Are there minimum standards for shared meal rooms in workplaces?

Workers must be provided with access to facilities for eating, preparing and storing food. Depending on the type of workplace, a range of facilities may be appropriate, this may include a canteen or cafeteria, a dedicated meal area or allowing time for mobile workers to access eating facilities.

The Managing the work environment and facilities Code of Practice (the Code) states that for large static workplaces there should be 1 m² of clear space free of furniture, fitting or obstructions such as pillars for each person likely to use the area at any one time. This means that the size of a dining area for 10 workers should be 10 m² plus extra space for meal furniture, appliances, and fittings such as sinks.

The Code is approved under section 274 of the Work Health and Safety Act 2011 (the WHS Act) and also provides minimum standards for other facilities including (but not limited to) provision of toilets, drinking water, adequate lighting, change rooms, shower facilities and workstations.  

Remember: A Code of Practice states the minimum requirements a PCBU must meet. Under section 26A of the WHS Act duty holders must comply with an approved Code of Practice or manage relevant hazards and risks in a way that provides an equivalent or higher standard of work health and safety than the standard required under the Code of Practice.

How long before a PIN can be issued after a contravention?

A HSR can issue a PIN to any person (most commonly their employer) at any time if they hold a reasonable belief that a provision of the WHS Act is being contravened, or has been contravened in a way that is likely to continue or be repeated, but there is a requirement that the HSR has consulted with the person they intend to issue the PIN to before doing so.

If the person’s response is unsatisfactory, then the HSR has the right to issue a PIN.

Sections 90-102 of the WHS Act provide more details on the issuing of PINs.

Can an employer direct HSRs to perform workplace audits?

The WHS act is very clear on the powers and functions of HSRs.

Section 68(4) of the WHS Act states:

“Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity’’

Section 68(1) of the WHS Act also lists the following specific powers and functions of elected HSRs:

• to represent the workers in the work group in matters relating to work health and safety; and

• 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
• to investigate complaints from members of the work group relating to work health and safety; and
• 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.

Employers must comply with specific obligations to HSRs as well. These are detailed in section 70 of the WHS Act. Some of these include:

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;

It should be noted that the above information is by no means an exhaustive list of the powers and functions of HSRs or the obligations of employers. Sections 68 to 74 of the WHS Act provide greater detail.

Remember: A HSR is elected by the members of their work group – and is their representative, not the employer’s. They have to satisfy the members of their work group and are answerable to them.  In terms of duties an elected HSR has the same duties as any other worker – no more, no less.

What does “consultation” mean?

Employers have a duty to consult with workers who are, or are likely to be, directly affected by a matter relating to work health or safety, or they risk being penalised under section 47 of the WHS Act. 

Specifically, section 49 of the WHS Act states that consultation is required in relation to the following health and safety matters:

(a)when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking;

(b)when making decisions about ways to eliminate or minimise those risks;

(c)when making decisions about the adequacy of facilities for the welfare of workers;

(d)when proposing changes that may affect the health or safety of workers;

(e)when making decisions about the procedures for—

(i)consulting with workers; or

(ii)resolving work health or safety issues at the workplace; or

(iii)monitoring the health of workers; or

(iv)monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or

(v)providing information and training for workers

Consultation is not informing employees of a decision once it’s been made.

Consultation, under section 48 of the WHS Act, requires:

(a) that relevant information about the matter is shared with workers; and

(b) that workers be given a reasonable opportunity—

(i)to express their views and to raise work health or safety issues in relation to the matter; and

(ii)to contribute to the decision-making process relating to the matter; and

(c) that the views of workers are taken into account by the person conducting the business or undertaking; and

(d) that the workers consulted are advised of the outcome of the consultation in a timely way.

Are codes of practice enforceable?

YES. Codes of Practice are an enforceable standard.

Under section 26A of the WHS Act duty holders must comply with an approved Code of Practice or manage relevant hazards and risks in a way that provides an equivalent or higher standard of work health and safety than the standard required under the Code of Practice.

 How do I know who my Health and Safety Representatives are? 

An employer must ensure that a copy of the up-to-date list of HSRs is displayed in a workplace in a way that is readily accessible to workers.

Who decides on the size of the work group?

The size of the work group is determined by negotiation and agreement between the employer and the workers who are proposed to form the work group to ensure all workers are appropriately represented.

What is a work group?

A work group is a group of workers who carry out the same or a similar type of work to each other. A HSR represents the health and safety interests of the workers in that group and needs to be readily accessible to each other worker in the work group (i.e., works at the same workplace or at a workplace where they can attend the worker’s workplace within a reasonable time, and works the same or a similar pattern of work to the worker).

Work groups can be negotiated and agreed between one or more PCBUs and their workers, depending on the circumstances:

• Single site business – workers work for one business
• Multiple site organisation – workers work for one business with multiple sites
• Multiple Business work groups – workers working for more than one business (e.g., Labour Hire)

When negotiating work groups, the following factors should be considered.

1. The number of workers
2. The views of workers in relation to the determination and variation of work groups
3. The nature of each type of work carried out by the workers
4. The number and grouping of workers who carry out the same or similar types of work
5. The areas or places where each type of work is carried out
6. The extent to which any worker must move from place to place while at work
7. The diversity of workers and their work
8. The nature of any hazards at the workplace or workplaces
9. The nature of any risks to health and safety at the workplace or workplaces
10. The nature of the engagement of each worker; e.g., as an employee or as a contractor
11. The pattern of work carried out by workers, e.g., is the work full time, part time, casual or short term
12. The times at which work is carried out, and
13. Any arrangements at the workplace/s relating to overtime or shift work.

How long can a Health and Safety Representative hold office for?

The WHS Act answers this question (see section 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 under a regulation (who are required under regulation 20 to sign a written declaration that the health and safety representative should no longer represent the work group).

3. A health and safety representative is eligible for re-election.

Can a HSR be disqualified from their position?

The WHS Act outlines when a HSR is disqualified from their position (see section 65, Disqualification of health and safety representatives)

1. An application may be made to the 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 mentioned in subsection (1)(a); or

(ii) The use of disclosure of information mentioned in subsection (1)(b);

(b) The regulator

3. If the commission is satisfied that a ground in subsection (1) is made out, the commission may disqualify the health and safety representative for a stated period of indefinitely.
4. A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

Note –

See the Industrial Relations Act 2016, chapter 11, part 6.

What is the role of a deputy HSR?

The WHS Act outlines the role of the Deputy HSR (see section 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 is 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.

How soon after a HSR is elected does the PCBU need to provide training?

The WHS Regulations answer this question (see regulation 21, Prescribed health and safety training)

1. The prescribed training for section 72(1) of the Act is the following courses of training in work health and safety approved by the regulator –

(a) An initial 5-day course of training;

(b) 1 day’s refresher training at least every 12 months, with the entitlement to the first refresher training commencing 12 months after the initial training.

2. A health and safety representative for a work group for a business or undertaking must complete the initial 5-day course of training within –

(a) 28 days after the day the representative is elected as a health and safety representative for the work group; or

(b) If an initial 5-day course is not reasonably available to the representative – as soon as practicable after the period mentioned in paragraph (a).

Can the HSR choose their own training provider?

Yes. Section 72(2)(aa) of the WHS Act requires a PCBU to allow a health and safety representative to choose the training they wish to attend, so a HSR has an express right to choose their own training provider.

However, a PCBU is only obligated, under section 72(2)(b) of the WHS Act, to pay the training fees and any other reasonable costs associated with the health and safety representative’s attendance at the training (emphasis added).

Whether the other costs associated with the HSR’s attendance at the training (beyond the training fees) are reasonable will depend on the specific circumstances, but factors to consider may include costs associated with travel or accommodation.

Should a dispute exist regarding the reasonableness of the other costs, any party (the HSR or the PCBU) has the right to refer the matter to the Queensland Industrial Relations Commission using the work health and safety dispute resolution procedure in Part 5, Division 7A of the WHS Act.

Should the HSR/s be on the Health and Safety Committee and who else should be part of the committee?

The WHS Act outlines who should be on the Health and Safety Committee (see section 76, Constitution of committee).

1. Subject to subsections (2) to (4), the constitution of a health and safety committee may be agreed between the person conducting the business or undertaking and the workers at the workplace.
2. The membership of the committee must include –

(a) If there is a health and safety representative at a workplace and the representative consents to being a member – the representative; and

(b) If there is a work health and safety officer at the workplace – the officer.

3. If there are 2 or more health and safety representatives at a workplace, those representatives may choose 1 or more of their number (who consent) to be members of the committee.
4. At least half of the members of the committee must be workers who are not nominated by the person conducting the business or undertaking.
5. If a party considers that the parties are unlikely to reach agreement within the period mentioned in section 75(1), the party may ask the regulator to appoint an inspector for the purposes of this section.
6. An inspector appointed under subsection (5) must attempt to assist the parties to reach agreement about the constitution of a health and safety committee under this section.

6A. Subsection (6B) applies if the inspector reasonably believes the parties are unlikely to reach agreement under this section within 7 days after the appointment.

6B. The inspector must, within 7 days after the appointment—

(a)decide the constitution of the health and safety committee; or

(b)decide that a health and safety committee should not be established.

7. A decision of an inspector under this section is taken to be an agreement under this section between the parties.
8. A failure to comply with subsection (6), (6A) or (6B) does not invalidate a decision or purported decision under subsection (6B)(a) or (b).

What powers does the HSR have to direct a cease work?

The WHS Act outlines the powers of the HSR to direct the ceasing of work (See section 85, Health and safety representative may direct that unsafe work cease).

(1) A health and safety representative may, by giving a written notice stating the matters mentioned in section 85A (a cease work notice) to a worker, direct the worker to cease work if—

(a) the worker is in a work group represented by the health and safety representative; and

(b) the health and safety representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.

(2) However, the health and safety representative must not give a direction under subsection (1) unless the matter is not resolved after—

(a) consulting about the matter with the person conducting the business or undertaking for whom the worker is carrying out work; and

(b) attempting to resolve the matter as an issue under division 5.

(2A) As soon as practicable after giving a cease work notice under subsection (1), the health and safety representative must—

(a) give the person conducting the business or undertaking a copy of the cease work notice; and

(b) display, in a prominent way in an area used by the workers who are in the work group, a copy of the cease work notice.

(3) The health and safety representative may direct the worker or workers to cease work without consulting about the matter with the person conducting the business or undertaking or attempting to resolve the matter as an issue under division 5 if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.

(4) A direction given under subsection (3) may be given orally.

(5) As soon as possible after giving a direction under subsection (3), the health and safety representative must—

(a) give the person conducting the business or undertaking a cease work notice to inform the person of the direction given to the worker or workers under subsection (3); and

(b) display, in a prominent way in an area used by the workers who are in the work group, a copy of the cease work notice mentioned in paragraph (a); and

(c) consult with the person conducting the business or undertaking to attempt to resolve the matter.

(6) A health and safety representative cannot give a direction under this section unless the representative has—

(a) completed initial training prescribed by regulation under section 72(1); or

(b) previously completed that training when acting as a health and safety representative for another work group; or

(c) completed training equivalent to that training under a corresponding WHS law.

(7) A direction given under this section remains effective until—

(a) the direction given under subsection (1) or (3) is withdrawn in writing by the health and safety representative; or

(b) the issue is resolved with the assistance of an inspector under section 89; or

(c) an inspector issues a prohibition notice in relation to the matter; or

(d) the commission decides or deals with the dispute under division 7A.

For further information on HSRs rights to cease work see sections 85A to 89 of the WHS Act.

Do I need to start a formal process when addressing a Work Health and Safety issue?

Yes, all work health and safety issues should be formalised. This provides a structure to all WHS matters, allowing for and ensuring the matters are addressed and resolved.

It is important to create a paper trail which include such things as, minutes from meetings, risk assessments, previous and current control measures, and outcomes of reviews. All information assists you as the health and safety representative and the Regulator if needed.

There are several processes for addressing work health and safety issues, such as PINs, issue resolution, and dispute resolution, contacting the regulator via the HSR hotline (1300 633 419), and the HSR Support Service is available to provide advice and assistance with these matters.

[HSR Support Service – Email: info@hsrsupport.org.au; Mobile:0429 985 268] 

Can I ring the Regulator or have an Inspector come to my work?

Yes, if you have a workplace health and safety matter/issue of any nature, this also includes your role as a HSR or negotiations of any sort related to health and safety in the workplace, you have a right as the HSR to request an inspector to attend your workplace for assistance and advice.

Health and safety representatives have a hotline number straight to WHSQ (the Regulator) which is 1300 633 419.

For any additional concerns or follow up after an inspector has attended your workplace you can contact the Health and Safety Representatives Support Service on 0429 985 268 or email you question to info@hsrsupport.org.au