Department of Education, Employment and Workplace Relations Health and Safety Representative (HSR)

1. Department of Education, Employment and Workplace Relations Health and Safety Representative (HSR) Contribute to the implementation of the OH&S consultation process. Assessment Task 5 Jamie Muench 30 June 2010

2. DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS Health and Safety Representative (HSR) Health and safety representatives (HSRs) are employees elected or selected for the role, who represent the health and safety interests of employees within their designated work group in their organisation. Health and safety representatives play an important role in the partnership between employers and employees by ensuring that employees have the opportunity to participate in decisions affecting their health and safety at work.  The HSR plays a pivotal role in the success of health & safety management within DEEWR. This success is dependent on: • Pro-active planning of all work activities with due consideration given to implementing OHS controls that are suitable to each given situation. • Understanding the total work process and associated OHS risks. • Ensuring the work team is totally committed to achieving their objectives. • Ensuring that open and honest communication exists between management and all employees. • Report back to the Peak Occupational Health and Safety Committee (POHSC) any questions, problems or issues arising within their Designated Work Groups (DWG). Page 1

3. Health and Safety Management Arrangements (HSMAs) Health and Safety Management Arrangements (HSMAs) outline the arrangements between the Secretary of the Department of Education, Employment and Workplace Relations (DEEWR) and employees of the Department to manage the promotion and development of measures to ensure the health, safety and welfare of its employees at work. HSMAs are developed in consultation with employees, health and safety representatives and employee representatives. They provide an appropriate framework for the Department and its employees to work together in order to effectively manage workplace Occupational Health and Safety(OHS) risks and hazards. HSMAs expire three years from the date of approval and can be reviewed and updated at any time that is deemed necessary. Page 2

4. Health and Safety Representative (HSR) Legal Responsibilities • HSRs have a legal responsibility to:  • Use their powers carefully and only in relation to OHS matters. • Ensure any action taken by them in the exercise of their powers is not taken with the intention of causing harm to the employer or to an undertaking of the employer. • Represent members of their DWG in a professional and timely manner. • Discuss OHS issues with employees, supervisors, managers and where appropriate, union delegates. • To involve employees in the decision making processes through regular communication, consultation and training. • To provide a continuous program of education and learning to ensure that employees increase their personal understanding of workplace hazards in order to work in the safest possible manner. Page 3

5. Health and Safety Representative (HRS) Legal Responsibilities (continued) • To identify and control all potential hazards in the workplace through hazard identification and risk analysis. • To involve employees on health and safety matters, and consult with them in ways to reduce workplace hazards and improve control systems. • Thoroughly investigating the cause of all incidents and accidents, including developing / implementing appropriate corrective actions. • Where appropriate consulting with the Health, Safety and Wellbeing Team regarding more complex workplace OHS issues or processes. Page 4

6. Enforcement Process HSRs have broad powers under the legislation (Sections 28, 29, 32, 37, 48 & 77) to promote the health and safety at work of employees in their DWG. The legislation describes the powers of an HSR to promote or ensure the health and safety at work of employees in their DWG. HSRs will use these powers to resolve health and safety issues. HSRs can: • Inspect the workplace of members of their DWG if: • – there has been a recent accident or dangerous occurrence, or • – where there is an immediate threat of an accident or dangerous occurrence, or • – after giving the employer reasonable notice of the inspection. • Make a request to an investigator, to Comcare or the SRC Commission that an investigation be conducted at the workplace (by contacting Comcare). • Accompany an investigator during an investigation at the workplace. • Represent the members of the DWG in health and safety consultations with the employer if there is no POHSC. Page 5

7. Enforcement Process(continued) • Examine the records of the POHSC. • Investigate employee health and safety complaints. • With the consent of the employee, attend any interview concerning health and safety at work between the employee and an investigator or the employer. • Be assisted by a consultant at a workplace or provide a consultant with information, provided the employer or Comcare has agreed in writing to the provision of assistance or information. It should be noted that an employer is not liable for expenses or remuneration incurred during a consultant’s activities. • When being assisted by a consultant, request consent from an employee that the consultant be present at an interview with the HSR, between the employee and an investigator or the employer (or a person representing the employer). • Access employer’s information relating to any health and safety risk to any employee at any workplace under the employer’s control. It should be noted that an employer can claim legal professional privilege on health and safety information they have. A HSR cannot gain access to confidential information or information protected by legal professional privilege. • Issue a Provisional Improvement Notice (PIN). Page 6

8. Enforcement Process (continued) • **Request Comcare or an investigator to investigate a matter that is the subject of a PIN if the notice has not been complied with within the specified period and an investigation has not been requested by the employer. • Initiate emergency stop-work procedures where there is an immediate threat to the health and safety of employees and the supervisor is unavailable. • Request Comcare to conduct an investigation if the HSR cannot agree with the supervisor on an appropriate course of action to remove a threat to the health and safety of employees performing work. • Appeal to the Australian Industrial Relations Commission (AIRC) against an investigator’s decision to vary or cancel the PIN. • Ask Comcare to institute proceedings for offences against the legislation where proceedings have not been commenced within six months of the alleged breach of the legislation. Note the legislation does not impose any obligations on the HSR to exercise any of these powers. HSRs are not liable under civil proceedings for exercising or not exercising any of the powers outlined in the legislation. If your employer is reluctant to provide you with information relating to any health and safety risk to an employee, you can contact Comcare for advice. Page 7

9. Enforcement Process == COMCARE == • **If Comcare receives a request for a workplace investigation, under (sections 28, 41, 42, 43, 44 & 45) it may conduct an investigation at the workplace (in some cases, the investigation must be done in relation to a PIN). An investigator may enter a workplace at any reasonable time during the day or night during an investigation and: • search the workplace; • inspect, examine, take measurements or conduct tests ; • take photographs or make sketches and • request assistance or further information. • Investigator to notify the HSR (sections 28 & 42) • Upon entering a workplace an investigator must take all reasonably practicable steps to notify the HSR. • The HSR is entitled to accompany the investigator during the investigation. Page 8

10. COMCARE Enforcement Options There are a number of actions that can be taken by Comcare or the investigator following an investigation. These include the following (refer to the Comcare Enforcement Policy (OHS 50)for more information on enforcement options). Prohibition Notice (Section 46) During the investigation, an investigator may issue a prohibition notice to the employer to remove an immediate threat to the health and safety of any person. The prohibition notice must: • specify, with reasons, the activity which the investigator believes is a threat to health or safety and • direct an employer to stop the activity of concern altogether or to ensure that the activity is not continued in a specific manner, for example any plant or substance that is not to be used in connection with an activity. The employer must give a copy of the prohibition notice to the relevant HSR and have the prohibition notice displayed in a prominent place at or near the workplace. Page 9

11. COMCARE Enforcement Options (continued) Improvement Notice (Section 47) If an investigator forms the opinion that the legislation is being breached during an investigation, they can issue an improvement notice to the employer or the responsible person. The improvement notice: • must specify, with reasons, the nature of the breach; • must specify a period within which any remedial action must be taken and • may specify action the investigator believes is required. The employer must give a copy of the improvement notice to the relevant HSR and have the improvement notice displayed in a prominent place at or near the workplace. Prosecutions in respect of breaches of the Act (Schedule 2) Schedule 2 of the Act provides for a dual civil and criminal penalty regime of enforcement. Under the dual regime, breaches of the Act will generally be dealt with in civil proceedings. However, criminal prosecutions are available for serious breaches of the Act, where a breach of certain provisions causes death or serious bodily harm and the person was negligent or reckless as to whether the breach would cause death or serious bodily harm. Page 10

12. Enforcement Instruments DEEWR acknowledges and fully supports its obligations under the Occupational Health and Safety Act 1991to its employees, contractors and third parties as well as its obligations under the Occupational Health and Safety (Safety Arrangements) Regulations 1991, Occupational Health and Safety (Safety Standards) Regulations 1994 and Approved Codes of Practice. The legal framework and other resources used by DEEWR in the development of the HSMAs are: • Occupational Health and Safety Act 1991; • Occupational Health and Safety (Safety Arrangements) Regulations 1991; • Occupational Health and Safety (Safety Standards) Regulations 1994; • Health and Safety Management Arrangements: A guide to developing HSMAs (Comcare publication); • OHS Workplace Consultative Arrangements: A Guide to Commonwealth Legislative Provisions (Comcare publication); and • Health and Safety Representatives Handbook: A guide for Health and Safety Representatives in the Commonwealth jurisdiction, March 2007 (Comcare publication). Page 11