Today’s correspondent, and the first for 2023 sees an ‘apparent tension in the law’ with respect to retained (part time) firefighters who have taken on the role of health and safety representative (HSR) under the Work Health and Safety Act 2011 (NSW). They say:
… an elected HSR, and … Retained Firefighter … recently undertook some station inspections in line with s 68(1)(b) and (c), and (2)(a)(i) of the WHS Act.
The employer emailed to say that they did not support the inspections occurring, and the HSR went ahead and did the inspections anyway. They submitted a timesheet for approval, which was rejected by the employer.
The HSR then submitted a PIN under s 90 of the WHS Act, alleging that the employer failed to approve payslips as required under s70(3) of the WHS Act.
Given that a Retained Firefighter is “not on duty” outside incidents and training or other authorised duties pre-arranged, are they able to go on duty without the consent of the employer in order to fulfil the obligations of the WHS Act as a HSR?
The position being taken by SafeWork and the employer seems to be that unless the employer pre-approves HSR work, then a Retained HSR is unable to conduct any HSR work, which seems to be in breach of the WHS Act, and really brings into question what the point of a Retained HSR is, if the employer can withhold payment from them for those duties being performed in every and all cases?
Thank you for considering this very interesting tension, my friend is currently applying for an internal review of the SafeWork decision per s224 of the Act.
The sections of the Work Health and Safety Act 2011 (NSW) referred to above (s 68(1)(b) and (c) and s 68(2)(a)(i)) say:
68 POWERS AND FUNCTIONS OF HEALTH AND SAFETY REPRESENTATIVES
(1) The powers and functions of a health and safety representative for a work group are–
(b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group, and
(c) to investigate complaints from members of the work group relating to work health and safety, and …
(2) 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…
A PIN is a Provisional Improvement Notice. A PIN may be issued by an HSR ‘if a health and safety representative reasonably believes that a person– (a) is contravening a provision of this Act…’ (s 90(1)).
We are told that the failure to pay the HSR was an alleged breach of s 70(3) which says;
Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.
Section 70(2) says:
The person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise his or her powers and perform his or her functions under this Act.
A permanent firefighter may have time during their shift to perform HSR duties even if it meant they are not required to attend a training drill or even a response call. Equally if a retained firefighter is to perform those duties it has to be at a time when they are not attending training or a fire call. It could be that if a brigade has a regular training time, the HSR could be asked to perform his or her duties at that time rather than attending training, but that may not be practical. It may not be practical as the firefighter does need to attend training and it may not be practical as that may not be a convenient time to consult with other firefighters who are attending training.
It seems to me that ss 70(2) and (3) would require that retained firefighters must be given time, and paid for that time, to complete their HSR duties outside time spent on training and responding. What is ‘reasonably necessary’ would depend on all the circumstances including the nature of any specific complaint or issue and the nature of the workgroup.
The next thing to note is that s 68(2) says that an HSR can inspect the workplace ‘at any time after giving reasonable notice…’. It does not say that the HSR needs the Person Conducting the Business or Undertaking’s (the PCBU’s) permission. Once notice has been given the HSR may conduct the inspection whether the PCBU supports ‘the inspections occurring’ or not.
It seems to me that the issues are dealt with by the classic legal term of ‘reasonable’. An HSR cannot demand to be paid whenever they think they are doing HSR work as determined by them. They may be very inefficient, and demand pay for many hours to complete a task that a reasonable person could and would have completed in much less time. They may ask for time to perform tasks that they say are HSR work but which a reasonable observer would think is not related to their HSR duties. They may ask for time that is not reasonable given various operational demands on the PCBU. But equally if an HSR is to meaningfully perform their role and do the things required by the Act a PCBU cannot (s 70(2)) deny them the time they need to do that work and in the context that may indeed require time outside their normal duty hours given for a retained firefighter they do not have normal duty hours and regular training time may not be adequate for a number of reasons.
The sensible thing for a PCBU to do would be to have a policy that provides how many extra hours a casual (or in this case retained) employee will be employed to undertake HSR duties. They could then argue that the HSR would need further approval if they needed more time given particular circumstances to perform those duties and functions imposed by the WHS Act.
I can imagine that in the context FRNSW may argue that the inspection was not required and so the time claimed was not ‘reasonably necessary’. For example a person at a regular training night can monitor the various WHS measures in place. But if the HSR for example is responsible for a workgroup that covers more than one fire station or there is a specific complaint about something that cannot be monitored on those training nights, then the HSR would say that the inspection was ‘reasonably necessary’.
To repeat myself, what is ‘reasonably necessary’ would depend on the specific circumstances. And that is where SafeWork comes in as the regulator so it will be interesting to see what the final outcome from their review is.
In simple terms however I agree that on my reading of the Act it cannot be the case ‘that unless the employer pre-approves HSR work, then a Retained HSR is unable to conduct any HSR work’. The issue arises as to whether the time claimed is ‘reasonably necessary’ in all the circumstances.
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Interesting read. Your correspondent failed to mention that at the time of the inspections, an HSR representative for the area was on a light duties assignment and this work had been assigned to them as part of their meaningful duties. Additionally, the absence of the Retained FF from their Station whilst undertaking inspections meant that overtime had to be worked at the Retained FF’s base station.
Roger, even if it was a full time fire fighter doing the HSR duties, the employer would be responsible for overtime payment if required.
As for the light duties, a return to work coordinator and the consulting doctor would have agreed on a plan for the injured worker with the employer.
Remember this is not the place to resolve legal issues. The resolution of legal issues depends on the law and the facts. Here we can talk about the law but we cannot resolve the factual issues. The points raised by Roger go to the question of whether or not the time spent by the HSR was “reasonably necessary” to allow the HSR to “exercise his or her powers and perform his or her functions under this Act”. That question we cannot answer here. If both parties agree that it was, the HSR will be paid. If the PCBU thinks it was not but the HSR thinks it was then there are processes to resolve that – up to ultimate determination by the Industrial Relations Commission or other court or tribunal with relevant jurisdiction. But we cannot determine that here so I would ask people not to respond with more comments about the facts of this particular case.
Chances are, they didn’t want to risk entry. When considering the stupid campaign by our union to repeatedly direct HSR’s, who are meant to represent us, not them, and know at least a little bit about WHS, may have decided after applying the objective test of reasonable belief maybe this HSRs is like the other HSR’s who just cause trouble and issue unlawful PIN’s amd turning WHS into a joke. Probably a risk so better not just invade, not even to use the toilet.
Because like so many other times lately, it could just become another potential hijack of the WHS process that is turning our workplace safety it into an unlawful circus of clowns with PIN’s that always seem to look unlawful because (a) Never consult. (b) Implied that it’s issued under direction (c) HSR hasn’t completed the approved 5 days HSR course to allow them to issue in the first place. As well as a lack of anything that satisfies what’s reasonably required under sect 18. Probably better than better chance considering safe work wasn’t bothered with it. So what he want to be paid for?
And What’s the allowance for turning a workplace right into a weapon to use against an employer anyway?
Aka, the PCBU. The very person who your meant to respectfully consult with in the first place, not annoy.
How is that safe?
Maybe this HSR can answer that for me.