What is the claim that can be made?
Disputes regarding “WHS matters” can be referred to the Commission for mediation, conciliation or arbitration under Division 7A of the WHS Act. “WHS matters” are defined under s 102A of the Work Health and Safety Act 2011 (NSW) (“WHS Act”). Importantly, not all WHS disputes are “WHS matters” – only those listed under s 102A fall under this category.
The following matters are “WHS matters” for the purposes of s 102A:
- Work group determination matters. A worker may make a request for the election of one or more health and safety representatives to represent workers in a business or undertaking under s 50 of the WHS Act. If such a request is made, the person conducting the business or undertaking must determine “work groups” for workers to be properly represented (s 51 WHS Act). Where negotiations are not conducted as per the guidelines in s 52 WHS Act, negotiations fail or notice is not properly given to workers under s 53 WHS Act, parties may seek the assistance of the Commission.
- Work group variation matters. Where parties to an agreement regarding the determination of a work group refuse to negotiate a variation of that agreement: s 52(4) WHS Act.
- Access to information by a health and safety representative under section 70(1)(c). Where persons conducting a business or undertaking do not allow health and safety representatives for a work group to have access to information relating to hazards at the workplace affecting workers in the work group, and the health and safety of the workers in the work group.
- A request by a health and safety representative for a person assisting the representative to have access to the workplace under section 70(1)(g). Where persons conducting a business or undertaking do not allow a person assisting a health and safety representative to have access to the workplace if that is necessary to enable the assistance to be provided.
- A matter mentioned in section 72(2)(a) or (b) or (4) relating to training for a health and safety representative. Where a person conducting a business or undertaking does not, as soon as practicable within 3 months after a request is made, allow a health and safety representative paid leave to attend a course or training and pay any course fees and other reasonable costs associated with the attendance of the health and safety representative at the course or training.
- A health and safety committee matter. Section 76(2) of the WHS Act states that if there is a health and safety representative at a workplace, they are automatically a member of any health and safety committee. If there are 2 or more health and safety representatives, those representatives may choose one or more of their number who consent to be members of the committee: s 76(3) WHS Act. At least half the members of the committee must be workers who are not nominated by the person conducting the business or undertaking: s 76(4) WHS Act. Where there are any issues with the above, parties may seek the assistance of the Commission.
- A matter about work health and safety that is an issue to which Division 5 applies. If a matter about work, health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion, and the parties make reasonable efforts to achieve resolution of the issue, a representative of a party may enter the workplace for the purpose of attending discussions with a view to resolving the issue. A party to an issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue. Where there are any issues with the above, parties may seek the assistance of the Commission.
- An issue about cessation of work under Division 6. Workers can cease or refuse to carry out unsafe work if they have a reasonable concern that to carry out the work would expose them to a serious risk to their health or safety: s 84 WHS Act. Health and safety representatives may direct workers to cease work if the representative has a reasonable concern that to carry out the work would expose the workers to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard: s 85 WHS Act. A worker must notify the person conducting the business or undertaking that the worker has ceased work and remain available to carry out suitable alternative work: ss 86 and 87 WHS Act. If a worker ceases work under this Division, that action does not affect the continuity of engagement of the worker if they have not unreasonably failed to carry out suitable alternative work: s 88 WHS Act. A regulator may be appointed to assist in resolving an issue relating to the cessation of work. Where there are any issues with the above, parties may seek the assistance of the Commission.
Can I make such an application?
Parties to a dispute may make an application to the Industrial Registrar under Division 7A. This may include:
- Persons conducting a business or undertaking;
- A worker affected by a WHS matter;
- A health and safety representative affected by a WHS matter; and
- A registered organisation for a worker affected by a WHS matter.
However, s 102B states that parties to the following disputes can only apply for relief under Division 7A if an inspector has been appointed to assist the parties to reach an agreement about the matter, and the inspector has made a decision relating to the dispute under ss 54(2) or 76(6) of the WHS Act:
- Work group determination matters;
- Work group variation matters; and
- Health and safety committee matters.
What will the Commission consider?
In determining whether to hear the dispute, s 102C of the WHS Act states that the Registrar must determine whether notice of the dispute has been properly given. In order for notice of the dispute to be properly given, it must state the following:
- The names of the parties to the dispute;
- The workplace where the dispute exists;
- The WHS matter the subject of the dispute (ie, the category this matter falls under per s 102A); and
- If an inspector has been appointed to assist the parties to reach an agreement or resolve the dispute - whether a decision made by the inspector to exercise, or not to exercise, compliance powers is subject to review under Part 12 of the WHS Act.
If notice of the dispute is not properly given, the Commission can decide not to deal with the dispute: s 102G(1)(a).
What relief can be granted?
Pursuant to s 102E, the Commission can deal with WHS matters in any way it thinks fit, including by mediation, conciliation or arbitration. If the Commission deals with the dispute by arbitration, it may make “an order it considers appropriate for the prompt settlement of the dispute”: s 102E(3).
What is the procedure that the Commission will adopt to deal with such claims?
The Commission may deal with the dispute in any way it thinks fit, including by means of mediation, conciliation or arbitration. The Commission can decide not to deal with a WHS dispute if notice was given incorrectly or the subject of the dispute is frivolous, vexatious, misconceived or lacking in substance.
The Commission will initially attempt to resolve the dispute by conciliation.
If conciliation fails, the Commission will proceed to arbitrate the dispute. In arbitration proceedings, the Commission can make an order that it considers appropriate to promptly settle the dispute. A person who contravenes an order is liable to a civil penalty.
If the dispute relates to a decision made by an inspector under s 54(2), s 76(6), or a decision to exercise or not exercise compliance powers under Part 10, the Commission may deal with the dispute by reviewing the decision. As part of the review, the Commission may confirm or vary the original decision, set aside and substitute the original decision, or set aside the original decision and return the matter to the inspector who made the decision with directions. The Commission cannot make an order to stay the original decision’s operation.
A review of a dispute relating to a decision to exercise or not exercise compliance powers under Part 10 ends any other review of the compliance decision or stay of the operation of the compliance decision under Part 12 of the WHS Act.
Parties to a WHS dispute must bear their own costs. The Commission may order a party to pay costs if it is satisfied that the subject of the dispute is frivolous, vexatious, misconceived or lacking in substance, and if the party notified the dispute to the Commission or otherwise acted without reasonable cause.
Can a decision be appealed?
Decisions can be appealed to the Full Bench of the Commission. See ‘Appeals’ for further details.
