Part 1: Introduction

This part sets out the objects of the legislation and the principles on which it is based.

It also provides some background on the origins of health and safety legislation in New Zealand, and describes the coverage of the law and how it works.

1.1 About this guide

This booklet is a general guide to the legislation only. It does not describe solutions or approaches for particular industries or hazards - information on which may be found in industry-specific regulations, codes of practice, or guidelines.

Following this introductory part, the guide is arranged according to the responsibilities given to different people in the workplace, i.e:

• Employers (part 2);
• Employees (part 3); and
• Others - the self-employed, people who control places of work, and principals to contracts (part 4).

Part 5 describes what needs to happen in the event of accidents or the occurrence of serious harm in a place of work.

Part 6 describes how the Act is administered and enforced.

Definitions of key terms in the legislation are included as an appendix.

Examples

Examples accompany the descriptive text throughout this guide. Most have been taken from the New Zealand case law, with the names changed and the facts simplified to illustrate particular points. The examples should therefore not be taken as a description of any actual case.

The advice in this guide

This guide outlines the main features of the Health and Safety in Employment Act 1992, but should not be used as a substitute for the Act itself.

The Department of Labour's Occupational Safety and Health Service, in providing advice on the administration of the Health and Safety in Employment Act 1992, is not to be taken as defining or providing a definitive interpretation of the relevant parts, sections or subsections of the Act. Ultimately, questions of interpretation in a particular case will always be a matter for the Courts to decide. Therefore, any advice given is intended as a guide and you are advised to carefully consider the express provisions of the Act itself.

1.2 Why have health and safety legislation?

The need to regulate for workplace health and safety was first recognised in Western countries in the late 19th century, and New Zealand governments have actively promoted health and safety legislation for more than a century. It began in the 1890s with factories legislation, and progressively legislation was introduced to regulate other hazardous industries, such as mining and quarrying, and construction.

The law tended to be enforced by inspectors with statutory powers. It also tended to be prescriptive, and narrowly focused on particular industries or processes. So, for example, when women and girls employed in match factories showed a danger of phosphorous poisoning, regulations were passed to specifically control that hazard, and inspectors would strictly enforce the law.

Similarly, when a scaffold collapsed, or a mine exploded, or numbers of farmers were crushed by tractors without safety frames rolling on them, public concern would be followed by new laws to deal with the revealed risk, and the list of statutes would grow.

This rather haphazard approach was followed throughout the world, until the 1970s, when governments began to review health and safety legislation from first principles. In the United Kingdom, this revision process saw a major royal commission led by Lord Robens, and publication of the landmark 'Robens Report' in 1972. The report recommended the introduction of a single piece of legislation which applied consistent policies and enforcement procedures across the range of industries. It was implemented, and its approach has since been adopted by numerous Commonwealth countries.

In the late 1980s New Zealand began a comprehensive review of the raft of health and safety laws then in place, and the review culminated in the Health and Safety in Employment Act 1992. The new legislation implemented the major principles of the Robens report, while placing additional emphasis on the need for employers to manage hazards in the workplace.

What was new about the Health and Safety in Employment Act?

The Health and Safety in Employment Act 1992 adopted a new legislative approach for promoting health and safety management in places of work - its focus is on the prevention of harm arising out of work activities.

It repealed much of the earlier industry-specific legislation, and replaced it with a single Act providing comprehensive coverage of places of work - whether in the state or private sector.

The Act also treats similar hazards with similar procedures, whatever the place of work.

Primary responsibility is placed on the employer, who has a general duty to provide a safe and healthy work environment.

There are other specific duties, including a requirement for employers to identify and actively manage hazards in the workplace. To do this, it sets out a hierarchy of action where employers must follow a process of identification, elimination and isolation. If a hazard cannot be eliminated or isolated, the effects of the hazard must be minimised.

Regulations provide minimum standards for particular high-hazard industries and work practices. Guidelines developed by, or in consultation with, industry also outline good practice. Some guidelines may be approved by the Minister of Labour as 'approved codes of practice' providing an accepted means of complying with the Act.

What legislation changed?

A number of previous Acts and regulations were repealed in whole or in part on 1 April 1993. These are listed in detail in schedules to the Act.

The provisions in these Acts were either incorporated into the Act or promulgated as regulations made under the new Act. The major Acts affected were the:

• Agricultural Workers Act 1977
• Boilers, Lifts and Cranes Act 1950
• Bush Workers Act 1945
• Coal Mines Act 1979
• Construction Act 1959
• Factories and Commercial Premises Act 1981
• Geothermal Energy Act 1953
• Health Act 1956 (occupational health provisions only)
• Machinery Act 1950
• Mining Act 1971
• Petroleum Act 1937
• Quarries and Tunnels Act 1982
• Shearers' Act 1962

The Health and Safety in Employment Amendment Act 2002 further extended coverage to the transport sector by repealing sections of the:

• Maritime Transport Act 1994; and
• Transport Services Licensing Act 1989.

1.3 What the Act sets out to do

The Health and Safety in Employment Act's object is to promote the prevention of harm to all persons at work and other persons in, or in the vicinity of, a place of work.

Section 5 of the Act sets out the object, and lists various means contained in the Act to achieve it, including by:

• Promoting excellence in health and safety management, in particular through being systematic;
• Defining hazards and harm in a comprehensive way so that all hazards and harm are covered, including harm caused by work-related stress and hazardous behaviour caused by certain temporary conditions.
• Imposing duties to ensure that people are not harmed as a result of work activities; and
• Setting requirements that relate to the taking of all practicable steps to ensure health and safety, and are flexible to cover different circumstances;
• Encouraging the health and safety of volunteers;
• Requiring employee participation in the improvement of health and safety and encouraging good faith co-operation in places of work.
• Providing a range of enforcement methods in response to failure to comply with the Act.

1.4 Coverage is broad

The Act imposes duties on a wide range of working relationships in nearly all places of work.

This guide describes duties as set out in the Act and affecting different parties in the workplace:

• Employers;
• Persons who control places of work;
• Persons who sell or supply plant for use in places of work;
• Self-employed people;
• Principals to contracts;
• Employees;
• Volunteers; and
• People receiving on the job training or gaining work experience.

Overlapping duties

Frequently a person will have duties under more than one section of the Act. For example, an employer may have duties:

• To employees (sections 6-14, 19A-19I);
• In relation to volunteers, or people receiving on-the-job training or work experience (sections 3C-3F);
• To ensure that the action or inaction of employees does not endanger the public (section 15);
• As a person who controls a place of work (section 16);
• As a principal to a contract (section 18);
• As a person who sells or supplies plant for use in a place of work (section 18A);
• In the event of accident, injury or illness (sections 25 and 26); and/or
• To comply with notices, sampling or other requirements of health and safety inspectors and/or departmental medical practitioners (sections 31,33, 35, 37, 39-45).

Similarly, an employee has duties:

• Not to endanger themselves or others (section 19);
• Not to interfere with an accident scene (section 26); and/or
• To comply with notices, sampling or other requirements of health and safety inspectors and/or departmental medical practitioners (sections 31, 35, 37, 39-45).

An employee who has management or supervisory responsibilities may be authorised to represent the interests of the employer or make statements on the employer's behalf. They also have the duties of an employee in respect of their own conduct.

A self-employed person has similar responsibilities to an employee, and may also have duties:

• As a person who controls a place of work (section 16);
• As a principal to a contract (section 18);
• As a person who sells or supplies plant for use in a place of work (section 18A);
• In relation to volunteers, or people receiving on the job training or work experience (sections 3C-3F); or
• In the event of accident, injury or illness (sections 25 and 26);

Officers, directors or agents of a body corporate have duties. Where their actions or decisions lead to breaches of the Act by the company or other body corporate, they may be charged, whether or not the body corporate is prosecuted (section 56).

A duty may apply to more than one person at a time

Where the Act imposes a duty on one person in a particular set of circumstances, it may apply to another person at the same time, whether in the same or a different capacity. This means more than one person may be held liable for a particular breach of the Act, or the same person may be held liable under more than one section.

State employees are included

The Act applies to local and central government agencies including departments, Crown-owned entities, or state-owned enterprises. Chief executive officers of government agencies are responsible for ensuring that the state meets its obligations as an employer under the Act. There are, however, some exemptions in relation to the defence forces, and some aspects of emergency services.

Other legislation is not affected

Other legislation may impact on health and safety in the workplace, even though it is not primarily concerned with the issue - examples are the Gas Act 1992, the Building Act 1991, and the Electricity Act 1992. In these cases there may be some overlap with the Health and Safety in Employment Act.

The general principle is that, where two pieces of legislation apply to any given situation, an employer or any other person affected needs to follow both. In effect, meeting the requirements of the other legislation will usually mean that the requirements of the Health and Safety in Employment Act are being met in relation to the particular hazards covered.
Where appropriate, formal agreements have been reached between administering departments to clarify roles and responsibilities.

Where the gravity of a particular offence justifies it, criminal charges under the Crimes Act may take precedence.

Application of individual sections

The following table sets out in graphic form who is 'caught' by the individual sections of the Act.

Table 1: Duties of the Act

Section /duty	Er	Se	Ee	Pr	Oo	Dm	Ss
3C Enforceable duty to volunteers	•	•
3D Duty to volunteers (non-enforceable)	•	•			•
3E Duty to trainees, those gaining work experience	•	•
6 General duty	•
7-10 Hazard management	•
11,12 Information	•
13 Training and supervision	•
15 Duty to non-employees	•
16 Control of places of work	•	•		•	•
17 Self-employed's duty		•
18 Principal's duty				•
18A Duty of persons selling or supplying plant for use in place of work						•	•
19 Employee's duty			•
19A-19I Employee participation	•		•
20 Compliance with ACOPs	•	•	•	•	•	•	•
21 Compliance with regulations	•	•	•	•	•	•	•
25 Recording/notifying accidents	•	•		•	•
26 Non-interference after accident	•	•	•	•	•
31-35 Access by inspectors/ DMPs	•	•	•	•	•
37 Suspension of employee by DMP	•		•
39-46 Prohibition/improvement notices	•	•	•	•	•
47-48 Assistance to inspectors	•	•	•	•	•
49-50 Offences against the Act	•	•	•	•	•
51 Harm caused preventing harm	•		•
56 Offences by directors/agents	•			•	•

Er = Employer
Se = Self- employed
Ee = Employee
Pr = Principal
Oo - Owner/ operator
Dm = Designers, manufacturers, suppliers of plant, buildings
Ss = Sellers and suppliers of plant

Definition of 'place of work'

A place of work is defined very broadly in the Act.

It is any place (including part of a building, structure or vehicle) where any person is to work, is working for the time being, or customarily works for gain or reward.

In relation to an employee, it includes a place, or part of a place under the control of the employer, where an employee:

• Comes or may come to eat, rest or get first-aid or pay;
• Comes or may come as part of their duties, to report in or out, get instructions, or deliver goods or vehicles; or
• May or must pass through to reach a place of work.

A person is in a place of work whenever and wherever the person performs work. A place of work may itself move (e.g. as a ship or vehicle), or an employee may move through a place of work (e.g. as a postal delivery person).

Vehicles, ships and aircraft are included in the definition of 'place of work', and mobile workers are covered by the Act, regardless of whether they are working from or in a vehicle. [refer to the fact sheet, Mobile workers]

Domestic accommodation provided for employees is not considered a place of work.

The definition of place of work from the legislation is reproduced at the back of this guide.

Coverage in particular situations

Defence forces are excluded from some of the provisions relating to employee participation, an employee's right to refuse work that may cause serious harm, the inspection of high-security defence areas, and the investigation of accidents, as they have their own systems and requirements under the Armed Forces Discipline Act 1971.

Householders who hire people either as contractors or as employees - solely to work on or in their home - do not have any responsibilities under the Act. For example, if you employ a cleaner for your home, you do not have the duties of an employer under the Act. Similarly, if you hire a plumber to fix a blocked drain in your house, you will not be liable as a principal under the Act.

Aircraft

The Act applies to any person employed or engaged to work on board an aircraft, and to the person who employs or engages them (section 3A(1).

The aircraft is a place of work when it is:

• operating on a flight beginning and ending in New Zealand (but not as part of a flight beginning and ending outside New Zealand); or
• operating outside New Zealand, and the person is engaged under an employment agreement or contract for services governed by New Zealand law (this includes a flight operating in New Zealand that began or ended outside New Zealand).

(section 3A (2))

Section 16 of the Act does not apply to an aircraft while it is taking off, flying or landing (section 3A (4)).

Ships

The Act applies to any person employed or engaged to work on board a ship, and to the person who employs or engages them, where the person is:

employed or engaged under an employment agreement or contract for services governed by New Zealand law.

The work may be on:

• a New Zealand ship (as defined by the Ship Registration Act 1992); or
• a foreign ship carrying coast cargo while on demise charter to a New Zealand-based operator; or
• a foreign ship carrying out petroleum operations in New Zealand continental waters.

In the above situations the ship is a place of work.

(section 3B(1)).

Where the Act applies in relation to a New Zealand ship it does so whether or not it is operating in New Zealand waters.

Section 16 of the Act does not apply to a ship while it is at sea (section 3B (3)).

Volunteers are covered by the Act

[refer to 2.7, Volunteers, or the fact sheet]

Examples:

1. John works delivering automobile spare parts from a van owned by his employer, Quick Bits.

   In terms of the Act, John has the duties of an employee - he has to look after himself and other people in his proximity.

   Quick Bits have the duties of an employer in relation to John. They are responsible for his place of work - their depot, maintenance of the vehicle, and John's systems of work, but are unlikely to have any control over the streets, buildings or sites where the goods were to be delivered. In the latter case other employees, employers, and people in control of places of work have duties towards John.

   Quick Bits are also responsible for any harm John does to others as a result of unsafe systems of work, equipment, etc.

2. Jill is a working mother who works three mornings a week in Ann's Plant Shop. At this time she is an employee in terms of the Act.

   In between times, Jill works from home as a telemarketer for two merchandise companies. Because she is employed as an independent contractor at this time, she has the duties of a self-employed person, and her home is her place of work in terms of the Act.

   Every third week Jill works as a volunteer delivering 'meals on wheels'. As a volunteer, her health and safety is covered by the Act as though she were an employee.

3. Rangi manages a back country sheep station for a family trust, of which he is a trustee. A shepherd, Jock, and two other farm employees, Bert and Chloe, live in two houses just behind the homestead on the farm. The houses themselves are not considered to be places of work in terms of the Act. Rangi, as trustee, is the employer of Jock, Bert and Chloe, and they are employees in terms of the Act.

   Every year a shearing contractor, Lucy, brings her employees to work in the woolshed. Rangi is responsible for the duties of the principal to the contract. He is also responsible for the woolshed as a person who controls a place of work.

   Sometimes trout fishers, mountain climbers, or whitewater rafters visit the property. When they have permission to be there, Rangi has the duties of a person who controls a place of work in relation to visitors.

4. Naomi is employed as a geologist for Mountaincorp, a Crown research institute. Her fieldwork takes her into the countryside, including Rangi's farm.

   Mountaincorp has duties to Naomi as her employer, and to the public for her activities. It also has duties as a 'person who controls a place of work' in relation to Naomi's equipment and her activities if, for example, she digs a large hole and leaves it uncovered.

   Naomi has the duties of an employee. If Rangi has given Mountaincorp or Naomi permission to work on the farm, he has a duty to Naomi as a person who controls a place of work.

5. Muriel engages Kapi to replace the tile roof on her home. He hires a tile hoist from Hire Co so that he can do the job on his own.

   Muriel is not liable under the Act, because it is residential work.

   However, it is Kapi's place of work, and he has duties as a person who controls a place of work and as a self-employed person.

   Hire Co, in providing the equipment, also have the duties of a person who sells or supplies plant for use in a place of work.

1.5 'All practicable steps'

Many of the duties in the Health and Safety in Employment Act are qualified by the words 'take all practicable steps'.

This phrase applies to the general duties that must be carried out by employers, employees, self-employed people, people who control places of work, and 'principals', who are people who engage contractors to carry out work for them.

The Act specifies that a person is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about.

Where the circumstances are known, or ought reasonably to be known about, the dutyholder is required to take all steps that are reasonably practicable. A step is practicable if it is possible or capable of being done. Whether a step is also reasonable takes into account:

• The nature and severity of any injury or harm that may occur;
• The degree of risk or probability of injury or harm occurring;
• How much is known about the hazard and the ways of eliminating, isolating or minimising the hazard; and
• The availability and cost of safeguards.

The degree of risk and severity of potential injury or harm must be balanced against the cost and feasibility of the safeguard. The cost of providing safeguards has to be measured against the consequences of failing to do so. It is not simply a measure of whether the person can afford to provide the necessary safeguards. Where there is a risk of serious, or frequent injury or harm, a greater cost in the provision of safeguards may be reasonable.

Any judgement of whether a safeguard was 'reasonably practicable' is to be made taking common practice and knowledge throughout the industry into account.

A claim by an individual person that he or she did not know what to do about a hazard would not be successful if the hazard was widely known to others in the industry and safeguards were in place, or if they chose not to use the current body of knowledge about the hazard.

The courts have referred to the current, 'up-to-date' body of knowledge that is available to people. Failure to be familiar with this knowledge, or to follow it, is failing to take all practicable steps.

The concept of 'reasonableness' is based on the legal principle of the hypothetical 'reasonable person' and the way that he or she might behave in a particular situation. It is based on the values of society of the day and, in the end, will involve a value judgement.

The overall test is what would a reasonable and prudent person do in all the circumstances. There are no firm guidelines. The question of what is reasonably practicable is always a matter of fact and degree in each situation.

[Refer also to the fact sheet, Taking all practicable steps]

An example of a practicable step

1. A Crown health enterprise, Hokonui Health pleaded guilty to a charge under section 6 of the Act after two nurses, Dianne and Damion, were affected by exposure to glutaraldehyde, a chemical used widely in the healthcare industry to disinfect medical instruments.

   Dianne and Damion suffered severe headaches and respiratory irritation, and were exposed while performing their duties in the sluice rooms attached to the hospital's four operating theatres. Used theatre equipment was placed in large open containers filled with 2% glutaraldehyde solution. Nurses and other staff working in the sluice rooms were exposed to glutaraldehyde fumes. There was no ventilation system.

   The problem occurred in an old part of the hospital due for replacement. Closure of the operating theatres even temporarily was not practicable, leaving the hospital two options: installing ventilation (estimated to cost up to $250,000) or replacing glutaraldehyde with an alternative chemical. The latter course was eventually adopted. Hospital authorities had recognised the problem posed by glutaraldehyde as far as providing respirators, gloves and aprons for the nurses to wear. However, the respirators were regarded as uncomfortable to wear for any length of time.

   In summing up what was expected of Hokonui Health, the judge recognised the restraints of health budget requirements. However, he agreed that closing down the area where the fumes were affecting workers until the fumes were taken away, or providing some other disinfectant system were reasonably practicable steps available to the hospital that should have been taken.

1.6 How the Act sets more detailed standards

The Health and Safety in Employment Act sets out duties which are in turn supplemented by regulations, approved codes of practice, and guidelines developed by, or in conjunction with, the Occupational Safety and Health Service.

Regulations made under the Act describe some of the requirements which apply to specific work situations. Like the Act, regulations are enforceable, and breaches may result in prosecution and fines.

Approved codes of practice are guidelines which have been approved by the Minister of Labour under the Act. Their requirements are not mandatory or enforceable as such, but their observance is accepted in Court as evidence of good practice.

Guidelines developed by, or in conjunction with, the Occupational Safety and Health Service may not have undergone a formal approval process, but are nevertheless an important source of guidance for employers and others on how to meet the Act's requirements.

Where appropriate, New Zealand or other Standards may be cited in approved codes of practice or guidelines.

Sources of health and safety information

The following sources of guidance are arranged as a hierarchy according to the degree of strict compliance that the courts require.

Working with regulations

Regulations are made under the Act:

• To set minimum standards for the management of particular hazards where alternative control measures are not always effective;
• To deal with administrative matters provided for in the Act (such as appointment of inspectors); and
• To elaborate on some general duties in the Act.

Where a regulation exists, its requirements are mandatory. However, while regulations must be complied with, the overriding responsibility is to comply with the duties set out in the Act, and there may be instances where this involves taking further steps than meeting the regulations.

The Health and Safety in Employment Regulations 1995, applying to all workplaces, have been made under the Act. They cover:

• Facilities required for the safety and health of employees;
• Precautions to be taken with some particular hazards;
• Notification of hazardous construction and forestry work;
• Certificates of competence for some kinds of work; and
• Young people in hazardous places of work; and agricultural workers' accommodation.

In addition, regulations on the following particular matters have been made under the Act:

• Pressure equipment, cranes, and passenger ropeways;
• Asbestos;
• Mining;
• Petroleum exploration and extraction; and
• Pipelines.

Regulations passed on the following subjects were passed under earlier legislation and have been retained:

• Abrasive blasting;
• Amusement devices;
• Electroplating;
• First aid;
• Geothermal energy;
• Lead processes;
• Noxious substances; and
• Spraycoating.

Some regulations have also been made for administrative purposes. These cover:

• The appointment of inspectors, and forms for accident registers and reports; and
• The setting of a levy to fund the administration of the Act.

For more information, see 6.4, Regulations and approved codes of practice.

Working with approved codes of practice

The Act allows for the development and approval of statements of preferred work practice, known as 'approved codes of practice'. These are recommended means of compliance with provisions of the Act, and may include procedures which could be taken into account when deciding on the practicable steps to be taken. They are the result of consultation between the Occupational Safety and Health Service of the Department of Labour and affected industry members.

A code of practice applies to anyone who has a duty of care in the circumstances described in the code. This may include employers, employees, the self-employed, principals to contracts, owners of buildings or plant, and so on.

An approved code does not necessarily contain the only acceptable ways of achieving the standard required by the Act. But, in most cases, compliance would meet the requirements of the Act, in relation to the subject matter of the code.

It does not have the same legal force as a regulation, and failure to comply with a code of practice is not, of itself, an offence. However, observance of a relevant code of practice may be considered as evidence of good practice in a court.

As with regulations, codes of practice may not cover all hazards which may arise around a particular hazard or process in a workplace.

At the date of publication, codes have been approved under the Act for the following hazards or processes:

• Arboriculture
• Boilers - design, safe operation, maintenance and servicing of
• Cranes - design, manufacture, supply, safe operation, maintenance and inspection of cranes
• Demolition
• Excavation and shafts for foundations
• Dairy industry spray drying plant - prevention, detection and control of fire and explosion
• Forest operations
• Forklifts - training operators and instructors of powered industrial lift trucks
• Helicopter logging
• Isocyanates - safe use of
• Maintenance of trees around power lines
• Management of substances hazardous to health (MOSHH) in the place of work
• Managing hazards to prevent major industrial accidents
• Noise in the workplace - management of
• Operator protective structures on self-propelled mobile mechanical plant
• Paint, printing inks and resins - manufacture of
• Passenger ropeways
• Photoengraving and lithographic processes
• Powder-actuated hand-held fastening tools
• Power-operated elevating work platforms
• Pre-cast concrete - safe handling, transportation and erection of
• Pressure equipment (excluding boilers)
• Rigging - load-lifting
• Tree work
• Roll over protective structures on tractors in agricultural operations
• Scaffolding
• Sulphur fires and explosions
• Timber preservatives and antisapstain chemicals
• Visual display units in the place of work

Examples of health and safety information

1. Joe and Pete are in business together. Joe is a panelbeater, while Pete is a spraypainter. They trade from their workshop as J&P Panel and Paint Ltd. They employ Tim full-time to help out, and two mornings a week Julie comes in to help with the paper work.

   The Act applies generally to the whole team and workplace. To find out what they need to do to meet the Act's requirements, J &P Panel and Paint refer to various other documents.

   Firstly, Pete observes the Spraypainting Regulations, which set minimum ventilation and other requirements that must be observed. When he uses isocyanate-based paints - which present special health risks - the Approved Code of Practice for the Safe Use of Isocyanates sets a standard of good practice. He keeps a copy of these documents on the premises.

   The Approved Code of Practice for the Management of Substances Hazardous to Health sets out good practice for storing and using the range of paints, solvents and substances in the business generally. Noise is another workplace hazard, and reference is made to the Approved Code of Practice for the Management of Noise in the Workplace.

   In setting up and maintaining their workshop facilities, reference was made to the Guidelines for the Provision of Facilities and General Safety and Health in Commercial and Industrial Premises.

   Julie uses a computer for her work, and the workstation is set up in accordance with the Approved Code of Practice for the Safe Use of Visual Display Units.

   Although they don't have copies of these documents, Joe and Pete have been made familiar with their contents through a trade association and contact with a health and safety inspector.

2. Lester is a logger who works for EZ Logging Contractors Ltd, which is owned and operated by Leon. Most of the company's work is under contracts to Radiata Corporation, forest owners. Each of the parties has obligations under the Act.

   Lester fulfils his duties as an employee by following the safe logging practices set out in the Approved Code of Practice for Safety and Health in Forest Operations. He keeps a copy in the work truck. He knows the little book as 'the bushman's bible'.

   Leon uses the code as a manual of good practice, and keeps a copy in his ute. He also refers to a copy of the Guidelines for the Provision of Facilities and General Safety and Health in Forestry Work. He is also familiar with the notification requirement for forestry work from the general Health and Safety in Employment Regulations 1995, which are reproduced in the guidelines.

   The managers and overseers of Radiata Corporation are familiar with the Act itself, the regulations, and its obligations as principal to contractors, as employers of its own crews, and as forest owners.

   They make reference to the approved code and the Forestry Guidelines regularly and ensure that their own employees, and contractors, observe the standards they set.

1.7 The difference between the Act and the common law

The law described in this guide is called statute law. Statute law is passed by Parliament and includes Acts and their supporting regulations. Statute law is enforceable, and breaches may result in prosecution by a state agency, or officials such as health and safety inspectors.

There is another body of law called common law, which has developed as a result of civil actions. This occurs when a person believes that he or she has been wronged by another party and takes that party to court, seeking justice. In other countries this means that people may use the courts to sue for damages where another person, perhaps their employer, has caused them personal injury or other harm through their actions or inaction. Often these cases are based on a claim of 'negligence' on the part of the defendant, who has wronged the aggrieved person by failing to following a duty of care. Generally, harm needs to occur before the case for damages can be made out.

Usually the court case or claim for damages comes some time after an accident, incident or illness. It is a civil matter between the parties concerned and the state is not involved.

In New Zealand such actions seeking damages for personal injury are mostly excluded by accident compensation legislation. This arises out of the 'no-fault' system of accident compensation introduced by statute in 1974.

On the other hand, as statute law, the Health and Safety in Employment Act describes behaviour required of people who affect safety and health at work. Its emphasis is on the prevention of harm, rather than settlement for damages after the harm is done. To do this, the Act imposes a similar duty of care to that of the common law to protect people at work from hazards and maintain safe and healthy workplaces.

Similarly, employees have a right to participate in the management of their health and safety at work, and are required to co-operate with employers in safety and health matters, so that employers are able to meet their responsibilities.

Health as well as safety

The Health and Safety in Employment Act is concerned with preventing all forms of harm that may arise from work activities.

The Act (section 2) defines 'healthy' as unharmed. It also defines 'harm' as 'illness, injury or both, and includes physical or mental harm cause by work-related stress'. This means that in providing an environment where employees are not exposed to hazards, employers must consider the traditional concepts of 'health' as well as 'safety'.

'Safety' traditionally concerned a range of physical safety issues such as falls, strains, being hit by objects and electric shock.

'Healthy' is a broader concept. It includes avoiding work-related injuries and diseases, such as industrial deafness, dermatitis, occupational overuse syndrome, asbestosis, and occupational cancers. It may also include more general health problems, such as heart disease, high blood pressure and stress, where the work environment and procedures can be shown to be contributing factors.

The two concepts are combined for the purposes of the legislation, and the traditional distinction between 'health' and 'safety' is much less relevant than the Act's emphasis on the avoidance of harm through managing hazards.

Towards this, the Act simply defines 'safe' as not exposed to hazards.