Draft Exposure Worker Participation Regulations

The Ministry of Business, Innovation and Employment (MBIE) has now released the exposure draft for the Health and Safety at Work (Worker Engagement, Participation, and Representation) Regulations 2016 (Worker Participation Regulations). This is the first draft to be released since the Health and Safety at Work Act 2015 (Act) received royal assent on 4 September 2015. A copy of the draft regulations can be found here. MBIE has also released a question and answer document about the draft regulations, which can be found here.

The draft Worker Participation Regulations are open for consultation until Friday 30 October 2015. MBIE is seeking feedback, in particular, on the prescription of high risk industries and sectors, and certain issues relating to work groups, health and safety representative training, and offences and penalties.

MBIE has also signalled that by the end of the year the Government will make its final decisions on the previously released exposure drafts of regulations.

MBIE has also signalled that by the end of the year the Government will make its final decisions on the previously released exposure drafts of regulations.

Worker Participation Regulations

The draft Worker Participation Regulations outline procedural requirements that will apply when workplaces have health and safety representatives or committees (which are the formal worker representation mechanisms provided for by the Act). The regulations supplement and expand on the provisions of the Act. They are intended to assist duty-holders in meeting their obligations under the Act to have effective worker participation practices.

In summary, the draft Worker Participation Regulations deal with the following matters:

  • The prescription of high risk industries and sectors (discussed in more detail below).
  • Requirements applying to the determination of work groups, if the person conducting a business or undertaking (PCBU) considers that it would be inappropriate for the work group to consist of all the workers in the business or undertaking (again, discussed in more detail below).
  • Regulations relating to health and safety representatives, including:
    • The criteria for a worker to be eligible for a position as a health and safety representative.
    • The framework for electing health and safety representatives, including the obligations of a PCBU in relation to elections and a prohibition on a PCBU unreasonably delaying an election.
    • The term of office for health and safety representatives.
    • A requirement for PCBUs to who are required to display and keep up to date a list of all health and safety representatives.
    • Regulations governing the training of health and safety representatives, including PCBUs duties in relation to allowing access to and funding training, and the maximum total number of days’ paid leave that a PCBU must allow (which depends on the number of workers who work for the PCBU).
  • Regulations concerning the membership and meetings of health and safety committees.
  • The power for an inspector to resolve issues relating to training for a health and safety representative (both the timing of training and the amount or nature of the reasonable expenses that a PCBU must pay), and to the membership of a health and safety committee.

The prescription of high risk industries and sectors

The new Act exempts PCBUs operating small businesses (with fewer than 20 workers) from having to agree to a request from workers for health and safety representatives or committees, unless the business operates in a specified high risk industry or sector.

The definition of ‘high risk industries and sectors’ in the draft Worker Participation Regulations would include any PCBU:

  • Covered by the adventure activities, major hazard facilities, mining operations and quarrying operations, or petroleum exploration and extraction regulations.
  • Operating predominantly in the aquaculture, forestry and logging, fishing, hunting, and trapping, coal mining, food product manufacturing, water supply, sewerage, and drainage services, waste collection, treatment, and disposal services, building construction, heavy and civil engineering construction, or construction services sectors or industries (using the Australian and New Zealand Standard Industrial Classification published by Statistics New Zealand). However, there are certain exclusions proposed for work types not considered high risk.

MBIE is now seeking feedback on this definition of high risk industries and sectors, specifically:

  • The criteria used to identify high risk sectors or industries.
  • The industries and sectors that are proposed to be specified as high risk sectors or industries (listed in draft regulation 5 and draft schedule 2).
  • The work activities that are proposed to be excluded from the specified high risk sectors or industries (listed in draft schedule 3).

Work groups

MBIE has also requested feedback on work groups. In particular it is seeking feedback on:

  • The proposed minimum ratio of one health and safety representative to every 19 workers when the default work group – namely, where the work group comprises all the workers in the business or undertaking – is used (draft regulation 6). In order to be a representative an individual must be a worker in the work group.
  • The factors a PCBU must take into account when determining a work group, if the default work group is not used, and the number of health and safety representatives needed. These are proposed to also be the factors PCBUs must take into account when determining work groups that cover two or more PCBUs (draft regulation 7).
  • The regulation specifying that if a PCBU withdraws from a multiple PCBU work group arrangement this does not affect the validity of the work groups for the remaining PCBUs (draft regulation 8).
  • A requirement on PCBUs to notify workers and their representatives of the determination of any work groups in a timely manner (draft regulation 16(b)-(c)).

Health and safety representative training

While health and safety representative training has largely been decided already, MBIE is requesting feedback on two issues:

  • The training courses health and safety representatives are able to attend for initial training (that when completed will allow them to issue provisional improvement notices and direct unsafe work to cease) and additional training (draft regulation 21).
  • The maximum total number of days’ paid leave that a PCBU must allow across the entire business for health and safety representative training (draft regulation 26).

Offences and penalties

Finally, MBIE also wishes to receive feedback on whether the criminal offences and maximum penalties identified in the exposure draft are appropriate. Additionally, feedback is being sought on whether the following infringement offences and fees are appropriate:

  • If a PCBU fails to display an up-to-date list of health and safety representatives (draft regulation 20) – a maximum fine of $600 for an individual or $3,000 for entities; and
  • If a PCBU fails to allow a health and safety representative access to training within three months of a request (draft regulation 24(1)) – a maximum fine of $1,800 for an individual or $9,000 for entities.

How we can help you

The draft Worker Participation Regulations may have a significant impact on current business practices and compliance costs once the Act is in force. We regularly assist clients to understand and comply with their current and anticipated health and safety obligations, including making submissions on proposed changes. We would be happy to now assist you with responding to the draft exposure Worker Participation Regulations. If you would like to know more about engaging in the consultation process or the effect that the proposed regulations may have on your workplace, our team would be delighted to help.