NSW IRC requires payment to HSR performing inspections in his own time

In a case with far reaching implications, the NSW IRC has varied a Provisional Improvement Notice [PIN] seeking to allow for provision of payslips to a Health and Safety Representative who undertook a series of inspections in non work time.

THe PIN had been cancelled on internal review by SafeWork. The NSW IRC then heard the external review in Arnott v SafeWork NSW & Anor [2024] NSWIRComm 1039.

SafeWork did not make submissions in the external review. Fire & Rescue did so. In short, it submitted that the the applicant had not complied with the requirements to issue a notice and that he should not be paid for inspections performed in his spare time at his own discretion.

The Commission found that to the extent there was non compliance with the Act; there was no process to challenge the validity of such a notice. There is only a process to challenge the correctness of such a notice: at [23].

The Commission then turned to what it described as the most fundament issue in dispute being whether the Act entitles an elected HSR to be paid for performing the roles and duties of an HSR at times when they would otherwise not be rostered to work.

The Commission held at [121], [122] that:

There is without question force to the second respondent’s submissions that, certainly at the margins, the outcome pressed for by the applicant would result in an absurd interpretation of the WHS Act.

It would indeed be unusual if the parliament had intended that a person elected as an HSR could, without any limit, set the hours they work by invoking their roles and duties under the WHS Act.

Despite this, the Commission held at [127] that:

The Commission is not persuaded that an award of the Commission, managerial prerogative, or any other matter arising under an obligation or power established pursuant to the IR Act could, even if expressly set out, override the powers and duties vested in an HSR under the WHS Act. Such an outcome would be contrary to the purpose of the powers invested in an HSR pursuant to the WHS Act as standalone powers, independent of their employer.

The Commission ultimately concluded at [172] that:

it is appropriate to revoke the decision on internal review and to vary the terms of the PIN such that it would require the second respondent to pay the applicant for the time spent conducting inspections already completed and to allow him to complete the program of inspections as notified to the second respondent, for which time the applicant should be paid.

The decision is an interesting development in determining the rights of HSRs. The consequences may be very broad. As found by the Commission at [171]:

it is not difficult … to conceive of circumstances where an HSR will abuse their rights under the WHS Act such that substantial time is spent outside normal working hours, and considerable payment obligations are apparently incurred.

A copy of the decision can be found at https://www.caselaw.nsw.gov.au/decision/190584c2f2ef74fa6e0e56b0.