Unions NSW on OHS 3

Unions NSW submission continues on
Part 4: Consultation, Participation and Representation.
And the DPM’s effort here is wanting and takes workers backwards by watering=down consultation obligations.

Q.21 Is the proposed scope of the duty to consult workers
appropriate?
Q.22 Should the Model Act include a procedure to follow if
agreement on a consultation procedure cannot be reached?

In response to Q.21 Unions NSW believes that the scope of the duty to consult, as set
out in S. 45 of the Model Act is far from appropriate for the following reasons, namely:

• Unions NSW believe that the employer’s duty to consult workers and HSRs must be
an absolute obligation. This must be emphasized in S. 47, with the obligation that the
consultation must involve workers and HSRs on the matters identified in S.47 (a)-(g).
In addition, the deletion of the term ‘so far as it is reasonably practicable’ is
imperative to ensure that consultation on the important matters contained in S. 46 (1)
actually occurs in practice.

• Unions NSW also strongly recommends the inclusion of provisions identifying
minimum provisions that the parties must consult on or about. We therefore strongly
support including the Cl.5 provisions of the Model Regulation in the Model Act. We
see no good reason why S.47 and Cl.5 matters should be separated in two pieces of
supposedly complementary legislation. For the same reasons, Cl.6 of the Model
Regulation should also be contained in the Model Act.

Unions NSW strongly believes that there is no available evidence, argument or
circumstances to support any situation where consultation on S. 46 (1) and S. 47
matters should not place. No consultation on OH&S by employers with their
workforce is the worse case scenario that can be inferred from S. 46 (1) and S. 47.

However, from a practical perspective Unions NSW believe that a failure to consult
on S. 46(1) and S. 47 matters has a real potential to result in contraventions of other
provisions of the Model Act.

In addition, the ‘reasonably practicable’ provision in this instance would be taken by
large numbers of employers as an easy escape route from any duty to consult.

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The alternative in many instances, if the term is retained, would more than likely
need the involvement of a Regulator or State/Federal Industrial Commission, to
determine disputes between unions and employers on whether or not it was
reasonably practicable for an employer not to consult their workers. There would be
obvious legal consequences for employers who fail in this duty.

From a practical perspective this would defeat the purpose of this Act, which ideally
should be aimed at minimising disputes. We make this point on the basis that the
Model Act will allow access to a State/Federal Industrial Commission as a matter of
course.

(If there is no access to a State/Federal Commission on OH&S matters generally, the
alternative may well be industrial action, irrespective of sanctions.)

If ‘so far as it is reasonably practicable’ is deleted from S. 45, it ensures that all
employers have an obligation to consult their workers, and will also act as a deterrent
to employers who would otherwise evade their responsibilities in regard to S. 46 (1)
and S. 47.

S. 46 (1) (d) also requires amendment by the deletion of ‘persons’ and inclusion of
‘workers’.

• Unions NSW takes the view that our response to Q. 22 is also relevant to the
removal of the term ‘so far as reasonably practicable’ in S. 45, given that the
provisions of this Section have a direct bearing on the implementation of S. 46-47.
Unions NSW believes that if the term is retained it will be imperative that this Part of
the Model Act include a disputes resolution procedure, whereby a union can seek the
involvement of a Regulator, and/or the Federal, or relevant State, Industrial
Commission/Tribunal.

The disputes procedure could initially involve a jurisdiction’s Regulator; however, the
final arbitration should be left to the relevant Industrial Commission/Tribunal.

If the term is deleted, which Unions NSW most strongly recommends, a disputes
resolution procedure should be included as a safeguard. It is likely that the use of a
disputes resolution procedure by any party in these circumstances would be
insignificant, when there is an absolute obligation on the part of employers to consult
with their workers.

Unions NSW also supports amending S. 48 of the Model Act to read as follows:

“…A worker, or a representative of a worker or workers, carrying out work for
person conducting a business or undertaking, may ask or request in writing
for that person to facilitate the election for one or more health and safety
representatives at the business or undertaking. …”

Inclusion of ‘representative’ in S. 48 would then make this Section consistent with the
provisions of S. 50 (1) (b) of the Model Act. A ‘request in writing’ would also be

30
evidence that a request was made, in the event of any disagreement over whether a
request was actually made.

Q.23 Section 49 allows work groups to be determined for
workers engaged in 2 or more businesses or undertakings.
Should such arrangements be by agreement only, i.e. with no
prescribed procedure if negotiations fail?

Q.24 Negotiations for work groups must be commenced within a
‘reasonable time’. Should a time limit be prescribed e.g. 14, 21,
or 28 days?

Q.25 Elections for HSRs and possibly deputy HSRs must be
conducted ‘as soon as reasonably practicable’ after the relevant
work groups are established, or after a request for an election is
received if work groups are already established. Should a time
limit be prescribed?

In response to Q.23, Unions NSW sees no reason why such arrangements should be by
written agreement. However, given that the matter involves what we understand (from
the wording in the Model Act), constitutes the members of a workgroup, who for all
intents and purposes happen to have two or more employers, irrespective of the type of
work that is performed. It is further assumed that the employers may or may not conduct
their business or undertaking at the same location, which may or not be the same
premises.

In such circumstances each arrangement would, in effect, be a stand alone arrangement
between each employer involving what is essentially a workgroup made up of the same
workers. In such an instance, the situation is really no different than sub-section 49 (1).
Accordingly, if this is the case Unions NSW also view the provisions of sub-section 49(4)
as somewhat irrelevant in the present form unless the meaning of the sub-section is
clarified.

It is further assumed that S. 50(4) means that the request by the workgroup is made to
two or more separate employers at the same time. Is this so? Subject to further
clarification, at the present time Unions NSW also views S. 50 (4) as somewhat
irrelevant.

In the event that the provision is designed to cover situations, e.g. large shopping
complexes, or business parks, where each employer located in these centres has a
small number of workers employed, the provision allows a number of workers ( with
different employers) to form a workgroup. Unions NSW strongly suggest that the
provision is clarified in order that the scope and application of the provision is clearly
understood.

Unions NSW also believes that S. 49 (3) requires amendment in order to read:

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“…a workgroup may be determined for workers employed by more than one
person conducting a business or undertaking at more than one workplace by
agreement between the workers, their representative(s), and the persons
conducting separate businesses or undertakings. …”

This amendment would make the intent of the sub-section clearer than the current
wording. The present wording also does not specify on who has the final say in the
determination of a workgroup. For example, if a workgroup is dealing with several
employers, and one or more disagrees about the size of the workgroup or some other
matters, who makes the final decision?

Notwithstanding these matters, Unions NSW believe it imperative that the number of
workgroups and HSRs must be part of a written consultation agreement between the
employer, the employer’s workers and the workers’ union(s).

In response to Q. 24, Unions NSW strongly support the inclusion of a specific time frame
for negotiations on workgroups to commence, unless otherwise agreed between an
employer with workers and their representatives. We therefore recommend the inclusion
of a period of 7 days in S.50 (2) as a reasonable time frame, unless otherwise agreed to
between the parties, to conclude this part of the written consultation agreement.

Unions NSW have a similar position in response to Q. 25. We therefore propose that S.
53 (a) and (b) be amended to read as follows:

“…(a) within 7 days after the relevant workgroup or workgroups are established,
unless otherwise agreed between the person and workers who are members of
the workgroup, or workgroups, or their representative(s)….”

(b) within 7 days following receipt of a verbal or written request, if workgroups are
already established, unless otherwise agreed between the person and workers
who are members of the relevant workgroup, or workgroups, or their
representatives(s). …”

These proposed provisions allow some flexibility in relation to the time frame for the
election of HSR representatives, provided that the time frame is agreed between the
relevant parties.

Notwithstanding our comments in regard to S. 49, 50 and 53, Unions NSW also wishes
to address further issues in relation to Part 4 Division 2 of the model Act, namely:

• That the Regulator is empowered to direct, or arrange for, the formation of
workgroups and election of HSRs, if requested by a worker, workers, or their
representatives in the event of a dispute. This power would be exercised when a
request made in accordance with S. 48 of the Model Act has been ignored, or if an
employer refuses to comply with a request within 7 days. (see S.52(1))

• Provision in S. 51 must be made to include a time frame for the person conducting
the business or undertaking, to advise all workers of the outcome of negotiations
within 7 consecutive working days following the conclusion of the negotiations. The
term ‘as soon as practicable’ should be deleted as completely unnecessary.

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• An additional provision should be included in S.52 allowing a union, (or an employer)
the power to refer any failure of negotiations to the relevant Industrial Commission
for determination in the event of a dispute or disagreement between the union, acting
on behalf of workers, over a Regulator’s determination. Unions NSW believe that
both employers and unions have a right to subject a Regulator’s determination to
additional scrutiny, if either party deems this necessary.

• S. 53 (b). should be reworded to read:

“…. If a work group, or workgroups, have been previously established and are
no longer represented by a HSR. …”

This reworded clarifies what Unions NSW believes to be the intent of the sub-
section.

• S. 55(1) and (2) are contradictory. S. 55(2) should be deleted and S. 55(1) amended
to read following ‘conducted’:

“…in accordance with the Regulations. …”

• Amend S. 55 (3) to read:

“…..members of a workgroup, or workgroups, may nominate a union with
members in the workgroup, or workgroups, to conduct the election or,
members of a workgroup, or workgroups, may nominate a HSR, who is not a
member of the workgroup, or workgroups, carrying out an election, to
conduct the election. …”

Unions NSW strongly believes that a worker should be able to exercise a right to
involve their union to conduct an election of HSRs, and should not need a majority
decision. The current S.55 (3) also relates to the Model Act’s definition of ‘worker’,
by inclusion of ‘person’ about which Unions NSW has previously expressed
objections. (see p.6 Q.6).

Unions NSW also finds Cl.7 of the Model Regulation objectionable. The provision
should be amended to ensure that the person conducting a business or undertaking
is informed when the election is to take place, in order that they may assist with any
administrative arrangements. The time frame to conduct agreement should be by
agreement between the parties, as part of the documented consultation agreement.

The Model Act and Cl.7 of the Model Regulation are silent on the issue of temporary
work sites (or workplaces) and any arrangements covering these workplaces. Do
such workplaces fall under the general definition of ‘workplace’? The Model Act and
Regulation should include arrangements for such workplaces.

• A new S. 55 (4) should also be added to read:

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“…. Any costs incurred in the conduct of an election for HSR(s) shall be met
by the person undertaking the business or undertaking which employs the
HSR(s). …”

• S. 58 (2) should include provision for a majority of workers in a workgroup to
determine that a HSR no longer represent them.

• S. 59 should be deleted in its entirety. It should be for the designated work group
only, to elect and remove their HSR.

• S. 59 (1) (a) should be deleted. The current form S. 59 (1) (a) is not as stringent as
similar provisions in current State and Territory OH&S legislation.

• In S. 59 (2) the term ‘the regulator’ should be deleted, given the role of the Tribunal
(except the Model Act is silent on type of Tribunal). Is it anticipated that in the event
that ha HSR is disqualified, will the HSR have appeal rights? Unions NSW believe
that natural justice should apply in such matters and a right of appeal be inserted in
the Model Act, including identification of the appropriate body that hears the appeal.

• Subdivision 2, and S. 62 should be amended deleting reference to the term
‘Functions’ in favour of ‘ Rights and Powers’ being a far more accurate description of
what is vested in the position of HSR as described in S. 62 of the Model Act.

A number of these matters must be included in a written Consultation Agreement (see
Cl.27 (a) – NSW Regulation).

The provisions of S. 63, in the present form, do not make allowance for the role of HSRs
in serving on an OH&S Committee. Accordingly, Unions NSW recommend a further
sub-section to read:

“…. Health and safety representatives are required to be members of a workplace
OH&S Committee. …”

Unions NSW also totally reject the provisions of S. 69(3) which restricts the number of
HSRs on a workplace OH&S Committee to one. All elected HSRs must represent all
workers employed at a business or undertaking.

Unions NSW also has concerns over a number of provisions of the Part 4 of the Model
Act contained in Division 2, Subdivision 3, namely:

• Clarify S. 64 (1) (a) and (b). Are the provisions contained in these sub sections
meant to supplement or take the place of Cls. 46/47, particularly if it is ‘not
reasonably practicable’ provisions are used in S. 46?

In either case, given that consultation with the HSR is mandatory, why is the
consultation limited to matters described in S.64 (1) (a) and (b) as opposed to the
matters described in S.47? Please clarify.

• S. 64 (1) of the Model Act is also silent on what the HSR’s role is following the
consultation described in this subsection. Is it anticipated, that the HSR will then

34
convey the matters identified during consultation with the employer to the members
of his/her workgroup (during working hours), or is it anticipated that the HSR does
nothing with the information?

The obligation of the person conducting the business or undertaking is quite clear in
these latter sections. However, there is nothing in the former sub sections that
suggests that the actions described are in addition to, or for that matter take the
place of, the duties described in S. 46/47 if the ‘not reasonably practicable’
provisions are used. Unions NSW believes the conflict between S. 46/47 and S.64
make the said provisions contradictory and S. 64(1) is greatly deficient in regards to
the intent of the sub section.

• The HSR should be able to exercise the right to request their ‘representative’ (as
opposed to ‘a person’) to have access to the workplace. (S. 64 (1) (e)). The use of
‘person’ could also create confusion given the Model Act’s definition of ‘person’
contained in S.4.

• S. 64(3) should be amended as follows:

“… Any period of time that a health and safety representative spends for the
purposes of exercising his or her powers or duties under this Act must be with
payment as he or she would normally be entitled to receiving for working
during the same time or period. …”

• S. 65(2) should include provision to allow a worker’s identity to be made known to a
HSR, provided the worker so requests the person conducting a business or
undertaking in writing.

• S. 64 (4) should be reworded to state that any representative of a HSR, or a
workgroup, who has had their OH&S Entry Permit revoked, suspended or withdrawn
is not allowed access to a workplace on any OH&S matter. This provision should
not be confused with a Right of Entry under the Fair Work Act.

• S. 67(b) should be amended to read:

“… A copy of the list of HSRs must be permanently displayed in the workplace,
or in that part of the workplace, which is accessible to the members of the
relevant workgroup(s) represented by the HSRs. …”

( NOTE: The Model Act allows the members of an OH&S Committee to remain
anonymous. Is there any legal or other reason for this?)

Unions NSW believe the proposed amendment captures the intent of the existing
sub-section far more clearly.

Q.26 The Model Act requires that the HSR training must take
place within a reasonable time, to accommodate a range of
circumstances. For example, it may take longer for HSRs

35
working in rural or remote regions to attend an approved course
that may not be available in their area. Should a time period be
specified within which the training must be provided?

In addressing this question, Unions NSW takes issue with the wording of S. 65 (1), (2)
and (3) of the Model Act, namely:

• S. 65 (1) does not make HSR training mandatory. This failure is most strongly
objected to by Unions NSW. In the present form, the HSR is required to request
OH&S training. If no request for training is made, the employer is not obligated to
make arrangement for a HSR to attend a training course. Accordingly, Unions NSW
insist on this sub-section’s amendment to read along the following lines.

“…. A person conducting the business or undertaking must arrange for the
health and safety representative to attend an approved course of training in
occupational health and safety, of the health and safety representative’s
choice, following the election of the health and safety representative. …”

• S.65 (2). The period of training should be stipulated in the Act in order to ensure
consistency between jurisdictions. Unions NSW understands that the period of
training for HSRs (5 days’ initial training, plus 1 day per annum refresher training)
has been previously agreed to by the WRMC (recommendations 110 & 111) and is
to be included in the Model Act. Please confirm the future inclusion of the above
provisions in the Model Act.

• S.65 (2) must include a sub-section which states the following ( or similar); The
course of training must be:

“…conducted by a person who is authorised by the regulator. …”

• S.65 (3) (a) must be amended to read:

“….allow a health and safety representative sufficient time off work to attend
an approved course of training, provided that the health and safety
representative:
(i) attends the approved course of training in a period of time agreed to by the
health and safety representative, :
(ii) provided the training takes place within a period not exceeding 12 working
weeks following the health and safety representative’s election. …”

Unions NSW believes that the above wording to this sub-section addresses our
affiliates concerns on mandatory training, in addition to providing a reasonable time
frame for the delivery of training. The time frame recommended also provides some
flexibility to address the concerns on HSRs working in remote areas, and/or the
availability of a HSR’s nominated trainer.

The proposed changes also ensure that the Model Act requires that the period of
training and refresher training is specified, and that all training is conducted by an
authorised person.

36

Q.27 The Model Act requires that a health and safety committee
must be established within 2 months of the request being made.
Six of the current OH&S Acts include such a timeframe, which
varies across jurisdictions from 3 weeks to 3 months. Is the
proposed time limit of 2 months appropriate?

Unions NSW have a number of issues of concern in relation to the Division on OH&S
Committees, in addition to the issue of time limits for their establishment raised in Q.27.

We strongly recommend that S. 68 (1) of the Model Act to be redrafted to contain the
following provisions:

• Provision for a Regulator to direct the establishment of an OH&S Committee at a
workplace, more than one HSRs have been elected.

• Deletion of sub section S. 68 (1) (a) (b). Unions NSW believes that with the
emphasis contained in the Model Act on the establishment of workgroups and
election of HSRs, the focus on the establishment of OH&S Committees is left to
HSRs.

• Unions NSW is adamant that OH&S Committee should only be formed when two or
more HSRs have been elected at a workplace. Should only one elected HSR being
elected, the consultation arrangement for the business or undertaking, must include
provisions for regular formal meetings between the HSR and the employer to review
matters which would otherwise be dealt with by an OH&S Committee.

All HSRs, or an agreed number of HSRs, should have the opportunity to be full
members of an OH&S Committee. We further insist on S.69 being amended to
ensure that only HSRs can be elected to represent workers on an OH&S Committee.

• The formation of more than one OH&S Committee must be by agreement between
the person conducting the business or undertaking and the elected HSRs
representing all workgroups at the workplace, their union(s), or if directed by the
Regulator.

• S. 68(2) be amended to reflect that the person can undertake such action only in the
event that there are 2 or more elected HSRs at the workplace.

• Unions NSW further insist that the involvement of representatives of the HSRs
/workgroups in negotiations with an employer on the establishment of an OH&S
Committee at the workplace must be provided for in the Model Act.

In relation to the time frame for the formation of an OH&S Committee, Unions NSW
believes that a maximum period of 28 days is more than sufficient for the person
conducting a business or undertaking to commence the establishment of an OH&S

37
Committee. Unions NSW acknowledges that it may not be possible to conclude the
establishment of an OH&S Committee within this period.

Unions NSW further notes that the Model Act’s provisions on OH&S Committees are
silent on any requirement to train all Committee members, unlike the training
requirements for HSRs. Why is this so?

In view of this observation, and the current provisions concerning OH&S Committees,
Unions NSW is gravely concerned over how it is anticipated that non-HSR members of
an OH&S Committee will carry out the functions of OH&S committees, described in S.
70 and 72 of the Model Act. This observation is based on our understanding that an
OH&S Committee takes a holistic approach by keeping under review the management of
OH&S for a workplace (as opposed to a workgroup); S. 72 is no different to much of S.
64.

Unions NSW can only conclude that the current Model Act provisions on OH&S
Committees is aimed at establishing a two-tiered approach to managing workplace
OH&S, with no clear legislative or operational nexus between each tier.

One tier allows, to some degree, a systematic representative approach utilising HSRs,
with sufficient training to carry out their function.

By comparison, the other tier (which may or may not involve a single HSR) may involve
workers, if the employer appoints any. This group of un representative persons who are
selected by the employer may (or may not) have had OH&S training, but are required to
undertake (from what the Model Act describes) an important role in reviewing the
business’s or undertaking’s management of OH&S. Unions NSW believe that the Model
Act’s provisions, as described, cannot effectively over sighting an employer’s OH&S
management.

In addition, there is nothing in this Division that states that an OH&S Committee cannot
be formed as an alternative, when no HSRs are elected, or that an OH&S Committee
cannot be formed before HSRs are elected.

In effect, the provisions of S. 68(2) allow an employer to take unilateral action in this
regard, and select whoever he/she wishes to serve on an OH&S Committee.

It would therefore be ‘legal’ under the Model Act for any employer to use the existence of
an OH&S Committee as grounds to disagree on the formation of workgroups, and the
election of HSRs, arguing that the (anonymous) OH&S Committee has the all
responsibility for OH&S in the particular workplace.

Given the current provisions of the Model Act, an employer is well within his/her rights to
agree to a ‘workgroup’ and the ‘business or undertaking (irrespective of the number of
workplaces) to be one and the same. The employer then can further satisfy the
provisions of the Model Act by allowing the one and only HSR to be a member of the
OH&S Committee (who he/she has selected). The Model Act provisions therefore allow
the employer to exercise maximum power and authority on OH&S consultation, with the
protection of the Model Act.

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These obvious flaws in the Model Act reinforces Unions NSW concerns that the creation
of a two tiered system can, in effect, legally avoid the election and participation of HSRs
in an organisation’s OH&S management.

In the event of a workplace having an OH&S Committee and HSRs, we can only
conclude that if an OH&S Committee and the single HSR disagree over an OH&S issue,
particularly given the employer’s power to select members of the OH&S Committee, that
the Committee’s view will take precedence.

It would also appear that the OH&S Committee (or its members) is under no legal
obligation to communicate with workers at the workplace. It is also not required to
record, or distribute minutes of Committee meetings, or as previously identified inform
workers who are members of the Committee. It is further noted that anything involving
the formation, actions, (s) election (?), and responsibilities of OH&S Committees, other
than covered in the Model Act, are not subject to external review.

Unions NSW note that any S.218 Review in the Model Act is limited to the constitution of
an OH&S Committee, assuming that all workers have access to the constitution. It is
further noted that there is nothing in the Model Act that requires the employer to make
the OH&S Committee constitution available to his/her workers.
These arrangements can only reinforce an employer’s authority on OH&S in the
workplace.

Is this the broad intention of these provisions?

Finally, S. 69(4) implies that all members of an OH&S Committee must be ‘workers’.
This raises even greater concerns for Unions NSW given our previously expressed
grave reservations on the Model Act’s definition on ‘worker’ applying to an employer.
(see response to Q.6 on p.23/24).

In view of these observations, Unions NSW cannot support the provisions on OH&S
Committees in view of the deficiencies described.

However, in the event that the Model Act is amended to deal with all of these matters,
given our most serious concerns expressed on the proposed OH&S Committee
provisions, Unions NSW believe that the proposed S. 73(4)(b)should be far more
specific, stating:

“….A person conducting a business or undertaking, if not a member of the
workplace health and safety committee, must appoint a person or officer to the
committee who is empowered to make decisions for and on behalf the person
conducting a business or undertaking. ….”

(See Cl. 24(j) NSW Regulation)

In addition, the current S. 69 (5) could then be reworded to read:

“ … if agreement is not reached under any part of this section, within 28 days
following the commencement of the establishment of an OH&S Committee, any
party may refer the matter to the Regulator for determination. …”

39

Unions NSW anticipates that any final agreement between the parties either reached by
consensus, or determined by the Regulator, must be documented (see previous
comments on the subject of consultation agreements on pp.18, 20 & 21)

To reiterate our previous comments, this final comment of course is dependent on the
successful resolution of the significant and important range of concerns detailed on
OH&S Committees and their relationship with HSRs.

Finally, Unions NSW also anticipates that any final Functions Section of the Model Act
would be at least equivalent, or superior to, the provisions of s.18 of the NSW Act. A
combination of the NSW provisions and S.70 of the Model Act may satisfy our
requirements, subject to further review.

Unions NSW also wishes to comment on Division 4 – Issue Resolution.

S. 73-74 of the Model Act is unacceptable in the present form. While acknowledging the
parties who may be involved in a dispute over OH&S, the actual process described, only
involves the Regulator (who is not required to be immediately notified by the employer).
Unions NSW insists on the re-drafting of both S. 73/74 to allow for a union representing
workers to refer the matter for determination by the appropriate Tribunal. It should be
noted that this action would not stop a Tribunal requesting the involvement of a
Regulator to assist in the resolution of the dispute, if appropriate.

(In addition, on a technical note Unions NSW is puzzled that the Model Act contains
minimum dispute resolution provisions (S. 73) as well as Cl. 10 of the Model Regulation.
Is Cl.10 actually necessary?

In addition, for S. 73(4) Unions NSW propose the following:

“ … A person conducting a business or undertaking must ensure that a
representative, who is involved in resolving any issue described in sub-section (1)
of this Section is not another health and safety representative employed by the
person. …”

If S. 73(4) (b) were to be retained, it can only be based on the conclusion that the
employer is competent to assess the representative’s skills and knowledge about the
matter in dispute, or OH&S generally. Under such circumstances Unions NSW would
argue that a representative has equal rights to question the competency, knowledge and
skills of the employer on these matters. Under these circumstances Unions NSW
requests that this offending subsection be removed from the Model Act.

Retention of this subsection would allow an employer to unilaterally frustrate any
resolution of an OH&S issue. This could be achieved by either unreasonably
questioning, or refusing to accept, the representative’s OH&S bona fides. Such action
could result in a dispute and possibly incite industrial action. No other OH&S legislation
in Australia, to the best of Unions NSW knowledge, has similar provisions.

It is also noted that an employer cannot question the skills or knowledge of an Inspector
exercising any of his/her functions or powers.

There is more…will the DPM take any notice of these arguments?