Keeping Work Safe
Case Study Two - How we use enforcement to improve workplace practices: an example of our enforcement response
After nearly 20 years of Fergus working as a motor-body repairer for a large business in the city, Fergus and Janet had been working hard to establish Hot Paints Ltd, their panel beating and spray-painting business in a thriving regional centre. With minimal capital and a couple of years’ hard work, they had managed to establish enough work to keep themselves, and employees Angus and Seamus busy.
Although Fergus had extensive experience as a panel beater, his experience as a spray-painter was limited, and he had employed Angus to carry out this part of the business, while Seamus helped both Angus and Fergus. Janet worked in the office.
Hot Paints Ltd were contacted by Dave, a health and safety inspector based in the nearby city. Dave advised that a team of inspectors would be visiting businesses in the town in the following week and suggested a time when he and another inspector could visit and inspect Hot Paints’ premises. He asked Fergus and Janet to have any appropriate information available to review during the visit.
On the day, Dave arrived with another inspector, Marie, who specialised in occupational health and hazardous substance issues. They met with Fergus and Janet in the office and discussed the health and safety issues of the business and the systems in place to manage them. Dave and Marie then inspected the workshop space and reviewed health and safety equipment and work processes with Angus and Seamus.
The inspection highlighted a range of issues, mainly to do with the quality of the air for Fergus and his employees in the workshop. There were some issues with dust in the panel beating area, which could be fixed with a combination of improved cleaning, the use of vacuum dust collection on finishing tools and some changes to personal protective equipment, which Marie was able to advise Fergus on. He was enthusiastic about these solutions and could see not only improvements in health and comfort, but also in the systems of work, because excessive dust was causing problems in all areas of the workshop. To demonstrate his willingness to implement these solutions Fergus telephoned his supplier while the inspectors were present.
The second atmospheric problem was in the spray-painting area where Fergus and Janet had not yet invested in a purpose-built spray-booth and had instead improvised with a curtaining arrangement to create a dust-free environment. This had inadequate ventilation. There was also insufficient personal protective equipment, particularly in connection with isocyanate-based automobile paints, which were used continually.
It was agreed that these hazard controls would be more expensive to fix, and there was a discussion of the extent of the health hazard presented to those painting, and in the wider workshop area. The most appropriate controls were discussed and a plan was developed that would see the worst practices end immediately and improved equipment introduced progressively over a six-month period. The agreement included suspending the use of isocyanate-based products until a purpose built spray booth was installed.
Dave recorded the result of their discussions during the site visit. While at the site he issued an “improvement notice” under section 39 of the HSE Act with respect to the hazard presented by spray painting. When he returned to his office he prepared a letter to Hot Paints Ltd setting out what the Department understood would happen in the workplace. He advised that he and Marie could give further advice on suitable controls if required, or that Fergus and Janet could contact their industry association.
The letter also formed a “written warning” in relation to the dust hazard. The letter set out that failure to control either of these hazards could result in further enforcement action.
Dave had advised Fergus and Janet there was likely to be a subsequent workplace visit and inspection, and that this may not necessarily involve notice.
Hot Paints Ltd subsequently installed the required equipment and were able to invite Dave and Marie along to see it within the six-month period.
Hot Paints Ltd report that the steps taken have improved the quality and quantity of their work, and added value to their business by improving the health and outlook of all members of the company. Fergus describes the purchase of the spray-booth as a watershed for the business, as it moved from a stage of “just getting by” to “being ahead of the game” with respect to their own and their employees’ wellbeing.
The following provides specific guidance relating to enforcement.
Working with health and safety representatives
We believe employee participation in health and safety is an effective means of driving compliance with the HSE Act and making places of work safer and healthier.
Accordingly, we will make it a priority for our inspections to ensure employers have given their employees reasonable opportunities to participate in their workplace's health and safety or have employee participation systems in place. Where we encounter an unwilling party, we will use an appropriate enforcement option to enforce compliance such as an improvement notice. If necessary, we will obtain a compliance order from the Employment Relations Authority.
Our inspectors will also work closely with trained health and safety representatives in places of work. This includes obtaining information on the management of health and safety in places of work.
Trained health and safety representatives may issue hazard notices to employers where the representative has reasonable grounds for believing the employer is not properly managing identified hazards in the workplace.
Non-compliance where incident has not yet occurred
We will take appropriate enforcement action against all identified non-compliance with the HSE Act, regardless of whether the non-compliance has resulted in an incident or in injury. Our objective is to prevent non-compliance from creating harm and to ensure duty-holders do not gain an unfair competitive advantage by not complying with the law.
Lack of systems for managing health and safety
We regard the lack of systems for identifying and/or not regularly reassessing hazards in places of work as being serious non-compliance with the health and safety legislation. Therefore we may take a more severe enforcement response in cases where failures arise due to a lack of systems. We may also take enforcement action against duty-holders who fail to have or fail to properly maintain systems for managing health and safety - regardless of whether or not an incident has yet to occur because of a lack of effective systems. This seriousness is reflected in the legislation where the minimum infringement fine for these particular provisions of the legislation is higher than other offences and the maximum infringement fee is applicable only to these specific areas of non-compliance with the HSE Act.
Training and supervision
Given the importance of training and supervision as an effective way of promoting workplace health and safety, we will treat non-compliance with the HSE Act involving a lack of training or supervision as being very serious and are likely to prosecute employers or other relevant duty-holders (e.g. directors or agents).
Obstruction of health and safety inspectors
Our inspectors must be able to conduct their activities without obstruction. Accordingly, we may prosecute anyone who displays obstructive behaviour - this includes abusing, threatening or deliberately deceiving our staff. Depending on the seriousness of the incident, we may refer cases to the New Zealand Police for prosecution.
Choice of defendant
In most cases, there is likely to be a number of duty-holders involved in non-compliance who might potentially be the focus of our enforcement response (e.g. who might be defendants or recipients of notices). We use our judgement about the most appropriate duty-holder or duty-holders to focus our enforcement response on, based on the most effective way of motivating sustained compliance. In the case of corporate duty-holders, we will assess which persons' actions or omissions are to be attributed to the body corporate for the purposes of meeting the duty.
Charges against employees
Employees (which includes managers and supervisors) are not immune from prosecution under the health and safety legislation. As duty-holders, employees must comply with the HSE Act. For example, we may prosecute an employee where it is clear the employee:
- disobeyed clear instructions; or
- acted recklessly; or
- was grossly negligent; or
- was involved in sky-larking behaviour; or
- wilfully ignored obvious hazards.
We will not prosecute employees where it is clear the employer did not provide the employee with the opportunity and resources to perform at the required safe level.
Charges against volunteers
Certain types of volunteers are deemed to be employees for the purposes of the HSE Act. If we prosecute volunteers, it will be done in a way that is consistent with the way we might approach employee prosecutions.
Charges against Officers, Directors and Agents
We may prosecute any officer, director or agent of a company, society or other body corporate (including Crown organisations) where it is clear the person(s) directed, authorised, assented to, acquiesced in or participated in the failure primarily where the person(s) in question had clear knowledge that the situation in question was unsafe or otherwise contrary to the health and safety legislation.
Charges against others
We may also prosecute a range of others such as employers, principals to contracts, self-employed workers, people in control of a place of work and people who sell or supply plant to a place of work.
A significant proportion of the New Zealand workforce is made up of people from non-English speaking backgrounds. As such, levels of English may vary widely and other cultural issues may need to be considered as part of the enforcement process. We will endeavour to recognise and respond to the differing needs of people from Māori, Pacific peoples, other ethnic groups and new migrants.
Where the police are investigating a crime
The New Zealand Police is usually advised first of fatal or other workplace incidents in breach of the criminal law. We investigate such incidents and liaise with the NZ Police on cases where there is (or is likely to be) a separate criminal investigation. In general, we will suspend enforcement action only where the NZ Police have laid a criminal charge. We will consider whether to re-open the investigation and/or enforcement action following the hearing of the criminal charges.