Health and Safety in Employment Amendment Bill 1/4

Margaret Wilson Labour

Hon Margaret Wilson
Minister of Labour

Wednesday October 31

New laws for safer workplaces

The Minister of Labour, Margaret Wilson has introduced amendments to
strengthen the Health and Safety in Employment Act.

The proposed amendments extend the coverage of the Act to the maritime, air
transport and rail sectors that are now outside the legislation.

In addition the legislation recognises stress and fatigue as specific
hazards, removes the OSH monopoly on prosecutions and introduces Infringement
Notices with instant fines for clear breaches of the Act.

"These amendments will require the Occupational Safety and Health Service to
become more proactive in providing employers and employees with quality
information in the way people need to work to build a safe workplace," the
Minister said. "You cannot introduce these changes without information on how to
improve our safety and health performance."

"The new law is needed because of the unacceptable toll of illness, injury
and death in New Zealand workplaces. Our record is not as good as that of
similar countries such as Australia," said Margaret Wilson.

"The new law will build on the highly successful principles of good faith
underlying the Employment Relations Act. In the end the law can only support
sensible decisions by employers, managers, employees and unions. The amendments
will provide for better communication and cooperation in workplaces through
employee participation. However, these are only part of the equation.
Enforcement is also important and we will introduce a stronger regime to deal
with those who flout the law.

"The government has kept its promise to act for greater safety and has also
kept to its commitment to consult employers and employees carefully on the best
practical solution to the problems. While there are very significant increases
in penalties provided for in the new law, the emphasis is on bringing people in
a workplace together to promote safety".

A test panel (comprising representatives of industry, unions, small to medium
enterprise, and a member of the Business Compliance Cost Panel) is being
established to advise on minimising the cost of implementation of the proposals
and to ensure the smooth implementation of the new law by OSH.


A SUMMARY OF THE HSE AMENDMENT BILL

The key areas of amendment in the Bill relate to:

  • Employee Coverage
  • Employee Participation
  • Effective Enforcement
  • Infringement Notices
  • Other Issues (stress and fatigue, insurance against fines, minor and
    technical amendments).

Coverage

  • The Bill rationalises coverage of the Health and Safety in Employment Act,
    (the Act) particularly in the transport sector. Crew aboard ships, crew aboard
    aircraft and rail workers will all now be covered under the Act.
  • The Bill clarifies that the Act covers mobile workers.
  • Volunteers working for the benefit of an employer and 'loaned employees'
    will both be given protection under the Act by extending the definition of
    'employee'.
  • The Bill places duties on those who sell or supply plant or equipment for
    use in workplaces to ensure that it is safe for its intended use in a place of
    work.
  • The Bill introduces a new provision that allows the Prime Minister to
    designate a Crown agency to administer the HSE Act for a particular industry,
    sector, or type of work. This provision will enable the Maritime Safety
    Authority, for example to administer the Act in the maritime sector.
  • These changes will be made without changing the current wording of Section
    16 which was amended in 1998 to clarify duties to recreational users of rural
    land.

Employee Participation

  • The Bill places a new duty on all employers to ensure that employees have
    reasonable opportunities to participate effectively in the ongoing management of
    health and safety in the workplace.
  • Employers, employees and any union acting on an employee's behalf must
    co-operate in good faith to develop and maintain a system that sets out the ways
    in which employee participation will operate in the workplace.
  • A 'system' may involve electing heath and safety representatives or it may
    involve establishing a health and safety committee.
  • The functions of health and safety representatives will be set out in the
    Act and the Act will specifically provide that there can be no discrimination
    against a health and safety representative.
  • Health and safety representatives will have a statutory entitlement to 2
    days paid leave per annum to attend a government approved health and safety
    training course.
  • Trained health and safety representatives will be able to issue hazard
    notices. Hazard notices may be issued if a trained health and safety
    representative identifies a workplace hazard, brings it to the attention of the
    employer and the employer either refuses to discuss the hazard or to take steps
    to deal with the hazard within a reasonable time.
  • The right to refuse work likely to cause serious harm is set out in the Act.

Effective Enforcement

  • The Bill increases fine levels. For offences likely to cause serious
    harm (section 49), the maximum fine level will be increased from $100,000 to
    $500,000 and the maximum term of imprisonment increased from 1 year to 2 years.
    For other offences (section 50, proof of knowledge not required) the
    maximum fine will be increased from $50,000 to $250,000.
Offence Present
law
New
"likely to cause serious harm" (section 49)
  • Imprisonment to a term of not more than 1 year; or
  • A fine of not more than $100,000; or
  • Both.
  • Not more than 2 years imprisonment
  • A fine of not more than $500,000
  • Both
Other offences (section
50)
  • A fine not exceeding $50,000, if the failure caused any person serious harm:
  • A fine not exceeding $25,000, in any other case.
  • A fine of not more than $250,000
  • The limitation period for bringing an action under the Act will increase to
    6 months from the time when the breach became known or should have become
    known to an inspector. There is also provision to apply to the District
    Court to extend this time in certain circumstances. This is particularly
    important in situations of occupational illness where symptoms may appear only
    some years after exposure.
  • The Crown monopoly on prosecutions will be removed. Private prosecutions
    will now be possible but only once the Occupational Health and Safety Service
    (OSH) has decided not to take prosecution action.

Infringement Notices

  • Infringement notices will be introduced as an extra enforcement tool for OSH
    Inspectors. They may only be issued for clear cut breaches of the Act or
    Regulations.
  • If an infringement notice issued, there cannot be a prosecution for the same
    matter by the Crown or anyone else.
  • The fine levels for infringement notices will be applied as follows:
    • individual/body corporate
    • no harm, harm, serious harm, breach of section 7(1)
    • range of fines - $100-$800 for individuals (including self-employed and
      employees) and $500 to $4,000 (for bodies corporate).
  • Issuing an infringement notice will not create a criminal record.

Other Issues

Stress and Fatigue

  • The definitions of 'harm' and 'hazard' will be extended to confirm that they
    cover mental harm, and a hazard arising through physical or mental fatigue.
  • a best practice document for the effective management of stress and fatigue
    in the workplace is currently being prepared by OSH.

Insurance

  • It will now be unlawful to insure against fines issued under the Act.
    Insurance for the cost of defending a prosecution will remain lawful.

Minor and technical amendments

  • The Act will be clarified regarding the provision of protective equipment
    and clothing. It will be amended to state that an employer must provide
    such equipment, for use by employees.
  • The Act will be amended to include as a function of inspectors, ascertaining
    whether the Act has been complied with.