Managing Health and Safety: A guide for employers
Involving your employees in health and safety
What is employee participation?
Employees have a right to participate in health and safety processes in their place of work. The Act specifies circumstances where a system is required to be in place to properly canvas the views of employees. The Act promotes working co-operatively and in good faith with your employees (and, where applicable, their union) to establish an effective arrangement for your workplace. Apart from the legal requirements, where employees participate in their workplace safety, research shows this leads to reducing both the number of injuries and their cost.
What could participation involve?
You have a general duty to provide employees with opportunities to be involved in the processes for maintaining health and safety in your workplace. But the legislation does not require any particular system and each workplace can take a practical approach that suits it.
A health and safety committee might include both elected employee and management representatives.
Where you employ 30 or more employees, you must have an agreed employee participation system, and the Act describes a process for reaching agreement.
Where you employ fewer than 30 employees, you must have an agreed employee participation system if one or more employees request it. Even if they don't request a system, you must still provide opportunities for employee involvement in health and safety issues.
This system might include:
- employees electing one or more health and safety representative
- employee surveys
- hazard identification by teams
- external audits that involve employees in the process
- regular weekly meetings where work is reviewed and systems discussed
- anything else that will be effective in your workplace.
What if we can’t reach an agreement?
Consultants, unions and other specialists will be able to help you establish a system. If you can’t reach agreement the Department of Labour provides a mediation service to help you work towards a solution.
If an agreement is required and can’t be reached, a system is set out in the Act (see the diagram on page 19).
This system becomes mandatory if you and your employees have been unable to reach agreement within six months from the latest of:
- the date at which you employed 30 or more employees; or
- the date on which one or more employees requested a system.
What do health and safety representatives do?
Health and safety representatives’ role is to foster good health and safety practice in the workplace. The focus is on:
- promoting health and safety through constructive engagement with management
- identifying hazards and employees’ concerns, and working with management to solve them
- supporting fellow workers who have suffered an injury, including involvement in making arrangements for return to work and rehabilitation
- acting as a conduit for communication of health and safety concerns, including by hazard notice when appropriate.
Health and safety representatives may also be involved in employee induction programmes, training and have input into decisions on purchasing equipment.
In larger businesses, representatives will normally participate in a health and safety committee and communicate to other employees about the issues it considers. Where there is a union in the workplace, it will be able to offer support and information to the representative.
Any employee representative should be given reasonable time in which to carry out their role and be provided with the necessary resources.
In the end, though, you must make the necessary decisions about health and safety issues after taking employees’ input into account.
Who can be health and safety representatives?
Any employee who has worked more than 180 hours in the past 12 months is eligible to be a health and safety representative.
What training can health and safety representatives receive?
Health and safety representatives are entitled to two days’ paid leave each year to attend approved courses. You should receive at least 14 days’ notice of their intention to take leave. You cannot unreasonably decline leave but leave can’t be taken at a time that would unreasonably disrupt your business. This entitlement is subject to a cap in each workplace, so that in those workplaces where there are a number of health and safety representatives the leave provisions are not an excessive burden to the business.
Where you and your employees (and, if applicable, their union) agree, different provisions for leave may be negotiated. This could provide for on-site or in-house training arrangements.
What is a hazard notice?
Once a health and safety representative is trained, he or she is authorised to issue hazard notices.
When a hazard is identified in the workplace, the first response of a health and safety representative should be to inform you and seek to reach a suitable solution.
You and the representative should undertake these discussions in good faith and with an open mind. Where agreement cannot be reached because you do not believe that a hazard exists, or because a solution acceptable to both of you cannot be found or implemented, the representative may decide to issue a hazard notice.
(See the section on “infringement notices”: a hazard notice may be a warning that could result later in an infringement notice from an Inspector.)
The Act provides that such a hazard notice:
- must describe the hazard identified; and
- may identify steps to deal with the hazard.
Once a hazard notice is issued, the health and safety representative can notify a health and safety inspector, who may decide to visit the workplace to review the issue.
Receipt of a notice does not require you to take any specific action, and there is no requirement that work cease in the area or on the equipment concerned. But the notice is a strong indication of the concerns held by the representative, and you should only not respond if you reasonably believe you need to do nothing more.
Your response, and reasoning, may be important if an accident occurs and it may be useful to document your decision.
Can employees refuse to work in some circumstances?
An employee may refuse to perform work that he or she believes is likely to cause serious harm.
They may only continue to refuse to carry out that work if, after discussing the matter with the employer, the matter is not resolved and the employee still believes on reasonable grounds that the work is likely to cause them serious harm.
In the first instance, you and your employees (and their representatives if necessary) should be working together in good faith to identify the cause of any problems and resolving these issues yourselves. If this is not successful, you can call the Department of Labour.
An employee who refuses to do work because they believe it is likely to cause him or her serious harm must do any other work reasonably requested by the employer.
Any unresolved problems can be dealt with as employment relationship problems under the Employment Relations Act.
What is the role of unions under this legislation?
Like everyone else, unions are required to act in good faith to help resolve health and safety issues.
The rights of unions under the Health and Safety in Employment Act flow from the rights of registered unions to represent their members, which are granted under the Employment Relations Act. Union delegates represent members collectively on health and safety matters and may enter the workplace (subject to notice requirements) to deal with health and safety and other issues.
If employees wish, their union can assist or represent them in developing a system of participation and in any employment relationship problem that emerges while seeking to agree on a system.
However, the legislation covers the entire workforce whether they are collectively represented or not. Therefore it is important for you to consider the interests of employees who are not in the union as you establish systems, processes, representatives or a committee.