FWC confirms HSR’s powers are not unlimited when it comes to safety matters

In (McCabe v UGL Engineering Pty Ltd [2025] FWC 1478 (29 May 2025)) FWC recently found a HSR who unilaterally shut down electrical generators on a major project – affecting first-aid facilities and other key areas of the site – was not unfairly dismissed because they had plenty of other options to appropriately deal with their safety concerns.

Significantly, the HSR deliberately and in direct defiance of their employer took the action whilst the employer was printing out certificates to show that proper tests have been carried out and that the safety issue was not as the HSR had contended.

FWC found that the HSR did not have an objectively reasonable basis to believe an immediate risk to health and safety existed, and his actions were dangerous and could have caused serious injury to himself, other workers and members of the public.

Our Take

This decision is common sense and good news for employers.

No-one begrudges any employee, let alone an HSR, from raising genuine safety issues, but this needs to be tempered against an increasing trend of HSR is using nongenuine safety issues for pushing ideologically driven agendas.

Is it really just an ‘uncanny coincidence’ that a seemingly innocuous matter becomes a ‘full-blown’ safety issue when enterprise bargaining or other employment dispute becomes contentious? Safety shouldn’t be used for non-related safety purposes.

Action Items

• Train your managers in WHS law - this is a technical area of the law. Understanding cases like this builds internal capability and appropriate risk tolerance

• Take a genuine interest in HSR training - it is no use complaining about the ‘propaganda’ your employees learned in a training course when you have not had any proper input into the training provider and its content

• Supplement any third party HSR training with ongoing workplace training - if there are specific issues at your workplace that needs to be dealt with, provide the specific training, consultation, cooperation and coordination to address it. Safety issues should not be a ‘gotcha moment’ for any party

• Deal with safety issues as they arise - no one genuinely wins a PINs ‘paper war’. Provide the evidence that is required and move on. Too often we see both parties getting caught up in their respective ‘rights’ instead of dealing with the actual issue

• Get the regulator involved to resolve the dispute - sometimes you have to use the ‘emergency break glass option’. If you do, make sure that you have genuinely tried to resolve any safety issue, and you come or regulator with ‘clean hands’

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