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March 2002

Health & Safety In The Work Place

In October 2001, the Minister of Labour, Margaret Wilson, introduced amendments to strengthen the Health and Safety in Employment Act 1992. These proposed amendments include significant changes to the existing legislation and will have a considerable impact on employers.

The Proposed Amendments

  • Extend coverage of the Act to the maritime, air transport and rail sectors;
  • Identify stress and fatigue as specific employment hazards;
  • Eliminate the OSH monopoly on prosecutions;
  • Introduce Infringement Notices with instant fines for clear breaches of the Act.

Stress and Fatigue

Perhaps the most controversial proposed amendment relates to stress and fatigue in the workplace.

Regardless of the nature of the particular employment, employers will be expected to develop procedures for identifying stress and fatigue in the workplace. In addition, employers will have a responsibility to develop options and procedures to help alleviate workplace stress and fatigue.

Despite stress and fatigue being difficult areas of diagnosis for the medical profession, employers will be expected to recognise and deal with them, or face liability for them as employment hazards.

Hazards

If an employee is required to carry out work that they believe on reasonable grounds may cause them serious harm, the employee will have the right to refuse. However, having done so, the employee must carry out any other work that comes within the scope of their employment agreement that is reasonably requested by the employer.

Where a significant hazard cannot be eliminated despite all practicable steps having been taken to eliminate it, the proposed amendments clarify that the employer then has a legal requirement to provide protective clothing and equipment so as to minimise the hazard.

Changes to Fines

For offences "likely to cause serious harm" (section 49), the new penalties will be either imprisonment of up to 2 years or a fine of up to $500,000, or both. The current penalties are either imprisonment of up to one year or a fine of up to $100,000 or both.

For other offences (section 50), the new penalty will be a fine of up to $250,000. The current penalties are either a fine of up to $50,000 if the failure caused any person serious harm, or a fine of up to $25,000 in any other case.

Employers should be aware that the proposed amendments also make it unlawful to obtain insurance for penalties under the Act. While insurance to cover the cost of defending a prosecution will still be permitted, insurance against fines issued under the Act will not.

Margaret Wilson says the emphasis in the new law is on bringing people together in the workplace to promote safety. She says the new law is needed for addressing the unacceptably high toll of illness, injury and death in New Zealand workplaces and that it will "build on the highly successful principles of good faith underlying the Employment Relations Act".

One of the criticisms of the new law is that no provision is made for employee responsibility in the workplace. Employers are expected to guard against all possible injuries to employees, even those caused by irresponsible and stupid acts.

Conclusions

Employers should not underestimate the importance of their statutory duty to ensure the safety of employees in the workplace. The costs of failing to do so will be significant – not only in terms of the increased fines and removal of insurance against fines, but also in terms of damaging publicity, lost productivity and temporary replacement labour. Health and safety in the workplace is an issue that should not be taken lightly.