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5. The Legislative Background

Health and Safety in Employment Act 1992

This section uses the Health and Safety in Employment Act 1992 (HSE Act) as a generic piece of legislation to underpin the following discussions. Australasian States and Territories have broadly similar health and safety legislation, so this discussion is pertinent to most readers.

Introducing the Health and Safety in Employment Act 1992

The HSE Act contains general duties and responsibilities placed upon people to ensure their own safety at work, and the safety of others who are at the workplace or who might be injured at work.

These duties extend to the prevention of workplace violence and aggression.

The HSE Act requires employers to identify hazards, assess their likelihood and severity and then to control hazards. The Act applies to all people in paid work and certain classes of volunteers.

Key sections of the Health and Safety in Employment Act 1992 as applied to workplace violence

Hazard

(a) means an activity, arrangement, circumstance, event, occurrence, phenomenon, process, situation, or substance (whether arising or caused within or outside a place of work) that is an actual or potential cause or source of harm; and

(b) includes-

(i) a situation where a person's behaviour may be an actual or potential cause or source of harm to the person or another person; and

(ii) without limitation, a situation described in subparagraph (i) resulting from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person's behaviour.

All practicable steps: Sections 6-10 of the Health and Safety in Employment Act 1992

Employers must take all practicable steps to mitigate risk and protect employees, especially those at potentially higher risk, such as healthcare staff, support staff and first responders (i.e. fire, police, ambulance and other emergency workers) from harm.

Employers need to plan actively to cover their risks and the risks to their workers and the public.

"All practicable steps" applies to the general duties that must be carried out by employers, employees, self-employed, people in control of workplaces and "principals", who are people who engage contractors to carry out work for them.

These people are 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 harm that may occur, the degree of risk or the probability of harm occurring, how much is known about the hazard and the ways of eliminating, isolating, or minimising it, and the availability and cost of the available controls.

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

Any judgement about whether a control measure is "reasonably practicable" is to be made taking common practice and knowledge throughout the industry into account.

Section 6 of the HSE Act (extract): "All practicable steps" - "Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to-

(a) Provide and maintain for employees a safe working environment; and

(b) Provide and maintain for employees while they are at work facilities for their safety and health;"

Hierarchy of Management Controls

Sections 7-10 describe a hierarchy of action for managing hazards. Where a significant hazard is identified, the Act sets out the steps an employer must take.

1. When practicable, eliminate the significant hazard (section 8). This may involve removing the hazard or hazardous work practice from the workplace.
2. If elimination is not practicable, isolate the significant hazard (section 9). This may involve isolating or separating the hazard or hazardous work practice from people not involved in the work or the general work areas. It could mean changing work practices or effecting building changes (see pages 23-24).
3. If it is impracticable to eliminate or isolate the hazard, minimise the likelihood that the hazard will harm employees (section 10).

Duties of Persons who Control Places of Work (Section 16)

This section provides guidance on the responsibilities of those who control places of work to transfer information on hazards arising that may have a detrimental effect on those in the vicinity of the place of work. The place of work in the healthcare sector can and does include acute (hospitals) and primary care (delivery of healthcare services to the community).

The overarching principal of section 16 is to ensure that persons in control of a place of work take all practicable steps to ensure that no hazard that is or arises in the place of work harms people in the vicinity of that place. For specific application of section 16 and its subsections refer to the Guide to the Health and Safety in Employment Act 1992 on the Department of Labour website www.dol.govt.nz.

Section 19B Employee Participation

Section 19B of the Health and Safety in Employment Act 1992 states every employer must provide reasonable opportunities for the employer's employees to participate effectively in ongoing processes for improving health and safety in the workplace.

Section 28A Employees may Refuse to Perform Work Likely to Cause Serious Harm

Section 28A of the Health and Safety in Employment Act 1992 says employees have the right to refuse to perform work if they believe it is likely to lead to their suffering serious harm. However, their belief must be on reasonable grounds, and they must have attempted to resolve the matter with their employer before they can continue to refuse.

The right to refuse unsafe work does not apply unless the understood risks of the work have increased materially. Therefore, the right of an ambulance worker or a nurse to refuse is different to that of, say, a carpenter. It is also different to that of a sworn staff-member of the police, fire service or armed forces.

Independent contractors and volunteers have the right to withdraw their labour or services at any time, including when they feel the work environment presents an unsatisfactory level of risk.

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