Conducting HSR elections
Overview
In accordance with changes to the Occupational Health and Safety Act 1991 (the Act) which came into effect on 15 March 2007, employers are required to organise an election for a health and safety representative (HSR). Elections need to be held when there is a vacancy, and a replacement HSR has not been selected by unanimous agreement of all employees in the designated work group (DWG).
Only one HSR can be selected for a DWG and that person must be a member of that DWG.
Purpose of this guide
To provide advice regarding matters to consider when conducting HSR elections. Note that the Act provides that employers must comply with relevant directions issued by the Safety, Rehabilitation and Compensation Commission (the Commission). This guide is not issued by the Commission, and should be read in conjunction with any such directions.
HSMAs and HSR elections
Health and Safety Management Arrangements (HSMAs) can include guidelines on HSR elections. These guidelines can range from general protocols which allow for different approaches, to a highly prescriptive, step by step description of how elections will be conducted.
Key issues to consider
Who conducts the election?
Employers can conduct elections themselves, or they can organise for an external agency or individual to conduct the election on their behalf. Considerations which will influence which option the employer chooses include the:
- level of expertise, experience and resources available within the organisation;
- size of the DWG;
- timelines within which the election has to be conducted; and
- comparative cost of running the election in house versus contracting an external agency.
An example of an external agency is the Australian Electoral Commission (AEC), which can conduct elections on behalf of an employer on a fee for service basis (refer to www.aec.gov.au). Some of the state/territory electoral commissions may also be able to offer a similar service.
How formal is the process and what means of communication is used?
Options for the election process range from comparatively informal processes such as meetings of the DWG members at which a vote is taken, to formal processes using returning officers and ballot papers. Ballot papers can be either paper or electronic.
Part 3 of the Occupational Health and Safety (Safety Arrangements) Regulations 1991 (the Safety Arrangements Regulations) provides a list of requirements regarding HSR elections. Note that it is not mandatory for an employer to conduct an election in accordance with Part 3 of the Safety Arrangements Regulations, except when the employer is requested to do so by the lesser of:
- 100 employees normally in the DWG; or
- a majority of the employees normally in the DWG.
If the above situation does not apply, Part 3 of the Safety Arrangements Regulations can still provide guidance on various aspects of the election process, such as how to conduct secret ballots.
Where the use of secret ballots is not specified in HSMAs, employers may wish to consider whether it is made a mandatory part of the election process, available if requested by employees, or not appropriate for the organisation (for example, the preferred option for both the employer and employees may be all staff meetings at which a vote is taken by a show of hands). Secret ballots could be either electronic or paper-based. If an employer must comply with Part 3 of the Safety Arrangements Regulations, the returning officer must conduct a secret ballot if requested to do so by a member of the DWG.
Employers also need to consider how they will communicate with employees throughout the process. For example, use of electronic means such as email and web pages, mailouts or notice-boards.
The type of election process and means of communication chosen may be influenced by a wide range of factors such as:
- whether or not a process has been prescribed in the organisation’s HSMAs;
- the number of DWGs in the organisation;
- the geographic location of DWG members;
- type of work, for example office-based v changing locations;
- whether or not all staff have ready access to email;
- preference expressed by members of the DWG (where the process is not prescribed in the HSMAs); and
- the likelihood of receiving more than one nomination.
Key elements of formal election processes using ballots
This section provides suggestions about processes which may be used by employers conducting an election. However, some aspects may also be used to decide what to ask an external agency or consultant to do if the conduct of the election is being outsourced. Part 3 of the Safety Arrangements Regulations may also provide some guidance.
Selecting a returning officer
Employers need to consider:
- who they would normally appoint as a returning officer;
- the functions that the returning officer is responsible for; and
- what facilities and time will be required by the returning officer (for example, provision of a secure safe or similar arrangement in which to keep the ballot papers).
Notifying the DWG of the poll and calling for nominations
If there is an unfilled vacancy for the position of HSR, the employer must advise the DWG members of the vacancy in writing, and invite nominations for the position (sections 25A and 25C of the Act). Note that if the employer has not invited nominations within 6 months of the vacancy, the Commission may direct the employer to do so.
Issues to consider:
- timelines for advising employees of the vacancy, and seeking and receiving nominations – the timelines will need to allow sufficient time for employees to nominate;
- the most appropriate method of communication to ensure all employees in the DWG have access to the information in a timely fashion – options include email, intranet, workplace notice boards, and/or mail;
- provision of relevant information about the employees in the DWG to the returning officer/external consultant, for example, a current list of members of the DWG to check eligibility of nominees and who is eligible to vote, and names of any disqualified previous HSRs; and
- establishment of a process to deal with defective or withdrawn nominations, receipt of nominations (for example, should the returning officer open the nominations in the presence of one or more witnesses), and storage of nominations.
Conducting the ballot
All employees in a DWG are entitled to vote in a HSR election. Note that if there is only one candidate at the end of the nomination period, then that person is automatically elected.
Issues to consider in respect to the conduct of an election include:
- process for circulating candidates’ election statements, or profiles of the candidates, to members of the DWG;
how advice is circulated about how to vote – for example electronic v paper based; - what is the minimum amount of information to be placed on the ballot form (for example, purpose of the ballot, names of candidates);
- time provided for voting – there should be sufficient time allowed for all DWG members to vote;
- if a secret ballot has been agreed to, how it is to be conducted - for example, how the ballot papers will be distributed, how the ballot papers are to be marked, how and when the ballot papers are to be counted, and the presence of witnesses at the ballot count; and
- developing a process for dealing with, and resolving, a disputed ballot.
Informing the DWG of the outcome of the selection/election
An employer must advise the DWG in writing of the name of the HSR that has been elected or was unanimously selected within a reasonable time of the election/selection(s.25C).
Issues to consider:
- how the returning officer notifies the successful and unsuccessful candidates; and
- timeline for advising the DWG of the outcome of the ballot.
Maintaining list of all HSRs
Employers must keep an up to date list of all HSRs in the organisation, and ensure that this list is available for inspection by employees and investigators at all reasonable times (s. 25B). Options include use of notice boards or the intranet.