The NSW Industrial Relations Commission (the “IRC”) has ruled that a health and safety representative (“HSR”) is entitled to be paid for time performing HSR duties which were outside of his approved ordinary working hours.  

Background

The HSR in this case was a “retained” firefighter without any set days of work, who performed his HSR duties across several stations which covered a substantial area. The HSR informed his employer that he was planning to undertake numerous inspections across a number of sites over a period of five days when he was rostered off.  

Disregarding objections from his employer that he did not have a right to incur cost without his employer’s approval, the HSR began conducting inspections. Following the completion of some of the inspections, the employer stopped the HSR from continuing with the planned program of inspections. In response, the HSR issued a personal improvement notice (“PIN”) to his employer. After a review, the PIN was cancelled. An internal review upheld the cancellation. 

The HSR approached the IRC to externally review and determine to reinstate the original PIN. In doing so, the IRC answered what it considered to be “the most fundamental issue in dispute” – whether the HSR was entitled under the Work Health and Safety Act 2011 (the “WHS Act”) to be paid specifically for performing the duties of an HSR at times when he would otherwise not have been rostered to work? 

The employer argued that allowing this effectively enables a HSR to set their own hours up to and including any number of hours they see fit.  

Summary of findings

The IRC agreed with the health and safety representative that the provisions of the WHS Act provide for an entitlement for a HSR to be paid for performing their duties independent of the rostered hours. 

In doing so, the IRC admitted that the outcome of a HSR being able to effectively set his or her own additional hours is absurd and would be unusual if this is what Parliament intended without expressly stating it. The IRC stated it would be equally unusual if there was a requirement that any duties performed by a HSR were subject to an employer’s discretion without this being expressly stated.  

The IRC held that the purpose of the powers invested in a HSR pursuant to the WHS Act are to act as standalone powers independent of their employer. The IRC deemed that there was nothing in any other law raised that empowers an employer to direct a HSR not to perform their duties. A HSR who is properly attempting to exercise his or her role and duties is entitled to be paid by his or her employer for the work performed.  

In concluding, the IRC conceded that it is not difficult to conceive of circumstances where a HSR could abuse their rights so that substantial time is spent outside of normal working hours and the employer incurs considerable payment obligations.   

To combat this, the IRC stated that there is not a general obligation on an employer to pay a HSR on every occasion where they assert their rights under the WHS Act. Instead, every occasion is to be considered independently in light of the facts of each purported exercise of those rights. 

The IRC decided that it would revoke the internal review decision and vary the terms of the PIN such that the employer would pay the HSR for time spend conducting inspections and allow the HSR to complete his program of inspections.  

Takeaways for employers

This is an important decision to note if an employer has health and safety representatives elected in the workplace. HSRs are empowered to independently conduct inspections of their allotted locations and to be paid for any reasonably necessary additional time spent doing so. To avoid any surprises (which could form the basis of a dispute) employers should ensure that they know: 

• know who the HSRs are;
• know where any HSRs’ allocated locations are;
• know what a reasonable timeframe would be to conduct various HSR duties;
• consider and form a view about whether a HSR exercising their rights has done so for longer than a reasonable timeframe (such as inspections);
• understand when HSRs intend to conduct any planned HSR duties;
• consider whether the exercise of rights by any HSR appears to be a proper exercise of those rights; and
• consider and form a view about whether there is a valid reason for a HSR to purport to exercise their rights.