Health and Safety 2015 – Worker Engagement and Participation

In our second article on the  Health and Safety Legislation changes in 2015 we look at Worker Engagement, Participation and Representation. 

Before continuing, please read our earlier article which covers NZ Health and Safety legislation regarding Duties and Offences.

The Health and Safety at Work Act 2015 will come into force on 4 April 2016. 

Worker engagement and participation

The Act requires every PCBU to engage with its workers and provide reasonable opportunities for workers to participate in improving work health and safety.

The PCBU must engage with workers when:

  • identifying hazards and assessing risks to work health and safety arising from the work carried out by the PCBU;
  • making decisions about ways to eliminate or minimise that risk;
  • proposing changes that might affect the health and safety of workers;
  • making decisions about procedures for worker engagement, monitoring worker health, monitoring workplace conditions or providing information or training for workers;
  • making decisions about procedures for resolving work health or safety issues.
Health and safety representatives

A worker may request the election of a health and safety representative, or a PCBU may initiate an election on its own initiative.  There is no need for a to hold an election for the appointment of a health and safety representative if the business or undertaking has fewer than 20 workers and is not within a high-risk sector or industry (high risk sectors or industries will be prescribed by regulation).

Health and Safety Representatives’ Powers

A health and safety representative who has completed the prescribed training has significant powers.  They can:

  • enter and inspect workplaces;
  • ask a PCBU to provide any information necessary to enable the health and safety representative to perform his or her functions;
  • attend interviews concerning work health and safety between a worker that he or she represents and an inspector or a PCBU;
  • issue a provisional improvement notice if they reasonably believe that a person is or will contravene a provision of the Act.  The person to whom the notice is issued must comply with that notice within the timeframe set in the notice and display a copy of the notice in a prominent place at the workplace;
  • direct a worker to stop work if the representative reasonably believes that the work would expose the worker or any other person to a serious risk to their health or safety because of exposure to a hazard.  The representative must first consult with the PCBU employing the workers before issuing the direction unless the risk is so serious that it is not reasonable to consult first.
PCBUs’ obligations

PCBUs also have obligations to health and safety representatives.  They must:

  • consult about health and safety matters;
  • allow the representative to spend as much time as is reasonably necessary to perform his or her functions;
  • allow the representative two days’ paid leave each year to attend health and safety training.

If a health and safety representative makes a recommendation regarding work health and safety, the PCBU must, within a reasonable time, either adopt the recommendation or provide a written statement to the representative setting out the reasons for not adopting the recommendation.

Protection from adverse conduct

There are provisions in the Act to protect workers who are health and safety representatives or have raised concerns about health and safety under the Act from adverse conduct.

Adverse conduct includes:

  • dismissal of an employee;
  • terminating a contract for services;
  • refusing to offer work on the same terms as other workers with the same qualifications, experience and skills;
  • subjecting the worker to detriment; or
  • forcing the retirement or resignation of that worker.

A person who engages in adverse conduct can be prosecuted under the Act.  If convicted they may face fines of up to $100,000 for an individual or $500,000 for any other person.

For further information and advice please contact our Partner Nathan Gray.