A Guide to the Health and Safety in Employment Act 1992

Part 2: Duties of employers

This part of the guide describes the duties of employers set out in part II of the Act, which contains preventative duties. That part also includes a general duty of care, set out in section 6.

There are other duties for employers set out under part 2A, Employee participation, and part IV, General provisions (relating to such matters as what to do after an accident, and inspections or notices issued by health and safety inspectors or departmental medical practitioners). Employers should refer to parts 4, 5 and 6 of this guide for information on their duties and responsibilities in these areas.

2.1 The meaning of "employer"

An "employer" is defined in the Act as any person (including a company, Crown organisation, or other legal entity) who employs any other person to do any work for hire or reward. This includes hiring workers under a contract of employment, apprenticeship or an industrial training agreement.

These workers are all referred to as "employees". The meaning of "employee" is discussed further in part 3, Duties of employees.

You may also be deemed by the Act to be an "employer" in relation to:

voluntary workers doing regular work for you (section 3C);
people receiving on-the-job training or work experience (section 3E); or
loaned employees working for you (section 3F).

[Refer to the fact sheet, Volunteers]

Some other legislation (such as the Social Security Act and the Education Act), may also deem people to be employers for the purposes of the Health and Safety in Employment Act, even if the work is not being completed for hire or reward.

If you engage someone to work on or in your own home, you are not an employer in terms of the Act.

[Refer to the fact sheet, The home as a workplace]

Officers, directors or agents

The officers, directors, or agents of any body corporate are not considered employers in terms of the Act. They are, however, liable to prosecution if they "direct, authorise, assent to, acquiesce in, or participate in" a failure to comply with the Act (section 56). Prosecution can result whether or not the body corporate is prosecuted. Refer also to 1.4, Coverage is broad.

Principals to a contract

A principal to a contract (other than an employment agreement), is not an "employer" in terms of the Act. But he or she does have other duties, which are described in 4.2, Duties of principals and contractors.

Examples:

Carl is an apprentice electrician, indentured to John of John's Electrical. John is Carl's employer in terms of the Act.
Jenny grows peaches and apricots on her orchard. Throughout the year she employs Jeff on wages as a general hand. In terms of the Act, Jenny is Jeff's employer.
At the height of the season Jenny employs three or four local people to help pick, pack and despatch the fruit. They are employed on a casual basis and given the choice of either working on piece rates or an hourly rate. On either basis, Jenny is their employer in terms of the Act.
Chris is gaining work experience and life skills training in a programme organised by the Great Breaks Trust. The trust is funded to run the programme by a central government grant. The trustees employ Marlene as a supervisor and pay an allowance to Chris and the other trainees.
Because Chris is - like Marlene - working "for gain or reward", the trustees are his employer in terms of the Act.

While Dave is completing a pre-employment course at an Institute of Technology, he gains unpaid work experience with Trevor the self-employed builder. While Dave is at work, Trevor is his employer in terms of the Act.
Mary-Lou is a student at Sunny Valley High. She is not an employee in terms of the Act, although in certain situations her health and safety may be protected by it.
Philip is a history teacher at Sunny Valley High. His employer is the board of trustees of the school, and the chairperson of the board is Lisa-Marie.

The board is Philip's employer in terms of the Act. Lisa-Marie and the other trustees may also be accountable for the effects of their health and safety decisions on employees or others.
Ruth works at home sewing fashion garments for Lavina, who manufactures apparel and sells it from her shop Lavina Modes. Ruth works on piece rates, only for Lavina, who is her employer in terms of the Act. The part of her home where she works is a "place of work".
There may also be some circumstances where Ruth is an independent contractor to Lavina, and is therefore self-employed in terms of the Act. Whether this is the case depends on a range of factors, including the degree of resourcing, economic dependence, and the supervision or control exercised by Lavina over Ruth's work.
Denis is a superannuitant who helps out part-time in the office of his son Graeme's print works. Denis does not expect material gain or reward from Graeme, so he is a volunteer, but Graeme is deemed his employer in terms of the Act. Jason works after school for Jessie, delivering the Dunedin Evening Mail. Jessie is an independent contractor to The Mail, and the newspaper company is therefore not her employer. Jessie is, however, Jason's employer.
Tania, a retired nurse, works one day every other week for the Blood Bank's mobile service. The Blood Bank has some of the duties of an "employer" towards Tania, particularly with respect to hazard management and her right to information about the hazards of her voluntary work.

2.2 The general duty

Every employer shall take all practicable steps to ensure the safety of employees while at work.

This pivotal requirement of the Act is set out in section 6. It restates the object of the Act (from section 5) in terms of a general duty for employers.

The section then expands on this general duty by prescribing the following particular duties to:

Provide and maintain a safe working environment;
Provide and maintain facilities for the safety and health of employees at work;
Ensure that plant machinery and equipment in the place of work is designed, made, set up, and maintained to be safe for employees;
Ensure that systems of work do not lead to employees being exposed to hazards in or around their place of work; and
Develop procedures for dealing with emergencies that may arise while employees are at work.

It is important to remember here that the standard of care that is required of all employers is that they take "all practicable steps". This is an important concept for employers, and others following the Act. It is discussed more fully at 1.5, All practicable steps.

Briefly here, "all practicable steps" means doing what is reasonably able to be done in the circumstances, taking into account:

The severity of any injury or harm to health that may occur;
The degree of risk or probability of that injury or harm occurring;
How much is known about the hazard and the ways of eliminating, reducing or controlling it; and
The availability, effectiveness and cost of the possible safeguards.

The standard applies in respect of circumstances that the person knows or ought reasonably to know about.

[For further information, refer to the fact sheet, All practicable steps]

For further discussion of "risk" see 2.3, Hazard management responsibilities.

Another consideration when observing the general duty is that it applies to all types of hazards, not only significant hazards. The extent of the duty is to take all practicable steps to keep employees free from harm at work. This means, for example, that a minor tripping hazard, or a sharp corner that juts into a walkway that presents a foreseeable likelihood of harm and is easily made safe, should be remedied under the duties of section 6. On the other hand, there may be no requirement to manage the hazard under sections 7-10 of the Act, because it is not considered to be "significant".

Particular duties

The general duty imposed by section 6 is expanded by particular duties to ensure that employees are not exposed to hazards at work. These are described in more detail below.

Approved codes of practice and guidelines to the Act and regulations published by the Occupational Safety and Health Service offer a ready compendium of information for employers meeting the particular duties.

However, an important point to consider with regard to these duties is that they specify the result that is required of employers. How the result is achieved is in large part open to the individual employer to choose.

Providing and maintaining a safe working environment

The focus of this duty is on the "working environment". The term is not defined in the Act, but it may be taken to include:

The workplace itself - the building, structure, mine, vehicle, etc;
All plant at the workplace;
The physical environment - including lighting, ventilation, dust, heat, noise, etc;
Access to and egress from the workplace;
The work process, including expectations of what is done and how;
Work arrangements, including the effects of shift-work and overtime arrangements; and
The psychological environment, including overcrowding, deadlines, and other stress factors.

The duty relates to the physical work environment, as well as ergonomic, stress, and other psycho-social and "non-physical" aspects of the work environment.

The duty needs to be considered in conjunction with the definition of "place of work" discussed at 1.4, Coverage is broad.

Providing and maintaining facilities for the safety and health of employees at work

The aim of this duty is to provide facilities and equipment not covered by the concept of the "working environment" referred to above. It includes an obligation to provide and maintain first-aid facilities, mealrooms, personal protective equipment, emergency equipment and other ancillary facilities that keep employees and the place of work safe and healthy.

Regulations have been made specifying particular facilities, and the circumstances where they must be supplied.

Ensuring that plant used by employees in the place of work is designed, made, set up, and maintained to be safe for employees

Employers are required to provide and maintain workplace plant and systems of work so that, as far as is practicable, employees are not exposed to hazards.

Regulations have been made setting out requirements for designers, manufacturers and suppliers of plant to places of work. They require designers, manufacturers, and suppliers to give employers the information they need to fulfil this section 6 duty.

There may also be instances where "all practicable steps" will require an employer to take steps in addition to simply relying on manufacturers' instructions or guarantees as to safety. Additional steps may be required to ensure a particular item of plant is safe in the place of work. Approved codes of practice may apply.

This particular duty is closely related to the hazard management requirements of sections 7-10.

Ensuring that systems of work do not lead to employees being exposed to hazards in or around their place of work

This particular duty is distinct from the hazard management requirements of sections 7-10. It requires employers to design and plan safe systems of work.

The emphasis is on the co-ordination of work activity so that an activity or hazard does not endanger a person who is working in or on another part. This duty is extensive, and requires that systems of work take into account the "arrangement, disposal, manipulation, organisation, processing, storage, transport, working or use of things".

Hazards need not be significant, or even physical (including, for example, shift work or extended hours of work), and may be either in or near a place of work. If they are near the place of work, then they must be under the employer's control. (See 3.2, Duties of persons who control a place of work, for a discussion of what constitutes "control".)

It is implicit that for systems of work to be safe, the people carrying out the task need to have appropriate information, instruction, training and supervision (as required by section 13).

Developing procedures for dealing with emergencies that may arise while employees are at work

This provision does not apply only to fire, earthquake or civil defence emergencies. Unintended consequences or mistakes, or "mishaps" do occur, and employers need to consider the possibility. When the likelihood of mishaps can be predicted, they are "foreseeable" and employers have a duty to prevent them or limit their effects.

When considering the potential for mishaps, employers should take into account the risks of danger through inattentive work or work carried out without suitable instruction and training. Inadvertent acts by employees could result in injury to themselves and others, and, in situations where an employer can foresee that misjudgement or inattention is likely, the system of work should minimise these risks.

Experience in similar workplaces can alert employers to the sorts of problems that may occur in their own workplaces. Where appropriate, approved codes of practice also give guidance on the emergency procedures or equipment appropriate for particular work situations.

The requirement to develop emergency procedures needs to be read in conjunction with the section 19B duty to involve employees in ongoing processes for the improvement of health and safety in their place of work, and section 12's requirement to provide information to employees and their representatives.

Does an employer need a health and safety policy?

The Act does not require an employer to prepare a formal written statement of health and safety policies. However, in some workplaces it may be good practice to obtain written confirmation of agreed safety and health policies and the way they are to be implemented as a basis on which to proceed. Usually, the larger the enterprise and the numbers of people involved, the more useful it will be to prepare a formal statement of health and safety policies and procedures.

Where agreement is reached between the employer, employees and any union on the implementation and review of a system of employee participation in health and safety management, the agreement should be recorded (see 2.6, Employee participation).

Examples:

Hector worked as a general hand at the factory of Deluxe Woolscourers. Part of his job involved unloading large bales of unprocessed wool from an elevator and wheeling them to the beginning of the production line. The wool was loaded into the lift by other workers below.
The wool arrived in batches, and Hector and his workmates were kept busy unloading the bales from the lift until each load was finished. Sometimes when the end of the load seemed imminent, the people unloading at the top looked down through a gap at the side of the lift shaft to the floor below to check on progress.

One day Hector was looking through the hole in the lift shaft when he decided to stick his head through the hole and see how many bales were left below. The point when he decided to do this coincided with the point in the cycle of the elevator when an iron bar passed across the inside of the shaft where Hector had placed his head. His head was caught and his neck broken, and he died of his injuries soon afterwards.

In the aftermath of the accident, the company placed a cover over the hole at the side of the shaft.

Deluxe were convicted for failing to meet the section 6 requirement to ensure that employees at work are not exposed to hazards arising out of the "arrangement, disposal, manipulation, organisation, processing, storage, transport, working or use" of things in the place of work.
Len was working the late shift at the factory of Sunbeam Smallgoods. Because he and a small group of co-workers were experienced and capable, they were working without their supervisor present.
Towards the end of the shift Len was using a hoist to load large quantities of bacon from one stage of the manufacturing process to another, when the hoist jammed.

The company had a policy of only using maintenance engineers to repair breakdowns, and after several incidents staff had been advised of the policy and management had removed the components of a lock-out system used for repairs to a maintenance shed. But, because the maintenance engineer would have had to be called out, and Len wanted to get home, he turned off the hoist, and began to try and unjam a drive shaft with a very big spanner.

While he was doing this his co-worker, Nian, mistakenly turned on the machine. The driveshaft Len was freeing turned, making the big spanner rotate, and giving Len a violent blow to the head and neck, which saw him hospitalised.

Sunbeam were prosecuted for failing to meet the duty to provide safe systems of work, by not using a hold-out system for repairs.

This is despite the fact that Len - after he had recovered from his injuries - was prosecuted for failing in his duty as an employee.
Andrew was one of a pool of casual employees called on by Dolphin Fisheries to unload the catch from the refrigerated holds of the company's fishing trawlers. The work was sporadic, and Andrew's availability varied. On one occasion he arrived without adequately warm socks and clothing to wear under the company-supplied gumboots and overalls. He spent the shift in the frozen hold despite his discomfort, and by the end of it had frostbitten toes. He subsequently needed hospital treatment.
The company was prosecuted and found by the court to have breached section 6 of the Act in failing to provide a safe working environment for employees, and failing to train employees in safe systems of work.
Bob was using a gas torch in the scrapmetal yard of Heavy Metals Ltd. An accumulation of gas led to an explosion which badly burnt Bob's face and arms.
After the explosion, Bob's workmates Hemi and Drew came running to help. Hemi, who was trained as a first-aider, quickly decided that the best thing to do with such burns was to immediately immerse them in water. He sent Drew to fetch a bucket of water while he stayed with Bob.

Drew had difficulty finding a tap, and in the event had to run nearly 60 metres down the yard to the nearest one. When he found it, the only bucket or other containers nearby had sand or oil in them and he had to try to clean them out before filling them with water. It was nearly three minutes before any water was applied to the burns, which contributed to their seriousness, although they were not sufficient to be deemed serious harm in terms of the Act.

The company were convicted for failing to provide facilities required under section 6. To meet its duty as an employer, Heavy Metals Ltd should have provided and maintained first-aid facilities for such an accident, and developed procedures for dealing with emergencies.
Spinners Ltd owned and operated a metal turning lathe in their factory. Sharp metal offcuts fell from the machine onto the floor, where they remained uncollected for long periods.
Angela was an employee who had to walk past the machine as she went about her job. One day Angela was distracted while walking past the machine and did not see the pile of metal offcuts. She walked into it and a sharp piece of metal severely cut her Achilles tendon, requiring surgery.

Spinners Ltd were convicted for failing in its duty to provide the safe working environment required by section 6.

2.3 Hazard management responsibilities (sections 7-10)

Sections 7- 10 of the Act set out in more detail the steps an employer must take to manage significant hazards in the place of work.

These duties complement and describe a process for meeting the employers' general duties set out in section 6 of the Act.

The process for managing significant hazards is based on the ergonomic principle that the workplace should be modified to suit people, not vice-versa. The steps are:

Identifying hazards - involves recognising things which may cause injury or harm to the health of a person, for instance flammable materials, ignition sources, or unguarded machinery (section 7);

Assessing the hazard - involves evaluating whether the hazard is significant (section 7(1)(c)) and the likelihood and degree of injury or harm occurring to a person if they are exposed to a hazard; and

Controlling the hazard - by taking all practicable steps to eliminate, isolate, or minimise significant hazards (sections 8,9,10).

Monitoring any exposure - to a hazard that has been minimised (section 10).

The control of occupational injury and disease hazards should preferably be dealt with by design or redesign, substitution, separation or administration. These controls generally eliminate, isolate, or minimise hazards in a more reliable manner than personal protective equipment.

Controls may reduce the significance of a hazard or the likelihood of it causing harm to employees or others.

Where regulations require specific methods to control the hazard, these must be complied with (see 1.6, How the Act sets more detailed standards).

It is important to regularly review the steps of hazard management, especially if there are changes in the work environment, new technology is introduced, or standards are changed.

Involving employees in hazard management

Employers have a duty to provide reasonable opportunities to employees to participate effectively in ongoing processes for improvement of health and safety in their place of work (section 19B).

This applies in particular to the processes set out in sections 6-13 of the Act.

The Act specifies circumstances where a system is required to be in place to properly canvas the views of employees. Safety and health committees and representatives provide a means for such consultation and co-operation, and their establishment is encouraged.

[Refer to the fact sheet, Employee participation]

The legal responsibility for safety and health decisions at a workplace rests with the employer, but the consultation process should help employers to reach decisions which take into account information and recommendations provided by employees or a workplace health and safety committee or representatives.

Identifying hazards

Section 7 requires employers to have in place effective methods to systematically identify hazards to employees at work. Hazards may be:

Previously existing;
New; or
Potential.

Having identified the hazards, employers must determine which are significant and require further action.

When an accident or serious harm occurs, an employer (and a self-employed person or principal) must notify the Occupational Safety and Health Service in the prescribed form (see 5.1, Recording and acting on accidents and serious harm). The employer must also take all practicable steps to investigate whether it was caused by a significant hazard.

What is a "hazard"?

The concept of a hazard is pivotal to the working of the Act.

A hazard is any actual or potential cause of harm.

It may occur inside or outside of a place of work.

It may be:

An activity;
An occurrence;
An arrangement;
A phenomenon;
A circumstance;
A process;
An event; or
A situation.

It includes a situation where a person's behaviour may be an actual or potential cause or source of harm to the person or another.

What is a "significant hazard"?

A significant hazard is one which may cause:

Serious harm (an important concept, defined in schedule 1 of the Act, which is reproduced in the Definitions section at the back of this guide). This includes death and many occupational illnesses and injuries that may be sustained in a place of work; or
Harm - the severity of which may depend on how often or how long a person is exposed to the hazard - such as occupational overuse syndrome; or
Harm that cannot be detected until a significant time after exposure. This includes long-latency diseases caused by exposure to hazardous substances - such as asbestosis, neurotoxicity, emphysema, and other diseases of occupation.

Methods of hazard identification

The Act does not specify a particular method of hazard identification, only that the chosen method is effective. It does, however, require the consideration of all accidents or near-miss incidents which lead to, or could have lead to harm - to determine if they were caused by a significant hazard. (If the hazard is significant, all practicable steps must be taken to control it.)

There is a range of hazard identification methods in common use in industry. Frequently it is appropriate to use a combination of approaches.

In all but the smallest of workplaces, it is likely that to be effective the hazard identification process will need to be recorded.

Remember again the section 19B duty for employers to give employees reasonable opportunities to be involved in hazard management processes.

Four commonly used methods of hazard identification are:

Physical inspections

This is the traditional method of identifying hazards by walking around the place of work with the aid of a checklist.

Task analysis

It may be useful to look at the tasks in each job and observe the actions of employees, while identifying the hazards involved.

Process analysis

This involves following the production or service delivery process from start to finish, and identifying the hazards involved at each stage.

Analysis of accident investigation details

This is mandatory under section 7(2) of the Act. Whenever there is an accident, "near miss", or the incidence of harm, the employer must take all practicable steps to determine the cause and whether it was a significant hazard. This corresponds with the requirement for employers to keep a register of every accident or incident.

Depending on the approach used and other factors, such as the type and size of the workplace, procedures may range from a simple checklist for a specific piece of equipment or substance, to a more open-ended appraisal of a group of related work processes.

Whichever method(s) is used, it may be useful to develop a hazard checklist for the particular place of work or process.

Information from designers or manufacturers, material safety data sheets, product labelling, or other sources of information should all be systematically reviewed as part of the hazard identification process.

Where appropriate, advice should be sought from specialist practitioners or representatives.

In summary, to meet the requirements of section 7 an employer should expect to produce a list of hazards present in each place of work - with significant hazards clearly identified.

Some guidance on the classification of hazards

The definition of "hazard" used in the Act is very broad. At the most basic level of analysis, hazards may be considered as:

Physical;
Biological; or
Mental.

Some hazards are inherent in the work process, such as mechanical hazards, noise, or the toxic properties of substances. Other hazards result from equipment or machine failures and misuse, control or power system failures, chemical spills, or structural failures.

It may be useful to think of work-related hazards in terms of the agents and/or the mechanisms of harm. This will ensure that a wide range of potential hazards are considered. Table 2, below, summarises categories of the physical agents of harm. Table 3, following, provides an alternative approach by describing categories of the mechanisms of harm. Used together, or separately, the categories provide a starting point for the identification of particular hazards in a place of work.

Table 2: Agency of harm categories

Group 1: Machinery and (mainly) fixed plant
11 Cutting, slicing, sawing machinery	16 Electrical installation
12 Crushing, pressing, rolling machinery	17 Radiation-based equipment
13 Heating, cooking, baking equipment	18 Filling and bottling/packaging plant
14 Cooling, refrigeration plant and equipment	19 Other plant and equipment
15 Conveyors and lifting plant
Group 2: Mobile plant and transport
21 Self-propelled plant	25 Rail transport
22 Semi-portable plant	26 Air transport
23 Other mobile plant	27 Water transport
24 Road transport	29 Other transport
Group 3: Powered equipment, tools and appliances
31 Workshop and worksite tools and equipment	34 Garden and outdoor powered equipment
32 Kitchen and domestic equipment	35 Pressure-based equipment not elsewhere classified
33 Office and electronic equipment	39 Other powered equipment, tools and appliances
Group 4: Non-powered handtools, appliances and equipment
41 Handtools, non-powered, edged	44 Furniture and fittings
42 Other handtools	45 Other utensils
43 Fastening, packing and packaging equipment	49 Other non-powered equipment
Group 5: Chemicals and chemical products
51 Nominated chemicals	53 Chemical products
52 Other basic chemicals
Group 6: Materials and substances
61 Non-metallic minerals and substances	63 Other substances
62 Other materials and objects
Group 7: Environmental agencies
71 Outdoor environment	73/74 Underground environment
72 Indoor environment
Group 8: Animal, human and biological agencies
81 Live four-legged animals	84 Human agencies
82 Other live animals	85 Biological agencies
83 Non-living animals
Group 9: Other and unspecified agencies
91 Non-physical agencies	99 Other and unspecified agencies

Table 3: Mechanisms of harm

Group 0: Falls, trips and slips of a person
01 Falls from a height	03 Stepping, kneeling or sitting on objects
02 Falls on the same level
Group 1: Hitting objects with a part of the body
11 Hitting stationary objects	13 Rubbing and chafing
12 Hitting moving objects
Group 2: Being hit by moving objects
21 Being hit by falling objects	25 Being trapped by moving machinery
22 Being bitten by an animal	26 Being trapped between stationary and moving objects
23 Being hit by an animal	27 Exposure to mechanical vibration
24 Being hit by a person	28 Being hit by moving objects
Group 3: Sound and pressure
31 Exposure to single, sudden sound	39 Other variations in pressure
32 Long-term exposure to sounds
Group 4: Body stressing
41 Muscular stress while lifting, carrying, or putting down objects	42 Muscular stress while handling objects other than lifting, carrying or putting down
43 Muscular stress with no objects being handled	44 Repetitive movement, low muscle loading
Group 5: Heat, radiation and electricity
51 Contact with hot objects	55 Exposure to non-ionising radiation
52 Contact with cold objects	56 Exposure to ionising radiation
53 Exposure to environmental heat	57 Contact with electricity
54 Exposure to environmental cold
Group 6: Chemicals and other substances
61 Single contact with chemical or substance	63 Insect and spider bites and stings
62 Long-term contact with chemicals or substances	69 Other unspecified contact with chemical or substance
Group 7: Biological factors
71 Contact with, or exposure to, biological factors
Group 8: Mental stress
81 Exposure to mental stress factors
Group 9: Other and unspecified mechanisms of injury
91 Slide or cave-in	98 Other and multiple mechanisms of injury
92 Vehicle accident	99 Unspecified mechanisms of injury

Other sources of information on hazard management

Information or ideas on control measures can come from:

Regulations, approved codes of practice or guidelines (see 1.6, How the Act sets more detailed standards);

Industry or employer associations;
Unions;
OSH;
Specialist practitioners and consultants;
Material safety data sheets;
Manufacturers and suppliers; or
Other publications or reference databases.

Examples

Carl was the driver of a mobile waste compactor for Rubbish Ltd, a national company with a fleet of similar vehicles. His work would regularly take him to the local landfill, where he could meet other company vehicles and their drivers. One day he had parked and unloaded a truck full of compacted rubbish at the landfill, when he got out of his cab and walked to the back of the truck to check that the inside of the compactor was empty. Having seen that it was, he went back to the cab and pressed the control to lower a large swinging door at the back of the compactor.
Meanwhile, Sid, in another company vehicle, had stopped nearby. His attention had been turned to the back of Carl's truck and he had walked over to look inside while Carl was walking back to his cab. When Carl pressed the control for the door to swing down, he did not know Sid was there. Sid was struck by the swinging door and died soon after of his injuries.

After the accident was investigated Rubbish Ltd made several changes in recognition of the significant hazard that had been highlighted by Sid's death. The speed at which the doors on its trucks closed was reduced from 4 seconds to 20 seconds to give people time to get clear. Warning lights and alarms were installed, and operating procedures were changed so that vehicles could be driven slowly forward while the door was closing.

The company was convicted for failing to meet the general duties of care and for failing to systematically identify hazards under section 7(1) (a).
Dan worked as a scourman in the processing area of Devine Woolscourers. Part of his job involved keeping the entrance to a wool cleaning machine free of a build-up of wool around the point where a conveyor belt entered it. While doing this he followed common practice in the plant and climbed onto the top of the machine to clear it.
One day he used a step ladder that had been placed next to the machine and slipped while he was climbing it. While trying to steady one foot against the machine, he pushed his arm inside the opening. Dan lost his right hand and forearm.

Two days earlier, two rollers which guarded the opening of the machine had been removed.

Devine Woolscourers were convicted for failing to meet the general duty and for failing to identify the significant hazards presented by climbing up on the machine and leaving the machine opening unguarded.
Robyn worked at the airport as a freight hand for Eclipse Airlines. One day she was coming past a jet which was being loaded on the tarmac, when, amidst a lot of noise and activity, she walked close between a mobile freight lifting platform and another trolley. Unexpectedly, the platform, which had a container on it, began to move. The driver could not see Robyn, and she could not hear the machine move because of the surrounding noise. Her leg was caught and crushed, with injuries which eventually required amputation above the right knee.
The machine was not intended for the conveying of cargo, only lifting. It did not have proper brakes, a horn, warning lights, or a reversing beeper fitted.

Eclipse Airlines were convicted for failing to observe three sections of the Act, including the requirement to systematically identify hazards to employees at work. In court the company conceded that it had no systematic method of hazard identification.
Tom worked as a machine operator for the packaging manufacturers Moa Pack.
Because of the danger from the large machinery in constant use at the plant, the company had an active safety policy. It had a formal health and safety consultative committee and a system of checklists which designated staff to inspect and maintain the safety of machinery and other potential hazards.

Tom worked a large rotary die-cutting machine. Part of his job involved sweeping away offcuts from nip rollers at the entrance to the machine. One day he was brushing offcuts away when he slipped and his hands were caught in the rollers, crushing four fingers, which afterwards had to be amputated.

After the accident, Moa Pack were convicted for failing to have effective methods in place to identify hazards in the place of work. The court noted that although the company had a committee in place, its activities had become routine and it had not been effective in this case. It also found that there were no engineering staff with the required expertise in machinery involved, and this limited the committee's ability to systematically identify hazards.

Controlling hazards

When a significant hazard is identified

Where a significant hazard is identified, the Act sets out the steps an employer must take:

1. Where practicable, the significant hazard must be eliminated (section 8);

This may involve removing the hazard or hazardous work practice from the workplace. Elimination is the most effective control measure. It should be noted that substitution - replacing a hazard or hazardous work practice with a less hazardous one - does not necessarily result in elimination;

2. If elimination is not practicable, the significant hazard must be isolated (section 9);

This may involve isolating or separating the hazard or hazardous work practice from people not involved in the work or the general work areas. It could be done by marking off hazardous areas, or installing screens or barriers;

3. If it is impracticable to eliminate or isolate the hazard completely, then the employer must minimise the likelihood that the hazard will harm employees (section 10). In addition, the employer must, where appropriate:

Provide, make available to, and ensure the use of suitable clothing and equipment to protect the employees from any harm arising from the hazard;
Monitor employees' exposure to the hazard;
Seek the consent of employees to monitor their health; and
With their informed consent, monitor employees' health.

This includes introducing work practices that reduce the risk. It could limit the amount of time a person is exposed to a particular hazard, or involve the use of protective equipment.

Protective clothing and equipment

The clothing and equipment required by section 10 is broadly defined to include much more than personal clothing and equipment, but also such other equipment as guarding or arresting devices, rails, covers, damping, filtration and dust collection systems, shields, screens, etc.

The "all practicable steps" standard requires that the employer should choose the control that most reduces employees' exposure to the hazard.

"Providing" protective clothing and equipment is not enough. It must be "available" to the people who need it, and "used". This will usually mean employers are required to provide protective clothing and equipment which is fit for the purpose, clearly instruct employees to use it, and ensure that they do. "Available" means readily and easily available. Instruction should cover not only when and where to use the equipment, but also how to use it.

The requirement to instruct employees in the use of protective equipment should be read in conjunction with that of section 12, which requires that employees are advised of the hazards they may experience in their work, and the steps needed to overcome them (see 2.4, Information for employees). This allows employees to know "why".

Monitoring employees' exposure to hazards

Where elimination or isolation are impracticable and a significant hazard is minimised, there is a requirement to monitor employees' exposure to the hazard (section 10(2)).

Section 10 does not require monitoring of hazards which have been isolated, but this is worth considering as part of a process of regular revision.

Monitoring for exposure does not reduce the requirement for the employer to first take all practicable steps to minimise the likelihood that the hazard will be a source of harm to employees.

The focus of section 10's requirements is on the monitoring of individual employees' exposure to any hazard. There may be monitoring of general workplace levels of exposure, but monitoring should primarily be targeted at the degree of exposure individual employees are likely to experience.

Monitoring employees' health

In some industries, for example in a lead process, employers are expected to monitor the health of all employees at risk. The purpose of this monitoring is to identify any health effects at an early stage and to provide the necessary medical care.

It is also a way of checking the effectiveness of measures taken to reduce the exposure to hazards. The sudden appearance of health problems in employees in a work area may indicate a breakdown in safety precautions, procedures or supervision.

The monitoring of employees' health should be closely related to the monitoring of the conditions at each workplace.

Consent. The Act requires employers to take "all practicable steps" to obtain the employees' consent to the monitoring of their health in relation to the hazard. This means an employer needs to be proactive in seeking approval, and take responsibility for informing and encouraging employees about health monitoring where appropriate. However, consent must be granted voluntarily and without any form of coercion or duress on the part of the employer seeking consent.

Taking "all practicable steps" to control hazards

The standard required of employers in the control of significant hazards is "all practicable steps". This concept is outlined in section 1.5 of this guide.

[Refer also to the fact sheet, All practicable steps]

A procedure for the control of significant hazards

Hazards in a workplace are controlled by a combination of "local controls" specific to a hazard, and "management controls" for ensuring that these are implemented and remain active.

The implementation of local controls to fix a specific hazard, e.g. chains to prevent gas cylinders toppling over, or hearing protection to reduce exposure to noise, must be supplemented by management activities to ensure they are being implemented, that they are adequate, and that they remain effective.

The mechanism for the control of a hazard may not necessarily be a physical one, but may be a rule or practice designed to reduce the risk from the hazard.

It is necessary to ensure that once hazard controls are put in place they stay in place and are used, and it is also necessary to provide a feedback mechanism for ensuring whether or not the controls are adequate and responsibilities are understood by all.

Management control activities that are common to all hazards include:

Employee participation in the development of health and safety procedures (sections 19A-I).
An information system to ensure employees are informed about and understand the risks from hazards they work with (section 12).
An accident reporting and investigation system (section 7).
Regular surveys of the workplace (sections 6 and 7), supplemented by the use of hazard notices where applicable (section 46A).
Responsibilities being assigned to ensure hazard controls are implemented and remain effective (section 7).
An audit system for checking that the controls for specific hazards are in place and working (sections 6 and 7).
An adequate training programme and adequate supervision for all staff (section 13).
Implementing emergency procedures, perhaps in conjunction with local emergency services, to limit the consequences of an emergency (sections 6 and 12).

Responsibilities are assigned to ensure that the existence of each hazard is made known to all those exposed to it, and that people affected are instructed in the use of the correct procedures when exposed to the hazard.

Cost. There may be a variety of control methods for different hazards. The degree of control agreed upon will involve a consideration of the cost, the severity of the consequences, and the probability of the injury/illness/damage.

To determine the most appropriate of the proposed options for the identified hazard, the estimated cost of the corrective measures is weighed against the degree that the risk is reduced. Again, the test of "all practicable steps'' is critical.

Changes. There needs to be a system in place that, before processes are changed or new processes/activities undertaken, will ensure potential hazards resulting from these changes are identified, assessed and controlled if necessary.

Outline of a process for hazard control

Hazards that are assessed as "significant" present such a degree of risk that the Act requires a more formal approach in dealing with them.

The primary aim is the elimination of significant hazards if practicable.

Sections 8, 9 and 10 of the Act contain specific requirements for the control of significant hazards.

Once the significant hazards in the workplace have been identified, it is necessary to decide which of the three steps of elimination, isolation or minimisation is to be used to control each hazard.

Deciding on control options

For each of the identified significant hazards the following questions must be asked in order:

Can the hazard be eliminated?

If so, list the steps to achieve this.

If the hazard cannot be eliminated, why not?

TEST YOUR REASONS FOR NOT ELIMINATING IT AGAINST THE "ALL PRACTICABLE STEPS" REQUIREMENTS.

OR, IF NOT, THEN:

Can the hazard be isolated from the employees?

If so, what steps are needed or, if not, then why not?

TEST YOUR REASONS FOR NOT ISOLATING IT AGAINST THE "ALL PRACTICABLE STEPS" REQUIREMENTS.

OR, IF NOT, THEN:

What will be done to minimise the likelihood of harm from the hazard?
What equipment and clothing are needed to protect employees from the harm?
How will employees' exposure to the hazard, and their health in relation to the exposure be monitored?

List the answers and then:

TEST YOUR STEPS FOR MINIMISING THE LIKELIHOOD THAT THE HAZARD WILL CAUSE HARM AGAINST THE "ALL PRACTICABLE STEPS" REQUIREMENTS.

The hierarchy of steps above ensures that providing employees with protective equipment to guard against the hazard is not done without first considering and evaluating the other more effective options.

Constantly reviewing control measures is important to ensure continuing prevention or control of exposure to hazards or hazardous work practices.

Controlling hazards not determined to be significant

Sections 8-10 do not impose a hierarchy of controls for hazards other than those determined to be significant. However, employers are still required to take all practicable steps to control such hazards under the general duties of section 6, and the approach of sections 8-10 may be applicable.

Examples:

Arthur had a long employment history in the business of wholesaling spraypaints to the automotive industry. Over the years he gained considerable knowledge and experience in mixing and supplying paints. He also developed health problems relating to his exposure to the solvents and other chemicals associated with the work.
Eventually, and to help reduce exposure to the chemicals causing his health problems, Arthur moved from the company he had been with to a sales representative role with another supplier, Shiny Paints. After a period in the new job, his experience and abilities mixing paints was needed in their warehouse, and, despite his employer's knowledge of Arthur's health problems, he was again exposed to the solvents and chemicals that had caused them.

A new employer bought the business and was also advised of Arthur's health problems. By this time Arthur was experiencing headaches, breathing problems and mood swings as a result of inadequate ventilation, excessive use of solvents as cleaning agents, and inadequate personal clothing and equipment in the workplace.

A replacement employee was hired to take over Arthur's paint mixing duties, but this did not work out and Arthur was recalled to the work.

An OSH inspector had issued an improvement notice under the Act, but Shiny Paints ignored its requirements.

Finally, after recurring asthma and chest infections Arthur's doctor declared him medically unfit for work.

Shiny Paints were convicted for failing to meet the general duties under the Act, and for failing to monitor an employee's exposure to a significant hazard (section 10 (2)(c)).
Elaine worked part-time doing data entry work with garden products company Florina Ltd.
After a few months she began to develop asthma, and when the condition worsened Elaine visited her doctor. The doctor suspected that Elaine's work environment contained fungal and bacterial agents from potting mixture dust in the atmosphere. He provided a note about his concern, and Elaine raised the issue on several occasions, which the company ignored. After a while Elaine was laid off.

Florina Ltd were subsequently convicted for failing to monitor an employee's exposure to a hazard (under section 10(2)(c)) and also the employee's health in relation to the hazard (section 10 (2)(e)).

In the case of monitoring the employee's exposure to fungal or bacterial hazards, the monitoring could have been completed quickly and easily at minimal cost.

2.4 Information for employees and health and safety representatives

The Act requires employers to provide employees with a range of information on the hazards they may encounter or create in their work (section 12).

More specifically, it also requires employers to make available to employees the results of workplace health and safety monitoring (section 11).

Information on hazards

Before an employee begins work of any kind their employer must inform them of:

Emergency procedures (developed under section 6(e));
Hazards the employee may be exposed to while at work;
Hazards the employee may create while at work which could harm others;
How to minimise the likelihood of these hazards becoming a source of harm to others; and
The location of safety equipment.

This information requirement applies to the employee:

Doing work of any kind;
Using plant of any kind; or
Dealing with a substance of any kind,

in that "place of work". ("Place of work" is further defined at 1.4, Coverage is broad.)

The obligation to provide information relates to all existing or potential hazards, not only "significant hazards". The requirement is not qualified by the "all practicable steps" standard, which makes it particularly stringent.

The information must be "given" by the employer, and remain "readily accessible" to the employees.

Section 12 also stresses the need for employees to be able to understand the information they are given. It requires that the information must be presented in such a form and manner that the employee is reasonably likely to understand it. This may lead to technical information - such as a material safety data sheet, or operating manuals - being interpreted or abridged to meet the needs of employees in a particular place of work.

Where employees are not fluent in the English language, or are unable to read English, employers may need to find an alternative method of providing information. This could apply to employees who speak English as a second language, or to workers who for physical, intellectual, cultural or other reasons are unable to read. Methods which may be used include:

Organising information to be provided for people in groups with the same language;
Using interpreters;
Audio-visual aids, pictograms or other graphics; or
Using written materials in the appropriate language.

Checks should be made to ensure all information is understood.

Information for health and safety representatives

Where health and safety representatives are appointed in a place of work, section 12(2) requires that the employer ensure that all representatives have ready access to sufficient information about health and safety systems and issues in the place of work to enable them to perform their functions effectively.

Information on health monitoring

An employer is required by section 11 to inform employees of the results of any health and safety monitoring undertaken to meet the hazard management requirements of the Act (i.e. under section 10).

This relates both to:

Individual health monitoring; and
Workplace exposure monitoring (in relation to an individual's place of work).

Where an employee's health or their place of work is monitored - as an individual or one of a group of individuals - the employer has a duty to provide the results of any monitoring to them. The information need not be requested.

Other employees in a place of work where general monitoring is carried out may request the results of the monitoring. Where this happens, the employer should make available the results, and in doing so, must protect the privacy of individual employees.

The duty to provide information may overlap with that to provide training and supervision described below.

Examples:

Len operated a small timber moulding manufacturing business, Timbercraft Ltd. An important piece of machinery for the business was a timber profile cutter, which kept a young employee, Rex busy operating the machine much of the time.
Timber milling machinery presents particular hazards to employees, and it is a priority area for health and safety inspectors visiting workplaces. This meant that one day Len's premises were inspected by a health and safety inspector, Errol, who determined the timber profile cutter to be unsafe and issued a prohibition notice against its use. The notice required that access to the timber cutting heads of the machine be guarded, along with the machine's transmission and a flywheel attached to it. Errol said the machine could not be used until these things had been fixed and a clearance given.

After the visit, Len, placed a guard over the flywheel only, and then - without telling Rex about the danger of the other hazards that he had been advised of - told Rex to start using the machine again.

After not having heard anything, Errol visited Timbercraft again and found Rex using the machine, unaware of the hazards it presented to him. Timbercraft were prosecuted and pleaded guilty to three charges, including the failure to provide information to an employee under section 12(b).
Mana, Warwick and Colin were employed on a casual basis by Direct Shipping Ltd to load and unload ships' cargo. One day they were called in to load a cargo of frozen goods into a refrigerated hold. The produce was lowered into the ship's hold on pallets by crane, and then moved by forklift to where it was to be stacked. The company's supervisor, Stan supplied two LPG-powered forklifts for use in the hold, but no instructions or information were given other than where to put the cargo. None of the men had used LPG lift-trucks in a refrigerated hold before.
When they began their shift, they would turn off the forklifts between loads, but after a while they stopped doing this and kept the engines running.

They stopped for "smoko", and on the way back they noticed that the hatch over the hold had been closed. They kept working, and after another hour Warwick and Mana both had splitting headaches. Warwick said he was so unwell he had to stop. He climbed up a ladder and out of the hold, and by the time he got to the top he felt dizzy and exhausted, and the headache was intense.

Mana and Colin stayed on below to stow two last loads. They both continued to feel worse, and after they had finished Mana struggled to climb out of the hold. Colin was found unconscious at the bottom of the ladder. All three men were suffering the effects of carbon monoxide poisoning and were hospitalised.

Before the shift, Stan, who had previously seen an OSH hazard alert, briefly mentioned to Colin that there could be a danger of exhaust fumes, but only to him, and with no reference to the specific danger of carbon monoxide poisoning - how it occurs or what could be done to avoid it, or in the event of an emergency.

Direct Shipping were convicted under section 12 for failing to provide employees with information about a hazard arising out of their work, and what to do in the event of an emergency. The company was also convicted for failing to meet the general duty of section 6.

2.5 Supervision and training

Employers must ensure employees are either sufficiently experienced to do their work safely or are supervised by an experienced person (section 13 (a)).

Also, the employee must be adequately trained in the safe use of all plant, objects, substances, protective clothing and equipment that they are or may be required to use or handle (section 13 (b)).

The purpose of this section is the avoidance of harm to employees and others by ensuring that employees have the knowledge and experience that they need to safely:

Carry out their work;
Use plant; or
Deal with substances;

in their place of work.

The provision applies to people receiving on-the-job training or work experience and deemed "employees" by the Act, but it doesn't apply in relation to volunteers doing regular work.

If employees do not have sufficient knowledge or experience themselves, then they must be supervised by someone who has.

Towards ensuring that people do have adequate knowledge and experience, section 13(b) further requires that employees are adequately trained in the safe use of all plant, objects, substances, and protective clothing and equipment that they may be required to use or handle.

The standard to be met by the employer is taking "all practicable steps" to ensure these requirements are met (see 1.5, All practicable steps).

Examples:

Jake began a new job in a sawmill. He had been hired by Bart, the manager of Woodcutters Ltd, who trained and set him up in his first job - feeding timber into a band re-saw, a machine for cutting up large planks of timber. Despite the fact that Jake had never worked in a sawmill before, the training he received was limited to Bart turning on the machine, feeding a few pieces of timber through the blade, and then watching Jake put a few pieces of timber through. To check that training was complete, Bart asked Jake if everything was "OK". Jake said it was and began work full-time on the band re-saw.
Two days later, Jake was feeding timber in along the rollers at the entrance to the saw when his arm became caught in the rollers and drawn into the machine. It was subsequently amputated.

Jake had not been trained how to use an emergency stop device that was fitted to the machine and with which he would have saved his arm.

Woodcutters Ltd were convicted on two charges under section 13 for failing to provide adequate training or supervision.
Keith had been employed for some months as a process worker at a small foundry operated by Bold as Brass Ltd. One day his supervisor, Ross, instructed him to stop working in the area that he had been, and to stand in and operate a hot-forging press while another person was away.
Keith had used the machine only once a month or two before, and then only for about 15 minutes and under supervision. At the time he had been shown how to place hot brass ingots in the die and to press the foot pedal to activate the press and stamp out the product. He was not an experienced worker and his understanding of the machine had not improved by the time he used it a second time - he still did not fully understand how it worked, or know how to turn it on or off.

After Keith had been working the machine a short time, an ingot jammed in it. He didn't know what to do, but he didn't want to ask Ross, because the last time he had asked a question Ross said "If you don't know what to do then you might as well go home". Another worker told him to take the tool apart with a spanner, and he was in the process of doing this when his foot slipped on to the activating pedal, causing the machine to cycle and partially amputating three of Keith's fingers.

Bold as Brass Ltd were convicted under section 13 for failing to adequately train or supervise an employee.
Wilma was employed as a process worker at Wag Pet Foods. Her job involved mixing quantities of raw materials in large cooking cylinders and cooking them ready for canning or packaging.
After each batch had been cooked the cylinder would need to be cleaned to a high standard. The method used at the factory was to turn on the cold water supply to the cooking cylinder and, while the water was running, climb to a hatch at the top of the cylinder and add a 25 kg bag of caustic soda in powder form. The cylinder would then be heated and steam applied, before being emptied and cleaned. Wilma had followed this procedure numerous times.

One day Wilma followed the procedure but added only half the bag. She then went for a tea break while the cylinder heated. When she got back to the cylinder she climbed up with the remaining contents of the bag of caustic, opened the hatch, and added it. The effect of adding the caustic to the heated water was a violent chemical reaction, which blew back on Wilma, causing severe burns to two-thirds of her body and causing her to lose one eye completely, and almost all of the sight from the other.

Wag Pet Foods were convicted under section 13 for failing to train and supervise an employee, and for failing to have in place systematic methods for identifying hazards.

Knowledge and experience

The focus of section 13 is on the ability of the individual employee to complete the task safely at any given time. This is consistent with the Act's performance-based approach, where the employer may choose how the result is best achieved. In general, employers should ensure that employees do not undertake any work unsupervised unless they are satisfied that the employee has the necessary knowledge and experience to perform it safely in that place of work. In the case of younger or inexperienced workers, it may not be enough for an employer to simply ask the employee if they are competent and receive a "yes" in answer. Where an employer is unfamiliar with an employee's competency level or an employee is unfamiliar with the work, plant, substances, or the setting where the work is being carried out, there may be an onus on the employer to have the employee demonstrate their competency.

Similarly, the fact that an employee holds a formal qualification, or experience at another place of work may not be enough - further training or supervision may be required.

Supervision

Supervision is only required where an employee or group of employees does not have appropriate knowledge or experience. The degree of supervision required is a matter to be decided in each case. Depending on the circumstances, supervision may be direct, or as a group; immediate, or remote; or it may relate only to particular aspects of the work.

Providing supervision may include a requirement to control "skylarking" in some cases where an employer is aware of behaviour that is likely to cause harm to employees or others. This requirement should be read in conjunction with that of section 15.

Supervision may also include the provision, enforcement and maintenance of safety procedures, such as a lock-out system.

Training

In addition to employees having sufficient knowledge and experience, the Act requires that employees are "adequately trained" so that they can safely perform any particular work or task.

Section 13's requirement applies equally to all categories of employee: part-time, full-time, permanent, temporary, or casual.

Case law suggests that, while it is useful that a formal record of training and skills and competencies is kept, it is not essential. Instead, as stated above, the emphasis is on the ability of the individual to perform the task safely at the time.

The level of training required is "adequate", not exemplary. The emphasis of the section is on the safe use of all:

Plant;
Objects;
Substances; and
Protective clothing and equipment

that employees are, or may be, required to use.

The duty of employers to train employees needs to be read in conjunction with employee's duties to follow instruction and not to endanger themselves or others. This means, for example, that an employer is not required to train an employee in the use of equipment or substances where the employee has been instructed not to carry out that activity. Such a situation is more likely to be a matter of the employer exercising adequate supervision.

Section 13(b) is, on the other hand, clear on the need to train in the use of equipment or substances that employees may be reasonably likely to need to use.

Induction training

Induction training is essential for new employees, and some training will need to be repeated with every significant change of an employee's duties or work environment. Induction, or basic "on-the-job" training should include:

How to carry out the job in a safe and healthy manner;
Information on hazards and hazardous work practices (section 12);
Where applicable, details of any isolation or "tag-out" procedures;
Reporting of accidents or incidents (sections 7 and 25);
Selection, use, fitting, storage, and maintenance of protective clothing and equipment (section 10);
Where to obtain occupational safety and health information; and
Emergency procedures.

The requirement to provide induction training should be read in conjunction with the requirements to provide information on hazards and on emergency procedures (section 12).

Supervisors or managers

The position of employees as managers or supervisors could also affect the nature of the training provided. An employee may be responsible for supervising others, or the management, or control, of some parts of the work process. This level of responsibility would require more comprehensive training in the administration of safety and health and the organisation of systems of work so that employees are not exposed to hazards.

Examples:

Tane was an experienced mill hand employed at a laminated veneer board mill operated by Optima Wood Products Ltd.
At the end of one working day, Tane was told to report to an area of the mill where he did not normally work to help out. For the last half hour before the end of the shift, he worked at a cutting table under limited supervision.

The next day he reported for work at the cutting table at the start of his shift. Five minutes later he mistakenly stepped into a pit beside the machine, lost his balance and fell against a revolving shaft, and was injured. The pit had previously been covered by a board, but it had been removed at some time before he started work.

Optima was convicted for failure to provide adequate training under section 13(b), and for failing to meet the general duties.
Libby worked as a secretary for a group of consultants at the accountancy firm Costa and Plenty. Her career began as an office junior and, after a while she was promoted to a position as a secretary.
Libby's new job meant she had to type for long periods, beyond her level of competency as a non-touch typist. After about a year she began to notice early symptoms of OOS. She had been given no training in OOS prevention or practical help to re-organise her workstation, or adjust her systems of work. After a further period, and attempts to reorganise her own workstation, Libby's health deteriorated and she began to loose time off work with OOS. About 18 months after the first appearance of symptoms, and subsequent physiotherapy, reduced working hours, attempts at rehabilitation, etc. the company medically retired her from the position.

Costa and Plenty were convicted for failing to meet the general duties and under section 13(b) for failing to adequately train an employee in the safe use of a visual display unit.

2.6 Employee participation

Part 2A of the Act is based on the principles that:

All persons with relevant knowledge and expertise can help make the place of work healthy and safe; and
When making decisions that affect employees and their work, an employer requires information from employees who face the health and safety issues in practice.

In recognition of this, the Act creates a duty for employers to provide reasonable opportunities to employees to participate effectively in ongoing processes for the improvement of health and safety in their place of work (section 19B). This applies in particular to the hazard management, information, training and supervision processes set out in sections 6-13 of the Act.

The Act specifies circumstances where a system is required to be in place to allow the contributions of employees. Safety and health committees and representatives provide a means for such consultation and co-operation, and their establishment is encouraged.

The duty to involve employees is also supported by a new part 2A and schedule 1A of the Act, which contain default provisions for where there is not agreement on a system of employee participation.

The legal responsibility for safety and health decisions at a workplace rests with the employer. However, employee participation will help employers to reach decisions that take into account information from and the recommendations of the people who are often closest to and most familiar with workplace hazards - and most likely to be harmed by them.

The section 19B duty

What is meant by "reasonable opportunities"

The Act defines what is "reasonable opportunities" for employee participation as those that are reasonable in the circumstances. Regard must be had to relevant matters concerning the place of work, and how work is organised, such as:

The number of employees that an employer has;
The number of different places of work run by the employer, and the distance between them;
The likely potential sources or cause of harm in the workplace;
The nature of the work and the way that it is arranged;
The nature of the employment arrangement, including the extent and regularity of employment for seasonal or temporary employees;

Regard must also be had to:

The willingness of employees and unions to develop an employee participation system; and
The overriding duty to act in good faith.

(section 19B(5))

When a formal employee participation system must be developed

If an employer has fewer than 30 employees, and one or more of those employees requires the development of an employee participation system, then a system must be developed.

If an employer has more than 30 employees (whether or not in a single location), a system of employee participation must be developed.

Where an employee participation system is required, it must be developed with the involvement of any employees who wish to be involved, and unions representing them (section 19C(2)).

The parties must co-operate in good faith "to seek to develop, agree, implement and maintain" an employee participation system.

The duty applies in relation to all employees, but not to volunteer workers, people receiving on the job training or work experience, or loaned employees (deemed "employees" under sections 3C-3F). It does not apply with respect to the armed forces.

It should also be noted that, for the purposes of determining the number of employees in terms of section 19C, and the training entitlements of health and safety representatives (see below), only employees who have worked 180 hours or more over the previous 12-month period are counted as "employees" (section 19I).

Agreeing on a system of employee participation

There is an obligation for all parties to act in good faith in reaching agreement on a system of employee participation. The agreed system must encourage co-operation between employee and employer representatives on issues - with particular emphasis on systems for identifying and managing hazards. Consideration will also need to be given to the means that employers have in place for providing information to employees and health and safety representatives about health and safety issues.

Every agreed system must contain a process for its review.

Elements of a system of employee participation

An employee participation system may include whatever the parties agree on, although it needs to give effect to the essential section 19B duty, in that it gives reasonable opportunities for the employees to participate effectively in ongoing processes for the improvement of health and safety. In addition, the Act gives some examples of matters that could be included. These are:

Electing health and safety representatives, and deciding whether they should act individually or as part of a health and safety committee; and
Developing processes for ensuring regular and co-operative interaction between the representatives of employer and employees on health and safety issues.

A practical part of the system may be about employees' role in hazard identification.

A system developed by an employer with numerous or diverse workplaces, may allow for more than one health and safety representative or committee. Each health and safety representative or committee may represent a particular type of work, or place of work of the employer, and the Act does not set a minimum or maximum number of either.

Where a system includes the appointment of health and safety representatives, it may increase or decrease the number of days' paid leave that an employer must allow the representative to train for their role.

Maintaining an existing system

The amending legislation which introduced employment participation requirements also allows the retention of existing systems - with agreement.

Where an employer had an employee participation system in place at 5 May 2003, and the employer, employees and their unions agree to keep it, then it may continue in use.

However, the system will need to contain a process for review that has been agreed to by the parties.

Where there isn't agreement

The Act sets out default provisions if the employer is required to seek to develop an employee participation system, and agreement cannot be reached within 6 months of the requirement taking effect (as set out in section 19C). These provisions are set out in part 3 of Schedule 1A of the Act.

Where there are less than 30 employees

If one or more employees, or a union representing them, requires the development of a system and it is not agreed on and implemented within six months of the request, then the employees (together with their union(s)) must elect at least one health and safety representative. The representatives will be elected to carry out functions defined by the Act. The process of election is also defined by the Act.

Instead of holding an election themselves, the employees, with their union, may in turn require the employer to hold an election. The election must occur within 2 months of the employer being notified of the employees' request. Requirements for the election of health and safety representatives are the same as for employers with more than 30 employees. See, Health and safety representatives, below.

Where there are more than 30 employees

An employer of more than 30 employees is required to develop a system (section 19C(1)(b)). Where the employer employed more than 30 people from 5 May 2003, and agreement on the nature of the system is not reached by 5 November 2003 the employees are required to hold an election for health and safety representatives. The representatives are to carry out the mandatory functions. Alternatively, the election may be or for up to 5 representatives to function as employee members of a health and safety committee. The process of election is also defined by the Act.

The requirement also applies six months from any given time when an employer first employs 30 employees.

Electing representatives where a system has not been agreed to

Where an election for a health and safety representative is required, the Act describes who is eligible to be a candidate and how the election is to be conducted (clause 7 schedule 1A).

To be eligible, candidates must:

Work sufficiently regularly and for sufficient duration to be able to carry out their functions effectively; and
Be willing to take on the position.

The election must provide all employees in the particular type or place of work, or other grouping (under section 19C(5)) with a reasonable opportunity to vote.

An election is not required for any position where there is only one candidate, or there is no suitable candidate. Where there is no suitable candidate, the position remains unfilled.

Where a vacancy arises, the employees and their union(s), are required to hold an election to replace the representative. As discussed above, the employees can, in turn, require the employer to hold the election instead (clause 5, schedule 1A).

Employee health and safety representatives

Functions of health and safety representatives

Where an agreed employee participation system allows for the appointment of health and safety representatives, the Act suggests the following examples of functions that a representative may have:

To foster positive health and safety management practices in the place of work;
To identify and bring to the employer's attention hazards in the place of work and discuss with the employer ways that the hazards may be dealt with;
To consult with inspectors on health and safety issues;
To promote the interests of employees in a health and safety context generally and in particular those employees who have been harmed at work, including in relation to arrangements for rehabilitation and return to work; and
To carry out any other functions conferred by the particular system of employee participation, a code of practice, or by the employer (with the agreement of the representative or a union representing them).

These functions are set out in part 2 of schedule 1A of the Act. They are mandatory where there has not been agreement on the employee participation system and the Act's default provisions have been invoked to require the election of employee representatives. The election of candidates in these circumstances is described above.

Training and information for health and safety representatives

The Act encourages the training of representatives to better carry out their role. The requirement for information provision is described at 2.4, Information for employees and health and safety representatives.

The training may be "approved" or otherwise.

Representatives elected under the default provisions are eligible for up to two days' paid leave each year to attend training that has been approved by the Minister of Labour by notice in the Gazette (sections 19E and 19F). This entitlement may be increased or reduced under the terms of an agreed system of employee participation, but if there is not specific reference to the amount of training available then the requirement of two days' leave under section 19E will apply, subject to maxima specified in section 19F.

A process of applying for and taking leave to complete approved courses - which is consistent with leave for employee delegates under the Employment Relations Act - is set out sections 19E and 19F.

If a representative has completed an approved training course, then he or she may issue hazard notices (see below).

Hazard notices

A trained health and safety representative may issue a hazard notice under section 46A of the Act.

A representative is considered "trained" in terms of the Act if they have either:

Achieved a level of competency specified by the Minister of Labour in a Gazette notice; or
Completed an approved course (see above).

A hazard notice is intended as a communication tool between a health and safety representative and the employer. Its purpose is to describe a hazard in a place of work that has been identified by the representative, but where there is not agreement on how the hazard should be managed.

A hazard notice contains no penalty and there is no requirement to forward a copy to OSH or any other agency. However, if it refers to a breach of the Act, which continues, it may form prior warning for an infringement notice.

Before the hazard notice is issued by a trained health and safety representative:

The representative must believe on reasonable grounds that a hazard exists; and
The employer and the trained health and safety representative have discussed the issue in good faith; and
The parties cannot agree on how to deal with the hazard, or a timeframe within which to deal with it.

To be valid, a hazard notice must :

Describe a hazard in a place of work; and
Be in the prescribed form.

It may or may not set out suggested steps to deal with the hazard.

[link to prescribed form of hazard notice].

Representatives and the right to refuse dangerous work

A trained health and safety representative may validate an employee exercising the right to refuse unsafe work under section 28A. This is achieved by their advising the employee that the work is likely to cause serious harm (s 28A (3)). The representative's decision must be formed on reasonable grounds. See 3.2, The employee's general duty.

Dispute resolution with respect to employee participation

Employers who breach the employee participation provisions are potentially committing an offence under the Act.

Section 50 (1) makes it an offence for an employer to breach the section 19B duty to provide "reasonable opportunities" to participate, or not to hold an election for a health and safety representative when required to under clause 6 of schedule 1A.

All other breaches or disputes with respect to the Act's employee participation requirements are considered employment relations matters and disputes are resolved under the processes of the Employment Relations Act 2000.

There is provision under that Act for the parties to apply to the Employment Relations Authority for a compliance order in relation to the development or maintenance of an employee participation, hazard notices, or an employee's right to refuse work that is likely to cause serious harm. A health and safety inspector may apply for a compliance order in relation to the implementation of a system of employee participation in any workplace.

[Refer to the fact sheets, What is employee participation?, Employee participation, and Health and safety representatives]

2.7 Volunteer workers

General duty

The Act recognises that volunteers doing work activities for other persons should have their health and safety protected because their wellbeing and work are as important as the wellbeing and work of employees. All people, regardless of whether or not they are employers, who use volunteers have a duty to take all practicable steps to ensure the health and safety of the volunteers while they are carrying out the work activity. In particular, they should take hazards into account when planning the work activity (section 3D). The duty is not enforceable.

Enforceable duties

Where an employer or self-employed person engages a volunteer worker on a regular and ongoing basis, the volunteer may be deemed an employee in terms of the Act and the employer or self-employed person their "employer". Where this is the case, sections 6-12, 19 and part IV apply as if the volunteer were an employee (section 3C). The duties are enforceable against both the employer and the volunteer.

There are exceptions for the following voluntary work (section 3C (3)):

Participation in a fundraising activity;
Assistance with sports or recreation for a sports club, recreation club or educational institution;
Assistance with an educational institution outside the premises of the institution; or
Providing care for another person in the volunteer's home.

[Refer to the fact sheet, Volunteers]

2.8 People who are not employees

Employers also have a duty to people who are not their employees. An employer must take all practicable steps to ensure that the actions or inaction of an employee while at work does not harm any other person (section 15).

The non-employees covered under section 15 include groups such as customers, hospital patients, contractors or other visitors to the workplace, an employee's family, passers-by and any other person who may be affected by the work activity.

It includes a duty to stop employees harming others through skylarking or other actions or inaction by an employee where it is reasonably foreseeable that harm will be caused to another.

As an example, work involving hazardous substances has the potential to harm members of an employee's family. Safety and health policies and procedures should ensure that employees do not transport substances, such as contaminated dust or fibres, to their homes or other places on work clothes, in vehicles, etc.

Where hazardous substances, such as paint stripper, solvents or rust removers are stored in a work vehicle which may be at or near the family home, procedures should ensure that children do not have access to the substances. The system of work should include the provision of information on which substances may be harmful, proper storage in the vehicle to prevent spillage, locks to ensure that substances are secure, training on action to be taken in an emergency, and regular checks that safe work practices are followed.

The same applies to plant, such as power tools or hazardous substances, which are taken to the family home at the end of each working day.

The case law suggests employers must go to some lengths to meet the "all practicable steps" requirement. This means that it is not sufficient to have a rule or procedure - the employer must enforce it. Where non-compliance could have serious consequences, there may be a need for back-up procedures.

Section 15's duty should be read in conjunction with section 19's duty of employees not to cause harm to themselves or others.

The section 15 duty does not apply to employers who engage volunteers.

It does apply to the activities of those deemed employees because they are undertaking on-the-job training or are loaned employees.

Example:

Rolf operated a business known as Flush and Brush Ltd. It specialised in sandblasting houses and other buildings before painting them, and usually involved Rolf or his employees doing the work as a complete deal. One day he was approached by Jim about a quote for sandblasting and painting his family home. After some discussion Rolf and Jim came to an arrangement where, instead of the complete package, Flush and Brush would only sandblast the house in preparation for Jim to paint it himself. The company was paid on an hourly rate, and it was agreed that Jim would clean up the residual sand after the sandblasting of the older home's exterior.
Rolf then sent his employee, Ned along with the equipment to do the job, and the house was sandblasted. Ned then left the residual sand for Jim to clean up, and that was the last contact the company had with Jim.

Because it was an older home covered with lead-based paint, the blasting sand left lying around the house was contaminated with lead. Mention of this hazard had been made by Rolf to Jim. However, the sand wasn't cleaned up after Ned left. Instead it was left lying around and Jim's young children played in it. They quickly began to suffer the effects of lead poisoning, and had to be hospitalised. Jim's wife, Trish, was also treated for abnormally high blood-lead levels.

Flush and Brush Limited were convicted for failing to ensure that the action or inaction of an employee does not harm any other person, and for failing in their duty as a "person who controls a place of work". The court found that, although the company was not contractually obligated to clean up the contaminated residue, it is not possible to contract out of the duty set out in the Act. The company was expected to take all practicable steps to ensure that the hazard it had created was in fact removed. This would have involved at the very least a follow-up visit to the house.

In This Section

A Guide to the Health and Safety in Employment Act 1992

Part 2: Duties of employers

2.1 The meaning of "employer"

Officers, directors or agents

Principals to a contract

Examples:

2.2 The general duty

Particular duties

Providing and maintaining a safe working environment

Providing and maintaining facilities for the safety and health of employees at work

Ensuring that plant used by employees in the place of work is designed, made, set up, and maintained to be safe for employees

Ensuring that systems of work do not lead to employees being exposed to hazards in or around their place of work

Developing procedures for dealing with emergencies that may arise while employees are at work

Does an employer need a health and safety policy?

Examples:

2.3 Hazard management responsibilities (sections 7-10)

Involving employees in hazard management

Identifying hazards

What is a "hazard"?

What is a "significant hazard"?

Methods of hazard identification

Physical inspections

Task analysis

Process analysis

Analysis of accident investigation details

Some guidance on the classification of hazards

Table 2: Agency of harm categories

Table 3: Mechanisms of harm

Other sources of information on hazard management

Examples

Controlling hazards

When a significant hazard is identified

Protective clothing and equipment

Monitoring employees' exposure to hazards

Monitoring employees' health

Taking "all practicable steps" to control hazards

Outline of a process for hazard control

Deciding on control options

Controlling hazards not determined to be significant

Examples:

2.4 Information for employees and health and safety representatives

Information on hazards

Information for health and safety representatives

Information on health monitoring

Examples:

2.5 Supervision and training

Examples:

Knowledge and experience

Supervision

Training

Induction training

Supervisors or managers

Examples:

2.6 Employee participation

The section 19B duty

When a formal employee participation system must be developed

Agreeing on a system of employee participation

Elements of a system of employee participation

Maintaining an existing system

Where there isn't agreement

Where there are less than 30 employees

Where there are more than 30 employees

Electing representatives where a system has not been agreed to

Employee health and safety representatives

Functions of health and safety representatives

Training and information for health and safety representatives

Hazard notices

Representatives and the right to refuse dangerous work

Dispute resolution with respect to employee participation

2.7 Volunteer workers

General duty

Enforceable duties

2.8 People who are not employees

Example: