Litigation, Disputes and Employment

Health and Safety Representatives and Committees under the Health and Safety at Work Act 2015

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

Health and Safety Representatives and Committees under the Health and Safety at Work Act 2015

Do you have to have a Health and Safety Representative?

The answer is yes if you are a Person Conducting a Business or Undertaking and:

If your business does not meet one of the above categories you can refuse to initiate the election of a HSR and if you do you must let the worker who made the request know within a reasonable time and you must explain why you have refused the request.

If you decide to initiate the election of a HSR then you must consider whether there needs to be more than one work group for your PCBU.  A work group is a group of workers who are grouped together so that their interests can be most effectively represented and so that the HSR is accessible to those workers.  An example of where you may decide on more than one work group is where you have groups of workers who are working in different locations in New Zealand. In deciding whether there should be more than one work group you must take into account matters such as the views of your workers, the different places of work, the nature of the hazards and risks and the times when the work is carried out.

The election of a HSR could be one way in which you meet your duty to allow worker engagement and participation.

How many HSRs are you required to have?

You must decide how many HSRs should be elected for each work group.  The minimum number required under the Health and Safety at Work (Engagement, Participation and Representation) Regulations 2016 ("the Regulations") is one HSR for every 19 workers. 

What is the process for electing a HSR?

The Regulations prescribe the requirements for conducting elections for heath and safety representatives.  You must hold elections within 2 months from the date you received the request from a worker.

What are the duties of a Health and Safety Representative? 

A person must not hold the office of a HSR for more than 3 years but they can be re elected for any number of additional terms.

Part 1 of Schedule 2 to the HSWA sets out the roles of the HSR which includes representing workers on health and safety matters, investigating complaints, representing workers and making recommendations.  They may also attend interviews between a worker and an inspector, they may enter and inspect workplaces and can request you to provide information necessary to enable them to perform their functions.

What are your duties in relation to Health and Safety Representatives?

You have certain duties in relation to HSRs which include; consulting with them about health and safety matters, allowing them to spend as much time as is necessary to carry out their functions, providing them with the information they require to fulfil their functions and allow them access to the workplace.  You must also consider whether to adopt recommendations made by a HSR. 

All HSRs must undergo the prescribed initial training and must be given a certain amount of paid leave to attend initial and any additional training. The amount of paid leave to be provided is dependant of how many workers there are in the relevant work group, for instance if there are less than 5 workers, 2 days paid annual leave are to be provided.  If there are more than 281 workers than 35 days paid annual leave must be provided.  You will be responsible for the cost of the training and any reasonable expenses incurred as a result of attending the training.

When can an HSR issue a Provisional Improvement Notice?

HSR's who have completed the initial training are able to issue Provisional Improvement Notices to anyone they believe is contravening the Act provided they have first consulted with the recipient.  A Provisional Improvement Notice sets out details of any contravention and the requirements to remedy the breach. There are fines of up to $50,000 for individuals and $250,000 for non-individuals who do not comply with a Provisional Improvement Notice.

HSRs are protected from civil and criminal liability for any act done in the performance of their duties and done in good faith.

Do you have to have a Health and Safety Committee?

You are only required to decide whether or not to establish an HSC if you receive a request from an HSR or from at least 5 workers; and

  • You have more than 20 workers; and/or 
  • Your business is deemed to be within a High Risk Sector or Industry (see above for a summary of when a business is within a High Risk Sector or Industry). 

Just as for HSR's you can, of your own volition, establish a Health and Safety Committee.

Any decision to establish a Health and Safety Committee must be made within two months of receiving a request.  You can refuse the request if you are satisfied that your existing worker participation practices meet the worker participation requirements under the Act.  See Guide to Worker Engagement and Participation under the Health and Safety at Work Act 2015.  If you refuse a request for an HSC then you must notify the workers who have an interest in the decision as soon as possible but no later than 14 days after you made your decision.

Who are the members of the HSC?

You and the workers must agree on the membership of the HSC but one of the members must be authorised to make decisions on your behalf and at least half must be workers representing workers at the work place and must not have been nominated by you.

Health and Safety Committees must meet at least once every 3 years and at any reasonable time if requested by a majority of members. 

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.

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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