Module One, Part B - Health and safety at work 101

Module One - Part One - Health and Safety at Work 101

This page contains information on the following topics:

It also contains links to other pages on the following topics:

  • Duties of a PCBU
  • Duties of Officers
  • Duties and rights of Workers and Other Persons
  • Managing risks and hazards
  • Notifications and authorisations
  • WorkSafe as Regulator

Background to the HSWA

In September 2015, Parliament passed the HSWA.  HSWA was the Government’s response to the Report of the Independent Taskforce on Workplace Health and Safety. The Taskforce was established in 2012 following concerns about the level of workplace fatalities in New Zealand and the performance of health and safety systems, including the findings of the Pike River Royal Commission.

The Taskforce made 15 recommendations.  These included:

  • That Government establish a new workplace health and safety agency (this recommendation gave rise to WorkSafe New Zealand)
  • That Government enact new workplace health and safety legislation based on the Australian Model Law (this recommendation led to the HSWA)
  • That Government strengthen the legal framework for worker participation (this recommendation led to Part 3 of HSWA).

HSWA came into effect (in full) on 4 April 2016.

HSWA sets out health and safety duties that must be complied with. Other legislation may affect work health and safety (eg the Gas Act 1992 and the Building Act 2004). HSWA addresses such overlaps by providing that other legislative requirements can be considered when deciding if health and safety duties are being met.

 

Purpose and principles of HSWA (Section 3(1))

The main purpose of HSWA is to provide for a balanced framework to secure the health and safety of workers and workplaces by—

a) protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant; and

b) providing for fair and effective workplace representation, consultation, co-operation, and resolution of issues in relation to work health and safety; and

c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting PCBUs and workers to achieve a healthier and safer working environment; and

d) promoting the provision of advice, information, education, and training in relation to work health and safety; and

e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

f) ensuring appropriate scrutiny and review of actions taken by persons performing functions or exercising powers under this Act; and

g) providing a framework for continuous improvement and progressively higher standards of work health and safety.

A guiding principle of HSWA is that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work so faras is reasonably practicable (section 3(2).

 

Key concepts in HSWA

HSWA is intended to be flexible and workable for all businesses and undertakings (section 3)

The legislation is designed to be flexible and workable for both small and large businesses and undertakings without imposing unnecessary compliance costs.

The work health and safety legislation is intended to:

  • reflect modern working relationships
  • place obligations on the people who create risk and are best placed to manage it
  • enable worker participation and the sharing of health and safety information
  • have regulations which describe requirements to be met for certain duties
  • integrate the regulation of workplace use of hazardous substances
  • have a responsive enforcement regime.

 

Coverage is broad (Part 1, subpart 3, sections 16-20)

HSWA applies to nearly all work in New Zealand – it is intentionally broad in its coverage. There are very few exceptions and these do not apply to local government. For example, HSWA exceptions apply to the Armed Forces (section 7):

  • members of the Armed Forces carrying out operational activity
  • civilians working in support of Armed Forces overseas in an area of operational activity
    • any military aircraft or naval ship carrying out operational activity.

 

Focus on work and the workplace (section 36)

A PCBU has a primary duty of care to ensure, so far as reasonably practicable, the health and safety of:

  • workers who work for the PCBU while they are at work;
  • workers whose activities in carrying out the work are influenced or directed by the PCBU while the workers are carrying out the work; and
  • that the health and safety of any other person is not put at risk from the work being carried out.

There are also duties that relate to the workplace.  A workplace is a place where a worker goes or is likely to be while at work, or where work is being carried out or is customarily carried out. It includes a vehicle, vessel, aircraft, ship or other mobile structure, and any waters and any installation on land, on the bed of any waters, or floating on any waters.

 

Focus on both work-related illnesses and injuries (section 30)

Where there is a duty imposed under HSWA it requires a person to either eliminate risks to health and safety, so far as is reasonably practicable, or if it is not reasonably practicable to eliminate risk to health and safety, to minimise those risks so far as reasonably practicable.  The obligation to manage risks is to the extent to which the person has, or would be reasonably be expected to have, the ability to influence and control the matter to which the risk relates.

HSWA not only relates to the safety of workers but also relates to health issues such as illnesses.  This means consideration of the potential work-related health conditions as well as the injuries that could occur. Health conditions include both physical and psychological acute and long term illnesses. It is estimated in New Zealand that one worker dies per week from a workplace accident and 15 workers die each week from work-related illnesses.

 

Four types of duty holders (Part 2, subparts 2 & 3, sections 36-46)

There are four types of duty holders that have work health and safety duties:

  • persons conducting a business or undertaking (PCBU) –either an organisation or a sole trader (for more information see Duties of a PCBU) (section 36)
    • officers (for more information see Duties of Officers) (section 44)
    • workers (for more information see Duties and Rights of Workers and Other Persons) (section 45)
      • other persons at workplaces. (for more information see Duties and Rights of Workers and Other Persons) (section 46)

In the local government environment, these duty holders will typically be:

  • PCBU;
  • Council management and supervisions officers;
  • Chief Executive and Councillor workers;
  • Council staff, contractors, subcontractors, volunteer workers and volunteers
  • Customers, users of communal facilities and visitors in the workplace.

 

So far as is reasonably practicable (section 22)

The primary duty of care requires a PCBU to ensure health and safety of workers and others ‘so far as is reasonably practicable’ (section 36). When used in this context, something is reasonably practicable if it is reasonably able to be done to ensure health and safety, having weighed up and considered all relevant matters, including:

  • How likely are any hazards or risks to occur?
  • The degree of harm that might result from the hazard or risk be?
  • What does the PCBU know or ought to reasonably know about the risk and the ways of eliminating or minimising it?
  • What suitable ways are available  to eliminate or minimise the risk (control measures)?
  • How available and suitable is the control measure(s)?

Lastly weigh up the cost:

  • What is the cost of eliminating or minimising the risk?
  • Is the cost grossly disproportionate to the risk?

 

How the Act, regulations and other guidance work together

WorkSafe produces a range of information and guidance to help people comply with their health and safety duties.

Table 2 shows the relationship between the law,  approved codes of practice (ACOPs), and WorkSafe guidance and information.

HSWA, regulations, safe work instruments (SWIs), ACOPs, and WorkSafe information, guidance and advice work together to improve work health and safety.

There is other legislation that applies to work, such as the Building Act 2004.

Example: An architect that designs a building has duties under HSWA to ensure health and safety, and must also ensure the design complies with the Building Act. Under HSWA the requirements of the Building Act will be taken into account in determining what is required to comply with the architect’s HSWA duties.

Table 2 - Relationship between the law, ACOPs and WorkSafe guidance and information

Document

Legal Status

About the document

Health and Safety at Work Act 2015

LEGALLY BINDING

Made by Parliament

Sets the legal framework for health and safety in New Zealand

Health and safety regulations

LEGALLY BINDING

Made by Governor-General on the recommendation of the Minister

Expands on health and safety duties in the HSWA

Sets standards for managing certain risks and hazards

Safe Work Instruments (SWIs)

LEGALLY BINDING

Approved by Minister on recommendation of Worksafe

SWIs define terms, prescribe matters, or make other provision in relation to any activity or thing, including (without limitation) listing standards, control of substances, and competency requirements.

Approved Codes of Practice

NOT LEGALLY BINDING. SUPPORTS THE LAW AND MAY BE USED IN LEGAL PROCEEDINGS AS EVIDENCE OF COMPLIANCE

Approved by Minister on recommendation of Worksafe.

Practical guides on how to comply with legal duties under the Act and regulations.

Can be used in legal proceedings as evidence of compliance with the Act and regulations.

WorkSafe Guidance and Information

NOT LEGALLY BINDING

Approved by WorkSafe

Can be in the form of:

  • Special Guides - provide information on special topics
  • Good Practice Guidelines - describe current good practice
  • Interpretive Guidelines - help businesses and workers to understand their duties at work
  • Fact sheets - are simple, brief advice on a particular subject
  • Bulletins - report "real-life" incidents and lessons to be learned
  • Alerts - give warnings of emerging risks and short term ways of managing them
  • WorkSafe position statements - explain Worksafe's view on a particular issue (e.g. technical matters)
  • WorkSafe positions - outlines how WorkSafe interprets key legal concepts
  • Worksafe regulatory function policies - provides information on how WorkSafe meets its regulatory functions

Regulations

Table 3 shows current regulations under NZ law and their general content. Regulations covering work that deals with hazardous substances are being drafted but are not in place yet. Links are provided to some of these regulations and the rest can be found at www.legislation.govt.nz

Regulation

Content

Health and Safety at Work (General Risk and Workplace Management) Regulations 2016

Regulations covering managing general and specific work risks, and workplace facilities requirements.

Regulations apply to all Council workplaces.

Health and Safety at Work (Worker Engagement, Participation and Representation) Regulations 2016

Regulations covering requirements for health and safety representatives and health and safety committees.

Regulations apply to all Council workplaces.

Health and Safety at Work (Asbestos) Regulations 2016

Regulations covering work that deals with asbestos.

Health and Safety at Work (Major Hazard Facilities) Regulations 2016

Regulations covering facilities that fit the criteria of major hazard facilities.

Regulations may be relevant to Councils whose workers enter these workplaces in the course of their work, such as inspectors or enforcement officers.

Health and Safety at Work (Adventure Activities) Regulations 2016

Regulations covering the registration of adventure activity operators.

Regulations may be relevant to Councils whose workers enter these workplaces in the course of their work, such as inspectors or enforcement officers.

Health and Safety at Work (Mining Operations and Quarrying Operations) Regulations 2016

Regulations applying to mining and quarrying operations including competency requirements of safety critical roles, health and safety management systems, principal hazard management plans, and principal control plans.

Regulations will apply to councils who own or operate quarries. Some Council-controlled organisations own and operate quarries, especially for road metal.

Regulations may also be relevant to Councils whose workers enter these workplaces in the course of their work, such as inspectors or enforcement officers.

Health and Safety at Work (Petroleum Exploration and Extraction) Regulations 2016

Regulations applying to petroleum installations and well operations including general duties, safety case requirements, certificates of fitness, and verification schemes.

Regulations may be relevant to Councils whose workers enter these workplaces in the course of their work, such as inspectors or enforcement officers.

Health and Safety at Work (Infringement Offences and Fees) Regulations 2016

Regulations covering the infringement offences and fees, and infringement notices.

Regulations apply to all Councils.

Health and Safety at Work (Rates of Funding Levy) Regulations 2016

Regulations prescribing the levy required to be paid by employers and self-employed people.

Regulations apply to all Councils.

Health and Safety in Employment Regulations 1995

Regulations covering a range of general requirements including requirements relating to noise, machinery, working at height, scaffolding, excavation, and certificates of competence.

Regulations apply to all Councils.

Health and Safety in Employment (Pipelines) Regulations 1999

Regulations covering certain pipelines carrying petroleum, natural gas or other potentially hazardous substances, including general duties, requirements for design, construction, operation, maintenance, suspension and abandonment, certification and notification.

Regulations may be relevant to Councils whose workers enter these workplaces in the course of their work, such as inspectors or enforcement officers.

Health and Safety in Employment (Pressure Equipment, Cranes and Passenger Ropeways) Regulations 1999

Regulations covering pressure equipment, cranes, and passenger ropeways, including duties of controllers, designers, manufacturers and suppliers, and certificates of design verification, inspection and competence.

Regulations will apply to all councils that own or operate this equipment or engage contractors who do so.

Regulations may be relevant to Councils whose workers enter workplaces where this equipment is used, such as inspectors or enforcement officers.

Amusement Devices Regulations 1978

Regulations including registration and incident notification of amusement devices.

Regulations will be relevant to all councils that inspect amusement devices.

Geothermal Energy Regulations 1961

Regulations including granting authorities and licences, manager duties, safety and consents in relation to geothermal operations.

Regulations apply to all Councils who tap and use energy from a geothermal bore.

Lead Process Regulations 1950

Regulations including requirements for equipment, personal protection clothing, cleaning, and health monitoring where lead processing takes place.

Regulations may be relevant to Councils whose workers enter these workplaces in the course of their work, such as inspectors or enforcement officers.

Spray Coating Regulations 1962

Regulations including requirements for booths, ventilation, drying and health monitoring where spray coating is done.

Regulations may be relevant to Councils whose workers enter these workplaces in the course of their work, such as inspectors or enforcement officers.

Electricity (Safety) Regulations 2010 – Part 8

Regulations with Part 8 covering health and safety requirements for electrical work.

Regulations apply to any Councils who employ electricians and may be relevant to Councils who engage electrical contractors.

Industry-specific Guidance

WorkSafe also has an extensive range of industry-specific guidance about how to manage workplace risks for:

  • manufacturing
  • agriculture (there is also a separate Safer Farms website run by WorkSafe)
  • forestry (there is a separate Safe Tree industry website)
  • construction and building
  • adventure activities
  • the extractives, geothermal, petroleum and energy sectors
  • asbestos
  • mining
  • major hazard facilities
  • work-related health (eg noise, silica, solvents).

Some of these resources will be of relevance to councils who own farms or forests, undertake or inspect property construction, own and/or operate mines own property found to contain asbestos, or may need to enter properties used for these purposes in the exercise of enforcement duties.

All guidance can be found on the WorkSafe website.

In addition to WorkSafe guidance, there may be industry-directed health and safety guidance available.