Managing Health and Safety - A GUIDE FOR EMPLOYERS

 
Managing Health and Safety - A GUIDE FOR EMPLOYERS
Managing Health and Safety
                   A GUIDE FOR EMPLOYERS
DOL 11687 APR 13
Ministry 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
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    such material should be obtained from the copyright holders.

2   Ministry of Business, Innovation and Employment                                  Health & safety
Introduction
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
                                                                                                            3
Contents
           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 & safety
What 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
                                                                                                            5
What 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 & safety
Managing 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
                                                                                                             9
This 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 & safety
should 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
                                                                                                                 11
Who 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 & safety
What 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
                                                                                                               13
investigate 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 & safety
The 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
                                                                                                               15
Help 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 & safety
Appendix 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
                                                                                                                              17
18   Ministry of Business, Innovation and Employment   Health & safety
Ministry of Business, Innovation and Employment   Health & safety
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