Health and Safety in Employment Act 1992
The Health and Safety in Employment Act 1992 (HSE Act) places duties and responsibilities on a range of different workplace participants, including employers, employees, principals, contractors, land and building owners, leaseholders, manufacturers and hirers or suppliers of plant or machinery.
Employers must take all reasonably practicable steps to:
- provide and maintain a safe working environment and work facilities
- ensure that plant at work is arranged, designed and maintained so that it is safe for use
- ensure that employees are not exposed to hazards in their place of work or near their place of work under the employer’s control
- develop procedures for dealing with emergencies that may arise while employees are at work, and
- ensure that no action or inaction by any employee while at work harms any other person.
Employers must also maintain a record of every accident that harmed (or might have harmed) an employee at work or any person in the place of work controlled by the employer, or which resulted from a hazard to which the employee was exposed while at work. If an accident or harm occurs, the employer must take all practicable steps to ensure that the occurrence is investigated so as to determine whether it was caused by or arose from a significant hazard.
Employer reporting obligations
Employers must notify WorkSafe within seven days of becoming aware of any serious harm accidents occurring at work. Serious harm refers to an injury or illness that causes severe loss of bodily function, permanent or temporary. WorkSafe investigates all serious workplace accidents.
Employees are required to take all practicable steps to ensure that no action or inaction of theirs while at work causes harm to any person. This includes things they omit to do (such as not using safety gear).
WorkSafe inspectors enforce the HSE Act. Other agencies may also be involved where the industry has specific requirements, such as Maritime New Zealand and the Civil Aviation Authority.
Inspectors may visit a workplace at any reasonable time, without giving advance notice. Inspectors may visit to offer information, inspect the workplace, or investigate reported incidents.
Health and safety inspectors have a range of options available to ensure compliance with the HSE Act. A health and safety inspector can:
- issue an improvement notice requiring action (failure to comply with an improvement notice is an offence)
- stop unsafe machinery or work by issuing a prohibition notice. This has immediate effect and remains in force until the problem is rectified to an inspector’s satisfaction
- issue an infringement notice. A notice can impose a penalty ranging from NZ$100 to NZ$4,000 on a person or company that has, despite prior correspondence or notices, failed to ensure that all practicable steps have been taken to remove a hazard. An employer served with an infringement notice may elect to pay the fee or seek a hearing in the District Court
- prosecute where a party has failed to meet its obligations under the HSE Act. Fines range up to NZ$500,000, but most offences carry a maximum fine of NZ$250,000.
Employees, officers, directors and agents may also be charged in relation to failures under the HSE Act.
Prosecutions against individual employees under section 19 of the HSE Act are relatively rare and will usually only take place where it is clear that an employee disobeyed clear instructions, acted recklessly, was grossly negligent, was involved in sky-larking behaviour, or wilfully ignored obvious hazards.
Under section 56 of the Act, directors, officers or agents may be charged irrespective of whether the company is prosecuted or convicted. The current test for liability requires knowledge that the situation in question was unsafe or otherwise contrary to health and safety legislation.