Keeping Work Safe
Foreword
I am proud to be part of a government that supports business growth and expanded job opportunities for New Zealanders. This growth ought not to come at the expense of human life or serious harm. It is important our regulatory activities and policies for growth support productivity as well as protect people from harm.
A previous National government replaced a raft of complex, prescriptive and inefficient workplace laws with a single, results-oriented law-the Health and Safety in Employment Act 1992. The strength of this legislation is that it gives New Zealand businesses a high degree of freedom to work out for themselves how best to manage their workplace health and safety. However, along with this flexibility comes a potential for uncertainty about how businesses might actually develop, implement and maintain good health and safety systems.
Over recent years, business representatives signalled their concerns that uncertainty about complying with the law might actually compromise health and safety. I am pleased the Department of Labour is responding to this message and is now working to improve business access to high-quality health and safety information and guidance.
Businesses have also signalled uncertainty about how the Department of Labour enforces the Health and Safety in Employment Act. This enforcement uncertainty means some businesses wanting to understand or comply with the legislation may be reluctant to ask the Department for help or guidance.
To address this specific uncertainty, the Department has worked closely with business and employee representatives to develop this statement about how it enforces the Health and Safety in Employment Act.
By being more open and transparent about its approach to enforcement, I anticipate businesses wanting to comply with the law will be more open to seeking the Department's help before someone is harmed.
This policy also makes it clear to those few businesses willing to risk health and safety for a short-term gain, what the likely enforcement actions will be.
There is a more work to be done to improve business access to support and guidance, but this statement represents a positive first step on that journey.
I hope the good-will and collaboration shown during the development of this document continues between business, employee representatives and the Department to help grow New Zealand businesses and expand job opportunities, whilst ensuring people are kept safe from workplace harms.
Hon Kate Wilkinson, Minister of Labour
Introduction
I am pleased to provide these introductory comments on behalf of the Department of Labour. This policy statement is for anyone who may have an interest in how the Health and Safety in Employment Act 1992 is enforced in New Zealand workplaces.
The Department of Labour has developed this policy statement in response to consultation through the Government's 2006-07 Quality Regulation Review. The review asked businesses about how they saw regulation affecting their business. Its findings highlighted concerns and uncertainty about the sorts of responses they could expect from health and safety inspectors if there was an inspection, workplace injury, complaint or other health and safety-related incident in their places of work. The review also told us that businesses and workers value consistency and transparency highly when it comes to all aspects of enforcement and that a lack of information about enforcement creates uncertainty and makes it harder to both anticipate and respond to interactions with the Department. This policy statement is intended to fill that gap.
New Zealand's workplaces are many and varied, and this policy statement does not attempt to describe every enforcement situation or response by the Department of Labour. Instead, it sets out key principles and processes for enforcing the Act and describes what "duty-holders" (i.e. those people with duties under the Health and Safety in Employment Act 1992 - which includes employers, workers, suppliers and a range of other people involved in workplaces) can expect in response to a range of situations. The principles described within this policy statement apply to all health and safety related engagements, including those concerning the management of hazardous substances in a place of work. Detailed explanation regarding the application of specific enforcement tools prescribed by the Hazardous Substances and New Organisms Act 1996 is to be provided in a separate policy statement.
This policy statement results from a review of our policies and procedures - not only in enforcement, but in the ways that the Department works with businesses, workers and others to improve workplace health and safety. We will be consulting on further policies and procedures as the review continues. The next scheduled review date for this policy statement is 31 December 2010.
The object of the Health and Safety in Employment Act is not to achieve enforcement or prosecutions, but to promote excellent health and safety management in New Zealand places of work. Being clearer about how we undertake our enforcement role is crucial in creating an atmosphere of understanding, trust and collaboration. This policy statement is one of the ways we are meeting the changing needs of New Zealand's workplaces now and into the future.
Craig Armitage
Deputy Secretary, Workplace
The purpose of this statement
This policy statement outlines how and why the Department of Labour responds to non-compliance with the duties and other requirements set out in the Health and Safety in Employment Act 1992 ("the HSE Act").
It is important for people and corporate entities with "duties" under the HSE Act to understand how and why we choose to respond to non-compliance. It is also important to outline our overall approach to enforcement in order to guide the development of more detailed internal operating systems and procedures.
This policy statement is supported by a range of internal operational procedures and complements our broader range of information and support services to duty-holders.
A glossary of technical terms is provided at the back of this policy.
The Department of Labour's enforcement objective
The HSE Act promotes the prevention of harm to all persons at work and other persons in, or in the vicinity of, a place of work.
It also sets out the following means of achieving this objective:
- promoting excellence in health and safety management systems;
- defining hazards and harm in a comprehensive way so that all hazards and harm are covered, including harm caused by work-related stress and hazardous behaviour caused by certain temporary conditions;
- imposing duties to ensure people are not harmed as a result of work activities;
- setting requirements that relate to the taking of all practicable steps to ensure health and safety in places of work;
- encouraging employee participation in the improvement of health and safety and encouraging good faith co-operation in places of work; and
- providing a range of enforcement methods in response to failure to comply with the Act.
Effective enforcement of workplace health and safety reduces work-related injury and disease and fosters the growth of high-quality, productive places of work. It is also an important contributor to the government's Workplace Health and Safety Strategy for New Zealand to 2015 and the New Zealand Injury Prevention Strategy.
According to figures released by the National Occupational Health and Safety Advisory Committee, each year, up to 1000 people die prematurely as a result of a work-related disease and nearly 100 people die as a result of a work-related injury. There are also tens of thousands of new cases of occupational disease every year, thousands of which are severe. The annual financial and social cost to New Zealand of work-related injury and disease has been estimated at over $20 billion with employers bearing a significant proportion of the financial cost [1].
Our main enforcement objective is to ensure workplace health and safety is managed effectively and those who fail to take all practicable steps to ensure health and safety are held to account appropriately. We do this to motivate sustained compliance with the HSE Act and, ultimately, to improve New Zealanders' working lives and New Zealand's economic and social well-being.
The Department of Labour's enforcement role
New Zealand's health and safety regulatory environment is performance-based. This means that duty-holders must take all practicable steps to protect people from harm in places of work. However, the Department of Labour plays a leadership role in promoting, influencing, motivating, educating and informing those involved in workplace health and safety. Effective enforcement contributes directly to this leadership role.
Our enforcement role begins when we have reasonable grounds to believe non-compliance with the HSE Act may have occurred or may be occurring, and where informal discussions have failed to resolve the non-compliance or are inappropriate because of the gravity of the situation (e.g. where serious harm has happened or is likely to happen). Where non-compliance requires an enforcement response, we will make choices about the most appropriate way to respond.
We have a number of enforcement tools for responding to non-compliance. These range in severity from written warnings through to the imposition of penalties and prosecution. Department of Labour inspectors have significant powers to enter places of work, require certain information, take samples from the workplace and prohibit any activity or thing likely to cause harm until such time as we are satisfied the hazard has been eliminated or minimised.
Our response to non-compliance is shaped by this policy statement and other policies and procedures, as well as being informed by our inspectors' judgement about the best way of obtaining compliance and improving health and safety performance. That judgement will be based on the particular circumstances of the case and by how the duty-holders respond. Our response may be aimed at influencing the duty-holders within a workplace environment or organisation to become compliant with the law and to make their place of work less hazardous. We will also use enforcement to make an example of a non-compliant behaviour in order to influence others.
In some cases, a matter being investigated may fall within the jurisdiction of other government agencies such as the New Zealand Police, Civil Aviation Authority and Maritime New Zealand [2]. In such cases, the Department liaises with the relevant agencies to determine which agency is the most appropriate to conduct the investigation. However, there will be cases where a number of agencies conduct an investigation concurrently according to their legislative responsibilities. In many such situations, the Department has agreements in place with the relevant agencies that help clarify the role of each agency.
The Department of Labour's enforcement principles
Department of Labour staff perform their enforcement role with professionalism, integrity and impartiality. Our inspectors are guided by a code of conduct and are fully trained and resourced to do their job thoroughly to the highest standard.
The approach is to be firm but fair and to motivate sustained compliance with the HSE Act. When considering an enforcement response, we make judgements and choices about which enforcement option to use, who the focus of enforcement might be, and the intensity of the enforcement response.
In making judgements and choices about enforcement options, we are guided by a framework of policies, procedures and the following principles:
Consistency
Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends. We will respond consistently when dealing with similar cases - but our approach will also reflect the specific circumstances of each case.
A proportionate focus on potential for harm
The HSE Act's primary objective is the prevention of harm in the workplace. Our enforcement response will be proportionate to the seriousness and extent of any harm, but especially the potential for harm in a given situation. This means our enforcement response may be more severe in situations involving the potential for fatalities or very serious harm. Similarly, we are likely to be tougher in cases where non-compliance potentially harms several people compared to a similar case where only one person is potentially affected.
Public accountability
In certain cases the public's expectation of accountability through formal processes is heightened. Where death or serious injury results from contravention of the HSE Act, prosecution action is highly likely.
Fairness
Our enforcement responses will be fair, impartial and undertaken with the highest integrity. In practice, this means we will ensure any person directly affected by our decision-making will have an adequate opportunity for representations to be made and considered before we make a final decision. We will also ensure our decision-making is reasonable (given the case's circumstances), unbiased, conforms to the principles of natural justice and is consistent with any previous representation(s) or in accordance with the way in which other, similar cases have been handled.
Prioritisation
We may target our enforcement activities to focus attention on particular hazards or other risks associated with types of work, work practices or employers causing health and safety concerns.
Open and accountable
We will ensure our expectations of duty-holders are made clear. We will also assist duty-holders to understand our approach to enforcement and provide an opportunity at every stage to ask questions and to seek review.
We will periodically review and audit enforcement decisions to ensure they are consistent with this guide and any other relevant policies and procedures.
We will maintain internal systems designed to learn from our enforcement activities.
Enforcement activity can generate considerable public interest and this may result in people and organisations outside of the Department requesting details of inspections, investigations and prosecutions. We will manage any such requests in accordance with the Official Information Act 1982 and, where relevant, the Privacy Act 1993.
The Department of Labour's approach to enforcement decision-making
The Department has a number of options and tools for ensuring compliance with the HSE Act. However, given our enforcement role is primarily aimed at promoting excellent health and safety practices in the workplace, we will generally use the minimum enforcement necessary to obtain compliance with the HSE Act.
Our initial response to non-compliance might not involve the use of one of our statutory enforcement tools. For example, if non-compliance is of a minor nature and it does not immediately endanger any person, we might agree with the relevant duty-holder on ways for them to become compliant without having to use an enforcement tool.
If non-compliance is of a serious nature, or it represents a likelihood of serious harm to any person, we are more likely to use an infringement notice or prosecution.
Aside from the seriousness of the non-compliance, we will generally be supportive of duty-holders who demonstrate a genuine willingness to comply with the HSE Act. In some circumstances, for example, it may be appropriate for a duty-holder and inspector to negotiate an agreement on specific remedial actions and timeframes required to bring about compliance with the HSE Act. However, where we believe a duty-holder is disingenuous, obstructive or has a previous record of similar non-compliance, we are likely to move quickly to stronger enforcement options.
[1] Driscoll T, Mannetje A, Dryson E, Feyer A-M, Gander P, McCracken S, Pearce N, Wagstaffe M. The burden of occupational disease and injury in New Zealand: Technical Report, NOHSAC: Wellington, 2004
[2] Both the Civil Aviation Authority and Maritime New Zealand are designated agencies under Section 28B of the Health and Safety in Employment Act 1992. This means these agencies have been designated to take responsibility respectively for administering the Health and Safety in Employment Act 1992 for aircraft in operation and ships. Police Officers working in the Commercial Vehicle Investigation Unit are appointed as HSE Inspectors by the Secretary of Labour.
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