Module One, Part E - Duties and rights of Workers and Other Persons

Duties and rights of Workers and Other Persons (sections 45 and 46)

This section contains information on the following topics:

Who is a Worker? (section 19)

A worker is an individual who carries out work in any capacity for the person conducting a business or undertaking (PCBU)

A worker includes:

  • A council employee (as defined under section 6 of the Employment Relations Act 2000)
  • A contractor or sub-contractor to the Council
  • An employee of a contractor or sub-contractor to the Council
  • An employee of a labour hire company who is working for the Council
  • A council apprentice or trainee
  • A council outworker (including a homeworker)
  • A person on work experience or a work trial at the Council
  • A council volunteer worker
  • Other persons defined as workers in regulations under the Health and Safety at Work Act 2015 (HSWA)

A worker DOES NOT include a council volunteer that does not meet the criteria to be treated as a volunteer worker. See section 19(3) HSWA.

 

Workers' rights to a safe and healthy workplace

Workers are entitled to:

  • so far as reasonably practicable, work in environments that are without risks to health and safety  (section 36(3)(a))
  • access to adequate facilities, such as toilets, washing facilities and first aid in the workplace (section 36(3)(e))
  • have sufficient training, information and support on how to do their job safely (section 36(3)(f))
  • be engaged with about health and safety matters at the workplace (section 58)
  • have personal protective equipment (PPE)
  • ask for a health and safety representative (HSR) to be elected (section 62)

Providing and maintaining a safe and healthy work environment (section 36(3)(a))

A council, as a PCBU must, so far as is reasonably practicable, provide and maintain a work environment that is without health and safety risks.  This is described more fully under The PCBU and the Primary Duty of Care

The work environment includes:

  • the physical work environment, (including lighting, ventilation, dust, heat and noise.)
  • the psychological work environment, (including overcrowding, deadlines, work arrangements (e.g. the effects of shift-work and overtime arrangements), and impairments that affect a person’s behaviour, such as work-related stress and fatigue, and drugs and alcohol.)

 

Rights to stop or refuse to carry out work (section 83)

Workers have rights to stop or refuse to carry out work, if they believe that in doing the work it will expose them or others to a serious health or safety risk from an immediate or imminent exposure to a hazard.

Workers have obligations if they refuse to carry out work.  A worker may only continue to refuse to carry out work if:

  • the worker attempts to resolve the matter with the Council as soon as practicable after first refusing to do the work (section 83(2)(a));
  • the matter is not resolved (section 83(2)(b)); 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 and safety arising from an immediate or imminent exposure to a hazard (section 83(2)(c)).

A worker who ceases work must, as soon as practicable, notify the Council that the worker has ceased work and try to resolve the issue with the Council.

Workers cannot refuse work if the nature of the work usually carries understood health and safety risks and these risks have not materially increased (section 83(5)).

A worker, council or HSR can ask WorkSafe as the regulator to assist in resolving any issues relating to a worker stopping or refusing to do work.

 

Worker Protection

Hi Viz Fact #3

A workers' employment cannot be terminated because they report a health and safety issue or refuse to work because they believe on reasonable grounds it's unsafe to do so. It's against the law. 

A person or Council must not engage in adverse conduct against a worker because they have spoken up about workplace health and safety. It's against the law.

 

Workers should be able to carry out health and safety related activities or functions without worrying that there may be negative consequences. Sections 88-93 of the HSWA prohibits any adverse, coercive or misleading conduct against a worker. No one is allowed to knowingly or recklessly mislead people about their roles, powers or entitlements under the HSWA. This is an offence. It is also an offence to influence another person to engage in this type of conduct. For example by requesting, encouraging or assisting someone to engage in adverse conduct.

All current and prospective workers are protected from a Council engaging in adverse conduct where the worker or prospective worker is carrying out health and safety related activities or has raised any concerns about health and safety.  Every Council must ensure, so far as is reasonably practicable, the health and safety of their workers and that other people are not put at risk by its work.

Section 89 of HSWA protects workers from adverse conduct in relation to work health and safety when the worker is:

  • raising an issue or concern about health and safety as set out in section 89(h)
  • ceasing work because it is believed to be unsafe or unhealthy
  • taking part in resolving a health and safety issue
  • taking action to seek compliance
  • acting as an HSR, a member of an Health and Safety Committee (HSC), or other role under HSWA
  • using the lawful powers as an HSR or member of an HSC, for example directing someone to cease unsafe work.

 

Actions which amount to adverse conduct include doing, or threatening to do, any of the following for a prohibited health and safety reason:

  • dismissing or refusing the employment of a worker or contractor.
  • terminating or refusing to enter an agreement with a worker or contractor.
  • refusing to offer a worker or another worker the same work conditions available to similar workers e.g. terms of employment, training, or promotion.
  • treating a worker differently to similar workers in a way that negatively impacts employment, job performance or satisfaction.

A "prescribed safety reason" is set out in section 89 HSWA.  

It is also against the law if anyone:

  • seeks to threaten someone so that they use (or don’t use) a power under HSWA (section 92).
  • seeks to threaten workers so they stop being an HSR or HSC member (section 92).
  • deliberately tells false or misleading information about HSWA. This includes false information about rights, obligations, ability to start and participate in health and safety processes or make a complaint (section 93).

An employee who wishes to take action against an employer (or former employer) in respect of adverse conduct for a prohibited health and safety reason may bring a personal grievance under the Employment Relations Act 2000 (section 110A of that Act).

 

Worker engagement and participation (sections 58 and 61)

As a PCBU, a council has a duty to engage with workers and to have worker participation practices in the workplace.

As a PCBU, a council has two related duties:

  • to, so far as is reasonably practicable, engage with workers who carry out work for them on health and safety matters that may directly affect them (section 58)
  • to have practices that give their workers reasonable opportunities to participate effectively in improving health and safety in the business or undertaking on an on-going basis (these are known as worker participation practices) (section 61).

These duties only extend to workers who carry out work for the Council.

Worker engagement and worker participation practices can be direct or through representation.  Health and Safety Representatives (HSRs) and Health and Safety Committees (HSCs) are two well established methods of representation.  Workers have rights and PCBU’s have obligations towards these representatives and committees.  Workers can also be represented by unions, community or church leaders, lawyers, respected members of ethnic communities, or people working on specific projects.

 

Direct engagement and participation

Hi Viz Fact #4

The ways for workers to participate in work health and safety should be clear and well known to all.

Workers are entitled to:

  • express their views and contribute to the health and safety decision making process at the workplace
  • ask for health and safety representation (section 62)

Though the election is not a formal requirement, workers should speak up if they are concerned, or want to suggest an improvement.

Workers play an important part in your workplace health and safety. Speaking up can make a difference. A worker's place of work must ensure opportunities for any health and safety matters to be raised, and consider workers suggestions on how to improve health and safety at work.  This includes:

  • asking for workers' views on matters which relate to health and safety, and
  • having ways for workers to participate in improving work health and safety on a day to day basis.

The ways for workers to contribute should be clear and well known to all.

Workers don’t have any legal obligation to respond when asked for their views.  However, by participating workers are helping ensure that the right issues are taken into account, and that the results are practical for all workers.

Workers that may have a suggestion or a concern but do not feel comfortable raising them can talk to HSRs if the workplace has any, ask colleagues to raise the issue or contact union representatives who can advocate for workers' concerns and negotiate solutions.

 

Engagement and participation with health and safety representatives

Workers can request a Council, as PCBU appoints one or more health and safety HSRs.  A Council must conduct an election within two months, unless (section 62(4)):

  • the Council has fewer than 20 workers; and
  • the activity of the Council is not deemed a high-risk activity

Most Councils employ more than 20 workers and/or conduct activities deemed high risk, namely water supply, sewerage and drainage services and waste collection, treatment and disposal services. Therefore, if requested councils who fit these categories will need to conduct an election for HSR.

An HSR is elected for a maximum term of three years.  There is no limit to the number of terms an HSR may be re-elected.

 

Functions and powers of an HSR (schedule 2 HSWA)

The functions and powers of an HSR, in regard to the workers they represent include:

  • to represent the workers in matters relating to health and safety:
  • to investigate complaints from workers regarding health and safety:
  • if requested by a worker, to represent the worker in relation to a matter relating to health and safety (including a complaint):
  • to monitor the measures taken by the Council, as a PCBU that are relevant to health and safety:
  • to inquire into anything that appears to be a risk to the health or safety of workers arising from the conduct of the business or undertaking:
  • to make recommendations relating to work health and safety:
  • to provide feedback to the Council about whether the requirements of this Act or regulations are being complied with:
  • to promote the interests of workers who have been harmed at work, including in relation to arrangements for rehabilitation and return to work.

The powers are subject to conditions, which generally restrict them to the workplace or work group the worker is elected to represent.  The powers do not override any worker's right to privacy, or workplace health and safety.  The powers include authority when performing the functions of a HSR to:

  • attend an interview about workplace health and safety between a worker and an inspector or a PCBU (with the worker's consent).
  • enter and inspect the work place
  • request information from a Council, as a PCBU
  • receive assistance from another person
  • give assistance to another HSR
  • accompany an inspector on a workplace inspection
  • consult a regulator or inspector

 

Engagement and participation by health and safety committees (section 66)

An HSR, or a group of five or more workers, can request a Council, as a PCBU to establish an HSC for the business or part of it.  A Council must decide whether or not to establish a Committee within two months, unless:

  • the workplace has fewer than 20 workers; and
  • the activity in the work place is not deemed a high-risk activity

For the reasons noted above, most councils will have to establish a Committee.

A Council can refuse to establish a Committee if it believes its existing worker participation practices meet the requirements of section 61, HSWA.  Those requirements are set out in section 61, HSWA.

In summary, a Council must have practices that provide reasonable opportunities for workers to participate effectively in improving work health and safety on an ongoing basis.  In doing so, the Council must

  • comply with prescribed requirements
  • take into account any approved code of practice

"Reasonable opportunities" means opportunities that are reasonable having regard to:

  • the number of workers in the business
  • the number of different workplaces of the business and the distance between them
  • the likely risks to work health and safety in the business and the level of those risks
  • the nature of the work that is performed and the way that it is arranged or managed
  • the nature of the employment arrangements or contracting arrangements, including the extent and regularity of employment or engagement of temporary workers
  • the willingness of workers and their representatives to develop worker participation practices
  • the duty to act in good faith under section 4 of the Employment Relations Act 2000.

 

Workers' Duties (section 45)

 Workers must:

  • Take reasonable care of their own health and safety
  • Take reasonable care that what they do (or do not do) does not adversely affect the health and safety of other persons
  • Co-operate with any reasonable workplace health and safety policy or procedure that has been notified to workers
  • Comply, so far as reasonably able, with any reasonable instruction given by the council, so that the council can comply with HSWA and regulations

 

Duties to Other Persons at workplaces (section 46)

Councils, as PCBUs, must ensure, so far as is reasonably practicable, as its primary duty of care, the health and safety of workers, and that other people are not put at risk by its work.  Examples include:

  • Workplace visitors
    • people on tours of the workplace
    • people visiting the Council or its workers for meetings
    • people attending a council meeting
    • library users
    • Customers/ratepayers paying a bill or seeking information
  • People who pay the Council to do something at the workplace
    • Hiring a council building room for a meeting or other public event
  • Casual volunteers at workplaces (not volunteer workers)
  • Any member of the public who could come into contact with a council workplace activity

 

Duties of Other Persons

Other persons also have their own duty under section 46 of HSWA.

Other persons at workplaces need to:

  • take reasonable care for their own health and safety, and
  • take reasonable care that others are not harmed by something they do , or do not do
  • Comply, as far as they are reasonably able, with the Council's reasonable health and safety instructions that are given so that the Council can comply with HSWA or regulations

Other persons need to take reasonable care that anything they do (or do not do) will not cause other harm. They can be legally responsible if they cause someone harm and did not take reasonable care.