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Contrary to what many people think, the Health and Safety at Work Act (HSWA) is not about the ruthless pursuit and prosecution of New Zealanders for minor workplace incidents. It's about everyone working together to sensibly and proportionately manage the critical risks that could cause serious illness, injury or even death.
Here we dispel some of the myths about the new Health and Safety at Work Act.
Remember, if a claim about the impact of the new law sounds far-fetched, then it almost certainly is.
Health and safety should be part of your business as usual practices. Not because it’s the law, but because it’s good for productivity, for business, for staff engagement, and for your customers and suppliers. Good health and safety is good business.
Rather than focusing on compliance and thinking of health and safety as something in the ‘too difficult’ box, we want you to start thinking differently about workplace health and safety.
Health and safety is about looking after one another; it’s about making sure people get home healthy and safe. It’s not about compliance with every letter of the law, it’s about making sure that our basic proposition about workplace health and safety is cemented in New Zealand businesses and that’s what everyone is focused on doing.
The new law is just the start. If we change our attitudes we start to change behaviours, and that means we save lives.
Fines have always been part of our health and safety law, so there’s nothing new there and it’s true that under the Health and Safety at Work Act (HSWA) fines have been increased for the most serious health and safety offences – the types of offences that kill or leave workers injured for life.
If you are focusing on the fine then you are missing the point. We want you to focus on managing the risks that could impact on the health and safety of workers and others in the workplace. This means doing what’s reasonable to eliminate, and where they can’t be eliminated, minimise those risks that have the potential to cause the most serious harm to people.
This is not the case. Only those businesses with 20 or more workers or who are in one of the high-risk sectors or industries listed in the Regulations(external link), must arrange the election of Health and Safety Representatives (HSRs) if requested by a worker.
Any business can proactively choose to have HSRs as they are a well-established way to support worker engagement and participation.
It’s worth remembering 97% of businesses in New Zealand have fewer than 20 workers.1
Find out more about health and safety reps.
The new law makes health and safety everyone’s responsibility while at the same time recognising that business leaders have more influence and control over the business than its workers.
Directors need to make sure the business is resourced to meet its duties to keep everyone healthy and safe, but that doesn’t mean they are directly responsible for every worker and for every nut and bolt.
Under the law, officers (eg directors, board members, chief executives) have a duty of due diligence. This means they are responsible for ensuring that they and the business understand and manages its key health and safety risks.
Officers must take reasonable steps to:
- Have relevant, up-to-date knowledge of workplace health and safety.
- Understand the business’s operations and associated health and safety risks generally.
- Ensure the business has appropriate resources and processes to eliminate or minimise risks.
- Ensure the business has processes for receiving, considering and responding to information about incidents, hazards and risks, as well as feedback from workers.
In the past two years, on average only one in 600 visits by an inspector resulted in a fine, and just one in every 5,000 businesses in New Zealand2 is prosecuted.
Inspectors want to help make New Zealand workplaces healthy and safe. During a visit, they will talk to you and ask about the steps you have taken to manage your key health and safety risks. They will ask to see evidence that shows the practices you have in place (eg you might have a great written maintenance schedule for your vehicles, but a bald tyre tells the inspector a lot more). If you have workers, the inspector will want to talk to them about what’s happening and how they contribute to health and safety practices – safety in a folder on a shelf is no substitute for good practice.
What happens when something isn’t right?
In the first instance, the inspector will discuss how things can be improved and probably issue a written notice to back this up. Where something is so dangerous that it should be stopped immediately, a prohibition notice may be issued. These actions are designed to support you with making your workplace safer without imposing penalties.
Infringement fines and prosecutions through the courts may happen when businesses fail to comply with these warnings or prohibitions over a period of time, or where there is serious non-compliance or a situation has developed involving the potential for fatalities or very serious harm.
After an incident there may be an investigation. The inspector will look to see what happened and whether it could have reasonably been prevented through good health and safety practices. If a business does not have good health and safety practices in place, the likelihood of prosecution increases.
There is nothing in the new law that prevents someone from standing on a chair when ‘working at height’. Hopping on a sturdy, stable chair is probably a good practical option. The law does not include a ‘no standing on chairs’ provision!
Keep on camping and going on school trips! Schools have always had a duty to manage risks – the law might have changed but the risks haven’t.
Risk is part of enjoying the great outdoors and part of being a Kiwi. Managing risks such as making sure the gear is up to scratch and having a safety plan is part of basic outdoor survival skills.
If you’re focusing on fines, you’re focusing on the wrong thing.
The new law is about saving lives – not stopping them.
Financial penalties for extreme breaches of health and safety law have been around for decades, but these are for only the most serious cases and are extremely rare (generally found in high risk/high hazard industries).
Your focus should be on managing the risks proportionately rather than worrying about penalties, because if you are managing the risks then you are meeting your responsibilities under the law.
For starters, only serious injuries need to be notified to WorkSafe – we’re not interested in bumps and bruises or a few stitches. And just because an event is notifiable, that doesn’t mean someone is at fault. Prosecutions are extremely rare.
Secondly, voluntary trustees on school boards are exempt from prosecution. But the board does have duties. The Board should have an oversight of key risks and how they’re managed, keep health and safety polices and guidelines up- to-date and make sure health and safety is a standing agenda item.
The Ministry of Education has useful resources for Principals and Boards of Trustees(external link).
Kids have always climbed trees, and invariably some of them have fallen and hurt themselves. We doubt that will change any time soon.
For quite some time now, the law has required schools to manage their risks, and we haven’t prosecuted them just because a child fell out of a tree. We don’t expect this to change under the new law either.
Why not? Because it's not reasonable to expect schools to stop kids being kids and taking low-level risks.
What might be reasonable is to expect the school to make sure that they take down any trees or branches that are dead or rotting. Or that they prevent kids from climbing trees with limbs that extend out over a public road. But your average tree in a playing field? That's not the sort of risk that WorkSafe is interested in.
The law doesn’t specify heights at which you should or shouldn’t use a ladder, but it does specify that you must use equipment that’s appropriate to the task.
If your work involves working at height, then you have a duty to take all practical steps to prevent any harm that would result from a fall. Work platforms, scaffolding and towers all offer protection from a fall occurring; ladders and step ladders do not and should be the last form of work access equipment to be considered.
Ladders should be used for lower-risk and short-duration tasks, and three points of contact should always be maintained to prevent a person slipping and falling.
For more information, see our Working at height in New Zealand guide.
WorkSafe is not the Fun Police and it’s not the intention of the law to curb a business’ social activities – staff functions, celebrations or after work drinks are not generally covered by the Health and Safety at Work Act (HSWA).
However, if a business supplies alcohol at a work function then, as a responsible host, it should ensure the alcohol is consumed responsibly and there are plans in place to ensure people get home safely.
As a business, your primary concern is to ensure that your workers are not put at risk by working while impaired from alcohol consumption.
The new law is about managing the risks associated with workplace health and safety – it’s not about curtailing social or sports activities that take place outside of the workplace.
Quad bikes are a valuable and essential farm tool when used correctly and appropriately. But every day at least two people on farms need medical attention because of quad bike accidents. They are also a factor in 25 per cent of deaths on farms.
Both WorkSafe and manufacturers provide guidance for the appropriate use of quad bikes. We encourage farmers to consider whether their quad bike is the right vehicle for the task at hand. It’s easy to lose control of a quad bike if:
- you’re distracted
- it’s heavily loaded
- you’re towing a heavy weight, or
- riding over difficult ground.
For many farmers quad bikes are the only vehicle they use for light jobs, however, in some circumstances it’s best to use another vehicle. Whether you use a quad bike, tractor or Ute, for instance, the requirement to keep people safe in your workplace means you need to choose the right vehicle for the job.
We know that children are a vital component of farming family life and the new law is not about changing this. As a farmer, you are responsible for ensuring that everyone – your workers, visitors and your family – is not put at risk by the work carried out on the farm.
Farms come with big machines, big animals and big pressures. You need to be aware of the risks your farm presents and work to manage those risks, acknowledging that managing these risks for children is very different to managing them for adults. The younger the child, the less risk averse they are, and the more attention needs to be paid by parents or carers.
Many risks can be easily managed by, for example, using vehicles suitable for passengers, fencing artificial ponds, covering pits, or even creating 'safe kid zones' in dairy sheds, or working together with neighbours as farmers have always done. This means farming parents can still keep their children safe during busy work times.
All kinds of people come and go on farms all the time for various reasons. Employees, contractors, vets, and recreational visitors, such as hunters and trampers, can be on your land at any given time.
The new law makes it clear what is and isn’t a workplace on a farm and farmers have a duty to manage workplace risks in the following areas:
- Farm buildings and immediate surrounding areas (whether or not work is going on at the time).
- Other parts of the farm, where work is being carried out.
The law is quite clear – the farmhouse is not a workplace.
If a recreational visitor crosses an area of the farm being used for work purposes, then you are responsible for their health and safety. If they cross an area of the farm which is not being used for work purposes, and is not close to the buildings on the farm, then you shouldn’t need to take any action in relation to that person.
The only exception might be where farm work has recently been carried out and a hazard still existed eg, recent spraying of hazardous chemicals. In these situations you would have to think about how you would reasonably communicate and manage this for visitors and others.
You’re also responsible for the health and safety of your workers and, where other people may be harmed by your work, for managing the risks that you can reasonably control.
If health and safety was really just common sense, and if common sense was really common, then we would not have the accident and death rates that we do.
Good health and safety needs to be based on more than just common sense and good farmers will manage risk by placing the same priority on health and safety as they do on other production decisions.
Our job is to help you make good risk management practice a common event on your farm.
No one can discriminate or take negative steps against you if you speak up about a workplace health and safety issue. In fact, it’s the law.
There is nothing in the new law that says you can distinguish between workers, whether they have a disability or not.
What the law does say is that businesses must do whatever is reasonable to ensure the health and safety of their workers and that other people are not put at risk by its work.
The law must not be used as a means to discriminate against workers with disabilities.
If a landlord or property management business believes that tenants are using or manufacturing methamphetamine in a rental property they are responsible for, then this is a matter for the Police. This is not part of the Health and Safety at Work Act.
If the property is untenanted, and the landlord or property manager suspects that methamphetamine ('P') has been used or manufactured on the property, then the landlord or property management business should take responsibility for ensuring the property is expertly tested and cleaned before any workers or tenants are allowed back into the property.
A landlord or property management business would not be expected to test for Methamphetamine presence as a matter of course.
The new law is not about banning everything and removing all risk at any cost. It’s about identifying those risks with the potential to cause serious injury, illness, or death and doing what is sensible to manage those risks in proportion to the seriousness of the consequences if anything goes wrong.
People have been using coat hooks for hundreds of years, and there’s no evidence to suggest anyone has been seriously injured or killed by using them. To say that they are a hazard and need to be removed because they might hurt someone is just plain silly.
Health and safety is about looking after one another; it’s about making sure people get home from work healthy and safe. It’s not about compliance with every letter of the law, it’s about making sure that our basic proposition about workplace health and safety is cemented in New Zealand businesses and that’s what WorkSafe is focused on doing.
Under the new law, you must notify us when certain work-related events occur – these are called notifiable events. A notifiable event is when a person dies, is seriously injured or becomes seriously ill as a result of work. Deaths, injuries or illnesses that are unrelated to work do not need to be notified.
In general, minor injuries are not notifiable. However, while a minor injury may appear insignificant, the circumstances under which it occurred may be more serious. These are called notifiable incidents and these must also be notified to us.
Our Notify WorkSafe tool will help guide you through the process and help determine whether your injury should or shouldn’t be notified to WorkSafe.
Once we’ve received a notification, it’s reviewed by our Response Team who will contact you about next steps. There are a number of options available including conducting an investigation or inviting you and your business to participate in an assisted review of your health and safety system.
If no action is required, we will confirm this with you.
The focus should be on eliminating, or where they can’t be eliminated, managing those risks with the potential to cause serious injury, illness or even death – not be on whether or not a business could be in trouble because a worker has been injured at work.
1 Small Business New Zealand fact sheet, July 2015.
2 Based on Statistics New Zealand figure of 500,000 businesses in New Zealand and a rate of approximately 100 WorkSafe prosecutions per annum.