What is the status of non-permanent workers under the OHS Act? Can they be elected as HSRs?
“I’ve been told by a manager that casual workers are ineligible to nominate in HSR elections, is that true?”
The manager does not know what s/he is talking about - any employee in the DWG is eligible to nominate and be elected as the HSR.
This is taken from the Employee representation: A comprehensive guide to part 7 of the OHS Act 2004:
Who is eligible to stand for election?
To be eligible for election, a person must be a member of the DWG and must not be disqualified from acting as an HSR. DWG members may nominate themselves or another member of the DWG to stand for election as an HSR.
"And can casuals be members of DWGs?"
Again, from the Act and the guide, when negotiating DWGs included in the factors which must be taken into account is: “the number and grouping of employees who perform similar types of work, such as doing the same tasks or working under the same or similar working arrangements (e.g. having the same shift arrangements; the same breaks; being part-time, casual or seasonal; working under the same contract or certified agreement; or having the same job grade).”
It is inconceivable in today’s workforce that casuals would be ineligible. There are many workplaces where the majority of workers are casuals - in many the only permanent workers are in ‘management’. And anyone in a managerial position, while technically eligible to be a member of a DWG and therefore eligible to nominate as an HSR - should not be one. Again from the guide:
Can a manager be an HSR?
Strictly speaking, the OHS Act allows any employee of the employer to nominate to be elected as the HSR of a DWG. However, consideration must be given as to whether line management (i.e. managers, supervisors, team leaders, etc.) should or should not be an HSR. The HSR role is one of representation – not one of responsibility for meeting workplace health and safety duties.
If a DWG is defined in such a way that a manager/supervisor (who is an employee) is a member, they can be nominated and elected as an HSR.
For example, in a larger workplace, people in managerial or supervisory roles are not the employer per se; they are still employees under the Act with the right to have their OHS interests represented.
However, in practice, managers/supervisors are designated people who usually have some level of control of the working environment.
A person who has a line management role who is also an HSR may be placed in an awkward, and possibly inappropriate, position. For example, they may be the person with whom an OHS concern is raised (as the employee representative) and, at the same time, be the person who, at least initially, has the responsibility (on behalf of the employer) to respond to that concern. WorkSafe would, in general, counsel against such an arrangement.
This question raises a more fundamental problem with Victoria’s OHS Act: the issue of how casuals and labour hire workers are covered: who has duties towards them, how they are to be consulted with and more. This has been an increasing problem as the employment practices in Australia have changed, and more workers have moved from being permanently employed to ‘something else’.
The model Work Health and Safety Act (WHS Act) sought to address this by changing ‘employer’ to ‘person who conducts a business or undertaking’ (PCBU) and ‘employee’ to ‘worker’. PCBUs have a general duty of care to all workers in their business or enterprise – irrespective of whether they directly employ them or what the employment status is. This broadens things out considerably – perhaps too much in some cases, as volunteers, students on work experience placement and so on are captured by the term ‘workers’.
Nevertheless, it means that the PCBU must provide, so far as is reasonably practicable, a working environment that is safe and without risks to all workers. They also have the duty to consult all workers. And all workers have the right to elect their own representative.
The Victorian government is currently considering, in consultation with employer groups and unions, changes to the OHS Act which would include changes to the concepts of ‘employer’ and ‘employee’. The VTHC has a list of other amendments we believe need to be made to the Act to address inconsistencies, clarify the rights of HSRs and more.