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employment

Can you refuse to do unsafe work?

Key Takeaway

Workers in New Zealand have the right to refuse or cease unsafe work if they have reasonable grounds to believe it poses a serious risk to their health or safety. Employers (PCBUs) must ensure a safe workplace and cannot take discriminatory action against workers for exercising this right. Both workers and employers have specific duties under health and safety legislation.

Refusing Unsafe Work in New Zealand

Workers in New Zealand have specific rights and obligations regarding health and safety in the workplace, including the right to refuse to perform work they reasonably believe to be unsafe. This right is primarily established under the Health and Safety at Work Act 2015 (HSWA) and is supported by principles in the Employment Relations Act 2000 (ERA).

Right to Cease or Refuse Unsafe Work

A worker may cease or refuse to carry out work if they have reasonable grounds to believe that carrying out the work would expose them to a serious risk to their health or safety arising from an immediate or imminent exposure to a hazard [Source: Health and Safety at Work Act 2015, s 22(1)].

When a worker ceases or refuses to carry out work under these provisions, they must, as soon as practicable, notify the PCBU (person conducting a business or undertaking – the organisation or employer responsible for managing the work) that they have ceased or refused to carry out the work [Source: Health and Safety at Work Act 2015, s 22(2)]. The worker must remain available to carry out alternative safe work [Source: Health and Safety at Work Act 2015, s 22(3)].

What Constitutes 'Unsafe Work'?

The decision to cease or refuse work must be based on a belief that there is a serious risk to health or safety arising from an immediate or imminent exposure to a hazard [Source: Health and Safety at Work Act 2015, s 22(1)]. A 'hazard' is defined broadly to include a situation or thing that has the potential to cause harm to a person [Source: Health and Safety at Work Act 2015, s 16]. This means a worker cannot simply refuse work due to a minor inconvenience; there must be a credible and serious threat.

Obligations of the PCBU (Employer)

The primary duty of a PCBU is to ensure, so far as is reasonably practicable, the health and safety of workers and other persons affected by the work carried out as part of the business or undertaking [Source: Health and Safety at Work Act 2015, s 36(1)].

When a worker notifies a PCBU that they have ceased or refused to carry out work due to safety concerns, the PCBU must [Source: Health and Safety at Work Act 2015, s 24]:

  • Consult with the worker or a health and safety representative about the matter.
  • Resolve the matter as soon as practicable.
  • If the matter is not resolved, the worker, a health and safety representative, or the PCBU may ask WorkSafe New Zealand to appoint a health and safety inspector to resolve the matter.

During the period when work has ceased or been refused, the PCBU must not direct or allow a worker to carry out the work unless the serious risk has been remedied or eliminated, or the worker has ceased to have reasonable grounds for believing the work would expose them to a serious risk [Source: Health and Safety at Work Act 2015, s 25].

Worker Duties

While workers have rights, they also have duties under health and safety legislation [Source: Health and Safety at Work Act 2015, s 28]:

  • To take reasonable care for their own health and safety.
  • To take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons.
  • To comply, so far as is reasonably practicable, with any reasonable instruction given by the PCBU relating to health and safety.
  • To cooperate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

Protection from Discriminatory Action

A PCBU must not take discriminatory action against a worker (or another person) because the worker has exercised a right conferred by the Health and Safety at Work Act 2015, such as ceasing or refusing unsafe work [Source: Health and Safety at Work Act 2015, s 101(1)(d)].

Discriminatory action is defined as dismissal, unfavourable alteration of position, or otherwise treating a person unfavourably in connection with their employment or engagement [Source: Health and Safety at Work Act 2015, s 103]. If a worker believes they have been subject to discriminatory action, they may raise a personal grievance under the Employment Relations Act 2000, claiming unjustified disadvantage or dismissal [Source: Employment Relations Act 2000, s 103(1)(a)-(b)].

Resolution Process

If a worker raises concerns about unsafe work, the following steps are generally followed:

  1. Worker Notification: The worker notifies the PCBU that they have ceased or refused work due to serious safety risk [Source: Health and Safety at Work Act 2015, s 22(2)].
  2. Consultation: The PCBU must consult with the worker and/or a health and safety representative (if applicable) to resolve the issue [Source: Health and Safety at Work Act 2015, s 24(1)].
  3. Remedying the Risk: The PCBU must take steps to remedy or eliminate the serious risk [Source: Health and Safety at Work Act 2015, s 25(a)].
  4. WorkSafe Intervention: If the matter remains unresolved after consultation, either the worker, a health and safety representative, or the PCBU may request a WorkSafe New Zealand inspector to assist in resolving the matter [Source: Health and Safety at Work Act 2015, s 24(2)]. A WorkSafe inspector has powers to issue directions or prohibition notices if they believe work is unsafe [Source: Health and Safety at Work Act 2015, s 112, s 113].

When to Seek Independent Legal Advice

Individuals who have concerns about workplace safety, believe their right to refuse unsafe work has been infringed, or are facing discriminatory action should seek independent legal advice. Information and assistance can be obtained from WorkSafe New Zealand, Employment New Zealand, or free legal advice services provided by Community Law Centres.

Key Resources