Health and Safety Representatives: The Powers They Hold. Part 2.
26 September 2016
HEALTH AND SAFETY REPRESENTATIVES (HSRs)
The Health and Safety at Work Act (HSWA) gives powers to HSRs AFTER they have been trained. The powers are -
- Issuing Provisional Improvement Notices (PIN) to address a health or safety problem, (covered in last month's newsletter) 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.
REFUSAL AND CESSATION OF WORK
Worker rights to refuse to perform unsafe work
Under the HSW Act a worker maintains the right to cease or refuse to carry out unsafe work if the worker believes that carrying out the work would expose themselves or others to a serious health and safety risk health arising from an immediate or imminent exposure to a hazard. The belief must be held in good faith. There are exceptions where the work being undertaken has inherent and accepted risks, such as policing, firefighting or working with flammable materials.
The Persons Conducting Business or Undertaking (PCBU) must be advised as soon as practicable, should the right to refuse work be invoked.
A worker may continue to refuse to carry out the work if:
- the worker attempts to resolve the matter with the PCBU as soon as practicable after first refusing to do the work; and
- the matter is not resolved; and
- the worker believes on reasonable grounds that carrying out the work would expose the worker or any other person to a serious risk to the worker's or other person's health or safety arising from an immediate or imminent exposure to a hazard.
A dispute over an employee's refusal to do work they believe is unsafe is considered an "employment relationship problem" and can be resolved using mediation and dispute resolution processes available under the Employment Relations Act 2000.
The Ministry of Business, Innovation & Employment (MBIE) can provide free mediation services for employers and employees experiencing employment relationship problems. If the dispute is not resolved in mediation, the Employment Relations Authority is available to formally investigate issues and decide what the most appropriate course of action could be.
If the worker and the PCBU have made reasonable efforts but are still unable to resolve the issue, the PCBU or the worker may contact WorkSafe for further assistance.
At any time a worker may approach their HSR for assistance and support.
HSR May Direct Workers to Cease Work
If reasonable grounds exist an HSR may advise worker(s) to cease unsafe work if the HSR believes that carrying out the work would expose others to a serious health and safety risk health arising from an immediate or imminent exposure to a hazard.
The HSR should consult with the PCBU about the matter first before giving the direction. If, after a reasonable time, the PCBU does not act appropriately, they can then give the direction. However if the risk is serious enough, the HSR may direct the worker to cease work immediately without consulting the PCBU. The HSR must notify the PCBU that a direction has been given.
If the HSR and the PCBU have made reasonable efforts but are still unable to resolve the issue, the PCBU or the HSR may contact WorkSafe for assistance.
This power supports the general right of all workers to cease work in this situation. They don't need to wait for a direction from an HSR.
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