28Powers of health and safety representatives

#### 28 Powers of health and safety representatives (1) A health and safety representative for a designated work group may, for the purposes of promoting or ensuring the health and safety at work of the employees in the designated work group: (a) in respect of a workplace at which work is performed, for the employer of all of the employees in the group, by some or all of those employees, do all or any of the following: (i) inspect the whole or any part of the workplace if: (A) there has, in the immediate past, been an accident or a dangerous occurrence at the workplace, or there is an immediate threat of such an accident or dangerous occurrence; or (B) the health and safety representative has given the employer reasonable notice of the inspection; (ii) make a request to an investigator, to Comcare or to the Commission that an investigation be conducted at the workplace; (iii) accompany an investigator during any investigation at the workplace by the investigator (whether or not the investigation is being conducted as a result of a request made by the health and safety representative); (iv) if there is no health and safety committee in respect of the employer’s employees at the workplace—represent the employees in the group in consultations with the employer concerning the development, implementation and review of measures to ensure the health and safety at work of the employees in the group; (v) where a health and safety committee has been established in respect of the employer’s employees at the workplace—examine any of the records of that committee; and (b) investigate complaints made by any of the employees in the group to the health and safety representative concerning the health and safety of any of the employees at work; and (c) with the consent of the employee concerned, be present at any interview, concerning health and safety at work, between an employee in the group and: (i) an investigator; or (ii) the employer or a person representing the employer; and (d) obtain access to: (i) any information under the employer’s control relating to risks to health and safety of any employees: (A) at any workplace under the employer’s control; or (B) arising from the conduct by the employer of an undertaking or from plant or substances used for the purposes of the undertaking; and (ii) subject to subsection (6), any information under the employer’s control relating to the health and safety of any of the employer’s employees; and (e) issue provisional improvement notices in accordance with section 29. (2) A health and safety representative for a designated work group is entitled, in the exercise of his or her powers, to be assisted by a consultant. (3) A health and safety representative for a designated work group must not: (a) be assisted by a consultant at a workplace at which work is performed for an employer of the employees in the group; or (b) provide to a consultant information which has been provided to the health and safety representative by an employer under paragraph (1)(d); unless the employer or the Commission has, in writing, agreed to the provision of that assistance at that workplace or the provision of that information, as the case may be. (4) An employer does not, by reason of the agreement of the employer under subsection (3) to the provision of assistance by a consultant, become liable for any remuneration or other expenses incurred in connection with the consultant’s activities. (5) Where a health and safety representative for a designated work group is being assisted by a consultant, the consultant is entitled to be present with the representative at any interview, concerning health and safety at work, between an employee in the group and: (a) an investigator; or (b) the employer or a person representing the employer; if, and only if, the employee concerned consents to the presence of the consultant. (6) The health and safety representative is not entitled, or, where the health and safety representative is assisted by a consultant, the health and safety representative and the consultant are not entitled, under subparagraph (1)(d)(ii), to have access: (a) to information in respect of which the employer is entitled to claim, and does claim, legal professional privilege; and (b) to information of a confidential medical nature relating to a person who is or was an employee of the employer unless: (i) the person has delivered to the employer a written authority permitting the health and safety representative, or, the health and safety representative and the consultant, as the case requires, to have access to the information; or (ii) the information is in a form that does not identify the person or enable the identity of the person to be discovered. (7) Nothing in this Act is to be read as: (a) imposing an obligation on a person to exercise any power conferred on the person because the person is a health and safety representative; or (b) rendering a person liable in civil proceedings because of: (i) a failure to exercise such a power; or (ii) the manner in which such a power was exercised.