The Health and Safety in Employment Act 1992

Published by David Grindle on November 08, 2010

The Health and Safety in Employment Act 1992 (the Act) creates a duty for principals to parties contracting for services in industries such as construction, agriculture and forestry.

The courts have found that health and safety obligations are fundamental to the relationship between principal and contractor, the benefits of which include:

  • Reduced risk of accidents and ill health;
  • Greater satisfaction for both contractors and clients;
  • Fewer incidents, losses, problems, stoppages and delays;
  • Less management time required to deal with problems;
  • Continuous improvement in practices; and
  • Financial savings.

Section 18 of the Act states:

1. Every principal shall take all practicable steps to ensure that:

(a) No employee of a contractor or subcontractor; and
(b)If an individual, no contractor or subcontractor, – is harmed while doing any work (other than residential work) that the contractor was engaged to do.

The object of Section 18 is the prevention of harm to people that work or are affected by work. The Act imposes a range of duties on different parties for health and safety management.

The catch all phrase used in Section 18 and other parts of the Act imposes an obligation on principals to take “all practicable steps” to ensure contractors, subcontractors and their employees are not harmed while undertaking work under the contract.

If you question whether or not you are a principal, bear in mind that a principal is any person who engages another (other than as an employee) to do work for gain or reward. The exception is engaging someone to do work on your own home. A principal cannot contract out of obligations owed under Section 18 and contractual clauses that attempt to do this will not be accepted by the Courts.

As the legal requirement to satisfy Section 18 is that “all practicable steps” must be taken. Failure to take one practicable step is a breach of the Act and may result in a conviction.

This duty to take all practicable steps to prevent harm is defined in terms of taking all steps that are reasonably practicable it involves consideration of:

  • The nature and severity of any harm that may occur;
  • The current stage of knowledge about the likelihood of such injury or harm occurring;
  • The current state of knowledge about harm of that nature;
  • How much is known about the risk of potential harm and the ways of eliminating, isolating or minimising that risk; and
  • The ability and cost of safeguards.

A question you, and indeed the Courts ask is: what would a reasonable principal do in the relevant circumstances? The concept of “reasonableness” is based on the legal concept that often sees the Court measuring the performance of the party under examination against what the Court perceives a reasonable principal would do in that situation. There is a balancing exercise. For example, the degree of risk and the severity of potential injury or harm must be balanced against the cost and feasibility of the safeguard. Obviously, the higher the degree of risk and the higher the severity of potential injury or harm, then the higher the obligation upon the principal to prepare and initiate safeguards.

In entering contractual relations with another party, it is imperative that some thought be given to health and safety obligations from the beginning of the project. Those considerations should dovetail with the project and building considerations. Safety is now a critical factor and needs to be accounted for in the contract price. In any tendering process, contractor selection is particularly important. Principals and contractors need to share information and agree what has to be done, how it is to be done and who should do what. The nature of the contract and the nature of the significant hazards will affect procedures and precautions required. There needs to be a thorough assessment and evaluation of the potential hazards and risks as they apply to the work under consideration. The principal is responsible for advising on appropriate safety standards to be observed. Where a principal is required to take all practicable steps to avoid harm to contractors and their employees, this should involve an awareness of the required standards.

At the pre-tender stage, or pre-contract entering stage, the principal should identify the work covered by the contract and the hazards likely to occur. They need to develop tender documentation beginning with consideration given to how health and safety issues will be included in the contract relationship. At this early stage, any significant health and safety information available should also be provided to potential tenderers.

It is imperative that principals realise that the obligation for health and safety that they hold in respect of employees is equally applicable to their relationship with contractors and their employees. Contracting out obligations does not alleviate the principal’s need to do whatever it can to minimise potential for risk. When entering into a relationship of this nature, principals should seek legal advice as to their requirement for meeting the obligations imposed upon them as a principal under the Health and Safety in Employment Act 1992.

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