A summary of the Health and Safety in Employment Act 1992

The object of the Health and Safety in Employment Act 1992 (the Act) is to prevent harm to all people at work and people in, or in the vicinity of, a place of work. To do this, the Act:

• promotes excellence in health and safety management
• defines harm and hazards in a comprehensive way
• imposes duties on those who are responsible for work, or do work
• sets requirements that relate to taking all practicable steps to ensure health and safety, and that are flexible to cover different circumstances
• encourages employee participation in health and safety management and that the process is conducted in good faith by all those involved.

The Act creates duties for most people connected with places of work including:

• employers
• employees (including trainees and people gaining work experience and volunteers)
• the self-employed
• principals to contracts
• persons who control a place of work
• hirers, sellers and suppliers of plant.

Regulations

Regulations are promulgated from time to time under the Act. Regulations may, among other things, impose duties on employers, employees, designers, manufacturers and others relating to health and safety. These regulations may apply with respect to places of work, plant, processes or substances and may deal with particular problems that have arisen.

The Health and Safety in Employment Regulations 1995 require the provision of facilities such as toilets, meal rooms, first aid, and for employees to wash, and the provision of wholesome and sufficient drinking water. The regulations also set a range of general health and safety and welfare requirements in addition to the Act, including:

• restricting children and young people from certain hazardous work and times of work
• requiring certification of workers using some hazardous equipment
• requiring notification of particular types of hazardous work, including forestry and construction
• creating duties for the designers, manufacturers and suppliers of plant and protective clothing and equipment.

The Health and Safety in Employment (Pressure Equipment, Cranes, and Passenger Ropeways) Regulations 1999 describe a system of design verification and inspection to maintain the integrity of hazardous equipment (refer to part 2).

Approved codes of practice

Approved codes of practice are provided for in the Act. They are statements of preferred work practice or arrangements, and may include procedures which could be taken into account when deciding on the practicable steps to be taken. Compliance with codes of practice is not mandatory. However, compliance with an approved code of practice may be used in Court as evidence of good practice and an employer or other duty holder having taken “all practicable steps” to meet the duty.

Note: Items covered in the lists of inspections for the various types of cranes, and Appendix A (where applicable) are compulsory to obtain the certificate of inspection for the crane before it can be used, as per the Health and Safety in Employment (Pressure Equipment, Cranes, and Passenger Ropeways) Regulations 1999 (PECPR Regulations). The accredited inspection bodies have advised their equipment inspectors of this requirement.

Employers’ duties

Employers have duties to ensure the health and safety of employees at work.

Employers have a general duty to take “all practicable steps” to ensure the safety of employees while at work. In particular, they are required to take all practicable steps to:

• provide and maintain a safe working environment
• provide and maintain facilities for the safety and health of employees at work
• ensure that machinery and equipment is safe for employees
• ensure that working arrangements are not hazardous to employees
• provide procedures to deal with emergencies that may arise while employees are at work.

Taking “all practicable steps” means doing what is reasonably able to be done in the circumstances, taking into account:

• the severity of any injury or harm to health that may occur
• the degree of risk or probability of that injury or harm occurring
• how much is known about the hazard and the ways of eliminating, reducing or controlling it
• the availability, effectiveness and cost of the possible safeguards.

A person is required to take all practicable steps in respect of circumstances that they know or ought reasonably to know about.

Hazard management

Employers must identify and regularly review hazards in the place of work (existing, new and potential) to determine whether they are “significant hazards” and require further action. If an accident or harm occurs that requires particulars to be recorded, employers are required to have the matter investigated to determine if it was caused by or arose from a significant hazard (refer to part 2.2(2)).

“Significant hazard” means a hazard that is an actual or potential cause or source of:

1. serious harm (defined in a schedule to the Act), or
2. harm (being more than trivial) where the severity of effects on any person depend (entirely or among other things) on the extent or frequency of the person’s exposure to the hazard, or
3. harm that does not usually occur, or usually is not easily detectable, until a significant time after exposure to the hazard.

Where the hazard is significant, the Act sets out the steps employers must take:

1. Where practicable, the hazard must be eliminated.
2. If elimination is not practicable, the hazard must be isolated.
3. If it is impracticable to eliminate or isolate the hazard completely, then employers must minimise the likelihood that employees will be harmed by the hazard.

Where the hazard has not been eliminated or isolated, employers must, where appropriate:

1. provide protective clothing and equipment and ensure that it is accessible and used
2. monitor employees’ exposure to the hazard
3. seek the consent of employees to monitor their health
4. with informed consent, monitor employees’ health.

Information for employees and health and safety representatives

Before employees begin work, they must be informed by their employer of:

1. hazards they may be exposed to while at work
2. hazards they may create which could harm other people
3. how to minimise the likelihood of these hazards becoming a source of harm to themselves and others
4. the location and correct use of safety equipment
5. emergency procedures.

Employers are also required to inform employees of the results of any health and safety monitoring. In doing so, the privacy of individual employees must be protected.

Where there are employee health and safety representatives, the employer must ensure that the representatives have ready access to sufficient information about health and safety systems and issues in the place of work to enable them to be able to carry out their functions effectively.

Training and supervision of employees

An employer must ensure that every employee who:

• does work of any kind, or
• uses plant of any kind, or
• deals with a substance of any kind

in a place of work has the knowledge and experience – or is supervised by someone who has – so that they are not likely to suffer harm, or lead to the harm of others.

Every employee must be adequately trained in the safe use of all plant, objects, substances, and protective clothing and equipment that they are, or may be, required to use or handle.

Employers to provide opportunities for employee participation

Employers must provide reasonable opportunities for employees to participate effectively in on-going processes for improvement of health and safety in the place of work. Where there are more than 30 employees, or where an employee requests it, the employer must seek agreement on, develop, implement and maintain a system of employee participation. Where agreement cannot be reached on the system of employee participation, there are default provisions set out in the Act.

Where employee health and safety representatives are elected, they are entitled to paid leave to attend approved training courses.

A trained employee health and safety representative may issue a hazard notice to an employer where they believe there is a hazard in the place of work, they have brought it to the employer’s attention and the issue has not been resolved.

Employers and employees must deal with each other in good faith while seeking agreement on, developing and maintaining a system of employee participation. The dispute resolution processes of the Employment Relations Act 2000 apply.

Responsibility for employees’ work activities

An employer is also responsible for the health and safety of others arising from the work activities of their employees. They must take all practicable steps to ensure that no action or inaction of an employee while at work causes harm to any other person.

Deemed employees

People receiving on-the-job training or work experience, loaned employees and volunteer workers are all deemed to be “employees” of an employer or self-employed person for whom they are working. Most employer duties apply, but not the duty to provide opportunities for employee participation. In addition, for volunteers, the exceptions are:

• to provide training and supervision
• to ensure volunteers’ action or inaction at work does not harm others.

Duties of employees

Every employee must take all practicable steps to ensure:

• their own safety while at work (including using protective clothing and equipment)
• that no action or inaction of theirs while at work causes harm to any other person.

An employee has a right to refuse to undertake work that they consider likely to cause them serious harm.

The self-employed

Every self-employed person must take all practicable steps to ensure that no action or inaction of theirs while at work harms the self-employed person or any other person.

Principals

Principals to contracts are required to take all practicable steps to ensure that:

• no employee of a contractor or subcontractor, or
• if an individual, no contractor or subcontractor

is harmed while doing any work (other than residential work) that the contractor was engaged to do.

Hirers, sellers and suppliers of plant

The Act places duties on people to ensure that any plant or equipment that is used in a place of work is designed and made, and has been maintained, so that it is safe for its intended use. The duties apply to people who:

• hire, lease or loan plant to another person that could be used in a place of work
• sell or supply plant (other than for hire, lease or loan)
• install or arrange plant in addition to either of the above.

Persons in control of a place of work

The Act places duties on “persons who control a place of work” in relation to people in the vicinity, and to visitors.

A “person who controls a place of work” includes a person who owns, leases, subleases or occupies a place of work, or who owns, leases or subleases plant or equipment used in a place of work.

Accidents and serious harm (recording and notification)

The Act requires employers, the self-employed and principals to contracts to keep a register of work-related accidents and serious harm.

For employers, this includes every accident that harmed (or might have harmed):

1. any employee or self-employed person at work
2. any person in a place of work under the employer’s control.

Employers are also required to investigate all accidents, harm and “near misses” to determine whether they were caused by a significant hazard.

“Serious harm” is defined in Schedule 1 of the Act.

Any occurrences of serious harm of a kind that must be recorded, must also be notified to the Secretary of Labour (in practice, the nearest Department of Labour office) as soon as possible after the occurrence. In addition, the accident must also be reported in the prescribed form within seven days. (Forms are available from stationers, or from the Department of Labour website.)

If a person suffers serious harm, the scene of the accident must not be disturbed unless to:

1. save life or prevent suffering
2. maintain public access for essential services, e.g. electricity, gas
3. prevent serious damage or loss of property.

A health and safety inspector will advise whether or not the Department of Labour will investigate the accident and what action may be taken in the meantime.

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