Health and Safety Representatives: The Powers They Hold.
22 August 2016
Breaking down the Health and Safety at Work Act – Health and Safety Reps: The Powers They Hold.
The HSW Act gives powers to HSRs AFTER they have been trained. The powers are -
- Issuing Provisional Improvement Notices (PIN) to address a health or safety problem, and
- Directing a worker to cease work that would expose them to serious risk arising from an immediate or imminent exposure to a hazard, which supports the existing right for a worker to cease work in this situation. (to be covered in next month's newsletter)
Provisional Improvement Notices (PIN)
If an HSR has reason to believe that a person is failing to do what is required (contravene) or is likely to fail to do what is required by the HSW Act or its regulations. The HSR may issue a provisional improvement notice requiring the person to
- Avoid the likely contravention
- Remedy the contravention; or
- Mitigate the things or activities causing the contravention or likely to cause a contravention.
A Provisional Improvement Notice must state-Read-more
- The HSR believes the person is contravening, or is likely to contravene, a provision of this Act or regulations; and
- The provision the HSR believes is being, or is likely to be, contravened; and
- Briefly, how the provision is being, or is likely to be, contravened; and
- The date when the person is required to remedy the contravention or likely contravention which must at least 8 days after the notice is issued.
Before issuing a Provisional Improvement Notices:
An HSR Must:
- Complete the initial training where he or she was assessed as having achieved for the NZQA Unit Standard 29315
- Consulted with the person he or she wishes to issue with a PIN
- Provide a copy of PIN to the PCBU of the work group that the Health and Safety Representative represents, as soon as practicable
- Ensure the PIN in writing.
An HSR Must Not
- Issue a PIN if an inspector has already issued an improvement notice or a prohibition notice in relation to the same matter.
PIN Consultation and Communication
The following shall be considered when issuing a PIN:
- The HSR must consult with the duty holder prior to issuing the PIN about the contravention, likely contravention, or causes of the contravention or likely contravention.
- An HSR cannot issue a PIN unless the HSR has completed an initial training, as defined in regulations.
- An HSR cannot issue a PIN in relation to a matter if an inspector has already issued an improvement notice or prohibition notice in relation to the same matter (refer to section 69(4) of the Act).
- The duty holder to whom the PIN is issued is responsible for fixing the identified contravention or avoiding the likely contravention by the date written in 'Date compliance with PIN is required' field. It is an offence under section 78 of the Act for the person not to comply with this. Penalties apply. The person may comply with the notice in a different way from that directed by the HSR (refer to section 78(3) of the Act).
- If the PIN recipient wishes to dispute the PIN, they can contact the regulator and request that an inspector review the PIN. This must be done within seven days of the 'Date of issue' of the PIN. The inspector will review and inquire into the circumstances that are the subject of the PIN and can do this even after the compliance date for the PIN has expired (refer to section 79 of the Act). An inspector can confirm, confirm with changes or cancel the PIN. A copy of a decision by an inspector must be given to the applicant for the PIN review and the HSR who issued the PIN. If the PIN is confirmed, with or without changes, the PIN is taken to be an improvement notice issued by the inspector.
- Where there is a serious and immediate risk to the health and safety of any person, a PIN may not be an appropriate means to address the situation. Refer to section 84 of the Act regarding the right of an HSR to direct that unsafe work cease in certain circumstances.
- If there is more than one contravention, a separate PIN for each contravention must be written.
- If the PIN contains irregularities or defects, or fails to use the correct name of the person to whom the PIN is issued, the PIN may still be valid. The PIN will not be valid, however, if the irregularity or defect causes, or is likely to cause, substantial injustice to the PIN recipient or if the PIN fails to sufficiently identify the PIN recipient (refer to section 77 of the Act).
- A reasonable time should be allowed between the 'Date PIN issued' and the 'Date compliance with PIN is required' to enable compliance to be achieved. However, the date for compliance must be at least eight days after the date of issue.
- The HSR should retain a copy of the completed PIN for their records.
- If the issue has not been remedied by the 'Date compliance with PIN is required' and an inspector has not already attended, the regulator should be contacted. If the HSR is a union member, the HSR can also advise their union.
- The PIN recipient must, as soon as practicable, display a copy of the PIN in a prominent place at or near the workplace, or part of the workplace, that is affected by the PIN.
- A person must not intentionally remove, destroy, damage or deface a PIN that is displayed during the period the PIN is in force.
Delivery of a PIN
An HSR can issue a PIN to the relevant duty holder by one of the methods listed in section 116 of the Act:
- delivering it personally to the duty holder
- leaving it for the duty holder at the workplace, to which the PIN relates, with a person who is in charge of that workplace, e.g. leaving it with the area manager
- sending it to the duty holder by electronic transmission
- posting it to the home or business address of the duty holder, or
- leaving it at the home or business of the duty holder, with a person 16 years or over who lives or works there.