Frequently Asked Questions

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 Code states there should be 1 meter square of clear space for each person likely to use the area at any one time. Note clear space is calculated free of furniture, fitting or obstructions such as pillars. 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 above information sits in the “Managing the work environment and facilities” code of practice. The code is approved in Queensland and states the minimum requirements an employer must meet.

The Code 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. The code of practice is approved under section 274 of the Work Health and Safety Act 2011.

Remember: Under section 26A of the WHS Act duty holders must comply with an approved code of practice or follow another method, such as a technical or industry standard, if it provides an equivalent or higher standard of work health and safety than the standard required in this code.

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

Under the 2011 WHS Act, a Health & Safety Representative can issue a PIN to the employer at any time, but there is a requirement that he or she has consulted with the employer about alleviating the contravention or likely contravention.

(In fact, the HSR may issue a PIN to any person who is contravening or has contravened the Act or the regulations.)

Under Section 90 of the WHS Act, the rep must have consulted with the person regarding “remedy the contravention or likely contravention”. If the person’s response is unsatisfactory, then the rep has the right to issue a PIN.

The WHS rep who asked this question said, “The employer always says he can’t find the money to fix things in our workplace, and there are more pressing things to spend the budget on. So how long do I have to wait before I can issue a PIN?”

Employers have a legal duty to provide and maintain a safe and healthy workplace – as far as reasonably practicable (See “Important Definitions”) While this means that cost can be one consideration, the employer cannot simply use cost as an excuse not to remedy contraventions of the Act or regulations.

Can an employer direct HSRs to perform workplace audits?

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

Subdivision 5 68 (4) states:

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

The act gives elected HSRs specific powers under the above Subdivision these include:

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.

However, Subdivision 6 (70) of the act does state the duties and obligations of the employer, 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;

The above information are some examples of what powers and functions HSRs have under whs legislation, and by no means an exhaustive list of either parties responsibilities under workplace health and safety legislation.

Remember: The rep is elected by the members of his or her designated work group – and is their rep, not the employer’s rep. He or she has to satisfy those members and is answerable to them. In terms of duties an elected rep has the same duties as any other employee of the employer – no more, no less.

What does “consultation” mean?

Consultation is not informing employees of a decision once it’s been made. Employers have a duty to consult or risk being penalized under the WH&S Act 2011. Part 5 Div 1 46. Consultation is required: when making decisions about ways to eliminate or minimise Health and Safety risks in your workplace. WH&S Act 2011. Part 5 Div 2 49 (b). Consultation is required when proposing changes that may affect the health or safety of workers. WH&S Act 2011. Part 5 Div 2 49 (d)

Are code of practice enforceable?

YES. Codes of Practice are now an enforceable standard to manage hazards and risks, and penalties apply.

 How do I know who my Health & Safety Reps are? 

An employer must ensure an accurate list of each health and safety representative is displayed.

Who decides on the size of the work group?

 The size of the work group is determined by negotiation between the employer and employees, to ensure all workers are represented.

What is a work group (DWG)?

A work group is a group of workers who share a similar work situation; the HSR represents the health and safety interests of the workers in that group.

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. (WHS Act 2011 s 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

(d) The person is removed from that position by a majority of the members of the work group under a regulation.

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. (WHS Act 2011 s 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 ad 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. (WHS Act s 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. (WHS Regulation 2011 s 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 3 years, with the entitlement to the first refresher training commencing 3 years 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) 3 months 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?

There is nothing at present under the Queensland Health and Safety Legislation that states a PCBU has the right to dictate where an elected health and safety representative attends training.

In addition, there is no Queensland legislation that support the elected HSR having the final say on choosing the Registered Training Provider (RTO) they attend.

It is advised by HSR Support Service that the decision on which RTO to attend should be by negotiation during the initial negotiations of work groups, number of HSRs, the election process take place and whilst (if any) the HSRs representatives are present.

As an elected health and safety representative you should have the right to have input into where you would like to attend training. Keeping in mind all the factors that would be taken into consideration.

Things to consider would be:

– Where are you located (are you regional or in the city)

– Do you have an RTO locally

– Is your request reasonable and within the 3 month timeframe

– Is the PCBUs preference reasonable and within the 3 months from the election

– What is your reasoning for attending this particular RTO

Should negotiations fail, you have the right to contact the Regulator to ask for assistance in reaching an amicable decision

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 & Safety Committee. (WHS Act 2011 s 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 agreement is not reached under this section within a reasonable time, any party may ask the regulator to appoint an inspector to decide the matter.

6. An inspector appointed on a request under subsection (5) may decide the constitution of the health and safety committee or that the 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

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. (WHS Act s 85, Health and safety representative may direct that unsafe work cease)

1. A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the 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 worker a direction to cease work unless the matter is not resolved after –

(a) Consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work; and

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

3. The health and safety representative may direct the worker to cease work without carrying out that consultation 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. The health and safety representative must carry out consultation as soon as is practicable after giving a direction under subsection (3).

5. The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section.

6. A health and safety representative can not 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

For further information on HSRs rights to cease work go to WHS Act ss 86 & 87.

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

Yes, all workplace 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.

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.