What is the Occupational Safety and Health Tribunal?
The Occupational Safety and Health Tribunal (the Tribunal) was set up in 2005 to assist in the resolution of some workplace safety and health issues under Western Australia's occupational safety and health laws.
Changes to the state's occupational safety and health laws in 2004 established the Tribunal within the Western Australian Industrial Relations Commission. The Tribunal deals with certain issues that may be referred under these three laws:
- Occupational Safety and Health Act 1984;
- Mines Safety and Inspection Act 1994; and
- Petroleum (Submerged Lands) Act 1982.
What claims can be referred to the Tribunal?
The claims that may be referred to the Tribunal vary between the three laws. They do have similarities in that all of the matters that may be referred relate to occupational health and safety at Western Australian workplaces.
A summary of the claims from the three laws that may be referred are listed in Schedule 1, Schedule 2 and Schedule 3.
Claims that may be referred to the Tribunal are not "industrial matters" as described in the Industrial Relations Act 1979.
Who can refer matters to the Tribunal?
A range of persons from WA workplaces may refer issues to the Tribunal under specific sections of the laws applying to the Tribunal. It is important to note that the person(s) able to refer matters vary from section to section. Check the schedules. Persons who may be able to refer matters to the Tribunal include:
- employers;
- employees;
- contractors;
- workplace health and safety representatives;
- contractors/sub-contractors;
- member(s) of workplace health and safety committees;
- a member of a designated work group;
- the Mine Manager;
- the WorkSafe Western Australia Commissioner; and
- the State Mining Engineer.
What authority does the Tribunal have?
The Tribunal is to assist the parties to reach agreement. If the dispute or difference(s) of view cannot be resolved the claims may be decided by the Tribunal. This should be considered as a last resort. The decision the Tribunal is able to make is dependent on the claim referred. For example, under certain sections compensation may be ordered.
Do I have to be represented before the Tribunal?
Not at all. If you wish to be represented you can be represented by an industrial agent, legal representative, employer organisation or union (appearing as agent under warrant)(Organisations & Agents).
How does the Tribunal operate?
The Tribunal is required to:
- proceed as quickly as possible;
- consider matters according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form;
- have regard to the interests of the persons immediately concerned, whether directly affected or not; and
- have regard, where appropriate, for the interests of the community as a whole.
What is conciliation?
Conciliation is an informal meeting between the parties chaired by the Tribunal and is available in many (but not all) claims referred to the Tribunal. As an example, see s 51J(1) of the Occupational Safety and Health Act 1984. The three laws require some claims that are referred to the Tribunal to proceed straight to a formal hearing and determination of the issue.
How does the Tribunal decide disputes or differences which cannot be resolved
In such matters the Tribunal determines the claim having heard evidence and submissions from the parties. It is more formal than conciliation and persons can appear before the Tribunal without representation. This may involve a visit by the Tribunal to the workplace.
Decisions of the Tribunal may be appealed to the Full Bench of the Western Australian Industrial Relations Commission.
How are claims referred to the Tribunal?
A claim is referred to the Tribunal by completing a Form 7 and either lodging it at the address below or completing it online. The form can be downloaded from this website. There is no fee for filing the form.
The form can be completed by the person referring the claim (the applicant), an industrial agent, representative or solicitor. The form requries you to identify, where possible, under which section of the Occupational Health and Safety Act 1984, Mines Safety and Inspection Act 1994 or Petroleum (Submerged Lands) Act 1982 the claim is being referred.
Once the claim has been filed does it have to be forwarded to anyone else?
In most cases the applicant will be required to serve a copy of the claim on the respondent. Service is an important part of your claim. The procedure that is followed for service of claims before the Tribunal is as follows:
- complete your Form 7; and
- file either online with the Tribunal or by facsimile or at the 16th Floor of 111 St Georges Tce, Perth.
The Tribunal will then issue directions as to whom has to be served with the document.
An important part of service includes the completion of a statutory declaration that indicates service has indeed been completed. The statutory declaration form is available here (Statutory Declaration of Service - Form 4). The form can be lodged at the 16th Floor of 111 St Georges Tce, Perth.
Where is the Tribunal?
The Tribunal is located at the Western Australian Industrial Relations Commission, Level 16, 111 St Georges Terrace, Perth, WA 6000. The Tribunal may also hear matters, subject to the availability of the parties, in country towns and regional locations.
Address if lodging the application:
16th Floor, 111 St Georges Terrace
PERTH WA 6000
Phone: 9420 4444
Facsimile: 9420 4500
Freecall: 1800 624 263
Freefax: 1800 804 987
You are now able to lodge applications online - refer to www.wairc.wa.gov.au
NOTE:
From time to time the laws applicable to the Tribunal may change.
While the information will usually be reflected on the website it is your responsibility to check the relevant law.
QUESTIONS FREQUENTLY ASKED
Is there a general provision whereby any health and safety claim can be referred to the Tribunal?
No. The only health and safety claims able to be referred to the Tribunal are specified under the three laws that apply (refer to Schedules 1, 2 and 3).
Who can refer a claim to the Tribunal?
The three laws specify who can refer a claim to the Tribunal (refer to Schedules 1, 2 or 3).
The issues of referral of a claim under s 74(2) of the Mines Safety Inspection Act 1994 has, in part, been considered by the Full Bench in:
Thiess Pty Ltd and Others v The Automotive, Food, Metals, Engineering, Printing & Kindred Union of Workers – Western Australian Branch & Others (2006)
Where the claim involves more than one person can multiple applications be made?
Yes. The applicants may request the Tribunal to consider using the provisions of s 27(1)(j) of the Industrial Relations Act 1979 to join multiple applications relating to the same claim.
Where the claim involves more than one person do individuals need to bring multiple applications?
This will depend upon the section of the particular law concerned. As an example where, under s 35(3) of the Occupational Safety and Health Act 1984, more than one health and safety representatives at a workplace is seeking additional entitlements for attending accredited training courses, then the health and safety representatives jointly, or their agent, may launch lodge an application listing all the relevant details, ensuring all of the health and safety representatives’ names are listed as applicants.
Can employer organisation(s) and/or union(s) refer a claim to the Tribunal under any of the provisions?
Employer organisations and/or unions may refer a claim by acting as agent of the applicant pursuant to the provisions outlined in s 31(1)(b) of the Industrial Relations Act 1979. Where the organisation (employer organisation or union) is acting as an agent applications are able to be signed by the agent on the applicant’s behalf. Warrant(s) signed by the applicant(s) will need to be filed. Form 18 - Warrant to appear as agent.
The issue of whether a union and/or employer organisation or representative can be identified as a party under s 74(2) of the Mines Safety Inspection Act 1994 has been considered by the Full Bench in:
Thiess Pty Ltd and Others v The Automotive, Food, Metals, Engineering, Printing & Kindred Union of Workers – Western Australian Branch & Others (2006)
Can individuals or organisations seek leave to intervene in a claim before the Tribunal?
Yes. By request, the Tribunal may consider whether to grant an individual or organisation leave to intervene pursuant to the provisions of s 27(1)(k) of the Industrial Relations Act 1979.
Schedule 1
Occupational Safety and Health Act 1984
ISSUES THAT CAN BE REFERRED
|
WHO CAN REFER? |
FURTHER REVIEW OF NOTICES |
a further review of the WorkSafe Commissioner’s decision following an appeal of an inspector’s improvement or prohibition notice [s 51A] |
the person issued with a notice of a decision under s 51(6) [s 51A]
application may be made within 7 days [s 51A(2)] |
FURTHER REVIEW OF PROVISIONAL IMPROVEMENT NOTICE |
a further review of the WorkSafe Commissioner’s decision following an appeal of an inspector’s decision to affirm a provisional improvement notice with or without modifications [s 51A] |
the person issued with a notice of a decision under s 51(6) [s 51A]
application may be made within 7 days [s 51A(2)] |
ENTITLEMENT TO BE PAID |
whether employees (and/or contractors) ought be paid and/or receive an entitlement where work has ceased due to reasonable belief of imminent and serious risk of injury or harm to health [s 28] |
any person(s) party to the dispute [s 28(2)]
|
CONSULTATION ON ISSUES RELEVANT TO SETTING UP HEALTH AND SAFETY REPRESENTATIVES |
any issue(s) to be discussed between employer and delegates at the workplace on the number of health and safety representatives that will operate, areas of operation, how vacancies occur and who will conduct the election remaining unresolved may be referred. If the WorkSafe Commissioner cannot resolve the matter to the satisfaction of the parties the issues must be referred to the Tribunal [s 30(6)] |
the WorkSafe Commissioner [s 30(6)] |
CONSULTATION ON ISSUES RELEVANT TO ELECTION SCHEME FOR HEALTH AND SAFETY REPRESENTATIVES |
issues that remain unresolved when an ‘election scheme’ for health and safety representatives is set up, these may be referred. If the WorkSafe Commissioner cannot resolve the matter to the satisfaction of the parties the issues must be referred to the Tribunal [s 30A] |
the WorkSafe Commissioner [s 30A(4)] |
CONDUCT OF ELECTION FOR HEALTH AND SAFETY REPRESENTATIVES |
any question(s) relating to the election process for health and safety representatives (unable to be resolved to the satisfaction of the parties concerned) by the WorkSafe Commissioner must be referred [s 31(11)] |
the WorkSafe Commissioner [s 31(11)] |
DISCRIMINATION AGAINST HEALTH AND SAFETY REPRESENTATIVE(S) |
whether a health and safety representative(s) (employee and/or contractor) has been discriminated against in employment for carrying out their duties [s 35A and s 35B] |
the health and safety representative(s) claiming discrimination [s 35C] or an agent or legal practitioner on that person’s behalf [s 35(3)] |
DISQUALIFICATION OF HEALTH AND SAFETY REPRESENTATIVE(S) |
whether a health and safety representative ought be disqualified [s 34] |
a health and safety representative’s employer, an employee from that workplace or the WorkSafe Commissioner [s 34(2)] |
VARY PAID LEAVE FOR HEALTH AND SAFETY REPRESENTATIVE(S) FOR PERFORMING FUNCTIONS |
whether entitlements for health and safety representative(s)’ time for performing functions ought be varied [s 35(3)(a)] |
the health and safety representative(s)’ employer, the health and safety representative(s) or the WorkSafe Commissioner [s 35(3)] |
VARY PAID LEAVE FOR HEALTH AND SAFETY REPRESENTATIVE(S) FOR ATTENDING TRAINING |
whether entitlements for health and safety representative(s)’ time for attending courses of training accredited under s 14(1)(h) ought be varied [s 35(3)(b)] |
the health and safety representative(s)’ employer, the health and safety representative(s) or the WorkSafe Commissioner [s 35(3)] |
WORKPLACE HEALTH AND SAFETY COMMITTEE ARRANGEMENTS |
where the WorkSafe Commissioner has reviewed the arrangements for a workplace health and safety committee that decision may be referred for further review by the Tribunal. [s 39G] |
the employer, a health and safety representative(s) for the workplace or an employee from that workplace [s 39G(1)] |
Schedule 2
Mines Safety and Inspection Act 1994
ISSUES THAT MAY BE REFERRED
|
WHO CAN REFER? |
FURTHER REVIEW OF NOTICES |
further review of the State Mining Engineer’s decision following an appeal of an inspector’s improvement or prohibition notice or confirmation of a provisional improvement notice [s 31BA] |
a person issued with a notice of a decision under section [s 31AZ(3)]
application may be made within 7 days |
ENTITLEMENT TO BE PAID |
whether employees (and/or contractors) ought be paid and/or receive an entitlement where work has ceased due to reasonable belief of imminent and serious risk of injury or harm to health [s 74(1)] |
any party to the dispute [s 74(2)] |
CONSULTATION ON ISSUES IN SETTING UP HEALTH REPRESENTATIVES |
prior to the election of health and safety representatives consultation occurs between employer and delegates at the mine on the number of health and safety representative(s) that will operate and a number of other matters. These may be referred to the State Mining Engineer and where the matters remain unresolved the issue must be referred to the Tribunal [s 55(6)] |
the State Mining Engineer [s 55(6)] |
CONSULTATION ON ISSUES RELEVANT TO ELECTION SCHEME FOR HEALTH AND SAFETY REPRESENTATIVES |
the State Mining Engineer’s decision on any unresolved issue regarding the proposed ‘election scheme’ for health and safety representatives that cannot be resolved [s 55A(4)] |
the State Mining Engineer must refer the matter [s 55A(4)] |
CONDUCT OF ELECTION FOR HEALTH AND SAFETY REPRESENTATIVES |
the State Mining Engineer’s decision on any unresolved issue regarding the actual election process for health and safety representative(s) that cannot be resolved [s 56(11)]; |
the State Mining Engineer must refer the matter [s 56(11)] |
DISCRIMINATION AGAINST HEALTH AND SAFETY REPRESENTATIVE(S) |
whether a health and safety representative(s) (employee and/or contractor) has been discriminated against in employment for carrying out his/her duties [s 68A] |
the health and safety representative(s) (employee and/or contractor) claiming discrimination [s 68C(1)]
|
DISQUALIFICATION OF HEALTH AND SAFETY REPRESENTATIVE(S) |
whether a health and safety representative(s) ought be disqualified [s 59] |
the health and safety representative(s)’ employer, a relevant employee or the State Mining Engineer [s 59(2)] |
VARY PAID LEAVE FOR HEALTH AND SAFETY REPRESENTATIVE(S) FOR PERFORMING FUNCTIONS |
whether entitlements for health and safety representative's time for performing functions ought be varied (no less favourable to the health and safety representatives than prescribed in the regulations) [s 62(1)(a)] |
the health and safety representative’s employer, the health and safety representative or the State Mining Engineer [s 62(1)] |
VARY PAID LEAVE FOR HEALTH AND SAFETY REPRESENTATIVE(S) FOR ATTENDING TRAINING |
whether entitlements for health and safety representative(s)’ time for attending courses of training accredited under s 14(1)(h) ought be varied (no less favourable to the health and safety representative(s) than prescribed in the regulations) [s 62(1)(b)] |
the health and safety representative(s)’ employer, the health and safety representative(s) or the State Mining Engineer [s 62(1)] |
EMPLOYER SEEKS AUTHORISATION TO STOP HEALTH AND SAFETY COMMITTEE |
where an employer considers a committee ought not be established at the mine(s) and has sought the approval of the State Mining Engineer. The decision of the State Mining Engineer may be referred. [S 67(3)] |
An employer from the mine, a health and safety representative(s) from that mine(s) or an employee(s) from that mine(s) [s 67F(1)] |
AUTHORISATION FOR HEALTH AND SAFETY COMMITTEE TO COVER MORE THAN ONE MINE |
where matters remain unresolved following consideration by the State Mining Engineer then the issue can be referred [s 67B] |
an employer from the mine, a health and safety representative(s) from that mine(s) or an employee appointed under [s 64] from that mine(s) to represent a group of employees [s 67F(2)] |
ABOLITION OF HEALTH AND SAFETY COMMITTEE, VARIATION OF AGREEMENT OR TRANSITIONAL |
where matters remain unresolved following consideration by the State Mining Engineer then the issue can be referred [s 67E(5)] |
the employer(s) at the mine and each member of the health and safety committee for the mine [s 67F(3)] |
MINE SURVEYOR’S CERTIFICATE |