its representative or the HSR, provided consultation has taken place between them.

WorkSafe interprets immediate threat in this context to mean immediate in time and direct. Although it is not possible to be specific about what might be an immediate threat, as this may vary between workplaces, if the issue concerns work that is likely to lead immediately to injury or harmful exposure, then a direction to cease work is an appropriate response.

When there is an immediate threat to health and safety prompt consultation must take place. Either the HSR or the employer must:

• inform the other of the issue and proposed course of action to control the risk
• give the other the opportunity to present views about the appropriateness of the proposed course of action and to suggest alternatives
• take those views and suggested alternatives into account when making a final decision

If consultation is not timely enough to address the risk, employees may also, at any time exercise their common law right to stop performing any work that places them in danger.

Consultation between an HSR and an employer may result in immediate resolution of the issue, or may result in a joint direction for work to cease in that area. Where consultation does not lead to agreement between an HSR and an employer that work is to cease, either the HSR or the employer may direct that the work is to cease.

An employer may assign employees affected by the direction to cease work to suitable alternative work. Such alternative work must not expose employees to the risk and must be suitable to those employees' skills and job classifications.

Where relevant, there should be consultation with the HSR and union representatives before the commencement of any alternative work to avoid or minimise the possibility of demarcation disputes. Should the alternative work be paid at a lower rate, the employees are entitled to receive their normal/expected earnings for the period of the cease work.

Should there be no appropriate alternative work for employees in a cease work situation; employees are entitled to receive their normal/expected earnings during this time.

While employers and HSRs should aim to reach agreement through the process of consultation regarding ceasing work, agreement is not a required outcome of consultation, as per the OHS Act.

Can an inspector be called in to assist in the resolution of a health and safety issue?

Yes, if an issue:

• is not resolved under section 73 within a reasonable time*, or
• is the subject of a direction under section 74 that work is to cease

Any of the parties attempting to resolve the issue may ask WorkSafe to arrange for an inspector to attend at the workplace.

*Note: determining what is considered a reasonable time will vary depending on the circumstances in the workplace and the immediacy of the risk, but should not normally be longer than a period of one week for relatively minor matters and two to three weeks for more complex concerns.

In these circumstances, WorkSafe must ensure that an inspector attends the workplace as soon as possible after the request is made. WorkSafe has a policy that places a priority on responding to calls where there is an immediate threat.

For unresolved issues, the inspector will:

• talk with both parties and identify how to effectively resolve the issue (for example, by setting out time frames) without seeking to remove or override the statutory roles, powers and rights of HSRs
• promote co-operation between the parties

The inspector may issue a prohibition notice or an improvement notice or take any other action that the inspector considers reasonably necessary under the OHS Act. A copy of a report on the attendance and a copy of any notices issued must be provided to the employer and the HSR.

If an inspector issues a prohibition notice or determines (in writing) that employees had reasonable cause to be concerned about their health and safety as a result of the issue at the workplace, those employees are entitled to be paid for the period not worked. This would only apply in circumstances where there was no suitable alternative work for the employees.

If a dispute about wages to be paid in these circumstances arises, it is recommended that the affected parties contact the Fair Work Ombudsman, their union or seek legal advice. A dispute concerning an entitlement to payment under these circumstances may be referred to a court or tribunal that has jurisdiction in relation to the matter.