Court clarifies HSRs right to choose a HSR course

A decision by the NSW Industrial Relations Commission on 3 March 2017 has made it clear that a HSR can choose the HSR course they want to attend but must do so in consultation with the PCBU. They do not have a right to compel the PCBU to book them on that course. And the PCBU does not have a right to compel the HSR to attend a HSR course chosen by the PCBU.

The case was: Sydney Trains v SafeWork NSW (2017) NSW IRComm 10

This article sets out the rights of PCBUs and HSRs on this matter as identified and clarified by Commissioner Newall.

The Background to this Case

1. Four HSRs informed their PCBU (Sydney Trains), that their preferred provider for their HSR course was ACTU (HOSTA). Management declined to book them on that course.

2. The HSRs asked SafeWork NSW to appoint an Inspector to come and make a decision about the training (section 72(5) WHS Act). The Inspector did so and decided that the HSRs had a right to attend the ACTU course.

3. The PCBU was not convinced that such a right existed and asked SafeWork NSW to conduct an internal review of the decision.

4. The PCBU was not satisfied with SafeWork NSW’s decision and took the matter to the NSW Industrial Relations Commission.

The Court’s Decision

Commissioner Newall heard the case and clarified a number of points of law that he found were not clearly expressed in sections 72, 226, and 229 of the WHS Act.

The points made by Commissioner Newall included:

- A HSR does have a right to choose the HSR course they wish to attend but “the choice cannot be formed independent of consultation with the employer” as required by section 72 WHS Act (para 42 of Commissioner’s Judgement).

- Neither the PCBU nor the HSR can “enforce their preferred training course”, nor “ bar the other party’s preference”. (para 47)

- If the PCBU and the HSR cannot agree on which course the HSR should attend then the next step is to ask for an Inspector to resolve the matter “by choosing between the alternative courses proposed” (para 47).

- If either party disagrees with the Inspector’s decision then they can ask SafeWork NSW to do an internal review of the Inspector’s decision.

- If that does not produce the desired result then either party can use section 229 of the WHS Act to seek an external review by the NSW Industrial Relations Commission.

Recommended Reading:

Article from Clayton Utz, lawyers, Consultation Counts when it Comes to HSR Training.

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