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A Guide to the Health and Safety in Employment Act 1992

Part 6: How the Act is administered and enforced

This part describes the role of health and safety inspectors, departmental medical practitioners and others who enforce the Act, and the conduct of their dealings with employers and others in places of work.

The Act also provides for the setting of industry standards, the issuing of notices and other enforcement provisions available to inspectors and departmental medical practitioners.

6.1 Health and safety inspectors (sections 29-33)

Appointment of health and safety inspectors

The terms of appointment, powers and functions of inspectors are set out in sections 29-31 of the Act.

Health and safety inspectors operating in most workplaces - except ships or aeroplanes - are employees of the Occupational Safety and Health Service of the Department of Labour (OSH). Maritime New Zealand and the Civil Aviation Authority have been designated as responsible for enforcing the legislation with respect to the operation of ships (except naval) and aircraft respectively.

When an inspector has completed the necessary training and experience, they are issued with a certificate of appointment by authority of the Secretary of Labour (or chief executive of the MSA or CAA). The certificate of appointment must be produced when entering a place of work under the authority of the Act, and at any later time if requested by a person apparently in charge of a place of work.

Functions of health and safety inspectors

The broad functions of inspectors and the inspectorate are set out in section 30 of the Act as:

Section 30 is important because it describes the role of the inspectorate in relation to individuals, businesses and the those in the community that have duties under the legislation. As such, and read in conjunction with the objects of the law and the duties themselves, it describes the nature of the relationship between the inspectorate and the community, and the measures taken to achieve compliance with the Act.

Recruitment

Most inspectors are recruited with specific health and safety qualifications and/or experience in industry. They may also have specialist knowledge and experience of a particular industry, especially the maritime or aviation industries, or the high-risk sectors of:

In addition, some OSH personnel who have been recruited as occupational health nurses and accident prevention consultants are warranted as health and safety inspectors. They tend to work within their particular area of expertise, but may carry out the functions of an inspector when required.

Inspection programmes and strategies consistent with the HSE Act are formulated at a national level under the direction of the Minister of Labour, and in consultation with employer, employee and industry groups, and other government agencies. They are aligned with the New Zealand Injury Prevention Strategy.

There is emphasis on industries with greater than average health and safety risks, and programmes may focus on particular hazards, types of industry, or categories of employment relationship.

OSH regional offices also organise inspection, information, and other programmes to meet local requirements, and the CAA and MSA maintain their own programmes.

Powers of entry

Inspectors may enter places of work to carry out prescribed functions

Health and safety inspectors may enter a place of work for the purpose of carrying out any of the functions described above (and listed in section 30 of the Act). For a description of "place of work", refer to the definitions at the back of this guide.

An inspector cannot gain access to a place of work through, or within, a home without the consent of the occupier.

In cases where consent is not given, and an inspector has reasonable grounds for believing that there is a place of work within a home or the home offers the only means of access, an inspector may seek a warrant from a District Court judge.

Entry may be "at any reasonable time"

A visiting inspector is not required to give notice, except where the visiting time or circumstances may be other than what is "reasonable" in the circumstances.

Access is therefore available to any place of work during its regular working hours, and where there are not other circumstances which would make the timing of the visit unreasonable - i.e, there is no hazard to employees or others, and the circumstances are not irregular or disruptive to the employer, employees or others in the place of work.

The timing of an inspector's visit is therefore not a case of being at the most convenient time for the person in charge of the place of work or others. Instead, the balance of convenience lies with the inspector's statutory duty to carry out their role. Section 31's right of entry should be read with regard to the duties of assistance and non-obstruction (see below).

Inspectors must produce their certificate of appointment to the person in charge

Where an inspector visiting a place of work to carry out duties under the Act, section 32 requires them to show their certificate of appointment to the person "apparently in charge" of the place of work. This is not the same as the "person in control of the place of work" under section 16. The use of the word "apparently" is to avoid any technical defence arising out of deception or confusion as to who is in charge of the place of work when an inspector visits.

Some OSH staff members visit places of work in capacities other than as health and safety inspectors - for example as occupational health nurses or technical advisors or engineers. Where the person also holds a certificate of appointment as a health and safety inspector, and they are visiting a place of work in their role as an inspector, they are required to show their certificate of appointment.

In addition, some OSH health and safety inspectors are also accredited as inspectors under the Hazardous Substances and New Organisms Act 1996 - and are under the same obligation to disclose the nature and purpose of their visit to a place of work.

In practice, inspector's certificates of appointment are in the form of an identity card with photograph.

Once an inspector has entered a place of work, the person apparently in charge may request to see their certificate of appointment at any time or times during the visit.

Powers of inspection and investigation

Section 31 (1) describes the activities that an inspector is authorised to carry out in relation to any place of work, while carrying out their functions as an inspector (under section 30).. These should be read in conjunction with the inspector's power to take samples and other objects and things (set out in section 33).

The inspector may:

(s 31(1)(c)).

The inspector may also require the employer or other person who controls the place of work:

To carry out these functions, the inspector may be accompanied and assisted by other people, or bring any necessary equipment into the place of work (s 31 (1) (b)).

The inspector's functions all relate to events in a place of work. However, the inspector may perform them, whether or not:

(section 31(1A))

Privacy of information concerning identifiable individuals

Where a health and safety inspector is acting on a complaint from an employee or a member of the public, there is no authority to disclose the name of an individual complainant without their permission. There is however, an obligation to disclose the nature of the complaint to the employer or other person in control.

Where documents or information relate to the health status of an identifiable person, that person's consent is required before an inspector may have access (section 31(5)).

Statements made to a health and safety inspector

As noted above, a health and safety inspector is authorised by section 31(1)(f) to require an employer or any other person that controls a place of work to make or provide statements about:

that affects the health or safety of employees who work there.

Such statements may be made in the course of routine inspections, or while the inspector is investigating an accident or incident.

The statements may be written, oral, or in any other form or manner specified by the inspector. The inspector's requirement of statements is in addition to the powers to require documents or other information as set out above.

A statement provided to an inspector under section 31(1)(f), or documents or other information provided to the inspector, may form the basis of notices issued by the inspector, or may be used in evidence in any subsequent court proceedings.

Evidence-gathering requirements under the Act should be considered in the light of section 47 (see below). That section requires people with duties under the Act, or their employees or agents, to assist inspectors with their investigation, inspection, inquiry, or the exercise of any other power under the Act.

A person required by an inspector to make a statement is not arrested or detained by the inspector. This means there is not the same requirement to caution under the New Zealand Bill of Rights Act 1990 that is found under other criminal law statutes. Nor do the "Judges' Rules" concerning the procurement of evidence apply. There is, however, a common law requirement of fairness on the part of health and safety inspectors conducting interviews or inquiries.

When making a statement to an inspector during an examination or inquiry, no person is required to give any answer or information tending to incriminate themselves (s 31(6)).

The courts have indicated that if a health and safety inspector is exercising their statutory right to "require" a statement from an employer (or their authorised representative), or a person who controls a place of work, then the inspector should caution the person that they do not need to give any information tending to incriminate themselves or the "person" (i.e. company etc.) they represent. In such cases the inspector will use the statement:

"You need to understand that you are not required to give me any answer or information that tends to incriminate [name of employer or controller]."

There may be occasions - particularly during the investigation of a serious accident - when a person making a statement wishes to have a lawyer present while providing a statement to an inspector. The inspector must respect any such request if it is reasonably made, but, as noted above, there is no requirement to advise a person giving a statement of their right to have a lawyer present.

See also part 5, Accidents, for a discussion of the role of health and safety inspectors in investigating accidents.

Duties to assist and not obstruct inspectors

Assistance

Section 47 creates a positive duty for people to assist inspectors (or departmental medical practitioners) in their role.

The duty applies to every person with duties under the Act, or their employees or agents. It requires that at all reasonable times the inspector is furnished with the means required for:

The duty is limited to "at all reasonable times", and for a description of the meaning of this term, see "Powers of entry", above. Failure to meet the duty is an offence under section 50, see 6.5 Offences and penalties, below.

Obstruction

Section 48 makes it an offence for any person to:

any health and safety inspector (or departmental medical practitioner) while they are lawfully exercising or performing any power, function, or duty under the Act.

It is also an offence to cause any other person to do any of these by, for example, delaying the completion of work or wilful blindness.

There is an exemption to the duty where there is "reasonable cause".

"Delaying, hindering or deceiving" may occur through either an action or a failure to act. There is no requirement of intention, meaning acts of "reckless", "wilful blindness" or "negligence" are sufficient to create an offence.

The case law suggests that "obstruction" requires a positive act on the part of the person against whom the complaint is made. It includes such actions as not allowing an inspector to speak to an employee or another person in the place of work, or physical obstruction of an inspector or departmental medical practitioner.

Failure to provide answers to questions that will incriminate the person is not a breach of section 48 (section 31(6)).

Example:

A visit to The Shamrock Press Ltd. provides an example of a workplace inspection by a health and safety inspector, Kim.

Shamrock is a smaller print works, employing 12 people. The business occupies city-fringe industrial premises with office space attached, and totalling about 800m2 in area.

Staff on site are:

  • In the office: The managing director (Seamus), sales person and accounts officer;
  • In the factory: A production manager (Rick), three printing machinists, two bindery staff, and a driver/assistant; and
  • In a studio adjacent to the factory: three pre-press staff (including the platemaker);
Timing

In this case, Kim visited without giving notice, as part of a routine inspection programme. Alternatively, an inspection may result from a complaint by an employee or other person, an accident or incident reported, or special inspection programme.

If the company regularly works shifts, then it is accepted practice to arrive unannounced during any work shift. The company had last been visited two years before, and three years before that.

Process of inspection

Kim introduced herself to the person apparently in charge of the workplace - the managing director in this case. She produced her warrant in the course of explaining the purpose and nature of the visit - i.e. for OSH to determine whether or not there is compliance with the Health and Safety in Employment Act.

Systems and documentation

By agreement, the inspection began with Seamus describing the company's health and safety policy and hazard management practices. This involved a review of systems in place, in terms of those required by sections 7-10, the provision of information for employees, training and supervision, and accident records required under section 25 of the Act.

Where appropriate, systems to safeguard contractors and principals, visitors, or people in the vicinity would also be reviewed.

Specific hazards and amenities

Next, Kim inspected the basic amenities required by the regulations, such as separate space to take meals, wash, store clothes, toilets, etc.

She then inspected the workplace on a hazard-by-hazard basis as follows:

Office

  • Workstations and general office safety (ACOP).

Press room

  • Trapping hazards in connection with plant;
  • Electrical hazards;
  • Safe use and storage of solvents and other chemicals;
  • Safe materials handling and storage;
  • Safe access to plant and materials;
  • Noise;
  • Fatigue issues relating to shiftwork.

Bindery

  • Mechanical hazards associated with chain stitcher, folder, guillotine and other bindery equipment;
  • Interlocked guard on guillotine and other equipment as appropriate;
  • Use of solvent-based glues;
  • Manual handling /OOS risks;
  • Safe stacking and storage of materials, and work flows;
  • Noise.

Pre-press (including platemaker)

  • Personal computers, monitors, keyboards and furniture;
  • Chemicals used for the developing of films and plates.

Driver

  • Manual handling/lifting hazards;
  • Mechanical risks associated with loading equipment and hoists.

Where appropriate, health records or information supplied by manufacturers, designers, or others, may be requested. Improvement or prohibition notices may be issued to deal with specific hazards revealed in the course of the inspection. Because Kim was focusing on solvent use at the Shamrock, she required information on the availability of material safety data sheets to staff, and discussed levels of exposure in the industry and methods of monitoring for the particular workplace and employees.

In this case, Kim's inspection of the Shamrock premises led to an improvement notice being issued in respect of an unsafe switch for a materials hoist.

Kim's visit to the premises took less than two hours and occupied Seamus for 20 minutes and Rick for intermittent periods totalling 30 minutes.

Powers to take samples and other objects and things

An inspector (or departmental medical practitioner) may take samples, objects and other things from a place of work, or former place of work, for the purposes of:

(section 33)

The inspector or (departmental medical practitioner) must have lawfully entered the place of work or former place of work (under section 31).

The power includes being able to take or remove a sample of any substance or thing for analysis, or being able to seize or retain any material, substance or thing. Any sample taken from a person's body must be taken with their informed consent (section 33(3)).

Notice requirements and rights in relation to samples, etc.

There are notice requirements where any sample, material, substance or thing is removed from a place of work by an inspector (section 33(2)).

The notice must be given in writing as soon as it is reasonable to do so, and includes details of:

Return of samples, etc.

When the sample, material, substance or thing is longer required, and it is practicable to do so, samples, etc. must be returned to their owner. Alternatively, a District Court may order their return.

Within seven days of removing or retaining the sample, material, substance or thing, the inspector is required to give the employer or other person apparently in charge of the place of work written notice of whether he or she intend to return or destroy it.

There is no right of appeal to an inspector's requirement to take a sample, material, substance or thing for the prescribed purposes. This is to allow health and safety inspectors and departmental medical practitioners to act decisively in response to potentially hazardous situations or gain evidence without procedural interference.

Other matters concerning inspectors

Health and safety inspectors may take three kinds of enforcement action under the Act. They may:

See 6.5, Offences and penalties, and 2.6, Employee participation.

Only inspectors may serve prohibition, improvement or infringement notices (sections 39, 41, 56B).

See 6.3, Improvement and prohibition notices.

Matters may be begun by one inspector and completed by another (section 45)

This provision is intended to stop procedural failings with changes in OSH, CAA or MSA personnel. It also means that in some cases procedures begun by a departmental medical practitioner may be enforced or proceeded with by a health and safety inspector.

The exception is in the case of infringement notices, where only the issuing inspector may subsequently revoke or amend the notice or take further steps regarding its enforcement.

Inspectors required to notify local authorities

When, in the course of their duties, a health and safety inspector discovers anything they believe to be a failure to comply with a health and safety enactment administered by a territorial authority, he or she is required to give written notice of the breach to the territorial authority (section 61).

Impersonation of an inspector or DMP

The Act makes it a specific offence to impersonate an inspector or departmental medical practitioner (section 58).

6.2 Departmental Medical Practitioners (sections 34-38)

Appointment and functions of departmental medical practitioners

Medical staff with qualifications in occupational medicine are employed by the Occupational Safety and Health Service of the Department of Labour (OSH) to carry out a range of occupational health functions. In this role they are known as "departmental medical practitioners" or "DMPs".

Departmental medical practitioners are appointed under section 34 of the Act. It provides that currently registered medical practitioners may be issued by the Secretary of Labour with a certificate of appointment as DMPs.

Unlike with health and safety inspectors, the Act does not describe a broad role or range of functions for departmental medical practitioners. Instead, they have a closely defined set of powers surrounding the assessment and management of occupational health.

In practice, departmental medical practitioners are usually called in by health and safety inspectors or other OSH staff in response to an occupational health issue affecting a particular employee or place of work. Where there is a known history of occupational health hazards in an industry or amongst an identified group of employees, DMPs may follow their own inspection or monitoring programmes.

Powers of entry of DMPs

DMPs may enter places of work to carry out prescribed functions

Departmental medical practitioners may enter places of work for the purpose of carrying out any of the functions described below. For a description of "place of work", refer to the definitions given at the back of this guide.

A DMP cannot gain access to a place of work through, or within, a home without the consent of the occupier.

The difference between DMPs' and inspectors' powers of entry

While a DMP has many of the same powers given to a health and safety inspector under section 31, it is important to note that DMPs do not have the inspectors' powers to:

Entry may be "at any reasonable time"

As is the case with a visiting inspector, a departmental medical practitioner is not required to give notice, except where the visiting time or circumstances may be other than "reasonable".

For further discussion of what constitutes "any reasonable time", see 6.1, Health and safety inspectors, above.

DMPs must produce their certificate of appointment to the person in charge

Sections 32 and 35 require a departmental medical practitioner visiting a place of work to show their certificate of appointment to the person "apparently in charge" of the place work. As is the case with health and safety inspectors, DMP's certificates of appointment are in the form of an identity card with photograph.

Once a departmental medical practitioner has entered a place of work, the person apparently in charge may request to see their certificate of appointment at any time or times during the visit.

DMPs' powers of inspection and investigation

Departmental medical practitioners' powers of inspection and investigation are set out in sections 35 and 31(1)(a),(b),(c), and (e) and 31(2),(3),(4) and (6) of the Act.

A departmental medical practitioner may:

(s 31(1)(c)).

To carry out these functions, the DMP may be accompanied and assisted by other people, or bring any necessary equipment into the place of work (s 31(1)(b)).

The departmental medical practitioner may also require the employer or other person in control to produce documents or information relating to the place of work or the employees who work there, and permit the DMP to make copies of or extracts from them (s 31(1)(e)).

These powers relate only to the health and safety of employees and others in the place of work, and the duties of employers or others arising out of the Act.

Documents or information provided to a departmental medical practitioner (under section 31(1)(e)), may form the basis of notices issued by the inspector, and may be used in evidence in any subsequent court proceedings. DMPs' power to require documents or information should be considered with the duty for employers and others in control of places of work to assist and not obstruct them, (see sections 47 and 48 of the Act and 6.1, Health and safety inspectors, above).

DMPs do not lead accident investigations, but may be consulted by an investigating inspector for their medical knowledge.

Unlike inspectors, DMPs do not have the power to take samples and other objects and things from places of work.

Privacy of information concerning identifiable individuals

Where documents or information held by an employer relates to the health status of an identifiable person, that person's consent is not required before a departmental medical practitioner may have access (s 31 (5)).

This is because the consent requirement for inspectors is removed for DMPs by section 35. The right of access complements the powers of DMPs to require the medical examination of employees, or suspend employees, as described below.

The provisions of the Privacy Act 1993 and the Official Information Act 1982 apply to information made available to DMPs.

As discussed in 6.1, above, this means that where a departmental medical practitioner is acting on the concerns of an employee or a member of the public, there is no authority to disclose the name of an individual complainant without their permission. There is, however, an obligation to disclose the nature of the complaint to the employer or other person in control if requested.

Example:

  1. Alex was a 26-year-old male, in good health, who began a job as an auto-spraypainter with Flash Paint and Stripes. Within two weeks, he felt "on a high" throughout the week. He felt thick in the head and sleepy, with sore eyes. Away from the workplace, he improved slightly at the weekend.

    During the following weeks, the symptoms worsened. Alex suffered extreme fatigue, loss of concentration and motivation in his work. At home he felt irritable.

    On one occasion, he spraypainted for six continuous hours and felt nauseated and dizzy, with a severe headache. This was still present the next morning, when he visited his GP and was put off work for a week.

    He recovered gradually and returned to work, but not to spraypaint. The GP notified OSH, and a DMP investigated Alex's workplace. The investigation revealed inadequate ventilation and high solvent contamination in the work area. The DMP and a health and safety inspector together advised the company on improvements to the ventilation system and the setting up of a workplace monitoring programme.

    Alex had suffered an acute solvent exposure. Other people in the workplace may have persisted in the poor working conditions and developed a low tolerance to the solvents. After some years in the industry, they are at risk of developing a chronic condition known as solvent-induced neurotoxicity, which cannot be completely cured.

DMPs may require medical examination of employees

Where there are occupational health hazards present in a place of work, departmental medical practitioners may require an employee to be examined by a specified medical practitioner (usually a medical specialist), or to provide a sample for testing or analysis to determine whether the employee is fit for work (section 36).

The health monitoring role of DMPs is restricted to dealing with employees. There has been a long history of legislation requiring the monitoring of employees in industries where there are hazardous substances such as lead and other heavy metals, solvents, or isocyanates in regular use. Section 37 contains the requirements previously contained in regulations concerning particular hazards.

Grounds for requiring examination or test

To require medical examination or testing, a DMP must be satisfied that an employee has been, or may have been, exposed to a significant hazard while at work.

The DMP must also be satisfied, on reasonable grounds, that by examining the employee or having a sample taken from the employee to be tested or analysed, it is likely to be possible to determine:

Notice requiring examination or test

If a DMP is satisfied that the above grounds are met, they may give written notice to the employee, requiring them to:

In the case of the medical examination of an employee, a written report will be supplied to the DMP concerning their fitness or otherwise for work.

Where a sample is provided and tested or analysed, the DMP will be supplied with a written report of the results.

Compliance with the notice

Usual practice is that the costs of compliance with a notice requiring examination or testing are met by the employer.

It is not an offence for an employee to fail to comply with a notice, but the failure may form the grounds for a suspension notice, see below.

If an employer or other person who controls a place of work were to fail to assist, or exert pressure or undue influence on an employee not to comply with a notice, there is a likely breach of sections 47 or 48, see 6.1, above.

An employee may, potentially, appeal a notice requiring examination or testing. This is, however, an unlikely course of action, because it is not an offence to fail to comply. Instead, any resulting suspension notice may be appealed, where the reasonableness or otherwise of the DMP's request may be considered as a matter of evidence (see below).

DMPs may suspend employees

A departmental medical practitioner may suspend an employee from any work that is causing them to be harmed by exposure to a significant hazard (section 37). For a description of "significant hazard" see 2.3, Hazard management responsibilities.

The means of suspension is the suspension notice.

Grounds for suspending an employee

In order to suspend an employee, the departmental medical practitioner must be satisfied on reasonable grounds that the employee:

Suspension notices

Where a DMP is satisfied on reasonable grounds, they will issue a written suspension notice to the employee, and supply a copy to the employer. Frequently, the result of a suspension notice will be a change of duties for the employee concerned. There may be instances where the effect of hazard on a person's health renders the person incapable of employment - temporarily or permanently.

The written notice will require:

The notice may be addressed to the employee or employer under their legal name or, in the case of the employer, their usual business name. It will be given in person.

Once the notice has been issued by a departmental medical practitioner, any subsequent correspondence concerning or enforcement of the notice may be undertaken by a health and safety inspector or another departmental medical practitioner.

It is an offence for either the employer or the employee to fail to comply with a suspension notice (sections 37(2) and 50).

There is a right of appeal against a suspension notice, and the administrative provisions of sections 44-48, 57 and 58 apply to the issuing of suspension notices generally. See 6.3, Improvement and prohibition notices, following.

Example:

  1. Justin, a 39-year-old foreman with AntiRust Engineering Ltd, reported to his doctor with increasing lethargy, shortness of breath on exercise, night cough and wheeze associated with particularly "dirty" welding jobs.

    When his GP enquired what he meant by "dirty", Justin reported having to weld in small compartments inside ships. This generated large amounts of fumes, which because of the size of the compartments, could become quite choking. Justin had been working every day for up to two weeks at a stretch.

    The doctor asked Justin to record his peak flow levels at regular intervals over a period. The record showed a steady and progressive decline in lung function throughout the day, with little improvement at night, and a further deterioration day-to-day when working. The only improvement was when Justin was absent from work for a weekend.

    The GP contacted a departmental medical practitioner who investigated Justin's work environment. The DMP concluded that the asthma may have been due to a number of agents, with welding fumes (containing ozone, oxides of nitrogen and other irritants) being implicated. He noted also that welders often cut through isocyanate foams and plastics while repairing material and these may release isocyanates and other toxic products of combustion which can cause asthma or asthma-like symptoms.

    On this basis, the DMP suspended Justin from welding work. He also advised the management of AntiRust on ways of providing a better work environment for Justin and other workers. This included ventilation to the welding area (piped air if necessary) and respiratory protection.

    The DMP also helped AntiRust begin a health monitoring programme for employees, which was eventually contracted to a local GP and practice nurse.

6.3 Improvement and prohibition notices (sections 39-46)

Improvement notices

When inspectors may issue improvement notices

When a health and safety inspector believes that any person is failing to comply with any provision of the Act or regulations, they may issue an improvement notice to the person. The notice requires the recipient to take the action necessary to comply with any provision of the Act or regulation specified (section 39).

Improvement notices may be issued when an inspector has a reasonable belief that the person receiving the notice:

What types of breaches are dealt with by improvement notices?

The breach may concern any section of the Act or regulation made under it, and need not concern hazard management practices. Where there is a likelihood of serious harm, section 41 requires an inspector to issue a prohibition notice instead (see below). However, depending on the nature of the hazard and the likelihood and severity of the harm it could lead to, there may be some instances where an improvement notice is issued in response to a significant hazard.

Because an improvement notice does not prohibit the activity leading to the likely breach, the recipient is given the option of continuing with the activity within the period allowed for remedying the breach. But, after the expiry of the notice period, if the breach continues, and the notice has not been appealed, OSH's policy is to prosecute.

Content of an improvement notice

An improvement notice must set out the following information:

In addition, but not as a mandatory requirement, an improvement notice may specify steps that could be taken to achieve compliance with the provision concerned.

The suggested means of compliance is not mandatory, because the purpose of the notice is to outline an observed or believed breach, and that it should be remedied - not necessarily how. This is consistent with the non-prescriptive nature of the legislation.

The inspector's belief must be based on reasonable grounds

This means that the test is an objective one and based on clear information, with any inferences being reasonable. Mere suspicion on the part of the inspector is not enough, and the notice requires that the grounds for belief are outlined.

Where a breach has occurred, and the inspector has grounds for believing that there is likely to be a recurrence - "likely" is an important word. In other branches of the criminal law it has been described as "a real or significant risk, or something that might well happen", and not simply an estimate of the chance based on an inspector's broad experience or instinct.

How an improvement notice is served

An improvement notice may be served on an employer, employee, self-employed person, principal, or person in charge of a place of work.

It may be served to:

The notice may be handed to the person named in it by an inspector, or it may be posted to them by registered letter (when it is deemed to have been received seven days after it was posted).

The place of improvement notices in OSH's enforcement policy

The availability of improvement notices to health and safety inspectors means that inspectors have a discretion not to prosecute when they initially become aware of a breach in a workplace they visit, or when a complaint is investigated.

However, the improvement notice is an important and often-used approach for inspectors to formally put employers "on notice" that they are in breach of the Act or regulations, and at risk of penalties. More particularly, an improvement notice is "prior warning" of a breach of the Act that can lead to the issue of an infringement notice by a health and safety inspector.

See the summary of OSH's enforcement policy at 6.5, Offences and penalties.

Example:

  1. Showstoppers Ltd were a firm of shopfitters with a small warehouse and workshop where shop fit-outs were fabricated by John, the managing director, and two employees, Nancy and Sid.

    There was a range of woodworking and metalworking machinery in the workshop. One frequently-used machine was an overhand planer or "buzzer" used to dress pieces of timber used to make the shopfittings.

    One day a health and safety inspector visited on a routine inspection. In the course of the inspection he assessed the hazards arising from Showstoppers' machinery, and their compliance with the legislation.

    The inspector's attention was drawn to a broken bridge-guard, which was intended to be in place to protect an operator from coming into contact with a revolving cutter blade. The guard remained in place but, because it was broken at an attachment point and had been "temporarily" wired in place, it was not sufficiently adjustable to provide the protection it was designed for.

    The inspector issued an improvement notice. It stated, in relation to the hazard, that:

    • The faulty guard was in breach of section 6 of the Act and Regulation 18 of the HSE Regulations 1995;
    • The fact that the failure had been observed by the inspector on the day;
    • The repair or replacement necessary to fix the guard; and
    • The repair should be made within 7 days of the issue of the notice.

The notice was handed to Nancy, who was operating the machine, and apparently in charge of it at the time. Alternatively, it could have been sent by registered mail to John as managing director of the company.

Prohibition notices

When an inspector may issue a prohibition notice

An inspector may issue a prohibition notice when they believe there is a likelihood that serious harm will occur to any person by virtue of a failure to comply with a provision of the Act.

A prohibition notice has immediate effect. It remains in force until the inspector is satisfied that measures have been taken that are sufficient to eliminate the hazard or minimise the likelihood that the hazard will be a source of harm (section 41).

What type of situation will result in a prohibition notice?

Any situation where the inspector believes there is a likelihood of serious harm by virtue of a failure to comply with a provision of the Act may be the subject of a prohibition notice.

The range of activities or situations able to be prohibited is very broad, and the notice may require any person to stop the:

of the:

that the inspector believes to constitute the hazard (section 41).

The provision is, therefore, not limited in its application to a "place of work", and may affect the safety of the public at large.

A prohibition notice is intended as an immediate solution to an imminent danger. It may be issued in situations where, for example, an inspector may act on an alarm raised by a member of the public, or on their unchecked memory of a particular chemical reaction or the properties of a particular metal where they feel that there is imminent danger.

However, in practice, prohibition notices tend to be used in less urgent situations where inspectors are basing the prohibition on a strong "likelihood" of harm and on "reasonable grounds" - as is the case with an improvement notice.

Contents of a prohibition notice

A prohibition notice must specify:

In addition, a prohibition notice may require the withdrawal of all employees of a specified kind or description, except as are necessary to deal with the hazard.

The notice may also specify the steps that could be taken to eliminate the hazard concerned or minimise the likelihood that the hazard will be a source of harm.

How a prohibition notice is served

When an inspector issues a prohibition notice they are required to fix it to or near the part of the place of work or the item of plant, or other hazard to which it relates. Once the notice is attached, it is an offence for any person to remove it.

The inspector must also give a copy of the notice to any person apparently in charge of the activity, building, place of work, plant, process, situation, structure or substance that the inspector believes is the source of harm.

Compliance with a prohibition notice

When a prohibition notice is issued, it is the responsibility of the person to whom it is given - or any person who controls a place of work or any plant to which it relates - to ensure that no action is taken in contravention of it.

Failure to ensure that no action is taken is an offence. In situations where it can be established that there was knowledge that serious harm could result from the contravention, prosecution could be taken under the more serious section 49 offence provisions. A prohibition notice is "prior warning" of a breach of the Act that may lead to the issue of an infringement notice.

See 6.5, Offences and penalties.

Example:

  1. A forestry health and safety inspector was making a follow-up visit to the "skids" site of a logging operation being carried out at a remote hilly location by JP Knightly Logging and Cartage Ltd. The visit was nearly complete, and he was about to leave when a semi-trailer owned by the company arrived with a large excavator on the back.

    The inspector recognised the digger as one used on various logging operations in the district. He also recognised it as not having a cabin operator protective structure in place that would conform with the Approved Code of Practice for Operator Protective Structures on Self-propelled Mobile Mechanical Plant.

    The inspector formed a belief that if the digger was used in the steep terrain without adequate operator protection, then there was a likelihood of serious harm to the operator. On the basis of this assessment, he issued a prohibition notice, which set out:

    • The nature of the rollover hazard presented;
    • That the uneven terrain led to the inspector's belief that there was a likelihood of harm;
    • The prohibition against use of the excavator on the logging operation; and
    • The requirement to fit an appropriate structure under the supervision of a registered engineer.

The inspector fixed a copy of the notice to the cab of the digger. He also gave a copy of the notice to Jack, who was in charge of the company's operations on the site.

He explained that it was an offence on the part of the company and/or Jack to allow the digger to be used on the site without the required modifications.

Appeals against notices

Any person affected by a prohibition, improvement or suspension notice may appeal against it to a District Court within 14 days of the notice being issued, or its terms being varied by a health and safety inspector (section 46). There is also a right of appeal against any notices, exemptions, or suspensions provided for by regulations made under the Act.

The only ground of appeal under section 46 is that one or more of the terms of the notice are "unreasonable". The appeal may relate to either the original notice, or a subsequent variation of its requirements.

The person appealing need not be the person served the notice - they need only be "affected" by it.

In hearing an appeal, a District Court must inquire into the circumstances of the notice and may:

A notice remains in force while it is being appealed. This is a strong encouragement for employers and others affected by notices to remedy the breaches they describe, rather than seek an appeal. Another factor that discourages appeals is that improvement and prohibition notices do not strictly describe the measure that is to be taken to remedy any breach, only that it is to be remedied.

There may be questions of timing when a notice is being appealed - whether a person receiving a notice should continue to take action towards compliance, although it is under appeal. Strictly speaking the Act requires the compliance action to continue, but in reality this is always going to be a matter of fact and degree, or in hazard management terms - of considering the likelihood and the severity of the potential harm (see 1.5, All practicable steps). However, there are unlikely to be situations where it would be reasonable for an employer or other person who controls a place of work to disregard a prohibition notice.

6.4 Regulations and approved codes of practice

Regulations

Making of regulations

Regulations are made under section 21 of the Act. They may be made to control particular hazards, by industry, or with application to a range of hazards across all industries.

Current government policy is that regulations are made subject to three criteria:

Consultation with industry (persons and organisations at the discretion of the Minister of Labour, and with regard to the regulations' content) is required before, and during the preparation of regulations (s 21(2)). There is also a specific requirement for the Minister of Labour to consult with the Environmental Risk Management Authority established under the Hazardous Substances and New Organisms Act 1996 before the making of regulations on hazardous substances or new organisms (s 21 (3)).

In addition, section 24 provides that regulations made under earlier legislation revoked by the HSE Act may be amended or revoked by regulations made under the Act. They also remain in force until such amendment or revocation. This means that regulations such as those concerning spraycoating, first-aid facilities, etc. made under earlier legislation have remained in force in certain cases.

For a list of regulations made under the Act, see 1.6, How the Act sets more detailed standards.

Who regulations may apply to

Regulations impose duties relating to the safety and health of employees or other people. The duties may apply to:

Regulations may also be made for any other matters contemplated by, or necessary for, giving full effect to the Act.

Content and application of regulations

Failure to comply with regulations made under the Act is an offence under section 50 (see 6.5, Offences and penalties).

Unlike the sections of the Act itself, the validity of the provisions of regulations made under the Act is subject to judicial review. This means that a breach of a regulation cited as an offence, or in an improvement or prohibition notice, may be appealed to a District Court on the grounds, among others, that the regulation is ultra vires or "beyond the authority of the Act".

For this reason, the Act is required to spell out in some detail the situations where regulations may be made, who they may impose duties on, and the purpose and contents of them.

Sections 22 and 23 describe the categories of people, places, activities and other matters on which regulations can be made.

Section 23(1) describes in further detail the administrative mechanisms that may be made by regulation for the enforcement of the Act.

Section 23(2) says that regulatory requirements for the registration, licensing, or certification of places of work (under s23 (1) (a)) may incorporate by reference to all or any part of any:

When such a document is referred to in a regulation, it is considered part of the regulation - in the form at which the reference is made. If the content of the standard or other document subsequently changes, then the change in content will not be incorporated without the making of a new regulation (section 23 (3)).

Approved codes of practice

Approval and publishing of approved codes of practice

Section 20 allows for the approval by the Minister of Labour of statements of preferred work practices or arrangements on the recommendation of the Secretary of Labour.

The process of approval is carefully prescribed by the Act, which sets out a process of issuing Gazette notices, followed by consultation and subsequent approval by the Minister, after consultation with all interested parties is complete (section 20(1)-(5)).

The Act requires that copies of all approved codes of practice are available for members of the public to see and copy at each OSH branch. A reasonable fee may be charged for copies or copying of approved codes.

For a list of approved codes of practice, see 1.6, How the Act sets more detailed standards.

Subject matter of approved codes of practice

Section 20 (1) sets out the matters that may be covered by approved codes of practice. They may be:

Compliance with approved codes of practice

Approved codes of practice are not legislation, but statements of preferred practice, which may be produced in courts as evidence of suitable means of compliance with the Act. They do not necessarily provide the only way of complying with the Act, but they do offer an accepted way.

Failure to follow an approved code of practice is therefore not an offence in itself.

Instead, in considering any prosecution for a breach of a section of the Act or regulation, a court may have regard to any approved code of practice that was in force at the time of the alleged failure, and that is relevant to the charge (section 20(9)).

Approved codes are, therefore, admissible in court by either the prosecution or defence as evidence of good practice - but the reliance placed on them is a matter of discretion for the judge.

6.5 Offences and penalties

How the Act creates offences

As described throughout this guide, the Act prescribes a range of duties for employers and others. Where there is a failure to observe such a duty, sections 49 or 50 may make the breach an offence under the Act. Where such breaches occur, a health and safety inspector or, in certain circumstances, another person may prosecute through the courts. There are two main categories of offence that may be prosecuted - depending on the degree of seriousness of the breach and the culpability of the offender - and these are discussed below.

In addition, health and safety inspectors may issue infringement notices, which require the defendant to pay a fee, for infringement offences. These are also described below.

Offences where there was knowledge of the potential for serious harm by the offender

The first category, under section 49, is where a person takes an action, or fails to take an action, as the case may be, knowing that it is reasonably likely to cause someone serious harm. These are offences determined by Parliament and the courts to involve the highest culpability on the part of the defendant, and they attract the highest level of fines under the Act, and there is the potential for imprisonment. See, Section 49 offences - involving "knowledge", below.

Section 50 offences

Section 50 offences apply to breaches of most of the duties prescribed by the Act. Unlike section 49 offences, there is not a "knowledge" or mens rea requirement on the part of the offender. Instead, in any prosecution the Crown has only to prove that the breach of a duty has occurred and that, intentionally or otherwise, the person charged caused it by their action or inaction. See, Section 50 offences, below.

Section 49 offences - involving "knowledge"

The most serious offence under the Act is where a person:

If convicted, the person may be fined up to $500,000 or face up to two years in prison, or both.

Where a prosecution against a person under section 49 is unsuccessful, the defendant may still face charges under section 50.

A defendant facing a section 49 charge may elect trial by jury. The exception is where a company or body corporate is being prosecuted.

In any Health and Safety in Employment Act prosecution, the Crown must prove all the elements of the offence to the criminal law standard of "beyond reasonable doubt". This means proof of the breach of a particular duty, for example, failure to train or supervise an employee, and, in the case of a section 49 prosecution, the following requirements.

Establishing "knowledge" on the part of the defendant

Knowledge of the potential for harm is the mens rea, or "state of mind" necessary for establishing a section 49 offence. In a prosecution the Crown is required to prove beyond reasonable doubt that the defendant had knowledge that the action or inaction would or could cause serious harm.

A court will find "knowledge" where there has been "wilful blindness" or forgetfulness on the part of the defendant, but will require evidence that they have been clearly informed of, or considered in their own mind, that there was a significant risk or danger of serious harm at some point prior to the accident or incident which formed the breach.

Evidence to establish the existence of knowledge may take the form of statements from employees, or an inspector or other person who had discussed the risk with them or recalled other statements. "Knowledge" may also be established where there has been a previous accident or conviction in relation to the hazard, or where a defendant has been served a prohibition, suspension or improvement notice by a health and safety inspector prior to the action or incident in question. (See discussion below.)

Establishing what was "reasonably likely to cause serious harm"

An important and often missed point in relation to section 49 offences is that it is often not at issue that the defendant knew of the existence of the hazard concerned, but rather that they knew that there was a reasonable likelihood of serious harm being caused by the breach.

The prosecution in a section 49 offence therefore needs to provide clear evidence of there having been a "reasonable likelihood of serious harm".

This element of the offence may be established by verbal statements, or documentary or other evidence.

One situation that is likely to provide conclusive evidence is where a prohibition notice has been issued to the defendant and they have failed to observe it. Because of the specific terms of prohibition notices and suspension notices, they offer strong evidence of the requisite elements for a section 49 conviction if they are breached. For this reason, employers and others should be on notice when they receive such a notice, not only of the risks they describe, but also the significantly greater penalties imposed for non-observance. Where there is a direct connection, an infringement notice for a similar or continuing matter may provide evidence of prior knowledge of the likelihood of harm occurring.

Improvement notices, and verbal directions by an inspector, on the other hand, are less conclusive evidence of knowledge. Because an improvement notice usually allows a breach to continue for a period before it must be rectified, it will not always offer evidence of "reasonable likelihood" to the required standard. This is, however, a matter for the courts in each case, and there will be circumstances where the issue, or failure to observe, an improvement notice will provide clear evidence in support of a section 49 charge.

Ultimately, "reasonably likely" is an objective term that should be considered in the light of the factors used to consider what is "all practicable steps" - particularly with regard to the nature and severity of any injury or harm that may occur, and the degree of risk or probability of injury or harm occurring. See 1.5, "All practicable steps".

Section 50 offences

What makes an offence

The vast majority of prosecutions are taken under section 50 of the Act.

Under that section it is an offence for any person to fail to comply with any of the duties imposed by the following:

Fines for section 50 offences

The defendant may be fined up to $250,000 for each charge.The exception is for breaches of section 16(3), where a fine of up to $10,000 may be imposed for failure to warn a visitor to a place of work of a significant hazard.

What must be proven

Unlike section 49 offences, those under section 50 need not have led to serious harm or the potential for serious harm. Also, the Crown does not have to prove the mental element of "knowledge" or intention on the part of the defendant (section 53).

Depending on the charge under section 50, the prosecution must establish "beyond reasonable doubt" that there has been a breach of a duty, and that there has been a failure to meet each element of the section creating the duty.

Where duties are qualified by the "all practicable steps" requirement

Where the duty requires a person to take "all practicable steps", the prosecution must prove beyond reasonable doubt that one available practicable step that should have been taken wasn't in the particular case. The defendant may cross examine and challenge the prosecution's evidence, or introduce alternative evidence to establish an element of doubt in the Crown's contention that all practicable steps had not been taken. If the challenge to the Crown's evidence is strong enough to introduce a reasonable doubt in the eyes of the judge, then there is an acquittal on the charge.

Offences that are not qualified by the taking of "all practicable steps"

Where a duty is not qualified by the "all practicable steps" requirement, the prosecution need only establish that the defendant has not fulfilled the duty, regardless of their intention or otherwise. For example, in the case of an employer failing to report details of an accident involving serious harm to an employee, it would only need to be established that the accident had not in fact happened, and that the report had not been received by the nearest OSH branch office.

However - the Crown having established these facts to the satisfaction of the court - the person charged may then raise a defence of "total absence of fault". This means that where the prosecution has shown that a defendant has failed to comply with a provision of the Act, then that defendant may still have a defence. For such a defence to operate, the defendant must show that there was a total absence of fault on his or her part, or that "all due diligence" was exercised. To do this, the defendant must prove that they took the required degree of care to the civil standard of "on the balance of probabilities", which is lower than that required of the Crown prosecution.

To return to the example of the failure to notify an accident discussed above - the employer charged would have a defence if they could establish that there had been an earlier notification, and establish "on the balance of probabilities" that the appropriate form had been completed, sent, and, say, lost in the post.

In another example, a regulation may require machine guarding of a particular type. An accident is caused by the guard being removed from a machine, and the employer is prosecuted. The employer may have a defence under strict liability if they can show that there was a mechanism for guarding the machine which was not easily dismantled, and yet an employee did dismantle it despite instructions to the contrary.

It should be remembered though, that strict liability is a high test and "total absence of fault" means what the words suggest.

Summary of OSH's enforcement policy

Purpose

The purpose of OSH's enforcement policy is to achieve compliance with the Health and Safety in Employment Act 1992.

OSH achieves this by:

  • Providing information and/or advice to those who have obligations under the legislation;
  • Determining whether or not the legislation is being complied with; and
  • Enforcing the legislation where a breach is observed or reported.

OSH's response to any observed breach of the Act is to choose the enforcement intervention that will best:

  • See hazards eliminated, isolated, or minimised quickly and effectively; and
  • Influence future compliance with the legislation.
Enforcement interventions

Enforcement interventions to prevent non-compliance include:

  • Written warnings by an inspector;
  • Improvement notices;
  • Suspension notices;
  • Prohibition notices;
  • Revocation of registration, certificates, exemptions and approvals;
  • Application for a compliance order from the Employment Relations Authority;
  • Infringement notices; or
  • Prosecutions.

The chosen enforcement intervention depends on:

  • The seriousness of the non-compliance;
  • Continued or repeated non-compliance;
  • Refusal to take remedial action; and
  • The harm or potential harm to those affected by the non-compliance.

Refer to 6.3, Improvement and prohibition notices for a description of the issuing and enforcement of these notices. Suspension notices are described in 6.2, Departmental medical practitioners.

Compliance orders

Where there is adamant and continuing refusal to comply with the employee participation requirements of part 2A of the Act, an inspector will seek a compliance order from the Employment Relations Authority.

Infringement notices

The issuing of an infringement notice will be considered for any offence under section 50(1) when:

  • no injury has occurred, but there is a likelihood of serious harm occurring as a result of the breach; or
  • there is no likelihood of serious harm from the breach, but it is recurring

and where the prior warning and other requirements for infringement notices are met.

Prosecution

Court proceedings are considered where a breach has been identified, there is evidence to sustain a prosecution, and where:

  • Compliance cannot be gained otherwise; or
  • There has been deliberate or careless disregard for the safety and health of others;
  • There has been deliberate attempt to obtain economic advantage through failure to comply; or
  • The public interest requires a prosecution.

A prosecution may be in the public interest if it:

  • Ensures public accountability; and/or
  • Publicises a problem of more general interest; and/or
  • Ensures the offender recognises (and pays for) the seriousness of the matter.

To sustain a prosecution, sufficient evidence must be available to support every element of the proposed charge.

Choice of defendants

Only those who had the ability to change the situation in question are charged.

Where there is the possibility of charges against an employee under section 19, these will be made only where the employee has acted recklessly or with gross negligence, and the employer had provided them with the opportunity to perform at the required safe level.

Number of charges

Only sufficient charges are laid to call the defendant publicly to account.

It is unlikely that any situation will warrant more than three charges at a maximum against any one defendant. Where more than one employee is affected or involved, separate charges are laid in respect of the impact on each employee only if there was clearly a separate default in respect of each employee.

The general rule is that where, prima facie there is a clear breach of a particular section under the Act then an individual charge for that breach will be laid.

Where there is police involvement

For six months after a breach comes to notice, charges may be laid under the HSE Act, although the police are considering charges under the Crimes Act. If the police charges proceed, they take precedence over HSE Act charges.

Exemption for people injuring others in the course of preventing harm

Where an employee harms someone in an effort to protect that person from harm, the employee and the employer have not caused an offence under the Act (section 51).

The exemption is intended to provide for emergencies and to avoid potential injustices where emergency services personnel or others in dangerous situations could be in breach of the Act.

Offences by officers of bodies corporate or Crown organisations

If a corporate body or Crown organisation fails to comply with the Act, its officers, directors or agents are liable for conviction (section 56). This may be in addition to any prosecution and/or conviction of the body corporate.

Who may lay charges

Health and safety inspectors

Section 54A empowers an inspector to begin proceedings for an offence against the Act that has not been subject to an infringement notice.

[Refer to the summary of OSH's enforcement policy, above.]

Health and Safety in Employment Act prosecutions are taken in District Courts and subject to the Summary Proceedings Act 1957. Proceedings may be begun by one inspector and continued by another.

Private prosecutions

When an inspector, or another enforcement agency, does not take enforcement action in response to a particular matter, there is provision for a person other than an inspector to begin court proceedings for an alleged offence under the Act. Prior to this, a person - not necessarily the person who will prosecute - must have notified the Secretary of Labour (or chief executive of another designated agency responsible for enforcement) of their interest in any enforcement action, and been advised that the agency will not be proceeding with enforcement against any person.

Court action may then be begun by any other person in relation to the matter, by "laying an information".

Where another enforcement authority, i.e. the police or LTSA, has taken enforcement action with respect to the particular matter, it is possible to seek leave of the court to prosecute regardless, providing OSH or another designated agency has formally indicate that it will not be prosecuting.

Notification of interest regarding enforcement action

A person may notify the Secretary of Labour (or chief executive of the CAA or MSA as appropriate) of their interest in knowing whether a particular matter has been, is, or is to be, subject to the taking of an enforcement action by an inspector (section 54).

The notification of interest must be in a manner prescribed by regulation.

[A copy of a form that meets the requirements of the regulation]

When the Secretary (or chief executive of the CAA or MSA) has been notified in this way, they must ensure that the person with an interest is informed of:

There is no requirement to advise the person notifying of reasons for any decision taken.

Time limits for laying of charges

The Health and Safety in Employment Act sets a time limit for the laying of an information - i.e. beginning prosecution - for an offence. In relation to the "incident, situation, or set of circumstances" to which the particular offence relates, the information must be laid within six months of the earlier of when it:

(section 54B)

The effect of legislative change

Previously the Act conformed with the "six-month rule" contained in the Summary Proceedings Act 1957, which meant prosecution had to occur within six-months of when any breach of the Act occurred, not when it became known, or should have become known to an inspector.

The timing requirement changed with the passing of the Health and Safety in Employment Amendment Act 2002, with effect from 5 May 2003. However, the amendment does not apply retrospectively - meaning proceedings cannot be begun with respect to any "incident, situation, or set of circumstances" that occurred more than six months before that date. An effect of this is that prosecutions will continue not to be able to be taken with respect to long latency occupational diseases or other matters where the breach occurred before 5 May 2003.

The new extended time limit will apply with respect to any offence against the Act that occurs after 5 May 2003, not necessarily all that "become known or should reasonably have become known" to an inspector after that date (section 31 Health and Safety in Employment Amendment Act 2002).

Extension of the time limit for laying an information

Where a health and safety inspector considers that they will not be able to investigate a matter and lay an information within six months of the matter coming to notice, they may apply to a District Court for an extension. Application must be made before the six months has passed (section 54C).

The court may only grant an extension where it is satisfied that:

Before making its decision, the court must give an opportunity to be heard to each of:

A person other than an inspector may also apply to a District Court for an extension of time before laying an information (section 54C).

The application can only occur where a health and safety inspector has not taken enforcement action in relation to the matter and has notified any persons who have advised of their interest in enforcement action. It may be made within a month of receiving such advice from the inspector.

The court may only grant an extension where it is satisfied that:

Before making its decision, the court must give an opportunity to be heard to each of:

Decisions to prosecute

An inspector's decision whether or not to prosecute is subject to judicial review.

Insurance and indemnities against fines or infringement fees

It is unlawful to insure against a fine or an infringement fee that is imposed for an offence under the Act (section 56I).

It is, however, legal to insure against:

It is an offence to offer, agree, or enter into any contract to indemnify, or indemnity to pay any person's liability for a fine or an infringement fee under the Act. This means, among other things, that it is illegal for an employer to pay an employee's fine on their behalf.

[Refer to the fact sheet, Insurance]

Sentencing for HSE Act convictions

Sentencing criteria for Health and Safety in Employment Act prosecutions are set out in section 51A of the Act, which must be read in conjunction with the Sentencing Act 2002 (and do not limit the application of that legislation).

Sentencing involves the court's consideration of the following:

The purposes of sentencing

The Sentencing Act (s 7) describes the broad purposes of sentencing. It requires the balancing each of the factors of:

with regard to the needs of the community, the victim, and the offender.

Sentences of reparation, and any additional fine, may be made after consideration of the financial circumstances of the person convicted (s 35 Sentencing Act).

The principles of sentencing

The Sentencing Act (s 8) lists a series of principles that encourage the setting of a level of fine that is consistent with the nature and seriousness of the offence and other similar types of offending.

In addition, section 51A of the HSE Act requires consideration of the degree of harm that has occurred as a result of the offence.

Aggravating or mitigating factors

The Sentencing Act (s 9) lists a series of factors relating to the motivation and/or conduct of the offender (and the victim) in the circumstances of the particular offence. In addition to any other factors may be raised by the circumstances.

Section 51A of the HSE Act specifically requires consideration of the safety record of the person convicted, to the extent that it shows whether any aggravating factor is absent.

Any offer, agreement, response or measure to make amends (s 10 Sentencing Act)

The fine payable must also take into account any reparation ordered, and the financial circumstances of the offender.

Section 51A of the HSE Act particularly requires the sentencing court to consider whether the person has:

Case law regarding sentencing for Health and Safety in Employment Act convictions has suggested that there should be no "starting point" of a sentencing level for any given offence and that each case is different in its circumstances. Maximum penalties are reserved for the worst possible cases. Submissions on penalty are encouraged from Crown prosecution, because it is their task to help the judge reach a fair and appropriate result from the point of view of the community.

Sentencing is not a mathematical exercise, and the circumstances of the individual case are all important.

There is limited case law on sentencing arising out of section 49 prosecutions. However, the general principle is that in such cases, the deterrent effect of the offence is the dominant consideration of the sentencing judge. But consideration must also be made to the circumstances and effects of the breach, and also to the convicted company or person.

Table 4: Health and Safety in Employment Act 1992

Table 5: Health and Safety in Employment Regulations 1995

Infringement notices

Health and safety inspectors are able to issue infringement notices for breaches of the Act (section 56B). Every infringement notice will impose a fee on the person receiving it (the defendant).

At the time of publication the Occupational Safety and Health Service were developing a process for the introduction of infringement notices which would commence during 2004. Notices will only be issued in relation to matters that occur after 5 May 2003. Similarly, prior warning in relation to any such matter (see below) must also have been issued after 5 may 2003 for it to be an infringement offence.

Who can be issued with an infringement notice

Infringement notices can be issued to any person, whether a natural person or a body corporate, with duties under the Act.

The person may be:

Infringement offences

An infringement offence is any offence described in section 50(1) of the Act (see, Section 50 offences, above).

Requirements for notices

Before issuing an infringement notice, a health and safety inspector must believe on reasonable grounds that the defendant has committed an infringement offence.

Also, the defendant must have had prior warning of the offence (arising out of or relating to the same or a similar matter) in the form of:

An infringement notice must be issued within 14 days of the inspector becoming aware of the alleged offence.

A person cannot be issued with an infringement notice and later prosecuted for the same matter (unless the offence is continuing or repeated). An infringement notice does not result in a criminal record, but may be considered by a court if the person who received it is prosecuted for another breach of the Act.

The inspector may require further information

When considering issuing an infringement notice to a person, an inspector may require the person to provide certain information.

In the case of an individual, the inspector may require:

In the case of a body corporate, the inspector may require:

The person is required to provide this information (section 56D).

Setting the infringement fee

There are two categories of infringement fee:

The issuing inspector must use his or her discretion to determine the fee. In doing so, the inspector will take into account:

For a breach of section 7(1) of the Act, the issuing inspector need only consider the last three points.

After a person has been issued with an infringement notice

If the infringement fee is paid within 28 days of being served with an infringement notice, no further action will be taken for that offence.

Alternatively, the person receiving the notice may:

If the defendant does not pay the fee within 28 days, and does not request a court hearing or make submissions to the court, they will be served with a reminder notice.

After a further 28 days, reminder notices unpaid or unappealed may be filed in court and an order made for payment (with costs).

A summary of rights is printed on the back of infringement notices or reminder notices.

[For more information, refer to fact sheet, Infringement notices.]

6.6 Relationship with accident insurance and compensation agencies

Funding the administration of the Act

Section 59 provides for a levy to be collected from employers, or other earners who are not employees, to fund the administration and enforcement of the Act.

The levy is collected with other levies or premiums payable collected by the Inland Revenue Department for accident insurance and/or compensation. The rate is fixed by regulation, and is currently set at 5c per $100 of payroll.

When Inland Revenue collect the levy, there is no requirement for separate accounting to payers - it is included in accident compensation premiums without separate reference.

Information sharing provisions

Accident compensation legislation requires OSH - as the agency that administers the HSE Act - to be provided with information that relates to claims for work-related personal injury.

OSH may, in turn, use the information only for the following purposes:

Information on injuries is also passed to the Department of Statistics' Injury Information Manager for the maintenance of a national database on workplace injury and illness.