New requirements: Health and safety representatives and committees

• At the request of workers, a person conducting a business or undertaking (PBCU) must initiate election of a health and safety representative.
• If a health and safety representative or five or more workers request a committee, then the PCBU must establish one “as soon as practicable” after receiving the request.
• The removal of “high-risk sector or industry” as a factor for declining a health and safety representative or committee.

Requests for health and safety committees

Previously, a PCBU could decline a request from workers to initiate election of a health and safety representative or establish a committee, if a workplace had:

• fewer than 20 workers; and
• the work was not in a designated high-risk sector or industry.

A PCBU also previously had two months to decide whether to establish a health and safety committee after receiving a request.

Under the HSWA, a PCBU must now establish a health and safety committee, as soon as practicable. What is practicable will depend on the circumstances surrounding the request and the ability of each business or undertaking to act on such a request.

The high-risk industries previously categorised included:

• Aquaculture
• Forestry and logging
• Fishing, hunting, and trapping
• Coal mining
• Food product manufacturing
• Water supply, sewage, and drainage services
• Waste collection, treatment, and disposal services
• Building construction
• Heavy and civil engineering construction
• Construction services

According to the Ministry of Business, Innovation and Employment (MBIE), one of the predominant issues with high-risk categorisation of industries was that “designations are more reflective of work-related injuries and fatalities than they are of health risks to workers.” An example of this is the exclusion of agricultural work from the high-risk list of industries. Removal of this categorisation aligns with the intention to improve access to worker engagement and representation.

Health and safety committees not mandatory

MBIE makes it clear that “The Act does not make health and safety representatives or committees mandatory for businesses.” It is only required where requested by workers or at the initiative of a PCBU. However, it is important to note these changes. A breach of these HSWA obligations could result in a fine of up to $5,000 for an individual or up to $25,000 for an organisation.

Ensuring the health and safety of workers and others in the workplace is an important duty for PCBUs. Not only can a breach of health and safety result in prosecution and significant fines, but the impact on the culture within the work environment can be irreparably damaged by an avoidable accident. A good health and safety culture must be led from the top, through the board and senior management, but to achieve this effectively, involvement from all workers is important.

The changes to the HSWA discussed here simply reinforce how a PCBU should involve all workers in the development and maintenance of a good health and safety culture. While the HSWA requires a PCBU to involve workers under the prescribed circumstances, good employers will look to get staff involved at every level to ensure that the health and safety message is shared with, and followed by, those most affected.

Andrew Shaw is the managing partner and head of the Employment Law team, Fiona McMillan is a partner in the Employment Law team, and Olivia Kemp is a law clerk, all at Lane Neave in Auckland.