Consultation counts when it comes to Health and Safety Representative Training

A recent decision of the Industrial Relations Commission of New South Wales (NSW IRC) (Sydney Trains v SafeWork New South Wales [2017] NSW IRComm 1009) has determined that elected health and safety representatives do not have a unilateral right to decide which approved health and safety training course they will attend. (It should be noted this decision has potential applicability beyond NSW to the States where the model work health and safety legislation has been implemented (ie. in all States and Territories other than Victoria and Western Australia)).

Training of HSRs

Under the Work Health and Safety Act 2011 (NSW) (WHS Act) elected Health and Safety Representatives (HSRs) have extensive powers including, subject to completion of SafeWork NSW approved training, the power to stop unsafe work and to issue Provisional Improvement Notices.

Reflecting this status, employers are required by the WHS Act to allow HSRs to attend a course of training in work health and safety chosen by the HSR "in consultation with the person conducting the business or undertaking".

In this case, four HSRs indicated to the employer that they wanted to attend the safety training course conducted by the Australian Council of Trade Unions (HOSTA Course). The employer did not agree to arrange for the attendance of the HSRs on this particular course.

As agreement could not be reached the HSRs, pursuant to a right in section 72(5) of the WHS Act, approached the regulator, SafeWork NSW, to appoint an inspector to decide the matter. 

SafeWork NSW appointed an inspector who upheld the choice of the HOSTA Course made by the HSRs. The employer then sought an internal review by SafeWork NSW of the inspector's decision. SafeWork NSW upheld that decision on the internal review.

External review of SafeWork NSW decisions by the NSW IRC

Under section 229 of the WHS Act, which permits review of certain types of decisions made by the regulator, the employer then sought an external review in the NSW IRC.

Apart from the training choice issue, this decision also provides an interesting and important analysis as to the nature of an external review hearing conducted by the NSW IRC pursuant to section 229 of the WHS Act (which, as noted above, has application to a range of decisions by SafeWork NSW).

After rightly lamenting the lack of clarity in the WHS Act itself on the issue, the NSW IRC formed the view that the hearing of such external reviews is to be conducted on a de novo basis. On the nature of an external review the Commissioner Newall observed:

"Despite the fact that it is the internal decision which has been reviewed, it is not a matter of assessing the correctness or otherwise of that decision of itself. Once an external review is initiated, the Commission must provide a fresh decision, regardless of the outcome of the review."

The submission of the Australian Manufacturing Workers Union on behalf of the HSRs (a submission supported by the Respondent, SafeWork NSW) was that the HSRs have an absolute right to nominate a course, and that, provided some form of consultation takes place, the employer can do no more than either agree or disagree to that specific course. As such, an employer has no right to nominate an alternative course to that proposed by the HSRs. Further, an inspector appointed to break the deadlock could not decide the matter by choosing a course nominated by the employer but was limited to choosing (or not, as the case may be) the course nominated by the HSRs.

Commissioner Newall rejected this submission. Focusing on the words "to choose a course in consultation with the employer" he found that these words have work to do and, as such, a choice cannot be formed independent of consultation with the employer. The Commissioner stated:

"Neither party to the consultation has a unilateral right to enforce their preferred training course, nor to bar the other party's preference. If the parties agree, the training goes ahead as agreed. If they disagree, that disagreement is resolved at first instance by the inspector deciding the matter. Once it is understood that the disagreement comprehended by subs. 72(1)(c) can be only about the choice of course, then it is apparent that the disagreement can be resolved by the inspector only by choosing between the alternative courses proposed."

Practical steps for employers

This decision repudiates the notion, which has actually appeared in some of SafeWork NSW's own explanatory literature, that the choice of training course made by HSRs is to be given primacy.

Where there is a dispute between the employer and HSRs as to the training course HSRs will undertake under section 72 of the WHS Act employers should:

• specifically identify the alternative training course preferred by the employer and the reasons why it is preferred (for instance, as was the position in this case, the course is provided by an entity or in a manner that is compliant with the employer's broader procurement practices or policies, or the course is specifically designed for, or takes account of, the employer's industry or workplace); and 

• in the event the matter is determined on either review by an inspector of the regulator, the regulator on internal review, or external review by the NSW IRC, the employer should be in a position to propose an alternative course and put arguments as to why that specific training program is a better suited option to that being proposed by the HSRs.