Should an HSC be involved in issue resolution or health and safety disputes?
A health and safety committee may be an option for some businesses to help facilitate further communication between management and the workforce on WHS matters. Every business (PCBU) has a legal duty to consult on health and safety matters and must have procedures to do so.
HSCs address the workplace and complement the role of the HSRs, whose powers are otherwise limited to WHS matters affecting the people in the workgroups they represent. [Ref 1]
HSCs help the PCBU develop and carry out plans and courses of action to secure the work health and safety of workers. The HSC assists management in developing health and safety standards, rules and procedures that will be followed or complied with at the workplace.
HSCs can help with analysing data and statistical trends so that detailed reports can be made to management with recommendations by the committee. HSCs may need to look at reports and information provided by HSRs, subject matter experts, and SafeWork inspectors before they can submit their recommendations to management. [Ref 1]
Section 77c of the WHS Act additionally allows for business-specific agreements made between the PCBU and the HSC to help with consultation on health and safety, such as when identifying hazards and assessing risks to health and safety and making decisions about ways to eliminate or minimise those risks, when making decisions about the adequacy of facilities for the welfare of workers, when proposing changes that may affect the health or safety of workers; or help comply with additional industry-specific legislation such is the case in Rail, Air, and Transport, which have their own Regulatory bodies and additional health and fitness requirements for their industries.
The Health and Safety Committee (HSC) makes recommendations while the authority to make final decisions rests with Management.
The HSC helps the PCBU to develop company procedures, such as when new plant is being installed, if upgrading facilities, when moving premises, or expanding into new premises. The HSC may help formulate issue resolution procedures for the business. A health and safety committee is expected to meet at least once every 3 months, or sooner if required.
What is “issue resolution”
Safe Work Australia describes an “issue” as a matter that has not been resolved after due consultation.
There could be disagreements on proposals that have been made after a WHS matter has been discussed. It could be as simple as people being unhappy with proposed control measures of hazards or risks.
If a business has not arranged its own issue resolution process it must follow the default procedure outlined in Clause 23 of the WHS Regulation and in accordance with Section 81 (2) of the WHS Act. [Ref 2] [Ref 3]
What is involved in resolving a work health and safety issue?
Resolution must involve all parties named. Per Section 80 of the WHS Act, parties are 1) the PCBU and 2) the worker. Each are called "parties to the issue." Sometimes both parties may be PCBUs, e.g where businesses share premises. (PCBUs must consult with each other as well as with their workers. [Ref 4])
A worker can be represented by their HSR, or another person. They can call upon advice or assistance from a range of experts, such as the designer or installer of a piece of equipment or plant, or a union representative or their labour hire provider if they are a temp. They may want to have a colleague, an expert in the field, or even a family member or close friend be present. [Ref 1]
The PCBU will have someone senior from its leadership team represent the business. Such representatives may also employ a lawyer or an official from an industrial association or employer body to help them. They may also engage a designer or installer.
All parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue according to the relevant agreed procedure, or if there is no agreed procedure, the default procedure as per Clause 23 of the WHS Regulation and the overarching requirements of the WHS Act.
If the issue cannot be resolved, SafeWork NSW may be called upon to mediate. The inspector’s role is to assist in resolving the issue. An inspector could exercise any of their compliance powers under the WHS Act, including providing advice, investigating contraventions or issuing an improvement notice.
Should an HSC be involved in issue resolution?
An HSC is primarily a resource for making recommendations and providing information and advice to management on WHS policies, plans, and procedures, dependent on the expertise, experience, and knowledge of its members. The PCBU does not have to act on recommendations given it, but it must prove that it consulted in the first place.
An HSC’s functions are simple, as described in Section 77 of the WHS Act. [Ref 5] The purpose and role of an HSC is found in Part 5 of the WHS Act which is devoted exclusively to:
Representation,
Consultation,
Participation.
The Worker Representation and Participation Guide, published by Safe Work Australia does not recommend HSCs be involved in issue resolution.
As parties to an issue are either PCBU or a worker, an HSC being a body, may not represent either party. This could create "conflict of interest." But this doesn't rule out HSC involvement entirely. The HSC could give advice and possibly lend the skills and knowledge of the specialists and experts that they deal with as a committee to any of the parties involved in an issue resolution. In this way, the HSC could be indirectly involved in issue resolution. But if an HSC were to be directly involved in issue resolution, it ceases to be an HSC for the purposes stated in the WHS Act.
What if a workplace does not have workgroups and HSRs?
As established in the WHS Regulation and WHS Act, a worker can be represented by their HSR, or another person. Where a business does not have workgroups and HSRs but has a health and safety committee, a committee member can be a representative of a worker party to an issue. In the same way as a worker representative of the committee could represent a worker party to an issue, a business representative of the committee could represent the PCBU party to an issue if they also have "an appropriate level of seniority, and is sufficiently competent, to act as the person’s representative" as per Section 80 (2)(b) of the WHS Act.
As part of the default resolution process laid out in the WHS Regulation, Clause 23 (8) states that a copy of the written agreement made after the resolution been two parties has been achieved may be given to the health and safety committee, if requested. Considering that the health and safety of the workplace is the concern of an HSC it would be of interest to the HSC to know that resolutions have been resolved.
For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.
References:
Worker Representation and Participation Guide (Safe Work Australia) – Pages 37-42
WHS Act. Sections 80-82
WHS Regulation Clause 23 Default Procedure
WHS Act Section 46 (re PCBUs must consult with other PCBUs, etc.)
WHS Act Section 77 Functions of Committee
WHS Act Section 76 Constitution of committee
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