In the lead up to harmonisation of work health and safety laws, many were worried about the provisions included in the Work Health and Safety Act about health and safety representatives (HSR), particularly the potential for HSRs to misuse their new powers and create workplace disruptions.
HSRs now exist in all Australian states and territories. While
Western Australia and Victoria have had HSRs for some time, the
harmonised states have only recently seen their introduction. There
is very little evidence to suggest that HSRs have been abusing
their powers and creating large-scale workplace disruptions as
initially feared by some organisations.
Unfortunately, some managers have over-reacted to the involvement
of their HSRs.
In a recent Federal Court decision, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 4) [2013] FCA 930, substantial fines were imposed on an employer and manager for taking adverse action by investigating, suspending and then issuing a final warning on a HSR.
Background
The HSR had tagged two forklifts, which he considered to be unsafe and posed an immediate risk to occupational health and safety because they had deficient reversing beepers. Temporary measures were proposed by a number of managers in meetings but they were rejected by the HSR as he did not consider them to be safe.
After the HSR refused to return the forklifts to service, an investigation was conducted into his conduct during the meetings and he was suspended from work. A manager was of the opinion that the HSR failed to cooperate or engage in reasonable discussion during the meetings and that he also lied to a WorkSafe Inspector. Following the investigation, the HSR was issued with a final warning notice.
Decision
The HSR subsequently commenced proceedings against his company and manager alleging adverse action. During the hearing, the employer and manager failed to establish that the HSR's refusal to return the forklifts to service was not a substantial and operative factor in their decision to investigate, suspend and issue the final warning. The Court held that the HSR's rights or duties under the Occupational Health and Safety Act were workplace rights and that the subsequent conduct of the employer and manager amounted to adverse action.
The employer was fined $23,100 for conducting the investigation and $24,750 for issuing the final warning to the HSR. The manager was also fined $4,620 for suspending the HSR, conducting an investigation and his part in issuing the final warning.
Lessons for employers
Employers can challenge decisions by HSRs but only if there is a real and genuine belief that a HSR has acted inappropriately. This decision demonstrates that rational and measured communication between employers and HSRs is imperative. Before looking at ways of reprimanding HSRs, it may be more appropriate to consult with HSRs and find out why they have concerns and discuss the options to resolve the issue.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
