All PCBUs must, so far as is reasonably practicable, engage with workers about health and safety in the workplace.  “Workers” means direct employees, contractors and subcontractors and their employees and any person working in the business who is likely to be directly affected by a matter relating to workplace health or safety.

The penalty for failing to comply with the above obligation is a fine of up to $20,000 for an individual and up to $100,000 for any other person.

This obligation requires:

• Sharing relevant information with workers.
• Providing a reasonable opportunity for workers to express their views and to raise health and safety issues in relation to the matter.
• Allowing workers to contribute to the decision-making process relating to the matter.
• Taking their views into account.
• Advising workers of the outcome in a timely manner.
  
  

“Engagement” in this context applies in relation to:

• Identifying hazards and assessing risks.
• Making decisions about ways to eliminate or minimise those risks.
• Making decisions about facilities for the welfare of workers.
• Proposing changes that may affect the health or safety of workers.
• Making decisions about the procedures for engaging with workers, monitoring their health and safety, monitoring the conditions at the workplace, providing information and training for workers and developing worker participation practices, including when determining the size of work groups.

There is a requirement for PCBUs to have worker participation practices that provide reasonable opportunities for workers to participate effectively in improving health and safety in the business or undertaking on an ongoing basis.

The penalty for failing to comply with the above obligation is a fine of up to $20,000 for an individual and up to $100,000 for any other person.

“Reasonable Opportunities” means opportunities that are reasonable in the circumstances, having regard to relevant matters, such as:

• The number of workers.
• The number of different workplaces involved and the distance between them.
• The likely risks to worker health and safety.
• The nature of the work and the way that it is arranged or managed.
• The employment or contracting arrangements, including the extent of temporary workers.
• The willingness of workers and their representatives to develop worker participation practices.
  
  

For breaches of the above obligation the fine is up to $20,000 for an individual and up to $100,000 for any other person.

A PCBU is required to initiate the election of health and safety representatives in certain circumstances. 

The penalty for failing to comply with the above obligation is a fine of up to $5,000 for an individual and up to $25,000 for any other person.

Note: There is no requirement to initiate the election of health and safety representatives if:

• The business or undertaking is carried out by fewer than 20 workers, and
• The business is not in a high-risk sector or industry.

“High Risk Sector or Industry” means:

• A business covered by regulations concerning Adventure Activities, Major Hazard Facilities, Mining and Quarrying Operations, Petroleum Exploration and Extraction.
• Aquaculture (other than onshore aquaculture).
• Forestry and Logging (other than Kauri Gum digging and the gathering of Native Orchids, Pine Cones, Resin and Mushrooms).
• Fishing Hunting and Trapping (other than hunting for turtles, buffalo, crocodile, dingo, kangaroo and snakes).
• Coal Mining.
• Food Product manufacturing (other than bakery operations which are in the home or non-factory based).
• Water Supply, Sewerage and Drainage services.
• Waste Collection Treatment and Disposal.
• Building Construction (other than curtain and wire fly screen installation).
• Heavy and Civil Engineering construction
• Construction Services.

A PCBU may on its own initiative, initiate the election of 1 or more health and safety representatives to represent workers.

Alternatively a worker may notify the PCBU that they wish to have 1 or more health and safety representatives elected to represent workers in the workplace.  The workers can nominate themselves or nominate other candidates.  If the PCBU receives such notification the election must be initiated within the time prescribed in the regulations (currently within 2 months). There must be a secret ballot if requested by a member of the work group, a candidate or the PCBU.

The PCBU must:

• Provide the resources, facilities and assistance necessary to conduct the election. Note that this includes payment of any costs associated with providing information about the candidates, determining how and when the election will be conducted, calculating the results and communicating the outcome.
• Inform the workers of work group they are in and the number of representatives to be elected.
• Provide the representatives of the workers with the same information.
• Call for nominations.
  
  

A list of representatives and their contact details must be prominently displayed in the workplace.

The default ratio is a minimum of 1 representative for every 19 workers. 

Unless a PCBU determines otherwise, a work group comprises all the workers in the business or undertaking.  In determining otherwise the PCBU must have regard for factors such as:

• The number of workers.
• The views of the workers.
• The number of different places of work.
• The number and grouping of workers who carry out similar work.
• The nature of where the work is performed.
• The extent to which a worker must move from place to place.
• The diversity of the workers and their work.
• The nature of any hazards.
• The nature of the working arrangement.
• The pattern of work carried out.
• The times at which work is carried out.
• Any arrangement relating to shift and overtime work.

The initial training for representatives is in accordance with the NZQA unit standard 29315.

Note: Only health and safety representatives who have completed training for the above unit standard may issue a provisional improvement notice or direct unsafe work to cease.

The PCBU must allow the representative to use their training entitlement as soon as practicable but no later than 3 months after receiving the request.  The PCBU must provide paid leave for health and safety training as follows: 

 The PCBU must:

• Pay the training fees.
• Pay in advance for any reasonable expenses likely to be incurred for the training.
• Reimburse for any other expenses reasonably incurred.

A representative holds office for a maximum term of three years, but may be re-elected for a further term.

A request that the PCBU establish a health and safety committee may be made by:

• A health and safety representative for the group of workers carrying out work at that workplace, or
• 5 or more workers at that workplace.
  
  

The PCBU must decide the matter within 2 months of receiving such request. Written notice must be given to workers as soon as practicable but no later than 14 days after the decision is made.

The penalty for failing to comply with the above obligation is a fine of up to $5,000 for an individual and up to $25,000 for any other person.

Note 1: The PCBU may refuse a request to establish a health and safety committee if it is satisfied that existing worker participation practices at the workplace sufficiently meet the requirements of the Act.

Note 2: There is no requirement to establish a health and safety committee if:

• The business or undertaking is carried out by fewer than 20 workers, and
• The business is not in a high-risk sector or industry.
  
  

“High Risk Sector or Industry” means:

• A business covered by regulations concerning Adventure Activities, Major Hazard Facilities, Mining and Quarrying Operations, Petroleum Exploration and Extraction.
• Aquaculture (other than onshore aquaculture).
• Forestry and Logging (other than Kauri Gum digging and the gathering of Native Orchids, Pine Cones, Resin and Mushrooms).
• Fishing Hunting and Trapping (other than hunting for turtles, buffalo, crocodile, dingo, kangaroo and snakes).
• Coal Mining.
• Food Product manufacturing (other than bakery operations which are in the home or non-factory based).
• Water Supply, Sewerage and Drainage services.
• Waste Collection Treatment and Disposal.
• Building Construction (other than curtain and wire fly screen installation).
• Heavy and Civil Engineering construction
• Construction Services.

The PCBU and the workers must agree on the membership of the committee. However:

• One member appointed by the PCBU must be authorised to make decisions on behalf of the PCBU.
• At least half the members must be workers and must not have been nominated by the PCBU.
• Each health and safety representative is eligible to be a member.
  
  

Meetings must be held at least every three months.

A person must not engage in adverse conduct for a prohibited health and safety reason. In general this means a person may not subject a worker to detriment by virtue of their involvement in health and safety activities.

A person engages in “Adverse Conduct” if they:

• Dismiss a worker who is an employee; or
• Terminate a contract for services with a worker; or
• Refuse or omit to employ or engage any person on work of any description that is available and for which that person is qualified; or
• Refuse or omit to offer or afford to the worker the same terms of employment or engagement, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other workers of the same or substantially similar qualifications, experience, or skills who are employed or engaged in the same or substantially similar circumstances; or
• Subject the worker to any detriment, in circumstances in which other workers employed or engaged by the person on work of that description are not or would not be subjected to such detriment; or
• Retire the worker, or require or cause the worker to retire or resign or terminate a contract for services; or
• The person terminates a commercial arrangement with another person; or
• The person refuses or fails to enter into a commercial arrangement with another person.
  
  

Adverse conduct is engaged in for a “Prohibited health and safety reason” if it is engaged in because the worker:

• Is, has been, or proposes to be a health and safety representative or a member of a health and safety committee.
• Undertakes, has undertaken, or proposes to undertake another role under the Act.
• Performs, has performed, or proposes to perform a function as a health and safety representative or as a member of a health and safety committee.
• Refrains from, has refrained from, or proposes to refrain from performing a function under the Act.
• Exercises, has exercised, or proposes to exercise a power as a health and safety representative.
• Refrains from, has refrained from, or proposes to refrain from exercising a power under the Act.
• Assists, has assisted, or proposes to assist, or gives, has given, or proposes to give, any information to any person performing a function or exercising a power under the Act.
• Raises, has raised, or proposes to raise an issue or concern about health and safety with the PCBU or an inspector.
• Is involved in, has been involved in, or proposes to be involved in resolving a health and safety issue under the Act.
• Is taking action, has taken action, or proposes to take action to seek compliance by any person with any duty or obligation under the Act.
• Has refused to carry out unsafe work.
  
  

The penalty for engaging in adverse action is a fine of up to $100,000 for an individual and up to $500,000 for any other person.