Health and Safety at Work Act 2015

Schedule 2 Health and safety representatives and health and safety committees

s 67

Part 1 Health and safety representatives

Functions and powers of health and safety representatives

1 Functions of health and safety representatives

The functions of a health and safety representative for a work group are—

(a)

to represent the workers in the work group in matters relating to health and safety:

(b)

to investigate complaints from workers in the work group regarding health and safety:

(c)

if requested by a worker in the work group, to represent the worker in relation to a matter relating to health and safety (including a complaint):

(d)

to monitor the measures taken by the PCBU that are relevant to health and safety:

(e)

to inquire into anything that appears to be a risk to the health or safety of workers in the work group arising from the conduct of the business or undertaking:

(f)

to make recommendations relating to work health and safety:

(g)

to provide feedback to the PCBU about whether the requirements of this Act or regulations are being complied with:

(h)

to promote the interests of workers in the work group who have been harmed at work, including in relation to arrangements for rehabilitation and return to work.

Compare: 1992 No 96 s 19W; Model Work Health and Safety Act (Aust) s 68

2 Health and safety representative may attend interview

(1)

With the consent of the worker concerned, a health and safety representative may attend an interview concerning work health and safety between a worker whom the health and safety representative represents and—

(a)

an inspector; or

(b)

the PCBU or the PCBU’s representative.

(2)

With the consent of the workers concerned, a health and safety representative may attend an interview concerning work health and safety between a group of workers whom the health and safety representative represents and—

(a)

an inspector; or

(b)

the PCBU or the PCBU’s representative.

(3)

If subclause (1)(a) or (2)(a) applies, an inspector may refuse to allow a health and safety representative to be present—

(a)

during any discussion in which personal information may be disclosed (unless the person who is the subject of the information has expressly consented to the health and safety representative being present):

(b)

if the inspector believes that the presence of the health and safety representative would prejudice the maintenance of the law, including the investigation and prosecution of offences.

Compare: 1992 No 96 s 19Z

3 Health and safety representative may enter and inspect workplace

(1)

A health and safety representative may, at any reasonable time, enter and inspect any area of a workplace to perform the functions, or exercise the powers, of the health and safety representative.

(2)

Before exercising the power under subclause (1), the health and safety representative must give reasonable notice to the PCBU at that workplace, including reasonable notice of whether the health and safety representative intends to be accompanied by another person in accordance with clause 5(1).

(3)

In exercising the power under this clause, the health and safety representative must comply with any reasonable procedures and requirements that relate to work health and safety.

(4)

Despite subclauses (1) and (2), a health and safety representative may, at any time and without notice, enter and inspect any area of a workplace (including when the health and safety representative is accompanied by another person) in the event of an incident, or any situation involving a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard.

Compare: 1992 No 96 s 19ZA

4 Health and safety representative may request information

(1)

A health and safety representative may request a PCBU to provide any information necessary to enable the health and safety representative to perform his or her functions or exercise his or her powers, including information relating to—

(a)

hazards (including associated risks) at the workplace affecting workers in the work group; and

(b)

subject to clause 11, the health and safety of workers in the work group.

(2)

The health and safety representative may retain and copy any document containing information provided by the PCBU following a request under subclause (1).

5 Health and safety representative may be assisted by another person

(1)

A health and safety representative may, for the purposes of performing or exercising his or her functions or powers under this Act, be accompanied or assisted by another person.

(2)

The following provisions apply, with all necessary modifications, to any person accompanying or assisting a health and safety representative under subclause (1):

(a)

clause 3(3) (compliance with any reasonable procedures and requirements that relate to work health and safety); and

(b)

clause 13 (functions and powers for health and safety purposes only); and

(c)

clause 14 (information to be used for health and safety purposes only).

Compare: Model Work Health and Safety Act (Aust) s 68(2)(g)

6 Health and safety representative in one work group may assist, or act in the capacity of, health and safety representative in another work group

(1)

This clause sets out the circumstances in which a health and safety representative (HSR-A, whose ordinary role is to represent workers in work group A) may, for the purposes of performing or exercising his or her functions or powers under this Act, be accompanied and assisted by another health and safety representative (HSR-B, whose ordinary role is to represent workers in work group B), and when HSR-B may act in the capacity of HSR-A.

(2)

HSR-B may accompany and assist HSR-A, or act in the capacity of HSR-A, in the circumstances in subclause (3), if—

(a)

work group A and work group B consist of workers carrying out work for the same business or undertaking; or

(b)

work group A and work group B are within the same multiple PCBU work group arrangement (as defined in section 64(5)).

(3)

The circumstances are—

(a)

HSR-B may accompany and assist HSR-A, on HSR-A’s request, in the performance or exercise of HSR-A’s functions or powers under this Act; and

(b)

HSR-B may act in the capacity of HSR-A, if—

(i)

a worker in work group A asks for HSR-B’s assistance, and HSR-A is found, after reasonable inquiry, to be unavailable; or

(ii)

HSR-A requests that HSR-B perform his or her functions and exercise his or her powers during a period of absence or in other circumstances that will render HSR-A unavailable to the workers of work group A.

(4)

This clause overrides clause 9(1).

7 Health and safety representative may accompany inspector

(1)

A health and safety representative may accompany an inspector who has entered a workplace under section 168.

(2)

An inspector may refuse to allow a health and safety representative accompanying the inspector under this section to be present—

(a)

during any discussion in which personal information may be disclosed (unless the person who is the subject of the information has expressly consented to the health and safety representative being present):

(b)

if the inspector believes that the presence of the health and safety representative would prejudice the maintenance of the law, including the investigation and prosecution of offences.

Compare: 1992 No 96 s 19ZD

8 Health and safety representative may consult regulator or inspector

A health and safety representative may consult the regulator or an inspector about any work health and safety issue.

Compare: 1992 No 96 s 19ZE

9 Functions and powers of health and safety representative generally limited to particular work group

(1)

A health and safety representative for a work group may perform his or her functions and exercise his or her powers under this Act only in relation to matters that affect, or may affect, the health and safety of workers in that work group.

(2)

Subclause (1) does not apply if—

(a)

there is a serious risk to health or safety arising from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or

(b)

any of the circumstances specified in clause 6(3) apply.

(3)

In this clause, another work group means—

(a)

another work group carrying out work for a business or undertaking that relates to the work group that the health and safety representative represents:

(b)

for a multiple PCBU work group arrangement (as defined in section 64(5)), another work group within that arrangement.

Compare: Model Work Health and Safety Act (Aust) s 69

Obligations of PCBU to health and safety representatives

10 Obligations of PCBU to health and safety representative

(1)

Subject to clause 11, the PCBU must—

(a)

consult, so far as is reasonably practicable, about health and safety matters with any health and safety representative for a work group of workers carrying out work as part of the conduct of the business or undertaking; and

(b)

confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group; and

(c)

allow a health and safety representative to spend as much time as is reasonably necessary to perform his or her functions or exercise his or her powers under this Act; and

(d)

provide any health and safety representative for a work group with any information necessary to enable the health and safety representative to perform his or her functions or exercise his or her powers, including information relating to—

(i)

hazards (including associated risks) at the workplace affecting workers in a work group; and

(ii)

the health and safety of the workers in a work group; and

(e)

allow the health and safety representative to be present at an interview relating to health and safety between a worker and—

(i)

an inspector; or

(ii)

the PCBU at that workplace or the PCBU’s representative; and

(f)

allow the health and safety representative to be present at an interview concerning health and safety between a group of workers and—

(i)

an inspector; or

(ii)

the PCBU at that workplace or the PCBU’s representative; and

(g)

provide to a health and safety representative for the work group, any resources, facilities, and assistance that are reasonably necessary or prescribed by regulations to enable the representative to perform his or her functions and exercise his or her powers under this Act; and

(h)

allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided; and

(i)

permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works.

(2)

If a health and safety representative makes a recommendation regarding work health and safety, the PCBU must, within a reasonable time,—

(a)

adopt the recommendation; or

(b)

provide a written statement to the health and safety representative setting out the reasons for not adopting the recommendation.

(3)

Any time that a health and safety representative spends for the purposes of performing or exercising his or her functions or powers under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(4)

A person who contravenes subclause (1) or (2) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: Model Work Health and Safety Act (Aust) s 70

11 Exceptions to clauses 4(1) and 10(1)

(1)

Despite clauses 4(1) and 10(1), a PCBU—

(a)

must not allow a health and safety representative to have access to any personal information concerning a worker without the worker’s consent unless the information is in a form that—

(i)

does not identify the worker; and

(ii)

could not reasonably be expected to identify the worker; and

(b)

is not required to give financial assistance to a health and safety representative for the purpose of the assistance referred to in clause 5; and

(c)

may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative.

(2)

A person who contravenes subclause (1)(a) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: Model Work Health and Safety Act (Aust) s 71

12 Requirement to allow health and safety representatives to attend certain training

(1)

Subject to subclause (2), if a health and safety representative has been elected to represent workers who carry out work for a business or undertaking, the PCBU must—

(a)

allow the health and safety representative, for the purpose of attending health and safety training,—

(i)

2 days’ paid leave each year; or

(ii)

the number of days’ paid leave that a PCBU must allow a health and safety representative in specific industries to take in a year, as specified in regulations made under section 214(b)(vii); and

(b)

comply with any prescribed requirements relating to access to training for health and safety representatives (including any requirement to meet the costs of that training).

(2)

The number of days’ paid leave that a PCBU must allow a health and safety representative to take in a year is subject to the maximum total number of days’ paid leave that that PCBU is required to allow for health and safety representatives in the whole business or undertaking, as specified in, or determined under, regulations made under section 214(b)(vi).

(3)

The PCBU must pay a health and safety representative for every day or part of a day that the health and safety representative is given time off work to attend training,—

(a)

in the case of a health and safety representative who is an employee of the PCBU, the health and safety representative’s relevant daily pay, as defined in section 9 of the Holidays Act 2003, or average daily pay calculated in accordance with section 9A of that Act (as the case may be):

(b)

in the case of a worker who is not an employee of the PCBU, the pay that the health and safety representative would otherwise be entitled to receive for performing the health and safety representative’s normal duties during that period.

(4)

Subclause (3) does not apply in respect of any day for which the eligible employee or other worker is paid weekly compensation under the Accident Compensation Act 2001.

(5)

A person who contravenes subclause (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

(6)

For the purposes of this clause, year means a period starting on 1 April in a year and ending on 31 March in the following year.

Compare: 1992 No 96 ss 19E, 19F; Model Work Health and Safety Act (Aust) s 72(1)–(4)

Other matters

13 Functions and powers for health and safety purposes only

A health and safety representative must not perform a function or exercise a power under this Act for a purpose other than a health and safety purpose.

Compare: 1992 No 96 s 19ZM

14 Information to be used by health and safety representative for health and safety purposes only

(1)

This section applies to any information obtained by a health and safety representative in the performance of his or her functions or exercise of his or her powers under this Act.

(2)

The health and safety representative may—

(a)

disclose or use the information,—

(i)

if the information is about a person, only with the person’s consent:

(ii)

only to the extent necessary for the performance or exercise of the health and safety representative’s functions or powers under this Act:

(b)

disclose the information—

(i)

to the regulator or a person authorised by the regulator only if the health and safety representative reasonably believes the disclosure is necessary for administering, monitoring, or enforcing compliance with the relevant health and safety legislation:

(ii)

only if the disclosure is authorised or required by law.

(3)

In subclause (2), disclose includes to give any person access to information.

Compare: 1992 No 96 s 19ZN

15 No duty on health and safety representative

Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

Compare: 1992 No 96 s 19X; Model Work Health and Safety Act (Aust) s 68(4)

16 Immunity of health and safety representatives

A health and safety representative is protected from civil and criminal liability for any act done or omitted to be done—

(a)

in the performance or intended performance of his or her functions or the exercise or intended exercise of his or her powers; and

(b)

in good faith.

Compare: 1992 No 96 s 19ZP; Model Work Health and Safety Act (Aust) s 66

17 Regulator may remove health and safety representative

(1)

The regulator may, at its discretion, remove a health and safety representative from office if the regulator considers that the representative has not performed or exercised his or her functions or powers satisfactorily, including if the health and safety representative has—

(a)

performed a function or exercised a power as a health and safety representative for an improper purpose; or

(b)

used or disclosed any information he or she acquired as a health and safety representative in contravention of clause 14.

(2)

The regulator must give written notice of a decision under subclause (1) to—

(a)

the health and safety representative affected by the decision; and

(b)

the PCBU of the health and safety representative.

(3)

The notice under subclause (2) must state—

(a)

the reasons for the regulator’s decision; and

(b)

whether the removal from office is for a specified period or indefinite.

Compare: 1992 No 96 s 19ZR

18 Appeal against removal from office

(1)

A health and safety representative may appeal to the District Court against a decision of the regulator to remove him or her from office.

(2)

An appeal must be brought within 28 days of the date of the notice given under clause 17(2).

Compare: 1992 No 96 s 19ZT

Schedule 2 clause 18(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

19 PCBU may request regulator to exercise discretion to remove health and safety representative

(1)

A PCBU may,—

(a)

request the regulator to exercise its discretion under clause 17(1) to remove a health and safety representative in the PCBU’s business or undertaking; and

(b)

provide any relevant information to support the request.

(2)

After receiving the request, the regulator must decide whether to exercise its discretion to remove the health and safety representative.

(3)

If the regulator decides not to exercise its discretion to remove the health and safety representative, the regulator must give written notice to the PCBU stating the reasons for the regulator’s decision.

(4)

The PCBU may appeal to the District Court against a decision of the regulator not to exercise its discretion to remove the health and safety representative.

(5)

An appeal must be brought within 28 days of the date of the notice given under subclause (3).

Schedule 2 clause 19(4): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Part 2 Health and safety committees

20 Functions of health and safety committee

The functions of a health and safety committee are—

(a)

to facilitate co-operation between the PCBU and workers in instigating, developing, and carrying out measures designed to ensure the workers’ health and safety at work; and

(b)

to assist in developing any standards, rules, policies, or procedures relating to health and safety that are to be followed or complied with at the workplace; and

(c)

to make recommendations relating to work health and safety; and

(d)

to perform any other functions that are—

(i)

agreed between the PCBU and the committee; or

(ii)

prescribed by regulations.

Compare: Model Work Health and Safety Act (Aust) s 77

21 Obligations of PCBU in relation to health and safety committees

(1)

The PCBU must—

(a)

consult, so far as is reasonably practicable, about health and safety matters with a health and safety committee; and

(b)

allow each member of a health and safety committee to spend as much time as is reasonably necessary to attend meetings of the committee or to carry out functions as a member of the committee; and

(c)

provide the health and safety committee with any information that is necessary to enable the committee to perform its functions, including information relating to—

(i)

hazards (including associated risks) at the workplace; and

(ii)

the health and safety of the workers at the workplace.

(2)

If a health and safety committee makes a recommendation regarding work health and safety, the PCBU must, within a reasonable time,—

(a)

adopt the recommendation; or

(b)

provide a written statement to the health and safety committee setting out the reasons for not adopting the recommendation.

(3)

Any time that a member of a health and safety committee spends for the purposes set out in subclause (1) must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(4)

Despite subclause (1)(c), the PCBU must not allow the health and safety committee to have access to any personal information concerning a worker without the worker’s consent unless the information is in a form that—

(a)

does not identify the worker; and

(b)

could not reasonably be expected to identify the worker.

(5)

A person who contravenes subclause (1), (2), or (4) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: 1992 No 96 s 19B(4); Model Work Health and Safety Act (Aust) s 79

22 Information to be used by health and safety committee for health and safety purposes only

(1)

This clause applies to any information obtained by a member of a health and safety committee in the performance of the committee’s functions under this Act.

(2)

The member may—

(a)

disclose or use the information,—

(i)

if the information is about a person, only with the person’s consent:

(ii)

only to the extent necessary for the performance of the health and safety committee’s functions under this Act:

(b)

disclose the information—

(i)

to the regulator or a person authorised by the regulator only if the member reasonably believes the disclosure is necessary for administering, monitoring, or enforcing compliance with the relevant health and safety legislation:

(ii)

only if the disclosure is authorised or required by law.

(3)

In subclause (2), disclose includes to give any person access to information.

Compare: 1992 No 96 s 19ZN