How to ensure that as an employer you comply with workplace health and safety laws
The HEALTH AND SAFETY IN EMPLOYMENT ACT 1992 requires you as an employer to identify and manage risks that arise within the workplace.
In summary, the Act requires you to:
- generally provide a safe workplace for your staff
- identify and control hazards
- train and supervise your staff
- keep your staff informed, and involve them in health and safety processes
- record all accidents and report all serious injuries to the Occupational Safety and Health Service (OSH)
New Amendment Act in force May 2003
A significant amendment to the Act takes effect from 5 May 2003 (see the HEALTH AND SAFETY IN EMPLOYMENT AMENDMENT ACT 2002). The effect of this Amendment Act is to:
- include work-related stress within the definition of "harm" contained in the Act
- require you to involve your staff in health and safety processes
- bring the shipping, aviation and rail industries under the main Act
Your general duty to provide a safe workplace
You must take all practicable steps to ensure that your staff are safe while they're at work. In particular, you must take all practicable steps to:
- provide and maintain a safe working environment
- provide your staff with facilities for their safety and health while at work, and maintain these facilities
- ensure that machinery and equipment is safe
- ensure that your staff aren't exposed to hazards when in the workplace or when they're working near the workplace and under your control (see below for the definition of "hazard")
- develop procedures for dealing with emergencies
The meanings of "hazard" and "harm"
In the HEALTH AND SAFETY IN EMPLOYMENT ACT 1992, "hazard" means anything that is an actual or potential cause or source of harm. This can include a person's behaviour, and in particular behaviour resulting from:
- physical or mental fatigue
- drugs or alcohol
- traumatic shock, or
- some other temporary condition affecting the person's behaviour
Your duty to identify and control workplace hazards
You must put in place effective systems for identifying existing hazards in your workplace, and also new hazards (before they arise if possible).
You must take steps to deal with all "significant" hazards, which means those capable of causing someone serious harm. Specifically, you must do the following:
- You must take all practicable steps to eliminate any significant hazard.
- If those steps don't eliminate the hazard, you must take all practicable steps to isolate it from your staff.
- If those steps don't succeed in isolating the hazard, you must take all practicable steps to minimise the likelihood that the hazard will cause harm. You must provide your staff with protective clothing and equipment (and make sure they use it) and monitor their exposure to the hazard.
Your duty to train and supervise your staff
You must make sure that your staff have the necessary knowledge for the work they're doing or that they're supervised by someone else who has that knowledge.
Your staff should also be properly trained in the safe use of machinery and substances with which they work and in the use of protective clothing and equipment.
Your duty to record and report accidents
You must record all accidents in a special register kept for that purpose. This includes accidents that did not harm anyone but that might have done so. You must also put measures in place to prevent the accident happening again.
You must notify the Occupational Safety and Health Service (OSH) of any serious injury as soon as possible after you become aware of it. You must then, within seven days after you become aware of it, give OSH a written notice explaining how the injury happened.
There are set forms for notifying OSH of accidents and for the accident register: for these, contact OSH, or see the Schedule to the HEALTH AND SAFETY IN EMPLOYMENT (PRESCRIBED MATTERS) REGULATIONS 1993 (SR 1993/70).
Your duties to record and report accidents also apply to all accidents involving people whom you've employed as independent contractors (self-employed people), rather than as employees.
Your duty to keep your staff and health and safety reps informed
You're responsible for informing your staff, in a way that they can reasonably understand:
- about what to do if there is an emergency
- about hazards that exist or that may be created in the workplace, and about how to deal with those hazards to minimise any potential harm
- where safety clothing and equipment is kept
Your staff must have ongoing ready access to this information.
You must also ensure that your staff's health and safety representatives have ready access to enough information about health and safety systems and issues in your workplace so that they can carry out their role effectively.
Your duty to involve your staff in health and safety matters
You must provide your staff with reasonable opportunities to participate effectively in ongoing processes in your workplace for improving health and safety. You must take into account any code of practice for staff participation. (You can download OSH codes of practice from www.osh.govt.nz/order/catalogue/index.shtml#ap.)
If your workplace's health and safety committee or the staff health and safety rep makes a specific recommendation, you must either adopt the recommendation or provide reasons, in writing, why you're not adopting it.
If you have 30 or more staff (whether or not at a single workplace), you and those of your staff who wish to be involved (and any union representing your employees) must co-operate in good faith to develop and maintain a system that sets out the ways in which your staff can participate in health and safety processes. The system must include a process for the system to be reviewed.
This obligation to co-operate in good faith to set up a staff-participation system applies also if you have fewer than 30 staff but one or more of your staff, or a union, requires a system to be set up.
Training for health and safety reps
You must allow your staff's health and safety representatives to each have two days paid leave each year to attend approved occupational health and safety courses.
But this is subject to a maximum total number of days for all the representatives, which depends on the size of your staff.
Are volunteer workers covered by the health and safety laws?
The main duties of employers under the health and safety laws apply also to volunteer workers, if:
- the volunteers are working on an ongoing and regular basis, and
- their work is an integral part of your business
But this doesn't include the duties to provide training and supervision and to involve staff in health and safety processes.
Even if your volunteers are not working on an ongoing and regular basis, or are not working in an integral part of your business, you must still take all practicable steps to ensure their health and safety while they are working. In particular you must take hazards into account when you're planning their work.
What about people in my workplace for training or work experience, or who're on loan to me?
All your duties that apply in relation to your employees apply also in relation to:
- people getting on-the-job training
- people there for work experience, and
- employees on loan to you from another employer,
except the duty to involve your employees in health and safety processes.
Your duty to the general public
You must take all practical steps to make sure that nothing your staff do, or fail to do, while at work harms any other person.
Offences and penalties under the health and safety laws
It's an offence for an employer:
- to fail to do something that they're required to do under the health and safety laws, or
- to do something that they're not allowed to do under the health and safety laws,
if they know that this is reasonably likely to cause their staff serious harm. The employer can be imprisoned for up to two years, or fined up to $500,000, or both.
The penalty for failing to comply with the health and safety laws or regulations in other cases is a fine of up to $250,000.
Can I take out insurance against health and safety fines?
No, it's against the law for an employer or an insurance company to enter into, or offer to enter into, a policy that insures the employer against any fines or infringement fees imposed under the health and safety laws. The penalty for doing this is a fine of up to $250,000.
Any insurance policy that is taken out in breach of this rule is legally unenforceable.
Practical steps that employers should take
There are a number of practical steps that employers can take in order to comply with the Act. These can include the following:
- adopt and publicise to your employees a Health and Safety Policy
- review any existing health and safety procedures, equipment and staff training
- appoint a Health and Safety Officer at each workplace
- maintain an accident register
- establish Health and Safety Committees, consisting of representatives from both management and staff
- obtain copies of any relevant codes of practice or any guidelines issued by OSH (you can download copies of the codes of practice from the OSH website at www.osh.govt.nz/order/catalogue/index.shtml#ap)
It's vital that employers keep up good communication with staff in all matters to do with workplace health and safety, so that employees are aware of the procedures they must follow and any emergency action plans that are in place.
It's a good idea for employers to contact OSH for a checklist for complying with the Act and for ensuring that their workplaces are safe. OSH provides training resources for employers on its website at www.osh.dol.govt.nz.
Where to get more information
The Occupational Safety and Health Service (OSH) provides information about health and safety issues on its website at www.osh.govt.nz.
- Your obligations under the Act are extensive and you should get legal advice for a full explanation. For example, it may not be enough for you to simply instruct an employee not to do something in a certain way if there are no safeguards in place and an accident occurs. You may be held liable in such a situation even if an injured worker disobeyed standard instructions.