The Ministry of Business, Innovation and Employment has released a draft of proposed regulations that will work together with the Health and Safety at Work Act 2015 (HSW Act). These new regulations are the Health and Safety at Work (Worker Engagement, Participation, and Representation) Regulations 2016 (Regulations).
Worker involvement with health and safety matters is mandatory for every workplace. A person conducting a business or undertaking (PCBU) for a smaller workplace can establish their own procedures for this. The HSW Act and now these Regulations set out some formal mechanisms for worker participation for a PCBU with 20 or more workers, or is in a high-risk industry.
- prescribe which industries are "high-risk" in terms of the HSW Act; and
- outline the procedural requirements that will need to be followed for the appointment or election of a health and safety representative or committee.
High-risk sectors or industries
After all of the fuss about worm farms being included in a proposed high-risk sector, these Regulations are where the details of what constitutes a high-risk industry are finally being sorted out. The current draft specifies that high-risk sectors are:
- forestry and logging;
- fishing, hunting, and trapping;
- coal mining;
- food product manufacturing;
- water supply, sewerage, and drainage services;
- waste collection, treatment, and disposal services;
- building construction;
- heavy and civil engineering construction;
- construction services; and
- any other industry covered by one of the following regulations:
- Health and Safety at Work (Adventure Activities) Regulations 2016;
- Health and Safety at Work (Major Hazard Facilities) Regulations 2016;
- Health and Safety at Work (Mining Operations and Quarrying Operations) Regulations 2016; or
- Health and Safety at Work (Petroleum Exploration and Extraction) Regulations 2016.
Certain businesses or undertakings are also specifically excluded from being high risk, as long as the business is only or predominantly involved in this type of work. These areas are:
- for aquaculture: onshore aquaculture;
- for forestry and logging: kauri gum digging and the gathering of native orchids, pine cones, resin, and mushrooms;
- for fishing, hunting, and trappin:, the hunting or trapping of certain non-New Zealand species, being turtles, buffalo, crocodiles, dingoes, kangaroo, and snakes;
- for food product manufacturing: bakery product manufacturing when carried out in the home or other non-factory location; and
- for construction services: curtain installation and fly wire screen installation.
Notably, no farming (whether of worms or otherwise) is included in the definition of a high-risk industry.
The Regulations require that the definition of high-risk industries must be reviewed every five years.
Health and safety representatives and committees
Under the HSW Act, a PCBU needs to consult with its workers when identifying hazards in the workplace, making decisions about how to eliminate or minimise those hazards, developing procedures for anything to do with health and safety, and making decisions about facilities for worker welfare. Formal worker representation mechanisms, through representatives or committees, are just one way of involving workers in health and safety matters and meeting the duties in the HSW Act.
The HSW Act says that a PCBU may decide that one or more health and safety representatives should be elected to represent the workers. If the PCBU does not initiate this, a worker may request that an election for a health and safety representative be held. In addition to, or as an alternative for, a health and safety representative, a PCBU may establish a health and safety committee, or the establishment of a committee may be requested by five or more workers or by a health and safety representative. A PCBU will have to comply with a request for a health and safety representative or committee if they have 20 or more workers, or are in a high-risk industry.
The Regulations set out:
- how to determine the number of health and safety representatives a PCBU should have, based on the number of work groups and workers in the PCBU;
- the procedure to be followed for the election of health and safety representatives;
- that the length of term for a health and safety representative shall be three years unless a shorter time is agreed;
- requirements for a PCBU to allow a health and safety representative to attend training; and
- if a health and safety committee is established, certain requirements for the membership of the committee.
A copy of the draft Regulations is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.