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Businesses have the best chance at keeping the workplace safe if everyone is given the opportunity to have a say in relation to health and safety issues – Image ©123RF.com

Starting 2018 right: worker engagement under the HSWA – By Jennifer Mills and Jess Greenheld

New Zealand’s health and safety regulator, WorkSafe, has quickly brought the issue of health and safety engagement to the forefront this year, urging employers to “start 2018 right” by taking time to discuss the importance of health and safety with their team members and making plans to address issues if they arise.

This reflects the specific duty placed on persons conducting a business or undertaking (PCBUs) under the Health and Safety at Work Act (HSWA) to take all reasonably practicable steps to engage with workers who carry out work for the business or undertaking and who are, or are likely to be, directly affected by a matter relating to work health and safety.

In particular, the engagement obligation requires a PCBU to share relevant information regarding health and safety matters with workers in a timely manner, and provide workers with a reasonable opportunity to express their views, raise work health and safety issues, and contribute to any decision-making processes relating to the same.

In addition, the views of workers must be taken into account by the PBCU and the workers must be advised in a timely manner by the PCBU of any outcomes which result.

Duty of engagement

In some circumstances, worker engagement is compulsory. These circumstances include when:
  • • The PCBU is identifying hazards and assessing risks to work health and safety arising from work that will be carried out
  • • Decisions are being made by the PCBU regarding ways in which identified risks can be eliminated or minimised or regarding the adequacy of facilities
  • • The PCBU is proposing changes that may affect the health and safety of workers
  • • The PCBU is making decisions regarding procedures for health and safety monitoring, resolving work health and safety issues at the workplace, or monitoring the conditions of any workplace.
The duty to engage with workers runs in parallel with a similar duty, the duty to have worker participation practices. This requires a PCBU to implement practices which provide reasonable opportunities for workers who carry out work for the PCBU to participate effectively in improving work health and safety on an ongoing basis.

What constitutes a reasonable opportunity will depend on the number of workers within the PCBU, the nature of the work undertaken, the likelihood of risks which the PCBU is exposed to, and the willingness of workers to participate in health and safety matters.

In other words, there is no ‘one size fits all’ approach to worker participation. Instead, PCBUs ought to review their specific health and safety risks and requirements to identify the methods by which it can best involve its workers.

Get the ball rolling

That said, there are a number of steps which businesses may wish to take in order to start the ball rolling early this year. These include:
  • • Make health and safety a routine agenda item at team meetings
  • • Hold regular catch-ups or ‘tool box’ talks with employees – which may be informal and focus on singular health and safety topics
  • • Encourage suggestion schemes, such as notice boards and suggestion boxes
  • • Conduct health and safety surveys
  • • Hold workplace walkabouts, where managers can catch up with workers on an informal basis around the workplace
  • • Enable whole-team discussions on dominant health and safety issues
  • • Make dedicated and easily navigable intranet pages available that are dedicated to health and safety.
Emphasising the importance of cooperation, and indeed the difference it can make in ensuring a workplace is healthy and safe, the HSWA specifies that failure to comply with the above may constitute an offence under the HSWA and attract a maximum fine of $20,000 for an individual or $100,000 for a company.

It does not appear as though a PCBU has been prosecuted in New Zealand under the HSWA for such a failure as yet. However, businesses ought not to take these obligations lightly and, as such, take active steps to ensure that they have systems in place to adequately address their engagement and participation duties on an ongoing basis.

These processes are often assisted by the appointment of health and safety representatives or committees, either at the request of workers or by the PCBU’s own initiative. The function of these persons is essentially to speak or act about health and safety matters on the behalf of workers. This may involve investigating workers’ health and safety complaints, inquiring into health and safety risks, making recommendations, and providing feedback to the PCBU.

Health and safety committees may also play a wider role, helping to develop standards, rules, policies or procedures for work health and safety and facilitate the PCBU’s ability to cooperate with its workers.

Everyone has a part to play

Overall, the imposition of worker engagement and participation duties by the HSWA emphasises that everyone has a part to play in terms of ensuring health and safety under our new workplace health and safety regime.

Workers must be given a reasonable opportunity to acquaint themselves with the specific hazards, risks and issues that arise in their workplace, and have a say in relation to the management practices which are applied.

While some accidents cannot be avoided, businesses have the best chance at keeping the workplace safe if everyone is given the opportunity to have a say in relation to health and safety issues.

Jennifer Mills is a partner and Jess Greenheld a solicitor with Anthony Harper, a leading New Zealand commercial law firm with offices in Auckland and Christchurch www.anthonyharper.co.nz



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