Establishing WHS procedures in the NSW RFS by Michael Eburn

Date: August 23, 2017

In my earlier post, RFS volunteer exercising rights as a ‘worker’ (August 27, 2016) I reported on the decision in NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4 which dealt with a request from a volunteer for the election of Health and Safety Representatives. The matter was subject to a determination by an Inspector, an internal review of that decision and finally an external review by the Industrial Commission.

The issue before the Commission was not the merits of the health and safety consultation arrangements that the RFS had introduced, but whether or not the volunteer had a right to be heard and make submissions to the Commission. The Commission ruled that the volunteer should be allowed to appear as an ‘intervener’ with the right to ‘call evidence, cross-examine witnesses and make submissions ([79]).

Fast forward 15 months and I can’t see that there has been further decisions of the Commission, but the NSW RFS has now issued service standard 7.1.8 Work Health and Safety Consultation and Issue Resolution (effective date 16 August 2017).  That service standard does not appear to have made it to the RFS web page (https://www.rfs.nsw.gov.au/resources/publications/corporate-governance-and-planning/service-standards) but I have been sent a copy with these questions:

With particular reading of the document, the processes for determining workgroups has been missed in that they did not consult with the workers and nor did they consult with workers in determining workgroups. For 73000 members I don’t believe that 49 HSRs are sufficient nor does this represent the different work groups.

Could you look at the document and comment on its processes, lack of urgency in resolving issues and compliance with the law.

To date, no consultation has taken place except for the time within Myrfs which volunteers do not use.

I can’t comment on whether or not 49 Health and Safety Representatives is sufficient, whether they represent the different work groups or whether any, or sufficient, consultation has taken place.

The establishment of workgroups

The Work Health and Safety Act 2011 (NSW) s 51 says that upon a request being made, the business or person conducting an undertaking (the PCBU, in this case the RFS) must determine work groups for the purposes of facilitation the representation of workers (including volunteers) by one or more health and safety representatives.

The Service Standard says (SOP 7.1.8-1, [2.2]-[2.6]):

2.2 The NSW RFS will use existing NSW RFS structure to define a total of 49 workgroups.

2.3 The existing NSW RFS districts and the geographical boundaries of each of these districts will form the basis for 47 of the workgroups.

2.4 Due to the nature of work undertaken, two further workgroups will also be established, one for NSW RFS Headquarters and one for Glendenning.

2.5 The Glendenning workgroup will incorporate Operational and Mitigation Services, and Planning and Environment Services sections’ state-wide operations.

2.6 Each of the 49 workgroups across the NSW RFS will have the option of electing one Health and Safety Representative (HSR).

Clearly the RFS has determined the work groups within the RFS as required by s 51.   But did they consult with their workers for that purpose?  The Act says (s 52):

(1) A work group is to be determined by negotiation and agreement between:

(a) the person conducting the business or undertaking, and

(b) the workers who will form the work group or their representatives.

(2) The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50.

(3) The purpose of the negotiations is to determine:

(a) the number and composition of work groups to be represented by health and safety representatives, and

(b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected, and

(c) the workplace or workplaces to which the work groups will apply, and

(d) the businesses or undertakings to which the work groups will apply.

We know that a request for the establishment of work groups was made on 4 April 2013 (NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4, [6]).  Presumably negotiations did not have to commence within 14 days of that date as the matter was subject to the proceedings described earlier.  No doubt there has been further proceedings and negotiations since the issue of standing was resolved on 5 May 2016 so I can’t say whether or not s 52(2) has been complied with.

What should have occurred, and again I can’t say whether it did or did not, is that the members of the proposed 49 work groups should have had the chance to negotiate with the RFS as to whether the proposed work groups represented an appropriate ‘grouping’ and how many health and safety representatives would be elected from each group.   One can see how using each ‘district’ makes sense but equally a work group could be a brigade, or group of brigades, or perhaps fire fighters of different specialities – so it could have been the case that say Remote Area Firefighters formed their own workgroup.

The critical point of s 52 it that determining the number, and membership, of workgroups is not a matter for the PCBU to determine, it is a matter that is to be the subject of negotiation between the PCBU and affected workers.  I note here that the SOP starts by saying that it ‘outlines the NSW RFS model for workgroups with reference ot [sic] the requirements of the WHS Act and Regulation, within the NSW RFS’.  The SOP (ie the Standard Operating Procedure) does not in fact provide ‘operating procedures’ for the establishment of the groups, rather it says what the groups will be.  It makes no reference to the requirement to negotiate on the establishment of workgroups or what the ‘procedure’ will be if members of a workgroup seek to re-open negotiations on the structure of the group or arrangements for consultation on work health and safety issues, as they are allowed to do (s 52(4)).

The fact that my correspondent doesn’t ‘believe that 49 HSRs are sufficient nor does this represent the different work groups’ is, however, beside the point.  If the RFS proposed that structure, and negotiated with affected workers as required by the Act and by the Work Health and Safety Regulation 2011 (NSW) rr 16 and 17, then that establishment complies with the legislative requirements.

Health and Safety Representatives (HSRs)

With respect to HSR’s the SOP 7.1.8-2 provides details for the election of HSRs. It says (at [2.12])

NSW RFS will conduct nomination and elections for HSRs in accordance with legislation, and in a manner to ensure all members access, as provided in the NSW RFS Health and Safety Representative Guidelines.

The Act, however, says that it is ‘The workers in a work group’ who ‘determine how an election of a health and safety representative for the work group is to be conducted’ (s 61) subject to any requirements in the regulation.  It is not the PCBU (in this case that RFS) that conducts the elections; it is the workers.  The only involvement of the RFS should be that the workers advise the RFS of the date of the election (regulation 18(2)(a)).

The Service standard does set out the powers of an HSR.  These have to be read in conjunction with the Work Health and Safety Act 2011 (NSW) ss 68 (Powers and functions of health and safety representatives), 69 (Powers and functions generally limited to the particular work group) and 70 (General obligations of person conducting business or undertaking).  Without comparing the Service Standard and associated SOPs with those sections point by point they do appear to be broadly consistent but in the event of any inconsistency, it will be the Act that will prevail.   Whilst listing the powers in one document means people don’t have to look elsewhere but it can lead to confusion over time if there are amendments to the Act.  As a matter of drafting it is debatable whether it is better to simply refer to the Act and ‘call up’ it’s provisions rather than relist them and try to edit them to suit the context.   Certainly anyone elected as an HSR would want to ensure that he or she was familiar with the terms of the Act and its Regulation as their source of authority, rather than simply rely on the RFS Service Standard.

Health and Safety Consultation

SOP 7.1.8-3 provides for health and safety consultation. It begins by saying ‘This SOP outlines the process to be followed in consulting with NSW RFS members or other workers on matters that impact their health and safety’.  The obligation to consult is found in s 47 of the Act. It says:

(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety…

(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

That begs the question of whether it can be said the procedures set out in 7.1.8-3 have been ‘agreed’ or simply directed.  Determining the consultation arrangement should itself be a matter of consultation (s 49(e)(i)).  Hopefully therefore the procedures set out here have been the subject of consultation and agreement (noting that to consult or even ‘agree’ does not require unanimous support; see Firefighters and the need to consult with landowners in WA (September 1, 2015)).

Health and Safety Issue resolution

I’m not sure what my correspondent has in mind when referring to a ‘lack of urgency in resolving issues’.  The Act (s 81(2)) says that when there is a health and safety issue:

The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations.

This is reflected in SOP 7.1.8-4, [2.4].  What is reasonable and timely will depend on all the circumstances including the nature of the risk posed by the issue.   Where the issue cannot be resolved, an inspector may be appointed ‘to assist in resolving the issue’ (s 82).  In extreme and urgent circumstances (s 84):

A worker may cease, or refuse to carry out, work if the worker 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.

I’m not sure what else my correspondent thinks should be provided for in the Service Standard or its SOPs.

Conclusion

1. I can’t say whether there has been any, or adequate consultation on the establishment of workgroups.
2. The fact that my correspondent does not ‘believe that 49 HSRs are sufficient nor does this represent the different work groups’ is irrelevant. The question is ‘has the establishment of the workgroups been arrived at in consultation, and by agreement, with the workers?’
3. The process for the RFS to conduct elections of HSRs appears to me to be inconsistent with the Act. It is up to each workgroup to determine how HSRs will be elected.
4. Without a detailed examination, the Service Standard looks broadly consistent with the Act and Regulation (with the exception of the election of HSR representatives discussed at (3), above) noting that if there is an inconsistency, the Act and/or Regulation will prevail.
5. I don’t see any issue with respect to a perceived ‘lack of urgency’ in the resolution of health and safety issues.

Of course if there has not been proper consultation on the establishment of workgroups and the health and safety consultation arrangements then that is another matter.   The model of the Act anticipates that resolution of health and safety issues, including the processes for consultation and resolution, will be subject to cooperative negotiation between the PCBU and its workers.  If that has not occurred the PCBU’s policy, no matter how comprehensive and otherwise in line with Act, fails at the first hurdle.  As noted I cannot say whether or not there has been adequate consultation on the preparation of this service standard.

POST SCRIPT

Since writing this I have been asked to give further explanation on my conclusion regarding the election of HSRs.  My reasoning is based on the words ‘NSW RFS willconduct nomination and elections for HSRs…’ (emphasis added).

As noted the Act says it’s up to the workgroup to determine the manner of the election. It may be impossible for a workgroup to conduct its own election so they may welcome the help of the RFS.  It would remove my objection if it said ‘NSW RFS may conduct …’

I note that it goes onto say the elections will be ‘in accordance with legislation’ and the RFS might well step out of the process if a workgroup wanted to run an election using an external consultant, or surveymonkey or some other method.  It is therefore the use of the word ‘will’ that is my objection. It does not mean an election run by the RFS would be contrary to the Act if the RFS offered, and the workgroup accepted the offer, for the RFS to run the election.