New health and safety representatives and committees requirements proposed

The Health and Safety at Work (Health and Safety Representatives and Committees) Amendment Bill (the Bill) was introduced into the House of Representatives on 22 November last year. After its first reading on the same day, it was referred to the Education and Workforce Committee. There were 24 submissions made on the Bill, which the Committee is now considering before reporting back on 22 May 2023.

This update is intended to provide members with information about the changes proposed in the Bill, and the range of views expressed by submitters.    

When introducing the Bill, Minister Michael Wood stated that it would provide workers in small and lower-risk businesses with greater choice about how they are represented on health and safety matters. He stated the proposed changes were intended to strengthen the role of worker representation in health and safety issues.

Worksafe provides guidance on the role of Health and Safety Representatives and Health and Safety Committees as well-established methods of representation that support worker engagement and participation. A Health and Safety Representative is a worker who has been elected by the members of their work group to represent them in health and safety matters. A Health and Safety Committee is set up to support the ongoing improvement of health and safety at work.

So what does the Bill provide?

• If a worker in a business asks for Health and Safety Representatives, the business will need to initiate an election. Currently, small businesses in lower-risk sectors can refuse a worker’s request for a Health and Safety Representative.  
• It is not proposed to make Health and Safety Representatives mandatory for businesses. They will only be required to initiate an election where workers request them.
• Changes also to Health and Safety Committees - if 5 workers, or a health and safety representative asks for a health and safety committee, a business will need to form one.  
• Creates offences for failing to comply with the new HSR and HSC provisions – maximum fines up to $5,000 for individuals, or $25,000 for any other person. 

Currently, a business does not have to initiate elections for health and safety representatives if it has less than 20 workers and is in a low-risk sector or industry. The Bill would remove these thresholds so all businesses are required to hold elections if requested by workers.

Divergence of opinion on the Bill by submitters

There is a major divergence of opinion on the Bill in the submissions made.

1. Opposition to proposed changes

Employer and industry organisations were generally opposed to the changes, with most suggesting that if the Bill proceeds it should allow employers to refuse requests, but having to provide a reason for doing so.

These submitters indicated they could see little reason for the change, as all businesses are currently required to comply with the Act’s health and safety requirements. They considered the current concessions recognised that smaller employers either lacked the resources required to organise health and safety representative elections, or the size of their workplace did not justify establishing a health and safety committee. This group opposed what they considered to be the imposition of additional, unwarranted, costly obligations on smaller businesses already dealing with difficult economic conditions. They also considered that health and safety in smaller organisations worked best when everyone was involved, without the need for formal committees or health and safety representation.

Alternate solution proposed – some submitters in this group suggested that if the Bill proceeds, it should be amended to allow employers to refuse a request for a health and safety representative, provided they give reasons for their refusal.

2. Support for changes

Unions and employee organisations supported the Bill, with some wanting further worker health and safety focussed provisions.

These submitters were in favour of the provisions that they considered enabled all workers to be safe at work, irrespective of the size of the workplace. They could see no good reason for not applying the law equally to all workplaces. They considered the proposed changes would greatly improve conditions for workers in smaller workplaces, who currently relied on the goodwill of employers to allow them to have health and safety representatives or committees (as they are currently not required to). Suggested that concerns raised by opponents to the proposals in the Bill based on the imposition of unnecessary, additional costs were off the mark – in “the long run” the changes are likely to benefit the balance sheets of small business, by remedying a fundamental omission in the current legislation.

Further recommended actions

• Include the creation and administration of a statutory register of health and safety representatives, as well as introducing mandatory training and qualification standards.  
• Increasing the ability of union representatives to make recommendations and to issue provisional improvement notices, and support for “roving health and safety representatives”.
• Ensuring that any changes made (if the Bill proceeds), are enforced by the regulator. 

3. A neutral approach

One submitter suggested clarifying what’s required in notices requesting health and safety representative elections and committee formations, as well as ensuring the language used in any changes introduced was consistent with that used in the Act. They also suggested changes to simplify the process for workplaces with fewer than 5 employees that would allow any worker in a workplace with fewer than 20 employees, to request establishment of a health and safety committee (without having to first elect a Health and Safety Representative, to request one).

What’s in it for directors?

We await with interest the committee report and will provide a further update on progress once that is available (due 22 May 2023).

Should the proposals in the Bill be adopted, updated health and safety policies and procedures will be required to ensure the new requirements are followed, and that organisations are familiar with and able to comply with any changes. As noted above, the Bill proposes to create offences for failing to comply with the new provisions, with potential maximum fines upon conviction not exceeding $5,000 for individuals, or $25,000 for any other person.  

We emphasise recognising the importance of “Shared Value” – one of the IoD’s Top 5 issues for directors in 2023. Directors should be ensuring good practice is adopted for the benefit of all employees, and that they take the lead in ensuring the organisations they govern have best practice health and safety performance policies and practices in place, and support management to implement them in a fair and transparent manner.