Legally I don't see why you cannot issue a provisional improvement notice to a worker - the sections states it can be issued requiring the person to take action if the HSR reasonably believes the person is contravening a provision of the act... but regarding a worker this would be just S45 only. And in fact S79 essentially clears up that the person the PIN is issued to can be a worker.

Practically it is probably not a very effective way in dealing with the situation as,

• you have to give them at least 8 days to comply
• they can request a WorkSafe Inspector reviews the notice up to 7 days after it's issued
• If they make the request above the notice is delayed until the inspector makes a decision (no time frame on this, just ASAP so could be a while as most of them will be under pressure to deal with "more important things")
• If the inspector agrees with the notice they have to treat it as if they issued the improvement notice (probably a touchy subject for WorkSafe to issue a worker an improvement notice)

How do the rest of the workers feel about issuing this particular worker a provisional improvement notice? Remembering that the HSR is there to represent the work group not the PCBU

Lastly I get the feeling that this worker is protecting someone (either themselves or a workmate) - if this is the case then ensuring that your incident investigation process is focused on safety improvements rather than fault finding or blame will likely be much more beneficial than forcing the worker to comply.

Although a worker has the option of taking a personal grievance, does the HSWA allow an HSR to issue a PIN for contravention of the applicable clauses? — Benjamin Basevi

HSWA S69(2) describes who a HSR may issue a PIN to. That is, a person or PCBU. See here WorksafeNZ trained HSR PINs for the description.
HSWA S70 describes the general qualifications for a trained HSR to attain in order to be able to issue a PIN. That is, the worker must have completed training in accordance with regulations.
WEPR Regs S21 describes the training required for S70(a) and S85(a) of HSWA. That is, the HSR must have passed NZ Unit Standard 29315.

It seems strange if you cannot i.e. you can issue a PIN to an employer for not providing update HSR training but not for action taken to prevent/interfere with a legitimate HSR investigation, which is a way more serious thing. — Benjamin Basevi

Your statement here is confusing and needs to be clarified.
WEPR Regs S24 and S26 specify HSR annual training entitlements including the response time from the PCBU.
Please describe your interpretation of "a legitimate HSR investigation" given trained HSRs do not have duties, only functions and powers. See WEPR Regs S10(c) and HSWA S19(1)(d). Note that HSWA S19(1)(d) applies to mining operations.



Benjamin, you may not agree, but for me, the initial question is a red flag indicating a lack of training and knowledge. I have referred here to HSRs as being trained because trained HSRs are aware of their function and powers as well as the process prior to issuing a PIN.

Let me clarify a hypothetical situation:
Trained HSR (A) is conducting an investigation into a serious health and safety matter for another work group (B) where HSR-A is acting in the capacity of HSR under same PCBU but different workgroup. HSR B is unavailable and they and workers of workgroup B have requested HSR-A to assist resolving a serious H&S matter. Officer of the PCBU issues a cease and desist instruction to HSR-A in relation to assisting work group B. The processes prior to issue of a PIN have been complied with. HSR PIN training does not cover this situation.

Continuing this hypothetical situation, HSR-A has submitted a section 99 request to the particular regulator concerned. The regulator is informed of this new development and does not intervene in any way or form.

Would HSR-A be acting appropriately and in line with the HSWA if a PIN was issued to the PCBU for prohibited adverse conduct?

Trained HSR (A) is conducting an investigation into a serious health and safety matter for another work group (B) where HSR-A is acting in the capacity of HSR under same PCBU but different workgroup. HSR B is unavailable and they and workers of workgroup B have requested HSR-A to assist resolving a serious H&S matter. — Benjamin Basevi

The trained HSR (A) is not eligible to act as a HSR for work group (B). See WEPR Regs S9(1) and 10(a) and (c). These explain that a HSR must be a member of and elected by the work group.

In the scenario you have presented, the trained HSR (A) cannot represent work group B as the person is not a member of the workgroup. Therefore all activities by HSR (A) for work group B are invalid.

The only worker who can represent work group B is a member of the work group who has been elected. Depending on the size of the work group, it may be eligible for more than one HSR.as detailed in WEPR Regs S6.

Members of work group B cannot 'select' an alternative representative without HSR B first resigning and new elections taking place as described in WEPR Regs S6 to S17 inclusive.

Officer of the PCBU issues a cease and desist instruction to HSR-A in relation to assisting work group B. — Benjamin Basevi

In this scenario and for the reasons above, this is a valid request by the PCBU.

The processes prior to issue of a PIN have been complied with. HSR PIN training does not cover this situation. — Benjamin Basevi

Not relevant in this scenario for the reasons above.

Continuing this hypothetical situation, HSR-A has submitted a section 99 request to the particular regulator concerned. The regulator is informed of this new development and does not intervene in any way or form. — Benjamin Basevi

It is not possible to answer this since the criteria for the request to the regulator is not stated and the details of the efforts for resolution (see HSWA S98) are not included.
Also with the trained HSR (A) not eligible to represent work group B, involvement by the regulator may not occur.

Would HSR-A be acting appropriately and in line with the HSWA if a PIN was issued to the PCBU for prohibited adverse conduct? — Benjamin Basevi

As for the reasons first detailed above, no.



Benjamin, the way I see it is this scenario appears to have started within the realms of health and safety, been moved to potentially being an employment issue by workers acting outside legal guidelines and soured the relationship between workers and an officer of the PCBU.

A possible solution is for HSR(A) to stop all involvement, work group B to elect a trained HSR from within the members and HSR(A) to allow HSR B to be the contact for members of work group B. To re-sweeten relationships, HSR(A) and members of work group B may consider having some humble pie with the PCBU.

Hi Keith
How are the workers acting outside the HSWA which will be the relevant legal guidelines? In Schedule 2, Part 1, Section 6 the hypothetical situation meets the criteria of 2(a), 3(b)(i) and (ii). This appears to cover the situation I have described i.e. an HSR acting in the capacity of another HSR in another workgroup. There also a number of "other" valid reasons an HSR may be unavailable e.g. fear of PCBU retribution being one of them.
Regards
Ben

Trained HSR (A) is conducting an investigation into a serious health and safety matter — Benjamin Basevi

Are you meaning investigation of a recent incident, or the workers have raised their concern regarding a serious health and safety matter with HSR(A) as HSR(B) is unavailable?

if it were me I would be advising HSR(A) to:

• stop "investigating" the matter,
• raise the workgroup's views regarding any "work health or safety issues in relation to the matter" with the management of the company,
• Include that they will represent the workgroup due to HSR(B) being unavailable to represent them
• Request that the control measures relating to the matter are reviewed, with engagement of workgroup

This will then give the Officer of the company clearer understanding of what is the actual issues, and why and how HSR(A) will be involved - hopefully de-escalating the situation.

How are the workers acting outside the HSWA which will be the relevant legal guidelines? — Benjamin Basevi

From earlier:
"The trained HSR (A) is not eligible to act as a HSR for work group (B). See WEPR Regs S9(1) and 10(a) and (c). These explain that a HSR must be a member of and elected by the work group."

and

"Members of work group B cannot 'select' an alternative representative without HSR B first resigning and new elections taking place as described in WEPR Regs S6 to S17 inclusive."

So HSR(A) is attempting to represent workers that they are not elected to do.
And members of work group B must elect a representative from their work group, not merely select from outside the work group.

In Schedule 2, Part 1, Section 6 the hypothetical situation meets the criteria of 2(a), 3(b)(i) and (ii). — Benjamin Basevi

I don't know what you are referring to.

This appears to cover the situation I have described i.e. an HSR acting in the capacity of another HSR in another workgroup. — Benjamin Basevi

As before:
"The trained HSR (A) is not eligible to act as a HSR for work group (B). See WEPR Regs S9(1) and 10(a) and (c). These explain that a HSR must be a member of and elected by the work group."

There also a number of "other" valid reasons an HSR may be unavailable e.g. fear of PCBU retribution being one of them. — Benjamin Basevi

HSWA S88 and S89 apply protection for HSRs.



Benjamin, these questions go back to the last paragraph of my first post in this thread - ". . . for me, the initial question is a red flag indicating a lack of training and knowledge. . . . .trained HSRs are aware of their function and powers . . ."

In this hypothetical situation, I am meaning workers raising their concerns as opposed to a specific incident. Carrying on with the supposition, what if HSR-A did inform all involved re their representation of work group B, did raise the views of work group B with management, did request that the control measures be reviewed and following all this, was formally directed to stop assisting.

what if HSR-A did inform all involved re their representation of work group B, did raise the views of work group B with management, did request that the control measures be reviewed and following all this, was formally directed to stop assisting. — Benjamin Basevi

Benjamin, HSR(A) is not eligible to represent work group B or make submissions on the work group's behalf unless HSR(A) is a member of work group B and has been elected by work group B.
Please explain what part of this you do not understand.

Please explain what part of this you do not understand. — KeithH

HSR-B may accompany and assist HSR-A, or act in the capacity of HSR-A, in the circumstances:
a worker in work group B asks for HSR-A’s assistance, and HSR-B is found, after reasonable inquiry, to be unavailable; or
HSR-B requests that HSR-A perform his or her functions and exercise his or her powers during a period of absence or in other circumstances that will render HSR-B unavailable to the workers of work group B.
(note A & B references have been reversed to match the hypothetical situation above) — HSWA Sch 2 Cl. 6

On the basis that HSR(B) is not available to represent the work group then may HSR(A) act in their capacity.

Hello Keith
Are we referring to the same legislation i.e. HSWA 2015? If you are not sure what I am referring to perhaps you have not yet seen this pertinent section in the Act, which is compatible with the WEPR. Sections 88 and 89 provide protection for HSR's and therefore this was my original query i.e. the Act does not (appear to) state which sections cannot be used for the purposes of a PIN, and therefore can these sections be a reason for a PIN if the HSR considers that this section of the Act is being contravened by a PCBU?. I am interested to know if there is anything in the Act that is an impediment to issuing a PIN on these grounds.
Regards
Ben

The PCBU has a duty to engage with the workers on matters relating to H&S, and if the workers are represented by a HSR that HSR must involve them.

However it may also depend on any other agreed worker engagement procedures that company has - e.g. if there is a delegation of HSR process that a different HSR should actually be involved, or short duration absences are agreed as not consider as unavailable.

Has the PCBU given any indication that they will not review the hazards and/or engage with the workers when they do this? To be honest the talk of issuing a PIN to the Officers is essentially a red herring - if a PIN is to be issued it should be to the PCBU for either not reviewing the control measures or not engaging with the workers and/or their representative, but is this the case?

Again just provide the clarity why HSR(A) is involved - they are acting on behalf of HSR(B) who is unavailable on request of the work group / HSR(B). And that as soon as HSR(B) is available again they will represent the work group regarding the matter.

the Act does not (appear to) state which sections cannot be used for the purposes of a PIN, and therefore can these sections be a reason for a PIN if the HSR considers that this section of the Act is being contravened by a PCBU? — Benjamin Basevi

S69 states a PIN can be issued for any contravention of the Act, but shorthand any section which either has a duty to do something or has a offence attached to it.
Therefore S88 and S89 cannot be a reason for issuing a PIN as these are sections which just provide definition/clarification of terms - but maybe under S90, S91 or S92... but there needs to be actual adverse conduct as define in S88 or coercion, so simply requesting HSR(A) to stop investigating the matter or representing the other workgroup would not be enough to issue a PIN.

I agree with you, whatever the issue is it may have crossed into HR, but my basic question is why is an HSR conducting an investigation, would that not be the responsibility of the PCBU to investigate issues in the workplace with the HSR being a part of an overall team? not leading the investigation. And as already pointed out the HSR is there to represent the workers so is issuing a PIN against a worker the correct approach.

Just some thoughts

Yes to issue a PIN you need all your ducks in a row and be able to provide evidence that you have exhausted other reasonable avenues, to do it incorrectly places the HSR in a position that they can have that position removed by worksafe in the worst-case...

Please can you define an HSR investigation? as I have never heard of it before..

Please can you define an HSR investigation? as I have never heard of it before.. — Don Ramsay

I am assuming it is in reference to HSWA Sch 2 Cl. 1 further detailing of the HSR functions, which includes "to investigate complaints from workers in the work group regarding health and safety".

FYI, the first charge laid under the HSW Act for "adverse conduct for a prohibited H&S reason" was laid by Maritime NZ late last year: https://www.maritimenz.govt.nz/public/news/media-releases-2021/20210812a.asp

My personal view of an HSR investigation is simply the HSR carrying out an assessment of a work situation (that is probably complex), hence a more detailed look at whatever it is, as in history, compliance landscape, nature of the hazard and the risks posed, incident report audit, monitoring audit, plant maintenance audit, safe standard of work processes, documentation review, actions already taken to improve controls, barriers to improvement, current situation, which will lead to a reasonable picture of the state of the controls which is all digested with the view to creating some form of improvement plan/recommendation. Very much off the top of my head and each situation will be different and require different things.

Wow! The first charge using section 90 since the HSWA was enacted. That is a very interesting and telling statistic!

Hello Matt
Thank-you very much for your explanation which makes sense. My curiosity is part-satisfied :)
Regards
Ben

Thank-you very much for your explanation which makes sense — Benjamin Basevi

No problems Benjamin - I hope that the "hypothetical situation" is in fact hypothetical as it does sound like a bit of a tough position.
Remember that just because you technically can do something, doesn't mean it is the best thing to do... and nothing causes people to get defensive and shut down the conversation quicker than pulling out the law books! ;)