Health and Safety in Employment Act 1992

A discussion paper on the revision of the definition of serious harm

Published by the Department of Labour
PO Box 3705
Wellington
New Zealand
www.dol.govt.nz
Issued April 2007
ISBN 0-478-28018-1

Contents

• Foreword
• Making submissions
• Summary of questions for consultation
• A: Introduction
• Draft definition
• B: Content of the definition
• C: Issues related to the definition
• D: Guiding documents
• E: Resource and compliance implications
• Appendix 1: Definition of "serious harm" contained in the First Schedule of the Act
• Appendix 2: Stakeholder organisations initially consulted in 2002
• Appendix 3: Input record format for prescribed manner of written notice to Department of Labour of serious harm
• Appendix 4: Draft regulatory impact and business compliance cost statements

Foreword

It is now four years since the Health and Safety in Employment Amendment Act 2002 came into force. In that time, the amendment has been an important plank in the Government's commitment to improving workplace health and safety.

The Act now:

• covers more workplaces;
• requires the self-employed and principals to report injuries and illness;
• encourages employee participation;
• confirms that employers must manage stress and fatigue in the workplace; and
• affirms employees' right to refuse work that may cause them serious harm.

Since the amendment came into force in May 2003, the emphasis for employers, officials and others has been on improving the processes and administrative practices that maintain the law - and make safe and healthy workplaces. As another step towards this, I have decided to review the definition of "serious harm".

The definition is important to the application of the Act, and there is a strong incentive for clarity. Various key duties and rights are triggered by the occurrence of, or potential for, "serious harm" to employees or others in workplaces.

The amendment also extended requirements to report instances of serious harm, and these now apply to an estimated 210,000 self-employed, and to harm done to non-employees in workplaces.

The current definition has not been amended since 1993. It has presented difficulties and uncertainty for employers and others applying the law, and what was intended as a temporary measure has now outlived its utility. So it is timely to review the definition. As well, there is the potential to produce a definition that improves the quality, coverage and consistency of workplace injury and illness statistics.

I therefore strongly encourage employers, individuals, unions and industry groups to consider this discussion document and contribute to the development of the new definition.

Hon. Ruth Dyson
Minister of Labour
April 2007

Making submissions

Email submissions are encouraged as it greatly enhances our analysis process.

To help you make a submission, an electronic document is available on the Department of Labour website:

www.dol.govt.nz

Please email your submission to:

seriousharm@dol.govt.nz

or, alternatively, send it to:

Review of Serious Harm
Workplace Policy Group
Department of Labour
PO Box 3705
Wellington

Submissions close on 15 June 2007.

A document providing an overview of submissions will be posted at the above website with details of how the government intends to proceed with the review.

Please note that any submissions that you make may be the subject of a request under the Official Information Act 1982. To assist the Department of Labour with the processing of any such requests, please indicate at the beginning of your submission whether or not you would like its contents made a matter of public record.

Summary of questions for consultation

1. Should the review focus primarily on the use of the definition to describe notification requirements?

2. Is the avoidance of lists in the definition appropriate and effective?

3. Is there sufficient inclusion of gradual process injuries?

4. Should clause 1 be limited to "bodily function"?

5. Should the phrase "temporary severe loss" be retained, while supplemented with a time-activated definition?

6. Will there be sufficient inclusion of "temporary severe loss of bodily function" for non-employees?

7. Should the definition of "temporary severe loss" be based on absence from the workplace or, alternatively, being unable to carry out normal duties?

8. Is seven days an appropriate period of incapacity, and if not, what is, and why?

9. Has "mental harm" been adequately caught by the draft definition?

10. Should all cases of amputation or surgical removal of body part be included in the definition?

11. Is there sufficient coverage of dangerous incidents or events to highlight "significant hazards" in workplaces?

12. In clause 4, is there a need to include a time limit between the occurrence of the injury itself and the treatment provided?

13. What explanatory material should be made available for employers and others?

14. What information should be included in the prescribed manner of written notice for occurrences of serious harm? (Refer to the proposed fields in appendix 3.)

15. What information should be included in the prescribed form of accident register, and should it contain the same information as the manner of written notice?

16. What are the resource and compliance implications of the new definition, and are these reasonable for your business or organisation?

17. Will the revised definition help employees to exercise the right to refuse work likely to cause serious harm?