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Contents (2011 - 10)
Work Health and Safety Act 2011 No 10
Current version for 7 July 2017 to date (accessed 21 November 2017 at 06:18)
Part 5 Division 3
Division 3 Health and safety representatives
Subdivision 1 Request for election of health and safety representatives
50   Request for election of health and safety representative
A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for one or more health and safety representatives to represent workers who carry out work for the business or undertaking.
Subdivision 2 Determination of work groups
51   Determination of work groups
(1)  If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of one or more work groups of workers.
(2)  The purpose of determining a work group is to facilitate the representation of workers in the work group by one or more health and safety representatives.
(3)  A work group may be determined for workers at one or more workplaces.
52   Negotiations for agreement for work group
(1)  A work group is to be determined by negotiation and agreement between:
(a)  the person conducting the business or undertaking, and
(b)  the workers who will form the work group or their representatives.
(2)  The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50.
(3)  The purpose of the negotiations is to determine:
(a)  the number and composition of work groups to be represented by health and safety representatives, and
(b)  the number of health and safety representatives and deputy health and safety representatives (if any) to be elected, and
(c)  the workplace or workplaces to which the work groups will apply, and
(d)  the businesses or undertakings to which the work groups will apply.
(4)  The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.
(5)  The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.
Maximum penalty:
(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.
(6)  The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups.
53   Notice to workers
(1)  The person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.
Maximum penalty:
(a)  in the case of an individual—$2,000, or
(b)  in the case of a body corporate—$10,000.
(2)  The person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement.
Maximum penalty:
(a)  in the case of an individual—$2,000, or
(b)  in the case of a body corporate—$10,000.
54   Failure of negotiations
(1)  If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section.
(2)  An inspector appointed under subsection (1) may decide:
(a)  the matters referred to in section 52 (3), or any of those matters which is the subject of the proposed variation (as the case requires), or
(b)  that work groups should not be determined or that the agreement should not be varied (as the case requires).
(3)  For the purposes of this section, there is a failure of negotiations if:
(a)  the person conducting the business or undertaking has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced within 14 days after:
(i)  a request is made under section 50, or
(ii)  a party to the agreement requests the variation of the agreement, or
(b)  agreement cannot be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence.
(4)  A decision under this section is taken to be an agreement under section 52.
Subdivision 3 Multiple-business work groups
55   Determination of work groups of multiple businesses
(1)  Work groups may be determined for workers carrying out work for 2 or more persons conducting businesses or undertakings at one or more workplaces.
(2)  The particulars of the work groups are to be determined by negotiation and agreement, in accordance with section 56, between each of the persons conducting the businesses or undertakings and the workers.
(3)  The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.
(4)  The determination of one or more work groups under this Subdivision does not:
(a)  prevent the determination under this Subdivision or Subdivision 2 of any other work group of the workers concerned, or
(b)  affect any work groups of those workers that have already been determined under this Subdivision or Subdivision 2.
56   Negotiation of agreement for work groups of multiple businesses
(1)  Negotiations concerning work groups under this Subdivision must be directed only at the following:
(a)  the number and composition of work groups to be represented by health and safety representatives,
(b)  the number of health and safety representatives and deputy health and safety representatives (if any) for each work group,
(c)  the workplace or workplaces to which the work groups will apply,
(d)  the businesses or undertakings to which the work groups will apply.
(2)  A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.
Maximum penalty:
(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.
(3)  If agreement cannot be reached on a matter relating to the determination of a work group (or a variation of an agreement) within a reasonable time after negotiations commence under this Subdivision, any party to the negotiations may ask the regulator to appoint an inspector to assist the negotiations in relation to that matter.
(4)  The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements.
57   Notice to workers
(1)  A person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.
Maximum penalty:
(a)  in the case of an individual—$2,000, or
(b)  in the case of a body corporate—$10,000.
(2)  A person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement.
Maximum penalty:
(a)  in the case of an individual—$2,000, or
(b)  in the case of a body corporate—$10,000.
58   Withdrawal from negotiations or agreement involving multiple businesses
(1)  A party to a negotiation for an agreement, or to an agreement, concerning a work group under this Subdivision may withdraw from the negotiation or agreement at any time by giving reasonable notice (in writing) to the other parties.
(2)  If a party withdraws from an agreement concerning a work group under this Subdivision:
(a)  the other parties must negotiate a variation to the agreement in accordance with section 56, and
(b)  the withdrawal does not affect the validity of the agreement between the other parties in the meantime.
59   Effect of Subdivision on other arrangements
To avoid doubt, nothing in this Subdivision affects the capacity of 2 or more persons conducting businesses or undertakings and their workers to enter into other agreements or make other arrangements, in addition to complying with this Part, concerning the representation of those workers.
Subdivision 4 Election of health and safety representatives
60   Eligibility to be elected
A worker is:
(a)  eligible to be elected as a health and safety representative for a work group only if he or she is a member of that work group, and
(b)  not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 from being a health and safety representative.
61   Procedure for election of health and safety representatives
(1)  The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted.
(2)  However, an election must comply with the procedures (if any) prescribed by the regulations.
(3)  If a majority of the workers in a work group so determine, the election may be conducted with the assistance of a union or other person or organisation.
(4)  The person conducting the business or undertaking to which the work group relates must provide any resources, facilities and assistance that are reasonably necessary or are prescribed by the regulations to enable elections to be conducted.
Maximum penalty:
(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.
62   Eligibility to vote
(1)  A health and safety representative for a work group is to be elected by members of that work group.
(2)  All workers in a work group are entitled to vote for the election of a health and safety representative for that work group.
63   When election not required
If the number of candidates for election as a health and safety representative for a work group equals the number of vacancies, the election need not be conducted and each candidate is to be taken to have been elected as a health and safety representative for the work group.
64   Term of office of health and safety representative
(1)  A health and safety representative for a work group holds office for 3 years.
(2)  However a person ceases to hold office as a health and safety representative for a work group if:
(a)  the person resigns as a health and safety representative for the work group by written notice given to the person conducting the relevant business or undertaking, or
(b)  the person ceases to be a worker in the work group for which he or she was elected as a health and safety representative, or
(c)  the person is disqualified under section 65 from acting as a health and safety representative, or
(d)  the person is removed from that position by a majority of the members of the work group in accordance with the regulations.
(3)  A health and safety representative is eligible for re-election.
65   Disqualification of health and safety representatives
(1)  An application may be made to the Industrial Relations Commission to disqualify a health and safety representative on the ground that the representative has:
(a)  exercised a power or performed a function as a health and safety representative for an improper purpose, or
(b)  used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative.
(2)  The following persons may make an application under this section:
(a)  any person adversely affected by:
(i)  the exercise of a power or the performance of a function referred to in subsection (1) (a), or
(ii)  the use or disclosure of information referred to in subsection (1) (b),
(b)  the regulator.
(3)  If the Industrial Relations Commission is satisfied that a ground in subsection (1) is made out, the Commission may disqualify the health and safety representative for a specified period or indefinitely.
66   Immunity of health and safety representatives
A health and safety representative is not personally liable for anything done or omitted to be done in good faith:
(a)  in exercising a power or performing a function under this Act, or
(b)  in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under this Act.
67   Deputy health and safety representatives
(1)  Each deputy health and safety representative for a work group is to be elected in the same way as a health and safety representative for the work group.
(2)  If the health and safety representative for a work group ceases to hold office or is unable (because of absence or any other reason) to exercise the powers or perform the functions of a health and safety representative under this Act:
(a)  the powers and functions may be exercised or performed by a deputy health and safety representative for the work group, and
(b)  this Act applies in relation to the deputy health and safety representative as if he or she were the health and safety representative.
(3)  Sections 64, 65, 66, 72 and 73 apply to deputy health and safety representatives in the same way as they apply to health and safety representatives.
Subdivision 5 Powers and functions of health and safety representatives
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)  Despite subsection (2) (f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that:
(a)  does not identify the worker, and
(b)  could not reasonably be expected to lead to the identification of the worker.
(4)  Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.
69   Powers and functions generally limited to the particular work group
(1)  A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group.
(2)  Subsection (1) does not apply if:
(a)  there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group, or
(b)  a member of another work group asks for the representative’s assistance,
and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable.
(3)  In this section, another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates.
Subdivision 6 Obligations of person conducting business or undertaking to health and safety representatives
70   General obligations of person conducting business or undertaking
(1)  The person conducting a business or undertaking must:
(a)  consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking, and
(b)  confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group, and
(c)  allow any health and safety representative for the work group to have access to information that the person has relating to:
(i)  hazards (including associated risks) at the workplace affecting workers in the work group, and
(ii)  the health and safety of the workers in the work group, and
(d)  with the consent of a worker that the health and safety representative represents, allow the health and safety representative to 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
(e)  with the consent of one or more workers that the health and safety representative represents, allow the health and safety representative to 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
(f)  provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise his or her powers or perform his or her functions under this Act, and
(g)  allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided, and
(h)  permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works, and
(i)  provide any other assistance to the health and safety representative for the work group that may be required by the regulations.
Maximum penalty:
(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.
(2)  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.
Maximum penalty:
(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.
(3)  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.
71   Exceptions from obligations under section 70 (1)
(1)  This section applies despite section 70 (1).
(2)  The person conducting a business or undertaking must not allow a health and safety representative to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that:
(a)  does not identify the worker, and
(b)  could not reasonably be expected to lead to the identification of the worker.
Maximum penalty:
(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.
(3)  The person conducting a business or undertaking is not required to give financial assistance to a health and safety representative for the purpose of the assistance referred to in section 70 (1) (f).
(4)  The person conducting a business or undertaking is not required to allow a person assisting a health and safety representative for a work group to have access to the workplace:
(a)  if the assistant has had his or her WHS entry permit revoked, or
(b)  during any period that the assistant’s WHS entry permit is suspended or the assistant is disqualified from holding a WHS entry permit.
(5)  The person conducting a business or undertaking may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative for a work group.
(6)  If access is refused to a person assisting a health and safety representative under subsection (5), the health and safety representative may ask the regulator to appoint an inspector to assist in resolving the matter.
72   Obligation to train health and safety representatives
(1)  The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training in work health and safety that is:
(a)  approved by the regulator, and
(b)  a course that the health and safety representative is entitled under the regulations to attend, and
(c)  subject to subsection (5), chosen by the health and safety representative, in consultation with the person conducting the business or undertaking.
(2)  The person conducting the business or undertaking must:
(a)  as soon as practicable within the period of 3 months after the request is made, allow the health and safety representative time off work to attend the course of training, and
(b)  pay the course fees and any other reasonable costs associated with the health and safety representative’s attendance at the course of training.
(3)  If:
(a)  a health and safety representative represents a work group of the workers of more than one business or undertaking, and
(b)  the person conducting any of those businesses or undertakings has complied with this section in relation to the representative,
each of the persons conducting those businesses or undertakings is to be taken to have complied with this section in relation to the representative.
(4)  Any time that a health and safety representative is given off work to attend the course of training 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.
(5)  If agreement cannot be reached between the person conducting the business or undertaking and the health and safety representative within the time required by subsection (2) as to the matters set out in subsections (1) (c) and (2), either party may ask the regulator to appoint an inspector to decide the matter.
(6)  The inspector may decide the matter in accordance with this section.
(7)  A person conducting a business or undertaking must allow a health and safety representative to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6).
Maximum penalty:
(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.
73   Obligation to share costs if multiple businesses or undertakings
(1)  If a health and safety representative, or deputy health and safety representative (if any), represents a work group of workers carrying out work for 2 or more persons conducting businesses or undertakings:
(a)  the costs of the representative exercising powers and performing functions under this Act, and
(b)  the costs referred to in section 72 (2) (b),
for which any of the persons conducting those businesses or undertakings are liable must be apportioned equally between each of those persons unless they agree otherwise.
(2)  An agreement to apportion the costs in another way may be varied at any time by negotiation and agreement between each of the persons conducting the businesses or undertakings.
74   List of health and safety representatives
(1)  A person conducting a business or undertaking must ensure that:
(a)  a list of each health and safety representative and deputy health and safety representative (if any) for each work group of workers carrying out work for the business or undertaking is prepared and kept up to date, and
(b)  a copy of the up-to-date list is displayed:
(i)  at the principal place of business of the business or undertaking, and
(ii)  at any other workplace that is appropriate taking into account the constitution of the relevant work group or work groups,
in a manner that is readily accessible to workers in the relevant work group or work groups.
Maximum penalty:
(a)  in the case of an individual—$2,000, or
(b)  in the case of a body corporate—$10,000.
(2)  A person conducting a business or undertaking must provide a copy of the up-to-date list prepared under subsection (1) to the regulator as soon as practicable after it is prepared.