Arnott v SafeWork NSW & Anor [2024] NSWIRComm 1039

Arnott v SafeWork NSW & Anor [2024] NSWIRComm 1039

Section 70(3) of the WHS Act requires an employer to pay a Health and Safety Representative for time properly spent performing statutory HSR duties at the rate applicable to normal duties, including time outside ordinary hours, provided the duties are genuinely performed under the WHS Act. The Second Respondent cannot rely on award provisions or managerial authority to direct the HSR not to perform these statutory functions or to deny remuneration for such duties. Although the applicant’s approach to consultation before issuing the PIN was imperfect, any further efforts would not have affected the ultimate disagreement, and procedural shortcomings did not preclude substantive relief....

Jurisdiction
Australia
Judgment Date
28 June 2024
Procedural Posture
Application for External Review / Decision on External Review
Outcome
Internal review decision revoked; PIN to be varied to require payment and enable completion of inspections.
Legal Topics
['work Health and Safety' 'provisional Improvement Notice' 'external Review' 'health and Safety Representative (hsr) Pay Entitlements' 'consultation Requirement Under WHS Act']
['employment and Industrial Law'] ['work Health and Safety' 'provisional Improvement Notice' 'external Review' 'health and Safety Representative (hsr) Pay Entitlements' 'consultation Requirement Under WHS Act']

Case Brief

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Procedural Posture

Application for External Review / Decision on External Review

Legal Issues

  1. 1 ['Whether a Health and Safety Representative (HSR) is entitled to pay for exercising statutory duties outside normal hours under the Work Health and Safety Act 2011 (WHS Act) s 70(3)' 'Whether employer may direct or limit HSR in performance of statutory functions' 'Whether the applicant properly consulted before issuing a provisional improvement notice (PIN) under s 90 of the WHS Act' 'Whether an award/instrument under Industrial Relations Act 1996 (IR Act) can limit or condition HSR powers/entitlements under WHS Act' 'Whether the PIN was validly served and addressed']

Ratio Decidendi

Section 70(3) of the WHS Act requires an employer to pay a Health and Safety Representative for time properly spent performing statutory HSR duties at the rate applicable to normal duties, including time outside ordinary hours, provided the duties are genuinely performed under the WHS Act. The Second Respondent cannot rely on award provisions or managerial authority to direct the HSR not to perform these statutory functions or to deny remuneration for such duties. Although the applicant’s approach to consultation before issuing the PIN was imperfect, any further efforts would not have affected the ultimate disagreement, and procedural shortcomings did not preclude substantive relief....

Court Disposition

Internal review decision revoked; PIN to be varied to require payment and enable completion of inspections.

Orders

  • ['The applicant and second respondent are directed to consult on the terms of minutes of orders giving effect to this Decision.']