Litigation, Disputes and Employment

Guide to Worker Engagement and Participation under the Health and Safety at Work Act 2015

on Wednesday, 08 June 2016. Posted in Litigation, Disputes and Employment

Guide to Worker Engagement and Participation under the Health and Safety at Work Act 2015

If you are an employer and conduct a business or undertaking (now called a PCBU), the Health and Safety at Work Act 2015 (HSWA) requires you to actively engage with your employees on health and safety matters and provide them with real opportunities to participate. 

The Health and Safety at Work (Worker Engagement, Participation and Representation) Regulations 2016 ("the Regulations") contains further requirements and WorkSafe has also published Good Practice Guidelines on Worker Engagement, Participation and Representation.

Offices of a PCBU (being the directors, partners and anyone who has a position where they have  significant influence over the management of the PCBU) in discharging their duty of due diligence under the HSWA will need to make sure that the appropriate systems and processes and resources are in place to ensure that their business is complying with its duties under the Act.  Officers will therefore need to make sure that their businesses have the worker engagement and participation practices as required under the Act.

It is important to remember that the term "worker" not only includes an employee but also an individual who is a contractor, subcontractor, employee of a labour hire company, apprentice, volunteer worker or a home worker.  However, you will not owe worker engagement and participation duties to volunteer workers (but they can still raise concerns with you).

The two main requirements you have in relation to worker engagement and participation representation are

  1. You must engage with your workers on health and safety matters which affect or are likely to affect them; and
  2. You must provide reasonable opportunities for your workers to be participate in improving health and safety on an ongoing basis.

WORKER ENGAGEMENT

Who do I need to engage with?

You must engage with workers (i.e. individuals) who are actually carrying out work for your business.  So this may include contractors which you have engaged to do work for you.  But not workers who are carrying out work for their own business for instance if you are a construction company you will not need to engage with workers who are on site doing work for their own businesses – e.g. plumbers and electricians. Another example is where you have a contract with a company to repair your printers you will not need to engage with the repair person who comes to your office.  Those businesses will have their own duties to engage with their workers.  You will need to ensure you engage with anyone who is a home worker – i.e. is employed or contracted by you to do work for you but from their home.

When do I need to engage with my workers?

You need to engage with your workers on a regular and ongoing basis when:

  • Identifying health and safety risks
  • Making any decisions about eliminating or reducing those risks
  • Making any changes which affect their health and safety
  • Making any decisions about procedures for worker engagement, monitoring of health and conditions at the workplace and providing information and training for workers
  • Making decisions about the adequacy of welfare facilities (e.g. staff rooms) for workers
  • Developing worker participation practices

Specific examples of matters requiring worker engagement which WorkSafe have identified include emergency planning, business restructuring, reduction of staff, changes to work hours or location, commencement of a new project and introduction of new substances on site.

How do you engage with your workers?

The way you engage with your workers will depend on the size of your business and the type of work which is carried out.  Your worker engagement processes must ensure that:

  • Your workers receive information about health and safety matters on a timely basis;
  • Workers are given a reasonable opportunity to express their views on the matter;
  • Workers are allowed to contribute to the decision making process relating to the matter;
  • You take workers' views into account; and
  • You promptly let your workers know about the outcome on any engagement.

You can engage with your workers informally or formally (e.g. via an elected health and safety committee (HSC) and/ or a health and safety representative (HSR)). If there is an HSC or a HSR has been elected then any engagement must involve them.  

WORKER PARTICIPATION

You must provide reasonable opportunities for your workers to participate effectively in improving work health and safety in your business.  You are required to engage with your workers when you are developing worker participation practices.  Participation practices should provide your workers with the opportunity to:

  • Raise health and safety concerns
  • Receive information about health and safety matters
  • Offer suggestions for improving health and safety
  • Contribute to decisions
  • Be kept informed

Your worker participation practices should fit the size of your business, the nature of work undertaken, the risk it presents, the location and number of workplaces.  WorkSafe has suggested the following participation practices:

  • Having health and safety as a routine agenda item at meetings
  • Having an interactive intranet site – e.g. blogs, newsletters and forum dedicated to health and safety
  • Arranging for worker representation via the election of a HSC and/ HSR
  • One to one meetings between workers and their managers
  • Having "Opportunity for Improvement" forms which record feedback on an issue and ideas for improvement
  • Suggestion schemes – e.g. notice boards, suggestion box, "bright ideas" forms etc.
  • Surveys
  • Toolbox talks – e.g. informal short health or safety focused discussions on a single topic e.g. managing workplace stress
  • Whole team discussions on issues such as emergency plans, health and safety practices, role of HSR, notifiable accidents, health and safety training
  • Workplace walkabouts  - where the manager catches up with workers during a walk around the work place
  • Worksite meetings – held on the worksite to discuss health and safety issues.

Make sure your workers know that they have a real say in health and safety, that their views will be heard and considered.  They should also know how to participate and when you will respond and any decisions which are make and the reasons for those decisions.

Be aware that under sections 88 to 97 of the HSWA that workers are protected from discrimination and dismissal for carrying out health and safety activities and raising health and safety concerns.

WORKER REPRESENTATION

Worker representation is just one way of ensuring worker participation.  There are different methods of worker representation including formal representation by way of electing a Health and Safety Committee and/or a Health and Safety Representative.   HSRs and HSCs are only compulsory considerations for businesses which are deemed to be in the High Risk Sector and these include:

If you fall within these categories or your business has more than 20 workers you must initiate the election of a HSR if a worker requests one.  If a requested is made by 5 or more of your workers or your HSR then you must also make a decision where or not to establish a HSC if your business has more than 20 workers and is deemed to be in the High Risk Sector. Of course you can decide of your own accord to arrange the election of a HSR or establish a HSC.

The HSWA strengthens the role of HSRs, clarifies their functions and provides extended powers (e.g. the power to issue provisional improvement notices).  However, an HSR will only have the extended powers if they have completed the prescribed training. 

The role of the HSC is to facilitate cooperation between you and your workers in relation to health and safety matters, to assist in the development of any practices, polices and procedures and make recommendations.   If a HSR has been appointed or there is a HSC then you must engage with them on health and safety matters.

The Regulations provide further detail about the election of HSRs and HSCs. WorkSafe has published interpretive guidelines on Worker Representation through Health and Safety Representatives and Health and Safety Committees.

What should I do?

  1. Understand your duties are in relation worker engagement, participation and representation.
  2. Decide how you will engage with your workers in relation to health and safety matters and develop processes that reflect this.  Involve your employees in making this decision.  Examples of how you can engage include publishing information on an intranet, via newsletter and blogs emailed to employees, one to one meetings and team meetings.
  3. Consider how you will involve your workers in health and safety.  For instance:  in the initial and ongoing identification of risks and hazards, in making decisions as to how to reduce or minimise those risks and hazards and allowing workers to tell you what they think about health and safety matters.
  4. When deciding how to engage with your workers consider languages spoken by your workers, their reading and writing skills and their ability to understand.
  5. Let your employees know what decisions you have made in relation to engagement.  Review those processes on a regular basis to ensure they are working – make improvements where necessary.
  6. Consider how you will share information with your workers.  What sort of information will you share with them (proposed health and safety policies, changes to the work place, development of forms e.g. incident forms, decisions made)?  How will you share this information with them? Give your workers the opportunity to have a say in how they want to receive the information.  Develop worker participation and representation practices in consultation with your workers.
  7. Know whether or not you are required to initiate the election of a Health and Safety Representative or form a Health and Safety Committee.  Even if you are not required to have a Health and Safety Committee or a Health and Safety Representative under the HSWA you may decide after engaging with your employees that you should have.
  8. Keep written records about how you have engaged with your workers, how you reached a decision and how this was communicated to your workers.

For more information or assistance contact

Stephen Corlett

Lizandra Bailey

DISCLAIMER

This information is intended to be general in nature.  You are strongly recommended to seek your own legal advice in relation to the matters dealt with here.

© Brookfields Lawyers 2016 – All Rights Reserved

 

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