New health and safety regulations released for consultation09 November 2015
A raft of new regulations from matters such as Asbestos removal to everyday manual handling, have been released for consultation. What is clear is that we are reverting to the prescriptive approach that existed prior to the 1992 Act coming into force.
Here we concentrate on the draft Health and Safety at Work (Worker Engagement, Participation and Representation) Regulations 2016.
High risk sectors defined
As you will be aware, organisations in low risk sectors employing fewer than 20 employees are not required to have health and safety representatives or a health and safety committee. The regulations specify the high risk sectors as follows (with some exceptions in each category which will no doubt surprise you):
- Any business subject to regulations concerning Adventure Activities, Major Hazard Facilities, Mining and Quarrying operations and Petroleum Exploration.
- Aquaculture - other than onshore aquaculture.
- Forestry and logging – other than kauri gum digging and the gathering of native orchids, pine cones, resins or mushrooms!
- Fishing, hunting and trapping – other than hunting for turtle, buffalo, crocodile, dingo, kangaroo and snake!!
- Coal mining.
- Food product manufacturing – other than baking product manufacturing carried out in the home or a non-factory environment.
- Water supply, sewerage and drainage services.
- Waste collection, treatment and disposal services.
- Building construction.
- Heavy and civil engineering.
- Construction services – other than curtain and fly screen installation.
Number of Representatives
The minimum ratio is 1 representative for every 19 workers. There are a number of factors to consider before determining the size of a work group, including:
- The number of workers
- The views of the workers
- The number of different places of work and the distances between them
- The number and grouping of workers carrying out the same or similar work
- The nature of the areas or places where the work is carried out
- The extent to which a worker must move from place to place
- The diversity of workers and their work
- The nature of any hazards
- The nature of the working arrangement, such as employee or contractor
- The pattern of work carried out, such as full time, part time, casual etc
- The time at which work is carried out
- Any arrangements concerning overtime and shift work.
To be eligible to stand for election a worker must be a member of the work group concerned and work a sufficient amount of time to be able to carry out the functions effectively. A worker can nominate themselves or any other worker in the work group. Only workers in the work group concerned may vote.
The PCBU must carry out the election within 3 months of a request being made by a worker and must facilitate the process by:
- Providing resources, facilities and assistance, including payment of costs associated with providing information about candidates to the workers, the election process, the calculation of results and the communication of the results.
- Informing the workers what group they are in and the number of reps to be elected.
- Providing the workers’ representatives (unions or otherwise) with the above information.
- Calling for nominations.
- Determining whether an election needs to be held.
The election may be conducted by the PCBU, the workers, a worker representative, or any combination of the above. A secret ballot is required if requested by a candidate, a worker or the PCBU.
Term of Office
The maximum period for one term is three years, but there is no limit on the number of terms. However, a representative may resign at any time. A list of representatives must be displayed prominently in the workplace.
Workers must be trained to be safety representatives. The initial training requirement is completed when the worker has achieved the NZQA unit standard (TBA). A PCBU must pay the representatives fees and expenses for the training. The maximum paid leave is much like that applying for union delegates:
- 1-5 workers - 2 days per year
- 6-50 workers - 6 days
- 51-280 workers - 1 day for every 8 workers
- 281 workers or more - 35 days plus 5 days for every 100 workers.
For the above purposes the year starts from 1 April unless otherwise agreed.
Health and Safety Committees
A health and safety representative or five or more workers may request that a health and safety committee be formed. The PCBU has 2 months to decide whether to agree to the request and the decision must be advised to the workers within 14 days of the decision being made.
The makeup of the committee is to be determined by agreement between the PCBU and the workers. However, one of the members appointed by the PCBU must be authorised to make decisions binding the PCBU and at least half the members must be nominated by the workers and not nominated by the PCBU. Each H&S representative is eligible to be a member of the committee.