Protective clothing and equipment

by The Findlaw Team

New Zealand employers have a wide range of duties under the Health and Safety in Employment Act 1992 (HSE Act). These include providing employee with suitable protective clothing and equipment to protect them from harm in the workplace.

This article gives an overview of the employer’s duties to provide protective clothing and equipment, as well as the employee’s duty to use and wear them properly.

When must protective clothing or equipment be provided?

There are many hazards in the workplace, some of which are more significant than others. Where a significant hazard cannot be eliminated or isolated, employers must take all practicable steps to minimise the risk of someone being harmed by it. The provision of protective clothing and equipment may be necessary as one of the steps to minimise the risk of harm.

Section 10(2)(b) of the HSE Act states that employers must provide, make accessible to, and ensure the use by the employees of, suitable clothing and equipment to protect them from any harm that may result from being exposed to a significant hazard.
Employers can be prosecuted and fined for failing to provide adequate protective clothing and equipment, even if no-one has suffered harm as a result. For example, in 2009 a golfing company was fined $15,000 by Manukau District Court after a Department of Labour health and safety inspector observed a ball collector with no protective clothing or equipment walking directly in front of customers using the golf range. There was potential for significant injury, but no harm had actually been suffered.

Training in protective clothing and equipment

Under section 13 of the HSE Act, employers must take all practicable steps to ensure that employees are adequately trained in the safe use of all protective clothing and equipment provided by the employer for their use.

What should the employer do?

When providing protective clothing and equipment for employees to use in a hazardous environment, employers should make sure that:

  • The employee knows where the protective clothing or equipment is kept;
  • The employee has ready access to the protective clothing or equipment;
  • The protective clothing or equipment is suitable for the purpose;
  • The employee is properly trained in the use of the protective equipment and clothing;
  • The use of protective clothing and equipment by the employee is regularly monitored; and
  • With consent, the employee’s health is regularly monitored. 

 

Employees do not have to pay for clothing or equipment

The HSE Act makes it clear that employers cannot:

  • Pay an employee an allowance or extra salary or wages instead of providing the protective clothing or equipment; or
  • Require an employee to provide their own protective clothing or equipment as a pre-condition of employment or as a condition of their employment agreement.

It is acceptable under the HSE Act 1992 for an employee to provide their own protective clothing (not equipment), but only if they genuinely and voluntarily wish to do so.
If an employee does provide their own protective clothing, it must meet the standards required and be approved by the employer. The employee also has the right to change their mind and have their employer provide the protective clothing at any point, so long as they give their employer reasonable notice.

Employees must use or wear protective clothing or equipment

It is not enough for an employer to provide protective clothing and equipment if the employee does not use it, or does not use it properly. A pair of acoustic earmuffs slung around the neck is not going to protect the employee’s hearing, and the employer could be prosecuted for failing to ensure the use of the earmuffs if the employee suffers hearing loss.

It’s the employer’s responsibility to make sure employees properly use and wear protective clothing and equipment. This is likely to involve monitoring and supervision, and the use of disciplinary processes if an employee fails to comply with the employer’s reasonable and lawful instruction (ie to wear or use protective clothing and equipment).

Employees also have duties under the HSE Act. Section 19 requires that employees must use any suitable protective clothing and suitable protective equipment provided by their employer (or protective clothing which they have chosen to provide for themselves and which has been approved by their employer). Employees can be prosecuted and fined under section 19. For example, in 2003, a supervisor was fined $1000 under section 19 after a worker he was supervising fell through a brittle roof and was injured. The worker was wearing protective equipment – a safety harness – but it was not secured to a safety line.

Employers should avoid the need for protective clothing and equipment

The case of Department of Labour v Ecolab Ltd (2004) shows that employers should try to avoid the need for protective clothing and equipment where reasonably practicable. An employee suffered chemical burns to his eye while decanting a caustic chemical. The hose tail fitting burst, spraying the employee with the chemical. The employee was burned, despite the fact that he was wearing safety glasses, overalls, a plastic apron, and gloves.

According to the Department of Labour’s prosecution, the company should have implemented a higher level of control, rather than relying on protective equipment to control the hazard. The company was fined $17,000 and was ordered to pay the victim $12,000 in reparation.

Employers must provide changing facilities

Under regulation 5 of the Health and Safety in Employment Regulations 1995 (HSE Regulations), employers must provide suitable changing facilities where an employee’s work is of such a nature that their clothing is reasonably likely to become contaminated or wet.
There must also be somewhere to keep clothes clean and dry if it is reasonably likely that employees will bring clothes to the workplace that will not be used at work.
Both these requirements may apply to protective clothing (depending on whether the employee needs remove their own clothing or footwear in order to wear the protective clothing).
Changing facilities should:

  • Be separate for men and women;
  • Have somewhere to store personal clothes and belongings securely;
  • Have somewhere to dry clothes, where necessary;
  • Not be used for storing goods or materials;
  • Be well-lit;
  • Be well-ventilated; and
  • Be well-maintained and kept clean.

 

Duties of designers, manufacturers and suppliers

Designers, manufacturers and suppliers of protective clothing and equipment have certain duties under regulations 66 and 67 of the HSE Regulations.

These include making sure that protective clothing and equipment is designed in accordance with ergonomic principles, and designed and manufactured so that it will provide adequate protection from the harm it’s intended to protect against.

Protective clothing and equipment must be (as far as practicable) be permanently marked with comprehensive information, such as how to use, clean and maintain it.

Suppliers of protective clothing and equipment must provide comprehensive information to anyone who purchases or hires it, including detailed instructions about its use and how to install, adjust, use, clean, maintain, repair, and dismantle it.

What does “provide” mean?

The District Court (in Department of Labour v Wilson (2011)) has said that an employer’s duty to “provide” protective clothing and equipment under the HSE Act means more than simply passively supplying or making available.

“Provide” also implies a duty to ensure that employees understand that they are expected to use safety devices that are available..

Taking account of human nature

In Department of Labour v Simac Ltd (2002), the District Court indicated that human nature is a factor employers should take into account when providing protective clothing or equipment.
In this case, employees using a cherrypicker should have been wearing a full body harness. However, these were kept at the company’s premises and inappropriate equipment (pole harnesses) were in the truck and used by the employees instead.

The Court accepted the suitable equipment to protect the employees from the hazard was available, but only in the sense that the company owned or had access to full body harnesses which were stored on its premises.

The Court held that human nature being what it is, there was never any prospect of the employees working out what was required and then returning to the yard to collect the full harnesses. On a simple, practical day to day level, company was obliged to make the full body harnesses available and accessible to the employees and to make it perfectly clear to the employees that the cherrypicker was not to be operated without using or wearing the appropriate equipment to protect them from the obvious hazards.

Full body harnesses should have been stored on the tractor/cherrypicker so that they were not only provided but were actually and practically accessible to the employees.



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