Today’s correspondent has question about the Work Health and Safety Act 2011 (NSW) s 68- Powers and functions of health and safety representatives. In particular, section 68(2) which say:
In exercising a power or performing a function, the health and safety representative may—
(a) inspect the workplace or any part of the workplace at which a worker in the work group works—
(i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace, and
(ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard …
My correspondent says:
I believe that reasonable notice would be an individual time period and would depend on the circumstances. What is reasonable to one person would not be reasonable to another.
A matter arose where a health and safety representative [HSR] required to attend a work location was refused by the RFS manager who is paid to take after hours calls and correspondence.
In the case of RFS being an emergency organisation what is reasonable notice for a HSR to exercise their powers under section 68 2 a of the WHS Act?
And would a determination need the IRC consultation and determination?
When the law uses the term ‘reasonable’ it creates what we lawyers call an ‘objective’ test. This is different to a subjective test. A subjective test is about a particular person. If the test was subjective then it would be up to the HSR or the manager to decide what was reasonable. When it’s an objective then the question of what is reasonable is to be determined by reference to the hypothetical ‘reasonable person’ taking into account all the circumstances. So my correspondent is correct to say ‘reasonable notice would be an individual time period and would depend on the circumstances’ but it’s not a question of what is reasonable to any particular person particularly any particular manager or HSR.
What is ‘reasonable notice’ would depend on issues such as the power the HSR is intending to exercise (see s 68(1)), the urgency of any concern, the size of the workplace, the location of the workplace, time commitments of managers, whether any particular person needs to be there etc.
There is nothing in the Act that would allow one to define ‘reasonable period’ by reference to the fact that the RFS is an emergency organisation. That might be relevant given an emergency service may operate 24 hours a day, 7 days a week so it may be reasonable say to attend a volunteer fire brigade out of business hours as that is when the members are going to be at training etc. That however goes to the question of whether it’s reasonable to be there at that time, not the question of how much notice the HSR has to give that they intend to attend the meeting or brigade shed to perform their functions.
If a manager and an HSR cannot agree on what is ‘reasonable notice’ in any particular circumstance, then the matter should be escalated via the WHS consultation processes eg to a more senior manager, to the WHS committee etc to allow the organisation to come to an agreement both in the specific case and generally.
Where an HSR feels that he or she is being frustrated in their ability to perform their function they could also take the matter up with the WHS regulator, in NSW that is SafeWork NSW.
For a legally binding determination, yes a ruling from the Industrial Relations Commission or an Industrial Magistrate would be required.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.