Arnott v SafeWork NSW and Fire and Rescue NSW [2024] NSWIRComm 1039 (28 June 2024) (Commissioner Muir) involved a dispute between Fire and Rescue NSW (‘FRNSW’) and a retained firefighter who is also a Health and Safety Representative (‘HSR’).

The applicant conducted an inspection of various fire stations in his role as a Health and Safety Representative. He said he was relying on ss 68(1)(b) and (d) of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’) which say:

(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 …

(d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.

Mr Arnott’s evidence (at [48]) was that FRNSW objected on the basis that he had not ‘consulted with Zone management’ so neither the inspections nor claims for pay or travel to conduct them would be approved.  Mr Arnott replied arguing that the Act did not require a HSR to consult prior to an inspection, they only had to give ‘reasonable notice’. As for costs, he wrote to FRNSW (at [49]) pointing out the terms of s 70(3) of the Act. That section 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.

Mr Arnott conducted his inspections and identified many things that he thought were in breach of the WHS Act.  He submitted time sheets for the time spent on the inspection.  FRNSW Superintendent Tyne wrote to the applicant and said (at [52])

… ‘today I have rejected all claims for 5-6 November’, and that ‘despite powers you may have invoke as a HSR under the WHS legislation you do not have FRNSW delegation to incur any hours or costs without prior approval’. He concluded with, ‘to be clear you are not approved or required to undertake any further station inspections as Todd is not available and I will not approving any claims you make related to station inspections.’

Mr Arnott then issued a Provisional Improvement Notice (a PIN) (WHS Act ss 90-102) regarding the decision of Superintendent Tyne.  The PIN alleged a breach of s 70(3) and required FRNSW to approve the pay claims and rescind directions seeking to restrict the actions of the HSR.

FRNSW sent the PIN to Worksafe under s 100. This allows the Person Conducting the Business or Undertaking (the PCBU) to seek a review of the PIN by the regulator.  Worksafe set aside the PIN.  Mr Arnott, supported by the Fire Brigades Employees Union (FBEU) applied to the Industrial Relations Commission to set aside that decision by WorkSafe.

FRNSW argument was that an HSR could not put him or herself ‘on duty’ (so to speak) at their own discretion and expect to get paid without prior approval. At [91] the Commission quoted FRNSW’s submissions as

The implications of this case are substantial. Should the PIN be set aside, Fire & Rescue will be required to pay any HSR who wishes to inspect Fire and Rescue premises on their own time. This would occur whether or not Fire & Rescue consented to or even knew about the inspection. There would be no reason why every other employer (except those subject to the Commonwealth WHS Act) would not be subject to the same obligation.

The applicant’s submission was that the power to conduct the inspection and the obligation to pay are all set out in the WHS Act and cannot be refused by FRNSW.

The Commission revoked the internal review by Safework and restored the Improvement notice thereby obligating FRNSW to pay Mr Arnott for the time spent on the workplace inspections.  Commissioner Muir said (at [120]-[125]):

The second respondent [FRNSW} advances a range of reasons in support of its case, the most important of which is that otherwise an employee will be able to set their own hours up to and including any number of hours they see fit.

There is without question force to the second respondent’s submissions that, certainly at the margins, the outcome pressed for by the applicant would result in an absurd interpretation of the WHS Act.

It would indeed be unusual if the parliament had intended that a person elected as an HSR could, without any limit, set the hours they work by invoking their roles and duties under the WHS Act.

In the Commission’s view there are a number of problems nevertheless with the case pressed by the second respondent.

Most fundamental is that the outcome pressed for by the second respondent will, in practical terms, and in particular in the circumstances of this external review, have the effect of making the capacity of an elected HSR to perform the roles and duties assigned to them by the WHS Act subject to the discretion of their employer.

Had this been the intention of the Parliament it must be expected that this would have been set out expressly in the WHS Act.

FRNSW had sought to rely on the terms of the relevant award that required an employee to seek approval (see [90]).  The Commission said (at [127]-[128]):

The Commission is not persuaded that an award of the Commission, managerial prerogative, or any other matter arising under an obligation or power established pursuant to the IR Act could, even if expressly set out, override the powers and duties vested in an HSR under the WHS Act. Such an outcome would be contrary to the purpose of the powers invested in an HSR pursuant to the WHS Act as standalone powers, independent of their employer.

The Commission concludes that nothing in the WHS Act, or any other law or instrument raised in these proceedings, would empower an employer to direct an HSR not to perform their duties including where the employer arranged for another properly elected HSR to do those duties.

The obligation in the award for prior approval could not apply to a person exercising powers under the Act. It is the WHS Act that entitles the employee to their salary, not the award even if it is the award that determines the amount of pay that the person will be entitled to receive.

AS for the argument that the issue of a PIN was inappropriate, the Commission noted:

… that s 70(3) of the WHS Act does not have a penalty attached to it for breaches of that provision. Indeed, there is no obvious mechanism in the WHS Act for any action to be taken against an employer who does not comply with that provision.

The Commission did recognise that the Act and the Commission’s decision may create a situation where an over-zealous HSR may submit claims for significant time spent. Commissioner Muir said (at [169]-[171]):

There is apparently no other mechanism for an employer, when faced with a similar situation, and where the employer genuinely believes that an HSR is exceeding their legal authority, than to simply refuse to accede to the request of the HSR.

While the Commission has concluded that this is not a case where the HSR exceeded their authority, it is not difficult, as the second respondent submits, to conceive of circumstances where an HSR will abuse their rights under the WHS Act such that substantial time is spent outside normal working hours, and considerable payment obligations are apparently incurred.

Some of this is answered through the applicant’s submissions that an HSR may only exercise the rights in question on certain preconditions. But given the Commission’s conclusions above as to the generous and beneficial ways in which the WHS Act should properly be interpreted it is again not difficult to conceive that highly motivated persons may readily exploit their rights and privileges. There does not appear to be a mechanism in the WHS Act for legal redress at the inspections stage, as opposed to merits review at the notice issuance stage.

Discussion

This case is very significant. FRNSW’s evidence was that there was, or is, a tension between the WHS Act and its obligation to manage its budget. Superintendent Unsworth’s evidence (at [85]) was ‘… that he was concerned about the proper expenditure of public money and that money given by executive government to the second respondent should be spent carefully’ and that could not be done if HSRs could determine for themselves when they would conduct inspections and demand payment. This was particularly true when FRNSW had its own WHS processes and, as in this case could ask another HSR to do the task when they were otherwise being paid.

That tension, however, is inconsistent with the WHS Act.   An HSR is exercising powers under the Act and the obligation to pay arises under that Act. That Act anticipates that HSRs will act on their own initiative and are not subject to the direction of their employer.   As Commissioner Muir said (at [145]) ‘That the applicant had “unilaterally decided to conduct inspections”, of itself demonstrates no unreasonableness. This is the structure contemplated by the WHS Act.’  As noted above, the Parliament, through the WHS Act did not intend to create a situation where ‘the capacity of an elected HSR to perform the roles and duties assigned to them by the WHS Act subject to the discretion of their employer’ ([124]).

The Commission was no doubt comforted in its decision by the nature of Mr Arnott’s evidence. The court noted that he was legally qualified and understood the terms of the Act ([150]). There was nothing to suggest that this HSR exceeded his authority or was doing anything other than what he believed was the diligent performance of his duties. This conclusion was supported by the finding that  he identified objectively serious WHS concerns ([72]).

The Commission did note that there could be an issue for an overzealous HSR and also noted that the Act provided little assistance for an employer in those circumstances other than the process FRNSW went through. But this was not the place to find an alternative solution.

Conclusion

The WHS Act provides that an HSR is entitled to be paid for the time spent performing their WHS duties. The performance of those duties may at times require notice to be given or consultation to occur, but an HSR is not subject to direction nor is approval required to perform those duties.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.