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Health and Safety in Employment Act, 1992
Department of Labour’s Hazard Handler | Your business and Pandemics
Act in brief
Occupational Health and Safety ("OSH")
is primarily regulated by the Health and Safety in Employment Act 1992 ("the
HSEA") which places a general responsibility on all employers, principals, contractors
and employees to take "all practical steps" to ensure safety. The HSEA applies
to everyone connected with a "place of work" including owners, occupiers, employees,
employers and contractors.
Breaches of the HSEA may occur even though there is no resulting accident. A
health and safety policy often assists in satisfying the obligations contained
in the Act but positive steps must reinforce this.
Amendments to Act in brief
The Health and Safety in Employment Amendment Act 2002 was passed on 24 December
2002 and came into force on 5 May 2003.
The amendments included extensions of coverage, a greater emphasis on employee
participation, the ability of specific employees to issue hazard notices to an
employer, the ability to take private prosecutions and a prohibition on being
able to insure against fines.
Labour Inspectors
The HSEA is enforced by the Department of Labour's labour inspectors who can
issue improvement and prohibition notices. Labour inspectors also have the right
to commence prosecutions by laying charges against offenders in the District
Court that can result in penalties ranging from imprisonment to fines.
Common Law
In addition to the statutory regime, the common law obligation to provide a
safe work place both as an implied term of contract and in tort, has continued
to attract judicial support. In recent years a number of employers have been
held to be liable for exemplary damages in relation to workplace accidents.
Accident Compensation
Injured employees are entitled to compensation for their work related injury
and payment of rehabilitation costs under the Injury Prevention, Rehabilitation,
and Compensation Act 2001. The Accident Compensation Corporation ("ACC")
administers this Act. Employers carry a premium liability for accidents but
may receive premium discounting for low accident records and also for a safety
management system.
Health and safety is a mix of statutory and common law obligations.
Questions
How do you comply with the Health and Safety in Employment Act?
There is a whole range of obligations under the Act. These range from the fundamental
duties in part two of the Act, the ability to provide codes of practice and
regulations in part three of the Act, through to the general provisions in part
four which cover reporting accidents, preserving accident scenes and inspectors
duties.
The fundamental duties commence with the requirement for a system that identifies
hazards in the workplace, including new hazards and a reassessment of existing
hazards. Significant hazards should be eliminated. If there are no practicable
steps that can be taken to eliminate the hazard it should be isolated. If it
is not possible to eliminate or isolate the hazard, then an employer is required
to take all practicable steps to minimise the harm that can be caused by the
hazard, protect employees by offering appropriate equipment and clothing, and
monitor employees' health and exposure to the hazard.
What are hazards?
'Hazard' has a wide definition. It is simply anything that is an actual or
potential cause or source of harm.
Some hazards such as dangerous machinery and plant, vehicles within the workplace
and objects suspended from cranes and other equipment are obvious hazards. However,
there are others such as stress, fatigue, the behaviour of other employees,
and even workplaces themselves eg tripping hazards, glass in all forms including
display cabinets, floor surfaces and work stations. The system for identifying
hazards needs to be sufficient to identify all of these hazards if they are
present.
For the Department of Labour’s Hazard Handler please click here
Who does the Act apply to?
The primary obligation is on employers to protect employees. However employers
must also protect other people within the workplace.
People who are in control of workplaces also have obligations to ensure the
health and safety of people at the place of work, and within the vicinity of
the place of work. People in control of workplaces include owners, lessees,
sub-lessees, occupiers or people in possession of the workplace or any part
of it including any plant.
Principals are also required to ensure no contractor, or sub-contractor or
employee of a contractor or subcontractor is harmed in the place of work. Self
employed people and employees are also required to ensure that they do not do
anything or fail to do anything that harms any other person in the workplace.
Designers and manufacturers of plant and protective clothing and equipment
also have duties to ensure that the plant, clothing or equipment is designed
and manufactured so that it can be used for the purpose for which it was designed,
and that any hazards are minimised or protected against.
Amendments to the Act in 2002 extended the obligations on sellers and
suppliers of plant that can be used in the
workplace must take steps to ensure the plant is safe for any reasonable use. A
supplier of plant that is to be hired, leased or loaned must ascertain whether
the plant is to be used in a place of work and its intended use. A person then
must take steps to ensure that the plant is safe for that use.
The 1992 Act was extended in 2002 to cover maritime, rail and air industries and
people who are in vehicles for work. The administration of the 1992 Act
continues to be predominantly provided by the occupational safety and health
service of the Department of Labour. However, the Maritime Transport Authority
and the Ministry of Transport and possibly the Civil Aviation Authority will
become involved in administration of the Act.
However, perhaps more significant was the extension of "place of work" to
include vehicles. The possible scope of this obligation is best illustrated by
the OSH fact sheet. OSH suggest that if an employee needs to use his or her own
vehicle for work, employers must check that the vehicle is roadworthy,
warranted, registered and is only used for the vehicles particular capability.
In addition, an employer must ensure that the person has a driver's licence and
is able to drive effectively at the time.
The Act also covers volunteers except volunteers involved in a fundraising
activity, sports club, recreation club, educational institution or caregiver at
the caregiver's home. Trainees and people gaining work experience are also
covered as are employees on loan to another employer. Loaned employees are
treated as being employed by the borrowing employer.
What is 'Employee participation'?
All employers must provide reasonable opportunities for employees to
participate in the improvement of health and safety. Any employer who has 30 or
more employees or, less than 30 employees but a union represents at least one
employee, or at the request of any employee, must develop an employee
participation system. There is a requirement to have an employee health and
safety representative and that person may issue hazard notices to the employer.
What are the penalties?
There is a range of possible sanctions. Inspectors may issue improvement notices
requiring that any defect in the system or failure under the Act be remedied.
Inspectors may issue prohibition notices. These range from prohibiting the use
of certain equipment, to closing a whole worksite until the problem is rectified.
In 2002, penalties were increased and for most offences a maximum fine is now $250,000. Some serious harm offences have increased to a
maximum fine of $500,000 (this has increased from $250,000) and from one year
imprisonment.The courts must also apply the Sentencing Act 2002. This
means tat there is no longer an ability for the Courts to pay part or all of a
fine to the victim. Instead the Court has to consider whether a separate
payment for reparation should be made to the victim.
With increased fines and the payment of reparation the cost to defendants
(usually employees) have significantly increased.
What about private prosecutions?
The crown monopoly on health and safety prosecutions has been removed to a
degree. In certain circumstances a person, other than a labour inspector, may
lay an information and may prosecute an offence.
Information provided by our Legal Partners
Hesketh Henry. For
more information please phone +64 9 375 8700 or email
lawyers@heskethhenry.co.nz.
Your business and influenza pandemics
Update - Influenza A (H1N1) Swine Flu
23 June - New Zealand is moving to a “manage it” phase as part of our response to the Influenza A (H1N1) outbreak. The shift in phase reflects the increased spread of the virus, rather than a change in the severity of the illness, especially in three of our main centres – Wellington, Christchurch and Auckland. This has been predicted since the rapid spread started occurring in Australia. Read more here.
How do I prepare my business in case of a pandemic?
18 June 2009 - In the event of a pandemic, planning by businesses and Government will be vital to protect employees' health, and the economy. This means businesses of all sizes will need to do some pandemic planning. This guide offers practical steps that you can take to reduce the risks to your business, staff and customers from a possible flu pandemic.
Source: please visit www.business.govt.nz to read more.
What are your responsibilities as an employer in the case of
a pandemic?
18 June 2009 - New Zealand authorities are investigating a number of possible cases of swine flu.
While we all hope that this reach will be contained, employers should now be actively
considering their management plans and strategies for their workforce in the event of
a pandemic.
Many will recall that in late 2005 the World Health
Organisation (WHO) emergency committee set the
pandemic threat level for bird flu at 3 out of a possible
6. The WHO emergency committee has raised the
pandemic threat level for swine flu from phase 4 to 5.
Phases 4-6 are intended to clearly signal the need for
response and mitigation efforts.
Source: DLA Phillips Fox. Please click here to download this employment update.
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