Published by David Grindle on April 19, 2011

The Act prescribes obligations upon employers and employees to ensure a healthy and safe workplace. The fines that follow prosecution extend up to $250,000.

We all need to be conscious of our obligations under the Act and to ensure that our workplaces are safe. It is no longer ok to think that health and safety is a matter for the individual. The buck stops with the employer.

What does “employer” mean?
An employer is defined in the Act as any person, including companies, who employs any other person to do any work for hire or reward. This includes engaging workers under an Employment Agreement, apprenticeship or other training agreement.

If you engage someone to work on or in your own home, you are not an employer in terms of the Act.

You are not an employer in relation to voluntary workers you may responsible for supervising.

Officers, directors or agents of a company are not of themselves employers in terms of the Act, but they are liable to prosecution if they “direct, authorise, assent to, acquiesce in, or participate in” a failure to comply with the Act.

Examples of an employer:

• Karl is an apprentice electrician indentured to Paul of Paul’s Electrical. Karl is Paul’s employer in terms of the Act.
• Jenny grows peaches and apricots on her orchard. Throughout the year she employs Geoff on wages as a general hand. In terms of the Act, Jenny is Geoff’s employer. At the height of the season, Jenny employs three or four local people to help pick, pack and dispatch the fruit. They are employed on a casual basis and under the law, Jenny is their employer.

The general duty
It is every employer’s obligation to take all practicable steps to ensure the safety of employees whilst at work.

Section 6 of the Act sets out this important requirement and further expands the obligation to include:

• Provide and maintain a safe work environment;
• Provide and maintain facilities for the safety and health of employees at work;
• Ensure that plant, machinery and equipment in the place of work is safe for employees;
• Ensure that systems of work do not lead to employees being exposed to hazards in their place of work; and
• Develop procedures for dealing with emergencies that may arise while employees are at work.

It is important to remember that the standard of care that is required of all employees is that they take all practicable steps. This is an important concept and means doing what is reasonably able to be done in the circumstances, taking into account:

• The severity of any injury or harm to health that may occur;
• The degree of risk or probability of that injury or harm occurring;
• How much is known about the hazard and the ways of eliminating, reducing or controlling it; and
• The availability, effectiveness and cost of possible safeguards.

By way of example a minor tripping hazard, or a sharp corner that juts into a walkway that presents a foreseeable likelihood of harm and is easily made safe, should be remedied under the duties of Section 6.

Do I, as an employer, need to prepare a health and safety policy?
The Act does not require an employer to prepare a formal written statement of safety and health policies. However, in some work places, it may be good practice to obtain written confirmation of agreed safety and health policies and the way they are to be implemented, as a basis on which to proceed. Usually the larger the enterprise and number of people involved, the more useful it will be to prepare a formal statement of health and safety policies and procedures.

By way of example:

1. Andrew was one of a pool of casual employees called on by Dolphin Fisheries to unload the catch from the refrigerated holds of the company’s fishing trawlers. The work was sporadic and Andrew’s availability varied. On one occasion, he arrived without adequately warm socks and clothing to wear under the company supplied gumboots and overalls. He spent the shift in the frozen hold despite his discomfort, and by the end of it, had frostbite in his toes. He subsequently needed hospital treatment. The company was prosecuted and found by the Court to have breached Section 6 of the Act in failing to provide a safe working environment for employees and failing to train employees in safe systems of work.
2. Spinners Limited owned and operated a metal turning lathe in their factory. Sharp metal off cuts fell from the machine onto the floor where they remained uncollected for long periods. Angela was an employee who had to walk past the machine as she went about her job. One day, Angela was distracted whilst walking past the machine and did not see the pile of metal off cuts. She walked into a sharp piece of metal and severely cut her Achilles tendon requiring surgery. Spinners Limited was convicted for failing in their duty to provide a safe working environment.

Hazard management responsibilities
Sections 7-10 of the Act sets out in more detail the steps an employer must take to manage significant hazards in the place of work. This process is based on the principle that the workplace should be modified to suit people, not vice versa. The steps are:

• Identifying hazards – identifying things which may cause injury or harm to the health of a person i.e. flammable materials, ignition sources or unguarded machinery.
• Assessing the hazard – evaluating whether the hazard is significant and the likelihood and degree of injury or harm occurring to a person, if they are exposed to a hazard.
• Controlling the hazard – by taking all practicable steps to eliminate, isolate or minimise significant hazards.
• Monitoring any exposure – to a hazard that has been minimised.

The control of occupational injury and disease hazards should preferably be dealt with by design or redesign. These controls eliminate, isolate or minimise hazards in a more reliable manner than personal protective equipment.

It is important to regularly review the steps of hazard management, especially if there are changes in the work environment, new technology is introduced, or standards are changed. It is also important to continually evaluate the induction process for new employees.

A useful technique is to involve employees in the development of hazard identification, management systems and emergency procedures. Give employees the opportunity to take ownership of the process and the outcome. A safety and health committee provides a means for consultation and co-operation and their establishment is encouraged. Although the legal responsibility for safety and health in the workplace rests with the employer, a committee and consultation process will assist in reaching decisions and providing best practice.

What is a hazard?
The Act states that employers are to have an effective method to identify hazards to employees. Hazards may be previously existing, new or potential. After identifying a hazard, employers must determine which are significant and require further action.

When an accident or serious harm occurs, an employer must notify Occupational Safety and Health Service in the prescribed form and furthermore the employer must take all practicable steps to investigate whether it was caused by a significant hazard.

A hazard is any actual or potential cause of harm which may occur inside or outside of a place of work. It may be:

• An activity;
• An occurrence;
• An arrangement;
• A phenomenon;
• A circumstance;
• A process;
• An event; or
• A situation.

A significant hazard is a hazard which may cause serious harm, including death and occupational illnesses and injuries, or a hazard that causes harm such as occupational overuse syndrome, or harm that cannot be detected until a significant time after exposure, such as asbestosis.

Four commonly used methods of hazard identification are:

1. Physical inspections – walk around the place of work with aid of a checklist.
2. Task analysis – look at the tasks in each job and observe the actions of employees.
3. Process analysis – this involves following the production or service delivery process from start to finish.
4. Analysis of accident investigations – whenever there is an accident the employer must take all practicable steps to determine the cause and whether it was a significant hazard.

Summary
In summary, to meet the requirements of the Act, an employer should take their obligations to provide a safe workplace very seriously. An employer should consider all practical steps that are available to ensure the safety of employees while at work.

From a practical perspective, employees should list all hazards and below that list identify what steps the employer is taking to reduce, minimise or remove exposure to the hazard. The employer must consciously decide a plan for managing all hazards and implement that plan by communicating it to staff.

In essence, an employer must be alert, pro-active and responsive to the health and safety needs of its employees, and unless they can exhibit a workplace in which all practicable steps have been taken, they may find themselves receiving significant fines.

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