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Legal viewpoint—Workplace relations: a new era

Companies still attached to a “command-and-control” management style will need to swiftly adapt to the provisions for worker participation in the HSW Act, advises RACHAEL SCHMIDT-McCLEAVE.

The changes that were effected to the worker participation provisions when the Health and Safety Reform Bill was reported back from select committee were among the most controversial of all the provisions. Despite the outcry, however, it is true that for organisations of over twenty workers in particular, the worker participation requirements of the new HSW Act usher in a new era in the relationship between worker and employer.

Further, the shift in focus from “employees” to “workers” (defined in section 19 as individuals “who carry out work in any capacity for a PCBU”), will require PCBUs to re-evaluate how risk is managed in their workplaces and in other places where work is carried out for the business or undertaking.

PCBUs will no longer be able to restrict their management of health and safety risks to those within their workplaces who they naturally contemplate to be workers, but will also need to consider individuals they may hire to do work for one-off assistance, for example. The PCBU also has obligations to liaise with other PCBUs who have more direct control over workers at a work place.


The worker participation requirements on a PCBU are stringent and the importance of such practices is not to be underestimated. Studies carried out in the United States have demonstrated that the existence of unions or of “worker activism” in a workplace are two of the most important drivers in positive health and safety outcomes. Research of a similar ilk in Ireland supports there being a direct connection between worker representation and greater compliance with health and safety requirements.

The enhanced focus in the new Act on worker participation and representation is intended to address those situations where businesses may be too focused on the bottom line, and on productivity, to the detriment of their workers’ health and safety. This was a direct recommendation emerging from the 2013 Independent Taskforce on Workplace Health and Safety.


The new legislation therefore attempts to break down the barriers between management and workers in the area of health and safety. The Act aims to achieve this by imposing two overarching duties on PCBUs in relation to worker engagement, participation and representation: to engage with workers and to ensure worker participation practices are suitable to their workplace.

Specifically, section 60 provides that a PCBU must engage with workers on work health and safety matters:

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    When identifying hazards and assessing risks of work carried out by the PCBU;
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    When making decisions as to how to eliminate or minimise those risks;
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    When making decisions about the adequacy of facilities for the welfare of workers;
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    When proposing changes that may affect the health and safety of workers;
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    When making decisions about the procedures for engaging with workers; monitoring the health of workers; monitoring the conditions at any workplace; and providing information and training for workers;
  • • 
    When making decisions about any procedures (if any) for resolving work health and safety issues at the workplace;
  • • 
    When developing worker participation practices, including when determining work groups; and
  • • 
    When carrying out any other activity prescribed by regulations.

Engagement requires that PCBUs share relevant information with workers, provide them with a reasonable opportunity to express their views, take their views into account and advise them of the outcome of the engagement. If workers are represented by a health and safety representative, that person must be involved in the engagement.


The Australian courts have confirmed that these provisions do not require joint decision-making as such, but they do require active engagement by the PCBU with the workers (see, for example, QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150.)

The new Act gives flexibility on worker participation practices, but there are enhanced powers given to health and safety committees and health and safety representatives; such provisions applying to PCBUs with 20 or more workers or in high risk sectors under the regulations. Appropriately trained health and safety representatives have the right to issue provisional improvement notices where the representative reasonably believes a worker is contravening or is likely to contravene the Act or regulations (section 69). Such representatives may also direct workers in their work group to stop unsafe work, ie where there is a serious risk to health and safety, arising from an immediate or imminent exposure to a hazard (section 84).

Workers are now also given enhanced protection for raising health and safety matters. It is an offence to discriminate against a worker on the basis of having a health or safety role, or because the worker has exercised or performed a function under the Act, or intends to do so. Section 90 creates an offence for a person to engage in “adverse conduct” (including dismissing a worker, subjecting a worker to detriment or terminating a commercial arrangement) for a “prohibited health or safety reason”.


These new provisions place the worker on a much more level playing field when it comes to health and safety. The changes may come as a challenge in some sectors where it had become commonplace in recent years for there to be a certain (even if subconscious) “blame the worker” mentality at play.

An example is the widely reported decision in WorkSafe New Zealand v Affco New Zealand Limited [2015] NZDC 22242. In that case, a worker, Mr Matahiki, suffered a serious workplace accident while working as a night cleaner at Affco’s Rangiuru plant. Mr Matahiki’s head was penetrated by one of the prongs of a suspended meat hook and he was carried, suspended on the hook, for a very short distance before his screams alerted a workmate to hit the emergency stop button. Affco was charged under the 1992 Act with failing to take all practical steps to ensure Mr Matahiki was not exposed to the hazard of the moving chain while at work.

Affco chose to defend the charge on the basis that the real cause of the injury to Mr Matahiki was his own actions, in that he should not have been on the drip tray he was standing on at the time and the particular scanner frame had never been identified as a health and safety hazard.

In finding Affco guilty of the charge, his Honour Judge Rollo did acknowledge that the company took its health and safety in employment obligations very seriously. He rejected the argument, however, that Mr Matahiki knew he should not have been on the drip tray and found that Affco should have been aware of the hazard with the scanner frame. The Judge also found that the night cleaning gang did not fully follow the company’s training. He did not attribute responsibility for that to the workers, however, but rather stated (at [60](d)):

These circumstances illustrate the ongoing need for any employer to ensure not just a training process, including documentation proscribing unsafe practices and mandating practical, safe procedures for staff in their workplace, but scheduled and also random monitoring to ensure full and on-going understanding, and necessary compliance by relevant employees with all health and safety expectations, obligations and requirements when in the workplace.”


It’s fair to say that such an attitude, then, to what his Honour called “worker causation” will not be tolerated by the courts under the new legislation; companies will have to demonstrate not only that they have proper procedures and training in place, but that they actively engage with their workers on health and safety, and that there is opportunity for workers to participate in health and safety decision-making and processes.

Any companies following a dated “command and control” approach to worker management are unlikely to fare well under the new provisions, if such companies do not alter their practices and attitudes to expressly and tangibly involve their workers. In the extreme, any companies which take discriminatory action against workers for health and safety-related reasons may be prosecuted.

Wellington barrister Rachael Schmidt-McCleave is co-author with Stacey Shortall of the recent book Health and Safety at Work in New Zealand: Know the Law, published by Thomson Reuters.

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