I have been asked whether the RFS can direct an HSR not to conduct an inspection or take disciplinary action if the HSR continues with the inspection despite a direction not to.   The question raises similar issues to those discussed in Arnott v Fire and Rescue NSW (discussed in my post FRNSW Health and Safety representative does not need employer’s permission to do their work (July 2, 2024) and that case largely answers it.

The Act

Health and Safety Representatives are provided for in the WHS Act.  HSRs are elected by their workgroup (WHS Act ss 60-67 and see RFS volunteer exercising rights as a ‘worker’ (August 27, 2016)). Section 68 says:

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–

(a) to represent the workers in the work group in matters relating to work health and safety, and

(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

(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.

(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, 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, and

(b) accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works, and

(c) with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and–

(i) an inspector, or

(ii) the person conducting the business or undertaking at that workplace or the person’s representative, and

(d) with the consent of one or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and–

(i) an inspector, or

(ii) the person conducting the business or undertaking at that workplace or the person’s representative, and

(e) request the establishment of a health and safety committee, and

(f) receive information concerning the work health and safety of workers in the work group, and

(g) whenever necessary, request the assistance of any person.

Note : A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices.

(3) …

(4) Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

Critically, what s 68(2)(a) says, and Arnott v SafeWork NSW and Fire and Rescue NSW [2024] NSWIRComm 1039 confirmed, is that an HSR may have to give notice prior to an inspection, but he or she does need to get authorisation or approval to conduct that inspection.  Section 68(4) says that an HSR may do those things listed, not that they must.

Section 90 says:

(1) This section applies if a health and safety representative reasonably believes that a person–

(a) is contravening a provision of this Act, or

(b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated.

(2) The health and safety representative may issue a provisional improvement notice requiring the person to–

(a) remedy the contravention, or

(b) prevent a likely contravention from occurring, or

(c) remedy the things or operations causing the contravention or likely contravention.

(3) However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.

It is unlawful (s 104) to engage in discriminatory conduct on the basis of a person’s role as an HSR or because they ‘exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative …’ (s 106).  Discriminatory conduct means (s 105(1)(a)) the PCBU

(i) dismisses a worker, or

(ii) terminates a contract for services with a worker, or

(iii) puts a worker to his or her detriment in the engagement of the worker, or

(iv) alters the position of a worker to the worker’s detriment…

And remember for the purposes of the Act, the term ‘worker’ includes a volunteer (s 7).

As I said in my report on Arnott’s case:

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  ‘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’.

Conclusion

Whether the RFS approves or prohibits an inspection is irrelevant.  The powers and authority of the HSR are given by the Work Health and Safety Act, not the Rural Fires Act or the WHS policy adopted by the PCBU.

There could be issues, as there were in Arnott’s case, if the PCBU wants to argue that an HSR did not comply with s 68(2)(a) (the need, in some cases, for notice before an inspection) or s 90(3) (the need to consult before issuing a PIN) but the principle remains that an HSR is elected as a workers’ representative and in that capacity they have statutory authority and protection.  They do not need the PCBU’s authority to conduct an inspection or to otherwise perform their duties. They are not subject to the PCBU’s direction as to when they exercise their powers.

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.