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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Health, Safety, and ACC

6.4 Health and safety representatives

Health and safety representatives
Under the old HSE Act a health and safety representative (HSR) could be elected to represent employees at work as part of an employee participation scheme if requested, or where an employer had more than 30 employees. The role of an HSR was to promote positive health and safety management practices, identify hazards in the workplace, consult inspectors on health and safety issues, promote the interests of employees and carry out any other functions conferred on them. No express powers or rights were given to HSRs, which contrasts to the position under the HSW Act.
Initiating elections of health and safety representatives
Where a PCBU has 20 or more workers and is not in a prescribed high-risk sector or industry, if a worker asks for the election of HSRs, then the PCBU must initiate such an election. The PCBU can initiate a HSR election itself. The HSR will represent the workers who carry out work for the PCBU.
If the PCBU has less than 20 workers and is not within a prescribed high-risk sector or industry then no elections of HSRs is required but if the PCBU refuses the request, it is required to give written notice to that effect within a reasonable time, to the worker who made the request.
HSR elections are held within the work group that the worker who made the request belongs to.
Work groups
A work group can be made up of all the workers in the business or undertaking, and will be unless the PCBU creates more than one work group. A PCBU can determine one or more work groups that it considers would be appropriate, having regard to the structure of the business.
Where only one work group is formed, the ratio of elected HSRs to workers is one to every 19 workers. If the number of workers at the PCBU, divided by 19 does not equal a whole number, the number of HSRs will be increased to the next whole number.
Where more than one work group is being created, the PCBU must ensure the workers are grouped in a way that enables the health and safety interests of workers to be represented most effectively. The groupings must also take account of the need for HSRs to be accessible to the workers they represent.
When forming two or more work groups, the PCBU must have regard to the list of criteria contained in reg 7 of the HSW (Worker) Regulations, which includes:
the number of workers;
the views of the workers;
the diversity of the workers;
the times work is carried out; and
the number of different places of work and the distances between them.
Two or more PCBUs can agree to set up multiple PCBU work group arrangements made up of workers for any PCBU who is a party to such an agreement.
HSR elections
Only a member of a work group can stand for election as a HSR for that work group and only a member of a work group can nominate another worker within the same work group for election of a HSR.
Elections for HSR can be in any form except where a secret ballot is called for by a candidate, a member of the work group or the PCBU.
The PCBU must provide the resources for HSR elections, including facilities and pay the costs of providing information to workers and communicating the election results.
Penalties are prescribed for anyone who unreasonably delays a HSR election, or interferes with or influences workers voting for HSRs.
The office of HSR
HSRs hold their office for up to three years, or less if agreed by the PCBU and members of the work group. HSR can be re-elected and they can remain in office longer than their term if the PCBU agrees, until a successor is elected.
A HSR will vacate their position if they leave the work group, if a majority of the work group resolves to remove the HSR from office or if they are removed from office by the regulator where the regulator considers the HSR has not performed their duties satisfactorily.
HSRs are immune from civil and criminal liability for any act done or omitted in the performance of their functions or exercise of their powers, and done in good faith.
PCBUs can ask the relevant regulator to exercise its discretion to remove a HSR who has not performed their functions or exercised their powers satisfactorily.
Functions and powers of HSRs
Generally, HSRs can only perform their functions or exercise their powers in relation to their own work group. The exceptions to this are where there is a serious risk to workers in another work group from exposure to a hazard, or where the HSR has been asked to assist a HSR from another work group, or where they are acting for another HSR who is unavailable.
HSRs can only perform functions or exercise powers under the HSW Act for a health and safety purpose.
Most of the functions and powers of HSRs are contained in sch 2 of the HSW Act. They include:
representing workers in matters relating to health and safety;
investigating complaints about health and safety;
monitoring relevant health and safety measures taken by the PCBU;
inquiring into any risks to health or safety in the work group;
making recommendations about health and safety;
providing feedback to the PCBU about compliance with the HSW Act or regulations; and
promoting the interests of workers in their work group who have been harmed at work.
In addition, HSRs can attend interviews, with the consent of the worker, between a worker and an inspector or the PCBU or the PCBU’s representative.
HSRs can enter and inspect any area of a workplace to perform their functions or exercise their powers, but they must give reasonable notice to the PCBU and must comply with any reasonable procedures and requirements relating to health and safety. However, a HSR can enter and inspect any area of a workplace without notice when there has been an incident or a situation involving a serious risk to the health and safety of a person arising from an immediate or imminent exposure to a hazard.
HSRs can request information from a PCBU relating to hazards at the workplace or the health and safety of workers in their work group, but they may not have access to personal information about a worker without the worker’s consent unless the information does not identify the worker.
HSRs can be accompanied or assisted by another person, for the purpose of the HSR performing their function or exercising their powers.
HSRs can accompany inspectors who enter the workplace to perform the functions of the regulator however the inspector can refuse to allow the HSR to accompany them when discussions may disclose personal information (unless the express consent of the person has been given), or the inspector believes the presence of the HSR would prejudice the maintenance of the law, including the investigation and prosecution of offences.
HSRs can consult the regulator or an inspector about any work health and safety issue.
HSRs can also issue provisional improvement notices to any person if he or she reasonably believes the person is or is likely to contravene a provision of the HSW Act or regulations. Such a notice cannot be issued however unless the HSR has first consulted the person or if an inspector has already issued an improvement or a prohibition notice about the same matter. The HSR must provide a copy of the provisional improvement notice to the PCBU of the work group the HSR represents.
HSRs can also direct a worker in their work group to cease work if the HSR reasonably believes carrying out the work would expose the worker or others to a serious risk to their health and safety, arising from an immediate or imminent exposure or hazard. The HSR must inform the PCBU of the direction given to the worker as soon as possible.
While the powers and functions of HSRs are generally limited to the particular work group they represent, this limitation will not apply if there is a serious risk to health and safety to a member of another group arising from imminent or immediate exposure.
Obligations of PCBUs to HSRs
PCBUs have a number of obligations towards HSRs, including to:
consult and confer with a HSR about health and safety matters;
allow the HSR to spend as much time as is reasonably necessary to perform their functions;
provide the HSR with any information necessary to enable them to perform their functions;
allow the HSR to be present during interviews about health and safety between a worker or a group of workers and an inspector, or the PCBU;
provide any resources, facilities and assistance necessary to enable the HSR to perform their functions;
allow a person assisting a HSR to have access to the workplace if necessary to enable the assistance to be provided (but a PCBU can refuse this on reasonable grounds); and
permit a HSR to accompany an inspector during an inspection of the workplace.
PCBUs are also required to adopt any HSR recommendations about work health and safety, or provide a written statement to the HSR setting out the reasons why the recommendation will not be adopted.
HSRs must be paid their normal pay by the PCBU while they are performing their functions or exercising their powers. However, no financial assistance needs to be given to the HSR for the purpose of being accompanied or assisted by another person.
PCBUs must allow elected HSRs to attend health and safety training of up to two days paid leave per year or the number of training days specified for particular industries. (The number of training days is subject to the requirements of paid leave for HSRs across the whole business (see reg 26 of the HSW (Worker) Regulations.) PCBUs must also pay for the training if required to do so. HSRs must be paid for time off work to attend training.
PCBUs must also maintain a list of names and contact details of HSRs for each work group. This information must be readily accessible to workers, provided to the regulator on request and updated when there is a change to a HSR for a work group.

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