Determining responsibility

A focus of the Health and Safety at Work Act is strengthening worker engagement and participation in health and safety matters 

The Act, which was passed on 28 August, sets out two overarching duties for Persons Conducting a Business or Undertaking (PCBU) to involve workers in work health and safety.

The PCBU must:

1.  Engage, so far as is reasonably practicable, with workers who:

• Work for its business or undertaking, and;
• Are directly affected, or likely to be directly affected, by a health and safety matter of the PCBU, and;

2.  Have effective practices that allow workers who work for its business or undertaking to have an opportunity to participate in improving work health and safety on an ongoing basis. These are known as worker participation practices.

PCBU DUTIES

These duties are narrower in scope than the primary duty of care, as they only extend to workers who work for the business or undertaking.

If health and safety representatives (HSRs) and/or health and safety committees (HSCs) are chosen as the PCBU’s effective worker participation practice(s), the Act sets out how they will work, including their functions and powers, and the PCBU’s obligations to provide support.

The Act continues the right for workers to refuse to do unsafe work, and expands protections for workers who raise workplace health and safety matters.

Engagement means talking and listening to your workers. It is particularly valuable at key times, such as identifying hazards and risks, making changes to work that affect health and safety, or developing worker participation practices. Sometimes engagement will be directly with the workers, and sometimes with health and safety representatives.

Worker participation practices provide effective ways for your workers to talk to you about health and safety matters, so that you’re in a better position to manage the risks in your business or undertaking and keep people safe and healthy.

No specific worker participation practices

The Act does not specify what types of worker participation practices PCBUs must have. Different types of practices will suit different workplaces; the important thing is that workers can be involved in an effective way.

The objective of worker participation is that all workers can have a say on matters that will affect their health and safety. Effective engagement increases awareness of health and safety and enables staff to work with their PCBU to improve health and safety. PCBUs can make better decisions by drawing on the knowledge and experience of the people who do the job.

Depending on what suits its workplace best, a PCBU could comply with this duty by having HSRs or a HSC – or both. Or they might have neither, and rely on more informal practices instead. These might include regular toolbox talks, having health and safety as a regular agenda item at team meetings, or another feedback mechanism, so staff have a clear way of raising any health and safety concerns with the PCBU. Informal practices like this may well be enough for smaller or low-risk businesses.

The Act contains an exclusion to the requirement for a PCBU to initiate an election for health and safety representatives or set up a health and safety committee if requested by workers – for PCBUs with fewer than 20 workers that are in low risk sectors. The sectors will be defined in new worker participation regulations, which will be available for public feedback shortly.

This exclusion does not stop smaller, non-high risk PCBUs from voluntarily deciding to have health and safety representatives or a committee to meet their worker participation requirements under the Act.

How Health and Safety Representatives would work

Health and Safety Representatives (HSRs) are workers themselves, not experts in work health and safety. Their job is to represent their fellow workers on health and safety matters.

The Act outlines the provisions that apply if the more formal approach of having HSRs is chosen. The Act clarifies and strengthens HSR functions and powers, subject to checks and balances. The Independent Taskforce on Workplace Health and Safety considered that current HSR default provisions were inappropriate, and HSRs needed sufficient powers, functions and rights to contribute effectively to addressing workplace health and safety matters. The Act’s provisions reflect this, based on the Australian Model Work Health and Safety Act adapted for New Zealand.

How a Health and Safety Committee would work

Health and Safety Committees (HSCs) bring together workers (including HSRs) and management to assist in the development and review of health and safety policies and procedures for the workplace.

The Act provides that a HSC may be requested by workers, or chosen by the PCBU as an effective way to involve workers in health and safety at the workplace.

When a committee is requested by workers, the PCBU must decide whether to establish one. It can decline this request if it is satisfied existing worker participation practices meet the requirements of the new law. It has to explain why, and advise workers that they may raise the matter under the issue resolution process in the new law.

The Act sets out the functions of HSCs, as well as PCBUs’ corresponding duties to assist HSCs in carrying out their functions.

 

The Health and Safety at Work Act

The Act gives HSRs stronger functions and powers, such as:

• Representing workers on health and safety matters.
• Making recommendations on health and safety.
• Being able to get relevant information and enter and inspect the workplace.
• Being able to attend training for their role in paid work time.

The Act requires PCBUs to support HSRs, such as:

• Facilitating elections.
• Providing information.
• Providing time and resources for the HSR role.

The Act gives some powers to HSRs only after they have been trained:

• Issuing provisional improvement notices to address a health or safety problem, and
• Directing a worker to cease work that would expose them to serious risk arising from an immediate or imminent exposure to a hazard, which supports the existing right for a worker to cease work in this situation.

The Act has checks and balances against improper use of HSR powers, such as:

• Limiting the powers to the particular work group that the HSR represents.
• Confining the role to health and safety purposes.
• Setting some specific limits – eg, on access to information.
• Involving the regulator – to help resolve issues, and remove a HSR who is acting for improper purpose.

 

Main image: The objective of worker participation is that all workers can have a say on matters that will affect their health and safety