The main piece of legislation covering health and safety at work in New Zealand is the Health and Safety in Employment Act 1992. This Act imposes legal duties on employers, employees, self-employed people, contractors, principals to a contract and people who control a place of work.
The Health and Safety in Employment Regulations 1995 impose quite a number of specific duties in relation to facilities, working environment, noise, machinery, working at height, and so on.
All practicable steps
The Act puts a fundamental duty on employers to take all practicable steps to ensure the safety of their employees while they are at work. In particular, they must take all practicable steps to:
- Provide and maintain a safe working environment;
- Provide and maintain facilities for health and safety;
- Make sure that plant and equipment used by any employee is arranged, designed, made, and maintained so that it is safe for the employee to use;
- Make sure that employees are not exposed to hazards arising from anything in the workplace or anything that the employer has control over near the workplace; and
- Develop procedures for dealing with emergencies that may arise while employees are at work.
Employers must also take all practicable steps to ensure that while their employees are at work, none of their actions or inactions harm any other person.
Hazards
The Act 1992 requires employers to identify and assess hazards and determine whether or not each hazard is ‘significant’. If a hazard is ‘significant’, the employer must to take all practicable steps to eliminate it or, if elimination isn’t practicable, isolate it.
If neither eliminating nor isolating the hazard is practicable, the Act requires the employer to:
- Take all practicable steps to minimise the likelihood that the hazard will harm an employee;
- Provide employees with suitable clothing and equipment to protect them from any harm that the hazard might cause, make this clothing and equipment accessible to employees, and make sure that employees use it;
- Monitor the employees' exposure to the hazard (for example, by measuring noise levels in work areas);
- Take all practicable steps to obtain the employees' consent to the monitoring of their health in relation to the hazard; and
- With the employees’ informed consent, monitor the employees' health in relation to exposure to the hazard (for example, by carrying out a programme of audiometric testing for employees who are exposed to high levels of noise).
Information, training and supervision
The Act requires employers to provide employees with information, in a form and manner that they are reasonably likely to understand, about:
- All the hazards that they might be exposed to, or create, while they are at work, and the steps that have been taken to minimise the likelihood that these hazards will harm anyone;
- What they should do in the event of an emergency; and
- Where safety clothing, equipment, materials, etc are kept.
If there are health and safety representatives in the workplace, the Act states that employers must give them ready access to enough information about the health and safety systems and issues to allow them to carry out their role effectively.
As well as information, the Act requires employers to take all practicable steps to makes sure all their employees have the knowledge and experience of the work they are doing to allow them to perform their duties without the likelihood of harming themselves or others. If they don’t have the knowledge and experience, they must be supervised by someone who does.
The Act also requires employers to take all practicable steps to make sure all their employees have been adequately trained in the safe use of plant, objects, equipment, substances, protective clothing and equipment, and so on.
If an employee’s health has been monitored (as a step to minimising a hazard), then the Act requires that the employer must give them the following information:
- Individual results of the monitoring (to the individual concerned); and
- Results of general monitoring of the conditions in the workplace or the health and safety of employees, if requested by the employee.
However, employers must make sure that anything that identifies or discloses anything about any individual must be omitted from the results (employees are entitled to the results that relate to them personally).
Involving employees
The Act requires employers to provide employees with ‘reasonable opportunities’ to participate effectively in the ongoing improvement of health and safety in their workplace.
If an employer employs 30 or more employees, the Act requires them to develop an employee participation system. For employers with less than 30 employees, the Act requires them to develop an employee participation system if any employee or their union representative asks them to.
Investigating, recording and reporting accidents
All employers, principals, and self-employed people are required by the Act to keep an accident register. There is a duty to record, in the accident register, every accident that resulted in – or which could have resulted in – harm, and every case of serious harm caused by exposure to a hazard.
If there’s an incident that has to be recorded in the accident register, the Act requires the employer to investigate the incident to see whether or not it was caused by a significant hazard.
The Act also requires all cases of serious harm to be notified to the Department of Labour. Notification must be made as soon as possible (ie by phone or fax) and followed by a written report on the official form within seven days of the occurrence.
Employee Responsibilities
Employees are required by the Act to:
- Take all practicable steps to ensure their own safety while at work;
- Take all practicable steps to ensure that none of their actions or inactions harms anyone else; and
- Wear or use any protective clothing or equipment that has been provided to protect them from harm.
Employee Rights
Employees have the right under the Act to refuse to carry out work that they believe is likely to cause them serious harm. However, when exercising this right, they must:
- Believe, on reasonable grounds, that the work will cause them serious harm, and
- Try to resolve the matter with their employer.
If the matter is not resolved, they can continue to refuse to carry out the work. However, they must carry out any other work that their employer reasonably requests, as long as it’s covered by their employment agreement.
The right doesn’t extend to inherently dangerous work, unless the risk has materially increased beyond the understood risk.
Principals
People who hire contractors are principals. For example, a builder who contracts an electrician to work on a new home is a principal. An office manager who engages an IT consultant to install a computer system is also a principal.
The Act requires principals to take all reasonably practicable steps to ensure that no contractor, subcontractor, or employee of a contractor or subcontractor is harmed while doing any work they’ve been engaged to do.
People who control a workplace
Someone is considered to be in control of a workplace if they:
- Own, lease, sub-lease, occupy or possess a place of work; or
- Own, lease, sub-lease or possess any plant or equipment in a place of work.
The Act requires people who control a place of work to take all practicable steps to ensure the following people aren’t harmed by hazards arising in that workplace:
- People in the vicinity of the workplace, including those in the vicinity solely for recreation or leisure;
- People who are lawfully in the workplace as employees, contractors, subcontractors, or employees of contractors or subcontractors; and
- People who have express or implied consent to be at the place of work, as customers (or potential customers), or having paid the person to be there (either directly or indirectly).
For people in the workplace who aren’t covered by the list above, those in control of a workplace have a lesser duty to take all practicable steps to warn the person about any hazard that:
- Is significant;
- Arises from the work activity; and
- Is not obvious, ie would not reasonably be expected in that type of workplace in the normal course of events.
