Health And Safety Representative Entitled To Payment For Whs Inspections On Days Off

A health and safety representative employed by Fire and Rescue NSW (FRNSW) should be paid for conducting workplace health and safety inspections on days he was not rostered to work, according to the NSW Industrial Relations Commission. This decision could have significant implications for other employers.

FACTS OF CASE

The employee made inspections of several fire stations over two days. The inspections were not pre-approved by FRNSW. The employee told them he would do inspections on his days off, but FRNSW told him not to do so without prior approval. Although elected as a health and safety representative (HSR), he was a “retained” employee who did not have set working days.

The NSW Work Health and Safety Act 2011 provides that employers must allow HSRs “reasonable” time to perform their roles and pay them for doing so – which in this case extended to times when the HSR unilaterally decided it was necessary. The employee argued that he did not work full-time but was responsible for many fire stations that were located over a wide area. He argued that he gave “reasonable prior notice” of his intentions, as the Act required.

The HSR had issued a provisional improvement notice to FRNSW in response to its refusal, which FRNSW cancelled after an internal review. The HSR sought to have it reinstated and claimed that he had met the requirement to consult with the employer before issuing it.

FRNSW argued that in these circumstances it would be required to pay for any inspections conducted by HSRs in their own time, regardless of whether it knew about or consented to the inspections.

The key issue to decide was whether sec 70(3) of the Act provides that HSRs should be paid for doing their job at times when they were not rostered to work. A related issue was whether in certain circumstances FRNSW could direct an HSR NOT to perform the work. If that were the case, the performance of work by HSRs who were elected by employees would be subject to the discretion of FRNSW – not the intention of the Act.

The Act provided that HSRs should be paid the same rate for performing their HSR duties as for performing their other work duties. It also proposed that HSRs should be paid for extra hours they worked to perform HSR work where circumstances required it.

DECISION

The NSW Industrial Relations Commission revoked the findings of an internal review by Safe Work NSW and held that the HSR should be paid for the time taken for inspections outside scheduled working hours, and be allowed to continue conducting inspections outside those hours.

However, it noted that this decision did not set a general precedent that HSRs should be paid every time they claimed to be performing their HSR duties, otherwise, a situation could get out of control. Each individual claim must be assessed according to its facts and circumstances.

WHAT THIS MEANS FOR EMPLOYERS

This case was decided under the NSW Work Health and Safety Act 2011. The provisions of different legislation will apply to other employees who are elected as HSRs by co-workers.

However, the decision suggests that HSRs will be entitled to payment for HSR work conducted outside normal working hours without having to obtain prior approval by the employer – IF they can demonstrate a legitimate reason for needing to perform the work outside normal hours, and do not “abuse” the entitlement.

READ THE JUDGMENT

Arnott v SafeWork NSW & Anor [2024] NSWIRComm 1039 (28 June 2024)