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PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

August 2003

Health & Safety Changes

Identifying potential hazards in the workplace

In December 2002 the Health and Safety in Employment Act 1992 (“the Act”) was amended, bringing in tough new provisions for workplace safety. Those provisions came into effect on 5 May 2003.
The effects of the Act are far-reaching and employers (and others) will need to ensure compliance. The key changes are set out below.

Employee Participation

The Act requires increased employee participation in health and safety processes. If you employ more than 30 employees, or where one of your employees has requested it, you must develop an employee participation scheme.

There is now an entitlement to paid leave for representatives to undergo health and safety training. Suitably trained representatives can also now issue hazard notices.

Volunteers

Employers are liable for their employees. The definition of employees now includes volunteers undertaking work on a regular and ongoing basis (where the work performed is an integral part of the person’s business), along with people receiving on-the-job training or work experience. 
Employees “on loan” are also the responsibility of the person for whom the work is being performed.

Landlord’s Obligations

Don’t think the Act only applies to employers. The owner of a building must now take all practicable steps to ensure that no hazard is, or arises, in the workplace of the building he or she owns.

How Happy is Your Workplace? 

One of the most far-reaching changes may be the inclusion of physical or mental harm caused by work-related stress. Employers need to look closely at the work environment for their employees. Employee fatigue can also be treated as a hazard!

No Insurance

An employer can no longer insure against liability under the Act. If you already have insurance cover in place, the policy has no effect. Indemnifying another party for their liability under the Act is also prohibited. 
If you have insured against liability, have a close look at your policy. You may want to seek a refund.

Enforcement

Penalties under the Act have been significantly increased, with maximum penalties of imprisonment of up to two years and/or a fine of up to $500,000, where a person has taken action which was reasonably likely to cause serious harm to a person (up from one year or a fine of not more than $100,000).

In other situations a person can be liable for a fine not exceeding $250,000 and it is not necessary to prove that the person intended to take the action alleged to constitute the offence.

Furthermore, inspectors can issue infringement notices (effectively an instant fine) of up to $4,000, where a person or company fails, despite prior correspondence or notices, to take steps to remove a hazard.

Summary

  • The key changes of which you need to be aware are
  • Increased Employee Participation (reflecting the good faith requirements in the Employment Relations Act).
  • Land owners are affected.
  • Employee work-related stress is an employer’s responsibility.
  • Employers cannot insure against OSH claims.
  • Higher penalties for breaches of the Act.

Our Suggestion

Ensure any potential hazards in the workplace (defined as anywhere the work is performed) are identified and dealt with, and that you are aware of your obligations as an employer or employee. Don’t leave it until you are on the receiving end of enforcement action.