Workplace Health and Safety Law – an update
To many business owners and managers, occupational safety and health (“OSH”) law is a body of rules that is intended to be punitive rather than preventative. It seems to impose on them an impossible obligation to insulate others from every conceivable risk, and removes the incentive for others to exercise common sense and personal accountability. Liability seems to automatically flow from accidents or illnesses the firm was powerless to anticipate or prevent, as if it was simply a tax on business.
For these reasons, and the fact that it is perceived as an avoidable expense that has no immediate or tangible benefit, OSH compliance tends to be something that is reactive rather than proactive, at least among small- to medium-sized businesses. But like it or not, OSH law is an integral and permanent part of our commercial landscape, so business enterprises may as well face up to it and embrace it. This is a summary of the relevant provisions.
OSH law in New Zealand is not new – in fact it goes back more than 100 years. But the Health and Safety in Employment Act 1992 (the “HSE Act”) which came into effect in 1993, changed the ground rules completely. Instead of relying on the Government to tell you what to do, which was the approach under the old law, businesses now have to take the initiative. The HSE Act is based on the assumption that you know your worksite best, so you are best suited to figure out what needs to be done to ensure that people are not harmed as a result of your work practices. Therefore you have to put some time aside and give it some thought.
The last Labour Government introduced some changes to the HSE Act in 2002, which gave more decision-making power to employees and their unions. But I think these changes were misconceived. There are two main causes of workrelated illness and injury: a lack of focus on health and safety by employers, and a natural tendency by employees to take a short cut in their work to save themselves some effort, on the assumption that nothing will go wrong. These 2002 amendments seemed to me to go over the top in addressing the first factor and, like the previous legislation, did nothing to address the second.
Now there are further changes in the pipeline. An independent taskforce set up by the Government is due to recommend sweeping reforms by 30 April 2013. And as a result of the Pike River Enquiry, the workplace health and safety division of the Ministry of Business, Innovation and Employment (“MBIE”) is being transferred to a new semi-autonomous Crown Agency as of 1 December 2013. On top of that, greater attention is now being focused on the high risk industries like construction, agriculture, forestry, manufacturing and fishing, and the Government is encouraging the MBIE to “lift its game” by collaborating more effectively with businesses.
The HSE Act and its associated regulations impose responsibilities on the following seven categories of people:
- Persons who control a place of work or item of plant (owners, tenants, subtenants, occupiers or people in possession)
- Self-employed people
- Principals (someone who engages a contractor to perform work)
- People (and organisations) who hire, lease or lend plant that is capable of being used in a workplace
- People (and organisations) who sell or supply plant that is capable of being used in a workplace
Employers have by far the greatest number of specific responsibilities and if you are an employer you need to be familiar with them. Most of the obligations are geared towards ensuring the safety of employees. They are too numerous to list here, but the MBIE has some useful brochures available, or try their website at http://www.osh.govt.nz
Just because you have satisfied your obligations as an employer, however, you cannot afford to relax. You will almost certainly have responsibilities under one or more of the other categories as well. For example, you may be liable for an industrial or commercial building which you lease to some other business, or a piece of equipment that you hire out to another business to use. Or, you can be liable for someone else’s work place, appliance, machinery, equipment or vehicle that you happen to be working on at the time. Your responsibilities are not confined to your own work place, and they are not confined to your own employees.
From time to time you will also hire a contractor to do something for you at work. This makes you a principal. You have some liability not only for that contractor and his/her employees, but also for the subcontractors that the contractor hires and their employees. This is so even if you are not actively supervising them, and they know far more about what they are doing than you do. How you allocate responsibility between yourself and the contractors depends on what is sensible and reasonable in the circumstances.
Even if you do not employ anyone, or control a place of work or item of plant, or hire contractors, you still have responsibilities under the HSE Act if you are self-employed or an employee. This is to ensure that you do not harm yourself or anyone else while you are at work. However the only employees who tend to be prosecuted are those who have some management responsibility such as foremen, supervisors or line managers. It is very rare for someone to be prosecuted for harming themselves.
Finally, hirers and sellers of virtually any product that can be used in a business all have responsibilities under the Act. It does not matter whether they are distributors, wholesalers or retailers – they have to ensure that the design, manufacture and maintenance of their stock is such that it will be safe for its intended use.
Although this list of responsibilities may appear daunting and the HSE Act difficult to comply with, in fact it is relatively straightforward if you put in the time and effort to set up your systems properly at the outset. The MBIE and the Courts are very sympathetic if you have been conscientious, but unforgiving if you have not. There are many consultants available who will put together a health and safety system for you economically, but make sure you and your staff are fully involved in the process. And do it now. It is too late once the accident has happened.
Geoff is the proprietor and senior lawyer at Madison Hardy, and a former partner at Simpson Grierson. He was an ADLS Councillor from 2006-11 and Vice President from 2009- 10, and has been the Convenor of ADLS’s CLE Committee since 2010.