Health and safety protections

Overview of the health and safety laws

Your employer has a general duty to protect your health and safety at work, as far as this is reasonably practicable. They also have some more specific duties, like making sure machinery and equipment is safe, and making sure you have the training and supervision you need.

These duties are set out in the Health and Safety at Work Act 2015, which deals with health and safety issues in all workplaces and during all work activities. The Act provides a range of enforcement methods for when someone doesn’t comply with the Act. It also requires employers to involve their workers in improving health and safety (“worker participation”)

Who’s responsible for health and safety in the workplace?

Health and Safety at Work Act 2015, s 36

The main responsibility for health and safety in your workplace lies with your employer, or whoever else is responsible for the work. The Health and Safety at Work Act gives them what it calls the “primary duty” for health and safety (see below, “What health and safety duties does my employer owe me?”).

This includes businesses, government departments, local councils and schools, and also not-for-profit organisations that employ staff.

But people other than your employer also have some health and safety duties in the workplace, like people who control or manage a workplace, such as the building owner.

However, employees and others doing work also have responsibilities to themselves and others (see below, “Your health and safety duties as an employee”).

Who’s protected by the health and safety laws?

Health and Safety at Work Act 2015, s 19, 36(1)

The main protections of the Health and Safety at Work Act cover the following people:

  • Paid workers – This includes: employees; independent contractors and subcontractors; homeworkers and outworkers; and apprentices and trainees.
  • On work experience / trials – You’re also covered if you’re working unpaid because you’re on work experience or a work trial.
  • Some regular volunteers – The Act covers a limited category of volunteers who do regular and ongoing work. You’re protected as one of these volunteers (called “volunteer workers” in the Act) only if:
    • the organisation you volunteer for employs one or more staff, and
    • the volunteer work you do is regular and ongoing and is an “integral part” of the organisation, and
    • you’re not involved in any of the following exempted activities: fundraising; helping with sport or recreation (like coaching your child’s team for their school or club); helping schools or other educational institutions with off-site trips and activities; or providing care in your own home.

    Note: Volunteers who aren’t “volunteer workers” – either because they’re more casual volunteers or because they do one of the exempted activities – are owed a lesser health and safety duty by the organisation they’re working for. The organisation must make sure the health and safety of these volunteers isn’t put at risk by the organisation’s work. This is the same duty as applies to visitors, customers and others who don’t do any work for the organisation.

Health and Safety at Work Act 2015, s 36(2)

Duties of employers and others who control work and workplaces

What health and safety duties does my employer owe me?

Health and Safety at Work Act 2015, s 36

Your employer has a general duty to protect your health and safety at work, as far as this is “reasonably practicable” (see below for what “reasonable practicable” means).

They also have the following specific health and safety duties:

  • to provide and maintain a risk-free work environment
  • to make sure the machinery and equipment in the workplace is safe
  • to make sure the work systems are safe
  • to make sure there are safe processes and facilities for using, handling and storing equipment and substances (chemicals for example)
  • to provide you with adequate facilities for your welfare at work, and making sure you have access to them
  • to provide all necessary information, training, instruction and supervision
  • to monitor the health of workers and the conditions at the workplace in order to prevent injuries and illness.

What does the duty to do everything “reasonably practicable” mean?

Health and Safety at Work Act 2015, s 22

Under the health and safety laws, the employer’s obligation to do everything “reasonably practicable” means doing everything that they’re reasonably able to do at the relevant time. What is reasonable here will depend on:

  • how likely it is that the particular hazard or risk will arise
  • how much harm could result
  • what the employer knows (or should know) about the hazard or risk, and about how it can be eliminated or minimised
  • whether ways of eliminating or minimising the risk are available at the time and are suitable
  • the cost of eliminating or minimising the risk.

What duties am I owed as an independent contractor?

Health and Safety at Work Act 2015, s 17, 19, 36

If you’re working as an independent contractor rather than as an employee, the person you’re working for – called a “principal” – owes the same health and safety obligations to you as employers owes their employees (see above, “What health and safety duties does my employer owe me?”). This is because the health and safety laws bring employers, principals and some voluntary organisations all within the broad category of a “person carrying on a business or undertaking”. These “PCBUs” all owe health and safety duties to their workers, and “workers” here includes contractors and some regular volunteers.

Your principal also owes this duty to any employee or subcontractor that you, the contractor, hire to carry out the work you contracted with the principal to do. But in those cases you yourself will also have health and safety obligations as an employer or as a principal to your subcontractor.

Duties that employers owe to customers, visitors and some volunteers

Health and Safety at Work Act 2015, s 17, 19, 36

Employers must make sure, as far as is reasonably practicable, that the health and safety of people other than their workers isn’t put at risk by the work of the business or organisation. They will owe this duty to:

  • customers and clients
  • visitors
  • volunteers who don’t qualify as “volunteer workers”, either because they’re more casual volunteers or because they do one of the exempted activities, like fundraising or sports coaching (see above, “Who’s protected by the health and safety laws?”).

Workplace health and safety duties owed by people other than employers

Health and Safety at Work Act 2015, ss 37-40

  • Other people controlling workplaces and machinery – A business or organisation that manages or controls a workplace must make sure, as far as is reasonably practicable, that the workplace (including its entrances and exits) doesn’t pose any risks to anyone. If you work in a shop in a large retail centre, for example, this would include the owner of the retail centre and the centre’s manager. People who manufacture or design machinery and equipment, or who manage or control it, also owe a duty to make sure it’s safe.
  • Self-employed – If you’re self-employed, you must make sure you’re safe while you’re working, as far as is reasonably practicable.

Health and Safety at Work Act 2015, s 36(6)

  • Employees – You must take reasonable care for your own health safety while at work (for more details of a worker’s obligations, see below, “What are my health and safety duties as an employee?”).

Employer’s duty to record accidents and serious harm

Health and Safety at Work Act 2015, s 4, Schedule 1 (cl 25)

Your employer must keep a register in which they record details of all accidents and all incidents of serious harm.

An “accident” is any incident that causes a person to be harmed, or that could have caused harm if the situation had been different. “Serious harm” includes death, loss of bodily function, amputation, and various other conditions.

Bullying in the workplace

Health and Safety at Work Act 2015, s 36

Although the health and safety laws don’t specifically mention workplace bullying, they require employers to make sure you have a safe working environment, and this will include making sure it’s free from workplace bullying.

The courts have generally defined workplace bullying as:

Kneebone v Schizophrenia Fellowship Waikato Inc (Employment Relations Authority, Akld, AA31/07, 13 Feb 2007)

  • repeated actions
  • carried out with the desire to gain power and exert dominance, and
  • carried out with the intention to cause fear and distress.

The actions have to be more than just strong management.

WorkSafe New Zealand has released best practice guidelines for employers about how to prevent and respond to workplace bullying. Go to:
www.business.govt.nz/worksafe/ information-guidance/all-guidance-items/bullying-guidelines

Note: For information about what you can do if you’re being bullied in the community or online, see the chapter, “Harassment and bullying”.

What should I do if I’m being bullied at work?

If you’re being bullied by your manager or employer, you could seek advice from your organisation’s Human Resources manager, from Mediation Services at the Ministry of Business, Innovation and Employment (MBIE), from WorkSafe NZ’s health and safety inspectorate, from your union, or from your local Community Law Centre.

If you’re being bullied by a co-worker, you need to tell your employer. Once an employer is aware of bullying they should take reasonable steps to ensure the workplace is safe. If your employer doesn’t do this, you may have grounds to raise a personal grievance for unjustified disadvantage (see above, “What does the duty to do everything “reasonably practicable” mean?”, and for personal grievances, see the chapter “Resolving employment problems”).

Because bullying can be hard to prove, and can involve a pattern of small or subtle actions over time, it is a good idea to keep a record every time you feel you have been bullied.

Your health and safety duties as an employee

What are my health and safety duties as an employee?

Health and Safety at Work Act 2015, s 45

As an employee you must take reasonable care for your own health safety while at work, and you must also make sure you don’t harm anyone else.

You must follow, as far as you’re reasonably able to, any reasonable instructions that your employer or supervisors give you about health and safety, and cooperate with any reasonable policies or procedures around health and safety that your employer has told you about. For example, you must use protective clothing or equipment that your employer has provided.

Note: The fact that you have those responsibilities as an employee doesn’t affect or limit the health and safety duties of employers and others.

Health and Safety at Work Act 2015, s 33

How the health and safety laws are enforced

What can I do if I think my workplace is unsafe?

You should first raise the issue with your employer’s health and safety officer or committee, as soon as possible.

If that doesn’t resolve the problem, you can complain to Worksafe New Zealand. Their health and safety inspectors can investigate breaches of health and safety laws and enforce the laws. You don’t have to give your name when you complain.

Can I refuse to do work on health and safety grounds?

Health and Safety at Work Act 2015, s 83

You can refuse to do work if you believe it would expose you (or anyone else) to a serious risk. The risk has to come from an “immediate or imminent” exposure to a hazard.

You then have to raise the problem with your employer as soon as you can. If the problem isn’t resolved you can continue to refuse to do the work, so long as you have reasonable grounds for believing there’s a serious risk.

Note: You’ll have reasonable grounds for continuing to refuse to do the work if you’ve been told by your workplace’s health and safety representative that it would expose you or someone else to a serious risk.

If your employer fires you or disadvantages you in some other way for stopping work on health and safety grounds, you may be able to take a personal grievance against them to the Employment Relations Authority (see the chapter, “Resolving employment problems”, under “Personal grievances”).

About health and safety inspectors

Health and Safety at Work Act 2015, ss 163-180

Health and safety inspectors work for WorkSafe New Zealand, the government agency responsible for enforcing the health and safety laws. Inspectors have the legal right to enter any workplace to ask questions, gather information, and take samples.

Note: It’s a criminal offence to obstruct or delay health and safety inspectors when they’re doing their work.

What can an inspector do to enforce health and safety laws?

Health and Safety at Work Act 2015, ss 101-107, 136-140, 141-145

Once an inspector has investigated a health and safety problem at your workplace, there are a range of options. The inspector can:

  • decide to take no further action
  • speak or write to your employer about their safety practices
  • give them a written warning
  • give the employer an improvement notice, requiring them to take some action to comply with the health and safety laws
  • give the employer a prohibition notice, requiring them to immediately stop a particular activity
  • give the employer an infringement notice requiring them to pay a fine (an “infringement fee”).

In the most serious cases WorkSafe New Zealand can bring a criminal prosecution (see below, “Criminal offences under the health and safety law”).

Criminal offences under the health and safety laws

Health and Safety at Work Act 2015, ss 47-49

Employers can be given significant criminal penalties for breaching the health and safety laws:

  • Breaching a duty – If an employer breaches a health and safety duty but no-one is exposed to any serious risk, they can be convicted and fined up to $100,000 if they’re an individual person, and up to $500,000 if they’re a company.
  • Creating a serious risk – If an employer breaches a health and safety duty and this exposes their workers or others to a risk of death, serious injury or serious illness, they can be fined up to $300,000 if they’re an individual, and up to up to $1.5 million if they’re a company.
  • Recklessly creating a serious risk – If an employer recklessly does something that exposes their workers or others to the risk of death, serious injury or serious illness, they may face a jail term. They can be jailed for up to five years or fined up to $600,000, or both, if they’re an individual. If the employer is a company, they can be fined up to $3 million.

Can I get compensation if I’m injured because of an unsafe workplace?

Compensation for injuries caused by accidents is available under the accident compensation scheme, administered by ACC (see the chapter “Accident compensation”).

Employers who are convicted of breaching health and safety laws can be fined, and the judge will consider whether the employer should compensate any victim of the offence for any emotional harm or consequential loss that they’ve suffered (physical harm is covered by ACC).

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