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Case study: Determining work groups for WHS consultation

On the 9th of July 2019 the NSW Industrial Relations Commission (IRC) delivered its decision on whether an employer had made the correct decision in its allocation of work groups in the employer’s workplace. The IRC’s decision and how it arrived at that decision, could be of interest and use for any business or organisation that incorporates HSRs and/or HSCs to consult with workers about workplace health and safety matters.

In Mark Rolph v SafeWork NSW and Anor (2019), the PCBU was Sydney Trains which has about 1790 employees and 56 HSRs and 56 deputy HSRs across Sydney in its Customer Service Division. Sydney Trains has various occupations in this division and numerous locations across Sydney. It is a very large employer with its own industry Regulator, but the matters and considerations covered in this decision are relevant to even small organisations.

The case


One of Sydney Trains’ HSRs endeavoured to change the system that Sydney Trains had adopted to determine work groups for the purpose of consulting with workers. That HSR’s endeavour eventually ended up before the Industrial Relations Commission who had to decide whether or not their accusation that Sydney Trains had adopted an improper system of determining work groups was legitimate.

It was a large task but the IRC focussed on

  1. What does the WHS Act and WHS Regulation require, and

  2. What are the relevant facts of the situation at Sydney Trains.

The IRC has identified what they focussed on in item 31 of their decision on the 9th of July:

“31 As they will be necessary to a determination of these proceedings, it is convenient to note at this point the following provisions of the Work Health and Safety Regulation 2017 (NSW):

16 Negotiations for and determination of work groups

Negotiations for and determination of work groups and variations of work groups must be directed at ensuring that the workers are grouped in a way that:

(a) most effectively and conveniently enables the interests of the workers, in relation to work health and safety, to be represented, and

(b) has regard to the need for a health and safety representative for the work group to be readily accessible to each worker in the work group.

Note. Under the Act, a work group may be determined for workers at more than 1 workplace (section 51(3)) or for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces (Subdivision 3 of Division 3 of Part 5 of the Act).

17 Matters to be taken into account in negotiations

For the purposes of sections 52(6) and 56(4) of the Act, negotiations for and determination of work groups and variation of agreements concerning work groups must take into account all relevant matters, including the following:

(a) the number of workers,

(b) the views of workers in relation to the determination and variation of work groups,

(c) the nature of each type of work carried out by the workers,

(d) the number and grouping of workers who carry out the same or similar types of work,

(e) the areas or places where each type of work is carried out,

(f) the extent to which any worker must move from place to place while at work,

(g) the diversity of workers and their work,

(h) the nature of any hazards at the workplace or workplaces,

(i) the nature of any risks to health and safety at the workplace or workplaces,

(j) the nature of the engagement of each worker, for example as an employee or as a contractor,

(k) the pattern of work carried out by workers, for example whether the work is full-time, part-time, casual or short-term,

(l) the times at which work is carried out,

(m) any arrangements at the workplace or workplaces relating to overtime or shift work.”

Outcome

After hearing witnesses and examining the facts the IRC concluded that Sydney Trains’ work group proposal was the one that would best achieve the objectives of clause 16 of the WHS Regulation and Sydney Trains has not done anything improper or counter to the requirements of the WHS Act.


For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066


17th September 2019

 

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