Managing Health and Safety - A GUIDE FOR EMPLOYERS
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Managing Health and Safety
A GUIDE FOR EMPLOYERS
DOL 11687 APR 13Ministry of Business, Innovation and Employment (MBIE)
Hikina Whakatutuki Lifting to make successful
MBIE develops and delivers policy, services, advice and regulation to support economic growth and the
prosperity and wellbeing of New Zealanders.
MBIE combines the former Ministries of Economic Development, Science + Innovation, and the
Departments of Labour, and Building and Housing.
More information
www.mbie.govt.nz Information, examples and answers to your
questions about the topics covered here can
be found on our website www.mbie.govt.nz or by
0800 20 90 20 calling us free on 0800 20 90 20.
■■ Disclaimer
This document is a guide only. It should not be
used as a substitute for legislation or legal
advice. The Ministry of Business, Innovation and
Employment is not responsible for the results of
any actions taken on the basis of information in
this document, or for any errors or omissions.
ISBN 978-0-478-36089-9 (print)
September 2011
Reprinted April 2013
©Crown Copyright 2013
The material contained in this report is subject to Crown copyright protection
unless otherwise indicated. The Crown copyright protected material may be
reproduced free of charge in any format or media without requiring specific
permission. This is subject to the material being reproduced accurately and
not being used in a derogatory manner or in a misleading context. Where the
material is being published or issued to others, the source and copyright
status should be acknowledged. The permission to reproduce Crown copyright
protected material does not extend to any material in this report that is
identified as being the copyright of a third party. Authorisation to reproduce
such material should be obtained from the copyright holders.
2 Ministry of Business, Innovation and Employment Health & safetyIntroduction
Working environments that are as safe and healthy
as possible are a significant part of a successful
employment relationship and contribute to a
successful business.
As an employer, you to need to work with your
employees to identify hazards and manage them.
Every workplace is different. New Zealand’s legislation
recognises this by providing a framework for employers
(with the help of employees) to address health and
safety in the way that is most appropriate for each
workplace.
Creating a safe and healthy workplace is a basic part of
the relationship between you and your employees.
Two laws support this relationship: This guide aims to answer your questions about
›› The Employment Relations Act 2000 promotes New Zealand’s health and safety legislation and
good faith relationships among you, your your responsibilities, and explains how to deal with
employees and unions. questions and issues.
›› The Health and Safety in Employment Act 1992 Further information or assistance is available
(the Act) builds on this and requires you and through the Ministry of Business, Innovation and
others in the workplace to control hazards Employment, www.dol.govt.nz or 0800 20 90 20.
so that people are not harmed as a result of
work.
Ministry of Business, Innovation and Employment Health & safety
3Contents
What does the Health and Safety in Employment Act set out to do?........................................................6
Who is covered by the Act?...................................................................................................................................6
What are my responsibilities as an employer?.................................................................................................. 7
What is a workplace?............................................................................................................................................... 7
Managing hazards....................................................................................................................................................8
Involving your employees in health and safety...............................................................................................10
Who enforces the Act?.........................................................................................................................................13
What do I do if there is an injury or near miss?...............................................................................................14
Compliance and penalties.....................................................................................................................................15
Help and further information..............................................................................................................................17
Appendix A...............................................................................................................................................................18
4 Ministry of Business, Innovation and Employment Health & safetyWhat does the Health and Safety in
Employment Act set out to do?
The purpose of the Act is to make sure people are The primary aim is the elimination of significant
not harmed as a result of work activities. It sets hazards if practicable. If a hazard in your
out a range of duties for employers to ensure workplace can reasonably be eliminated, then it
people are safe and healthy in the workplace. should be. If the hazard cannot be reasonably
eliminated, can it be isolated or minimised? What is
To ensure health and safety, you must
reasonable depends on how much harm the hazard
systematically manage hazards in the workplace.
might cause, and how difficult and expensive it
The Act recognises that the best way to do this
would be to eliminate the risk.
is through co-operation in the workplace, and, in
particular, through working together with your When a hazard cannot be eliminated, your
employees to establish good systems. employees have the right to know about the
hazard, the level of risk, and what they need to do
You need to ensure that hazards in the workplace
(or not do) in order to work safely. They may need
are identified, and that those hazards are
to wear suitable protective clothing for example.
eliminated, isolated or minimised.
There are real benefits to you in ensuring a safe
You are responsible for providing a safe working
workplace. These include improved productivity,
environment and workplace, but employees must
avoiding lost time due to illness and injury, and
also maintain safe practices. Therefore you must
higher rates of staff retention.
ensure that employees’ are properly trained and
supervised so all can work safely.
Who is covered by the Act?
The Act places duties on employers, self-employed ›› loaned employees
people, and principals to contracts to provide ›› people doing on-the-job training or gaining
effective systems for the protection of employees work experience.
and visitors to places of work.
Visitors include customers, delivery and courier
Employees also have responsibilities and roles company employees and other people legally in the
under the Act. workplace.
Employees are defined in the same manner as Volunteers are included in some circumstances.
under the Employment Relations Act, but also
include:
Ministry of Business, Innovation and Employment Health & safety
5What are my responsibilities as an
employer?
You are responsible for providing a safe workplace, ›› provide safety information to staff
and for ensuring the health and safety of those ›› provide training and supervision so that work is
working in or visiting the workplace you control. To done safely
achieve this you are expected to:
›› develop procedures for dealing with
›› systematically identify hazards emergencies that may arise in the workplace
›› systematically manage those hazards ›› record all workplace accidents and illness and
›› manage significant hazards by eliminating, report those that cause “serious harm”
isolating, or minimising them, in that order of ›› monitor the health of employees in relation to
preference the hazards of their work
›› provide suitable protective clothing and ›› provide opportunities for employees to
equipment to staff and ensure it is worn participate in health and safety.
(where a hazard cannot be eliminated)
Do employees have responsibilities?
Yes. Employees are required to take all practicable employee, the more responsible they are for their
steps to ensure their own safety and that of safety, but your overall responsibility to ensure a
others in the workplace. This includes considering safe workplace remains.
both the things they do and the things they omit to
Practicable steps the employee can take also
do (such as not using safety gear).
include reporting to you any hazards or incidents,
You should make clear to employees their so that you are able to investigate and put
responsibilities to use safety equipment provided safeguards in place.
and to wear protective clothing.
A guide for employees about their rights and
In general, the more knowledgeable and senior an responsibilities is available here.
What is a workplace?
A ‘place of work’ is defined in the Act. It is any place considered a private activity, except in some
(not necessarily part of a building or structure) limited circumstances.
where any person is to work, is working for the
Your home is treated differently. If you employ or
time being, or customarily works for gain or
engage someone to work in or on your home, such
reward.
as a cleaner or plumber, you have no legal duties to
The definition also includes places like lunchrooms, them under the Act.
forecourts and corridors that an employee may
However, this exemption does not carry over to
pass through in the course of their work.
other people’s homes. If you employ home-workers
A vehicle or vessel that is used by an employee (such as caregivers or telemarketers) you are
doing your business is also included as a place responsible for their health and safety whether
of work, even if the employee owns the vehicle they are working in their own home or in someone
or vessel. Travel to and from work is typically else’s.
6 Ministry of Business, Innovation and Employment Health & safetyManaging hazards
The Act broadly defines the “hazards” you must Recording your hazard assessment and regularly
manage. A hazard is any potential or actual source reviewing it – particularly when changes are made
of harm. It may be an activity, arrangement, to the workplace and/or work processes – can
circumstance, event, occurrence, phenomenon, form the foundation for a health and safety policy
process, situation or substance. A hazard includes and plan in your workplace. You also need to review
a situation where a person’s behaviour may be an your plan when you receive new information about
actual source of harm to the person or another the effects of, or management of a hazard.
person.
You are required to take “all practicable steps” to
Examples of potential workplace hazards include: eliminate or manage each significant hazard. Your
›› a work process (for example, how an employee plan should consider whether it is practicable to
uses machinery or equipment) eliminate each hazard, or how it will be managed.
›› the physical environment (for example, working You are required to do as much as is reasonably
at height, underground, or at sea, or working in practicable to eliminate, isolate or minimise any
heat or cold) hazard. Engaging employees in hazard management
›› the equipment used (for example, is electrical as part of your agreed employee participation
equipment properly installed? are brakes system will make this more manageable.
effective?) There will not be a simple answer for every hazard
›› an external factor (for example, the possibility and a judgement has to be made bearing in mind:
of robbery where large amounts of money are ›› the nature of the harm that could be caused
kept)
›› the probability of that harm occurring
›› an input to the work process (for example,
›› the availability of information on managing the
are cleaning materials toxic in some
hazard
circumstances?)
›› the cost and availability of safeguards.
›› the work organisation (for example, are shifts
and breaks designed to minimise fatigue and For many hazards there are known protections
disruption of sleep?) available, such as protective clothing or equipment.
›› access to critical information (for example, It is the employers responsibility to provide the
are instructions available at an appropriate protection and ensure it is used. Also, hazards can
literacy or language level for employees in the often be eliminated, for example using substitute
workplace?) substances that are not harmful but are equally
›› the construction or layout of the premises (for effective.
example, is flooring safe when wet? are people In some industries regulations set minimum
exposed to asbestos?) standards that you must comply with. The Ministry
›› the impairment of an individual employee (for of Business, Innovation and Employment and
example where a diabetic employee misses industry associations may have developed solutions
meals due to work pressures). or suggested ways of dealing with the problem.
Approved Codes of Practice and some industry
Your hazard assessment should also take account developed guidance is available from our website
of any previous injuries or work-related illness that www.dol.govt.nz or 0800 20 90 20.
may have occurred.
Many industries have developed best-practice
■■ What do I do about hazards? guidance. Your industry association may be able to
You are required to examine all aspects of the assist.
workplace to identify and then systematically The Accident Compensation Corporation (ACC)
assess hazards. Many employers’ document and our website provide information on managing
their hazard management system as a means hazards for many different industries and types of
of ensuring all aspects of the workplace are workplaces.
addressed.
Ministry of Business, Innovation and Employment Health & safety
7■■ How do I decide what is “all practicable ■■ What if something happens that I was
steps” in my circumstances? genuinely unable to predict?
The steps you need to take to ensure health and You are only required to manage hazards that you
safety will sometimes involve balancing operational know about, or that it is reasonable to expect you
issues, achievability and cost. Cost alone will not to know about.
be seen as an excuse for failing to take action. The
However, you are expected to understand those
cost needs to be weighed up against the nature
things that are commonly known within your
of the hazard, the severity of the harm that
industry. You have to do what is “reasonable”, which
would occur and what is reasonably practicable in
means that you have to do what a reasonable and
your business. An employee agreeing to accept a
prudent person would do in the same situation.
risk is not acceptable, and does not remove your
Ultimately, what is “reasonable” is determined by
responsibility.
the standards and practices of the industry and
It is worthwhile documenting your reasons for taking society generally.
any action you decide upon, and then reviewing these
This does not reduce the necessity to regularly and
decisions as new products or processes come on
systematically review hazards and processes and
the market. What may be accepted as “reasonable”
to put in place systems for managing them.
at one level of knowledge and cost may be seen as
insufficient some time later. ■■ What types of hazards should I be
looking for?
A key to meeting a test of “all practicable steps” is
systematic management. Systematic management You can identify hazards by asking the questions:
of health and safety includes: ›› What harm can occur to people working for me?
›› identifying significant1 hazards in a systematic ›› How can that harm occur?
manner
As discussed above, these questions need to be
›› eliminating or isolating those hazards that can
applied systematically to your workplace to be sure
be eliminated or isolated
you identify less obvious hazards.
›› taking steps to minimise the likelihood of
harm occurring from the remaining hazards Your hazard identification will usually begin with
(including providing warnings and other the physical hazards of the workplace. But the Act
information) also defines hazards such as work-related stress,
fatigue, and behaviour related hazards such as
›› identifying whether there are specific
workplace bullying.
regulations covering your industry, and
complying with those regulations You need to be aware of the potential for stress,
›› providing protective clothing and equipment – fatigue and conflict in your workplace (http://
or ensuring that employee-provided equipment www.osh.govt.nz/publications/stress/index.asp),
is suitable – and ensuring that it is used including:
properly ›› Continuing events in the workplace identified
›› training your employees about safe working during hazard identification, such as shift
practices work, extended hours, or jobs with intense
interactions or inherent stress or pressure.
›› recording and managing any accidents that
occur, and reviewing and correcting their ›› Occasional circumstances, such as a
causes restructuring, or where a person is witness to
a robbery, fire or accident.
›› monitoring the health of employees, and
responding to any illness caused by workplace ›› Personal issues affecting an employee,
activity including impairment by alcohol, prescription or
other drugs, whether legal or illegal.
›› responding to the advice of health and safety
inspectors With these and other hazards, your responsibility
›› designing work practices and working hours only extends to matters you can be reasonably
in a manner that supports a safe working expected to recognise or be aware of.
environment.
1. A “significant” hazard is one that could cause “serious harm”.
8 Ministry of Business, Innovation and Employment Health & safety■■ Regulations, approved codes of practice, Approved codes are not mandatory, but are
and other guidance designed as a guide for managing hazards.
Alternative protocols or practices you might
A range of material is available to assist you to
develop in your workplace must be at least as
manage hazards and otherwise complying with
effective as the code.
the legislation. This includes regulations, approved
codes of practice and guidelines. In the event of a hazard being identified by an
inspector or health and safety representative,
Regulations provide mandatory minimum standards
your practice may well be tested for effectiveness
in some industries and for some specific hazards.
against any relevant code of practice.
The website www.dol.govt.nz has a list of these
industry regulations. Guidelines are developed by the Ministry and
industry and set out recommended ways of
Approved codes of practice are developed with
complying with hazards and specific health and
specific industries and set out ways of managing
safety issues.
particular processes, equipment or substances.
In most cases, Courts accept compliance with ACC also has a range of injury prevention material
an approved code as evidence of having taken all and expertise available at www.acc.co.nz.
practicable steps to manage a hazard.
Involving your employees in health and safety
■■ What is employee participation? Where you employ fewer than 30 employees, you
must have an agreed employee participation
Employees have a right to participate in health
system if one or more employees request it. Even if
and safety processes in their place of work. The
they don’t request a system, you must still provide
Act specifies circumstances where a system is
opportunities for employee involvement in health
required to be in place to properly canvas the
and safety issues.
views of employees. The Act promotes working
co-operatively and in good faith with your This system might include:
employees (and, where applicable, their union) ›› employees electing one or more health and
to establish an effective arrangement for your safety representative
workplace. Apart from the legal requirements,
›› employee surveys
where employees participate in their workplace
safety, research shows this leads to reducing both ›› hazard identification by teams
the number of injuries and their cost. ›› external audits that involve employees in the
process
■■ What could participation involve?
›› regular weekly meetings where work is
You have a general duty to provide employees with reviewed and systems discussed
opportunities to be involved in the processes for
›› anything else that will be effective in your
maintaining health and safety in your workplace.
workplace.
But the legislation does not require any particular
system and each workplace can take a practical ■■ What if we can’t reach an agreement?
approach that suits it.
Consultants, unions and other specialists will
A health and safety committee might include be able to help you establish a system. If you
both elected employee and management can’t reach agreement the Ministry of Business,
representatives. Innovation and Employment provides a mediation
service to help you work towards a solution.
Where you employ 30 or more employees, you
must have an agreed employee participation If an agreement is required and can’t be reached,
system, and the Act (http://legislation.govt.nz/ a system is set out in the Act (see the diagram on
act/public/1992/0096/latest/DLM278829.html) page 18).
describes a process for reaching agreement.
Ministry of Business, Innovation and Employment Health & safety
9This system becomes mandatory if you and your ■■ What training can health and safety
employees have been unable to reach agreement representatives receive?
within six months from the latest of:
Health and safety representatives are entitled to
›› the date at which you employed 30 or more two days’ paid leave each year to attend approved
employees; or courses. You should receive at least 14 days’
›› the date on which one or more employees notice of their intention to take leave. You cannot
requested a system. unreasonably decline leave but leave can’t be
taken at a time that would unreasonably disrupt
■■ What do health and safety
your business. This entitlement is subject to a cap
representatives do?
in each workplace, so that in those workplaces
Health and safety representatives’ role is to foster where there are a number of health and safety
good health and safety practice in the workplace. representatives the leave provisions are not an
The focus is on: excessive burden to the business.
›› promoting health and safety through Where you and your employees (and, if applicable,
constructive engagement with management their union) agree, different provisions for leave
›› identifying hazards and employees’ concerns, may be negotiated. This could provide for on-site
and working with management to solve them or in-house training arrangements.
›› supporting fellow workers who have suffered ■■ What is a hazard notice?
an injury, including involvement in making
arrangements for return to work and Once a health and safety representative is trained,
rehabilitation he or she is authorised to issue hazard notices.
›› acting as a conduit for communication of When a hazard is identified in the workplace,
health and safety concerns, including by hazard the first response of a health and safety
notice when appropriate. representative should be to inform you and seek to
reach a suitable solution.
Health and safety representatives may also
be involved in employee induction programmes, You and the representative should undertake these
training and have input into decisions on discussions in good faith and with an open mind.
purchasing equipment. Where agreement cannot be reached because you
do not believe that a hazard exists, or because a
In larger businesses, representatives will normally
solution acceptable to both of you cannot be found
participate in a health and safety committee
or implemented, the representative may decide to
and communicate to other employees about the
issue a hazard notice.
issues it considers. Where there is a union in the
workplace, it will be able to offer support and (See the section on “infringement notices”: a
information to the representative. hazard notice may be a warning that could result
later in an infringement notice from an Inspector.)
Any employee representative should be given
reasonable time in which to carry out their role and The Act provides that such a hazard notice:
be provided with the necessary resources. ›› must describe the hazard identified; and
In the end, though, you must make the necessary ›› may identify steps to deal with the hazard.
decisions about health and safety issues after
Once a hazard notice is issued, the health and
taking employees’ input into account.
safety representative can notify a health and
■■ Who can be health and safety safety inspector, who may decide to visit the
representatives? workplace to review the issue.
Any employee who has worked more than 180 hours Receipt of a notice does not require you to take
in the past 12 months is eligible to be a health and any specific action, and there is no requirement
safety representative. that work cease in the area or on the equipment
concerned. But the notice is a strong indication of
the concerns held by the representative, and you
10 Ministry of Business, Innovation and Employment Health & safetyshould only not respond if you reasonably believe ■■ What is the role of unions under this
you need to do nothing more. legislation?
Your response, and reasoning, may be important Like everyone else, unions are required to act in
if an accident occurs and it may be useful to good faith to help resolve health and safety issues.
document your decision.
The rights of unions under the Health and Safety in
■■ Can employees refuse to work in some Employment Act flow from the rights of registered
circumstances? unions to represent their members, which are
granted under the Employment Relations Act.
An employee may refuse to perform work that he
Union delegates represent members collectively
or she believes is likely to cause serious harm.
on health and safety matters and may enter the
They may only continue to refuse to carry out workplace (subject to notice requirements) to deal
that work if, after discussing the matter with with health and safety and other issues.
the employer, the matter is not resolved and the
If employees wish, their union can assist or
employee still believes on reasonable grounds that
represent them in developing a system of
the work is likely to cause them serious harm.
participation and in any employment relationship
In the first instance, you and your employees problem that emerges while seeking to agree on a
(and their representatives if necessary) should system.
be working together in good faith to identify the
However, the legislation covers the entire
cause of any problems and resolving these issues
workforce whether they are collectively
yourselves. If this is not successful, you can call the
represented or not. Therefore it is important for
Ministry of Business, Innovation and Employment.
you to consider the interests of employees who
An employee who refuses to do work because they are not in the union as you establish systems,
believe it is likely to cause him or her serious harm processes, representatives or a committee.
must do any other work reasonably requested by
the employer.
Any unresolved problems can be dealt with as
employment relationship problems under the
Employment Relations Act.
Ministry of Business, Innovation and Employment Health & safety
11Who enforces the Act?
The Act is primarily enforced by the Ministry How inspectors undertake their task depends
of Business, Innovation and Employment, but on the nature of the visit. They may visit to
other agencies are designated to undertake offer information , to inspect the workplace,
enforcement in specialist areas. or to investigate reported incidents. During
investigations and inspections they will often
Maritime New Zealand and the Civil Aviation
question the employer and employees, and may
Authority are approved to enforce the Act in
take statements from both. This could include
their respective sectors. Members of NZ Police’s
general and specific questions about working
Commercial Vehicle Investigation Unit are also
conditions, materials or substances used, or the
able to enforce the Act in the commercial vehicle
nature and performance of equipment.
accidents they investigate.
Inspectors may be supported in this activity
■■ The Ministry of Business, Innovation and
by other Ministry of Business, Innovation and
Employment’s health and safety inspectorate
Employment staff or other experts under their
Specialist inspectors, advisors, and information supervision.
officers undertake a range of activities aimed at
In particular, an employer (or person in control of
preventing harm to employees and others.
a place of work) has a duty to provide statements
This includes research, working with industries to an inspector about health and safety matters
to develop codes of practice and guidance, and affecting employees. However, when giving such
providing information to both employers and a statement employers do not have to give
employees. It also involves inspecting workplaces, information or answers tending to incriminate
and if necessary ensuring compliance by themselves. An inspector must warn employers
businesses that fail to maintain a safe working before taking such a statement that they are not
environment. required to give answers that may incriminate
them.
Inspectors may enter a place of work at any
reasonable time to: Employers and employees have a duty to assist and
›› ascertain whether the Act is being or has been not to obstruct inspectors. This means providing
complied with sufficient information and access to enable
inspectors to carry out their functions and not
›› take all reasonable steps to ensure the Act is
hinder them.
complied with
›› investigate accidents or complaints If you feel that you require assistance in dealing
with these enquiries, you may have your legal or
›› take samples and collect evidence if needed.
other advisor in attendance. Your employees have
The only exception to this right is entry to a home the right to seek union or legal advice.
where work is being undertaken. In this case, the
The Ministry of Business, Innovation and
agreement of the occupier or a warrant from a
Employment’s health and safety inspectorate
court is required.
operating policies and principles are set out in the
Inspectors may visit a workplace without giving document Keeping Work Safe -Ministry of Business,
notice at any reasonable time. However, they will Innovation and Employment’s Policy on Enforcing the
often contact the workplace beforehand to make Health and Safety in Employment Act 1992.
an appointment. On arrival, they will produce their
certificate of appointment, often referred to as a
warrant, to the person in charge.
12 Ministry of Business, Innovation and Employment Health & safetyWhat do I do if there is an injury or
near miss?
■■ You need to keep a register of accidents employees, contractors or self-employed must
and incidents be reported in writing within seven days of the
employer, principal to a contract, or self-employed
All workplaces must maintain a register of
person becoming aware of it. You need to complete
accidents that caused harm, or that could have
this on a prescribed form, which is the same as the
led to harm (“near misses”) to employees or others
approved accident register form, and is available
visiting the workplace. This includes long-term or
from www.dol.govt.nz.
past activities that may have led to an occupational
illness. “Serious harm” is defined in the first schedule
of the Act, and you can access this through our
Any health or safety problem, regardless of
website www.dol.govt.nz.
how serious or minor, should be recorded and
investigated to determine cause. This information Broadly, “serious harm” refers to either an injury or
provides an important basis for ongoing hazard illness that arises from work-related activity that
management. causes any permanent or temporary severe loss of
bodily function, and includes:
Your register should record:
›› amputations
›› the worksite
›› burns requiring specialist attention
›› the name, address, occupation or job title of
the person involved in the incident ›› loss of consciousness from lack of oxygen
›› if an employee, his or her service details ›› damage to hearing or eyesight
›› details of any medical treatment provided ›› poisoning
›› the time and date of the incident ›› respiratory disease or cancer arising from the
work environment
›› details of the site of the incident, what
happened and the cause ›› death.
›› details of the injury Any injury or illness that causes a person to
›› the remedial action taken in response to the be hospitalised for 48 hours or more is also
hazard that led to the problem. considered “serious harm” and must be reported.
The employer or the employer’s representative ■■ After a serious accident
should sign each entry. Don’t interfere with the scene – except to prevent
In workplaces where there is access by non- further injury to persons or damage to property
employees, whether customers or suppliers, all – until a health and safety inspector has been
employees should be aware of the need to monitor contacted and has determined the appropriate
and report accidents involving these people. action.
You can download a copy of an accident register Where the Police are on the scene to investigate,
from www.dol.govt.nz. you should also follow their instructions.
■■ You need to notify and report all ■■ Investigating accidents
occurrences of serious harm All accidents need to be investigated to assess the
The Ministry of Business, Innovation and cause of the harm, identify whether inadequate
Employment (or Maritime NZ or the Civil Aviation systems or systems failures contributed and
Authority as appropriate) must be notified of all consider what remedial action is appropriate. It
serious accidents immediately. This will usually is important that you provide clear and accurate
occur over the phone. information.
In addition, all occurrences of “serious harm” to The Ministry thoroughly investigates all serious
workplace accidents. Inspectors also examine or
Ministry of Business, Innovation and Employment Health & safety
13investigate the circumstances of many reported It’s a good idea to involve affected employees in a
occurrences of “serious harm” each year. review of what occurred to identify and deal with
the problem so all parties understand.
In addition, as an employer you are required
to investigate all injuries, illness and incidents Any incident should be seen as an opportunity to
recorded on your accident register. improve the work environment and work practices.
To do this it is best to set out the key details
of the event in writing as soon as possible
afterwards.
Compliance and penalties
You have the primary responsibility to comply ›› the specific nature of the failure
with the Act so that employees and others in the ›› a date by which compliance should be achieved.
workplace are safe.
At the inspector’s discretion, the notice may also
The Ministry of Business, Innovation and outline steps that can be taken to correct the
Employment (Maritime NZ, CAA or NZ Police) fault.
inspects workplaces for conformity with the Act,
and investigates potential breaches. The Improvement Notice must be handed to the
relevant person or be given to the person in charge
Health and safety inspectors have multiple options of the workplace or activity at the time of the
available to ensure compliance with the Act inspector’s visit. It may also be sent by registered
and to focus employers and employees on harm mail to either of those people or to the principal of
prevention. the company.
Inspectors will discuss your safety management There is no specific penalty applied by an
system during visits and check if they are working. Improvement Notice, but failure to comply is
They may discuss with you how to improve itself a breach of the Act and could lead to an
processes or equipment in your workplace. Where Infringement Notice or prosecution. A notice may
problems in the safety management system are be appealed to a District Court, which can vary,
identified, you must have solutions put in place as rescind or confirm the notice.
soon as is practicable for the particular workplace.
■■ Prohibition Notices
The policies and principles the Ministry of Business,
Innovation and Employment’s health and safety A health and safety inspector can stop unsafe
inspectorate operate under are set out in the machinery or work by issuing a Prohibition Notice.
document Keeping Work Safe – Ministry of This will happen where the inspector believes
Business, Innovation and Employment’s Policy on there is a likelihood of serious harm because of
Enforcing the Health and Safety in Employment Act non-compliance.
1992. (www.dol.govt.nz/publications/research/ A Prohibition Notice has immediate effect and
keeping-work-safe/index.asp) remains in force until the problem is rectified to
■■ Improvement Notices the inspector’s satisfaction. It is intended as an
immediate solution to an imminent danger.
A health and safety inspector can issue an
Improvement Notice. This will happen when they The Prohibition Notice must specify:
believe that the person receiving the notice is ›› the hazard to which it relates
failing to comply with a provision of the Act or has ›› the Inspector’s reason for believing it will
failed and is likely to fail again. The notice outlines: cause harm
›› the provision breached ›› the activity or area that is prohibited.
›› the inspector’s reason for believing the person
It can also specify the steps to be taken to eliminate
is in breach
or minimise the likelihood that harm will result.
14 Ministry of Business, Innovation and Employment Health & safetyThe inspector will attach or display the notice close Officers, directors and, in some circumstances,
to the area of risk and a copy will be given to the agents may be charged in relation to failures by a
person apparently in charge of the process, area company or other body corporate if they actively
or activity. participated in the failures.
It is an offence not to comply with a Prohibition The legislation requires any charges to be laid in
Notice or to remove a Prohibition Notice before a District Court within six months from the time
the problem has been rectified to the inspector’s when a health and safety inspector knows or ought
satisfaction. It is also an offence to remove it reasonably to have known of the particular matter.
before an appeal against the notice has been taken There is scope to apply to the court to extend this
and heard by the District Court. A court may vary, period, but the inspector must prove there are
rescind or confirm the notice. reasonable grounds for extending it.
■■ Infringement Notices When considering prosecuting, the Ministry
follows the principles and process set out in
A health and safety inspector can issue an
Keeping Work Safe – The Ministry of Business,
Infringement Notice. The notice can impose a
Innovation and Employment’s Policy on Enforcing
penalty ranging from $100 to $4000 on a person or
the Health and Safety in Employment Act 1992. The
company that has, despite prior correspondence or
Ministry’s legal counsel also apply the Solicitor
notices (including hazard notices issued by health
General’s Prosecution Guidelines in order to ensure
and safety representatives), failed to ensure that
consistent and appropriate action is taken.
all practicable steps have been taken to remove a
hazard. ■■ Private prosecution
If you receive an Infringement Notice you have the In the event that the Ministry or another
choice of paying the fee or seeking a hearing in a enforcement authority decides not to take
District Court. enforcement action, then other parties, such as
an injured employee or customer, may commence a
Inspectors consider a number of issues when
prosecution in a District Court.
establishing the level of the infringement fee. This
includes taking into account the level and extent ■■ Fines
of actual or possible harm, the employer’s previous
Fines under the Act range up to $500,000, but
safety record and the employer’s ability to pay.
most offences carry a maximum fine of $250,000.
If an offence is continued or occurs again, the When the courts consider the penalty to impose
same process of warning and Infringement Notice they take into account a range of considerations
can apply, or a health and safety inspector my under the Health and Safety in Employment Act
prosecute. as amended in 2002 and the Sentencing Act 2002.
These include:
■■ Prosecution
›› the level and nature of risk or harm
Where there has been a breach of the Act,
›› the prior history of health and safety practice
prosecution is an option.
in the workplace
Prosecution action seeks to penalise and ›› the culpability of the organisation or employee
deter where persons have failed to meet their
›› the ability to pay.
responsibilities under the Act.
The Ministry may prosecute employers, employees,
self-employed, principals, contractors and persons
in control of a place of work who committed
offences against the Act.
Ministry of Business, Innovation and Employment Health & safety
15Help and further
information
The Ministry of Business, Innovation and
Employment, contacted on 0800 20 90 20, can
assist with:
›› general and technical questions on your health
and safety practices
›› information and assistance with the
management of employees’ health and safety
performance.
These services work closely together to ensure
that problems are resolved at the earliest possible
opportunity.
Those in the maritime area can obtain assistance
and advice from the Maritime New Zealand www.
maritimenz.govt.nz
16 Ministry of Business, Innovation and Employment Health & safetyAppendix A
■■ How does employee participation work?
The diagram below sets out the requirements for employee participation in workplace health and safety
matters. For more detail you can contact the Ministry of Business, Innovation and Employment on
0800 20 90 20 or www.dol.govt.nz.
Every employer has to provide reasonable opportunities
for employees to participate effectively n ongoing improvement of health and safety in the workplace
Does the employer need to develop participation system in order to do this?
Fewer than 30 employees 30 employees or more
One or more employees requests a system
yes
no
Employer not requires to agree to
an employee participation system,
but such systems are an effective way of
involving employees in health and safety
Employers, Emplyees and, where applicable, their union(s) must seek to agree a system
either or
• confirm that an existing system is acceptable
Adopt the system set out in the schedule
to all parties; OR
to the HSE Act
• seek to agree a new system
Fewer than 30 employees 30 or more employees The system must take into account the
requirements of the HSE Act and schedule,
including a review process
Hold election for Hold election for 1
health and safety health and safety
representative representative for each System confirmed/agreed
type or place of work within 6 months?
or other grouping, OR a yes
maximum of 5 health and no
safety representatives
as members of a health
and safety committee
System in place
Review system
For further information refer to www.dol.govt.nz
Ministry of Business, Innovation and Employment Health & safety
1718 Ministry of Business, Innovation and Employment Health & safety
Ministry of Business, Innovation and Employment Health & safety
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