The Government has proposed a number of amendments to the Health and Safety in Employment Act 1992 ("the Act"). These are amendments that all employers, and particularly those once thought to be outside its scope, need to be aware of.
PolicyThe Department of Labour released "A Discussion Paper on the Review of the Health and Safety in Employment Act (1992)" in December 2000. The discussion paper advanced three key proposals for enhancing the Act. These were:
improving the coverage of the Act - to ensure that all employees and other people in work places are covered by a consistent set of health and safety laws; encouraging a greater sense of partnership between employers and employees - to ensure effective communication on health and safety matters; effective enforcement - to provide greater incentives for compliance.This article will concentrate particularly on some issues raised by the first proposal.
Improving CoverageIn order to extend the Act's coverage, it is proposed to amend the definition of "place of work" to specifically include vehicles. In one District Court case, the existing definition of "place of work" was interpreted as excluding mobile workers. This, the Department of Labour maintains, is contrary to the original intent behind the Act of "comprehensive coverage" of all work situations.
It is also proposed to extend the definition of the terms "harm" and "hazard" to "confirm" that they cover mental harm and hazards arising from physical or mental fatigue.
The Problem – Transport IndustryEmployers’ current obligations to monitor the health and safety of employees at work can be extremely onerous. There is a real question as to whether it is possible for an employer to live up to these expectations in regard to a mobile place of work. This is due to the fact that an employer often has very little control over a vehicle once it is in the driver's hands.
Who Will Be AffectedThose affected will include:
courier firms; taxi companies; removal firms; the road transport industry; any business that uses vehicles in the course of work.Potential IssuesConsider the following examples.
Currently a person who "controls" a place of work must ensure that employees, contractors, sub-contractors, and people in the vicinity are not harmed by any hazard. A person in control of a construction site is responsible if a member of the public is injured by falling masonry from the site. Under the Act you can be said to be in "control" of a place of work if you own, lease, sublease, occupy or are in possession of it.
Consider an employer in the road transport industry. As the place of work is mobile, the employer has in fact very little control over people who come within the "vicinity" of the place of work. What if a truck blows a tyre? Assume there is no obvious defect in the vehicle. The driver has perhaps driven the vehicle recklessly in order to meet a deadline. An accident results. A passing motorist is injured. The employer is potentially liable for failing to ensure that the driver did not harm a person in the vicinity of the place of work. Given the approach of the courts to the Act, it is unlikely that the employer can escape responsibility simply by relying on the employee's fault. The courts have emphasised time and again that employers must put themselves in their employees’ shoes: they must contemplate the most stupid thing employees could do, second guess them and prevent them from doing it.
The more serious the likely harm, the greater the expectations on employers and the potential penalties. Inevitably, in mobile work situations, the potential for harm to be extremely serious is very real indeed. By way of an example, note the following case. Two employees had been doing work in a cherry picker and knew that they were not supposed to get out of it while doing so. One did. The District Court decided that the particular job was so hazardous that specific warnings were required and that one of the employer's senior personnel should have stayed at the site to supervise. The High Court agreed. Essentially there was a "duty to handhold" given the potential for serious harm. This is simply not possible in many vehicle situations, even though the potential for serious harm is very real. The employer can ensure that a vehicle is up to standard, and that drivers are suitably qualified, and not over-worked. But essentially, when the vehicle leaves the depot, the driver is in charge. Beyond requiring a supervisor to travel with every driver, the employer can do nothing more than make employees aware of the required safety standards.
The Problem – Identifying "Stress"In emphasising employer responsibility for stress and mental fatigue, the Government is potentially opening up a massive area of litigation. Stress and mental fatigue are often much more difficult to define (let alone identify) than physical injuries (or physical hazards). Some workers will be extremely susceptible to stress; others will be able to handle much more pressure. There is a real question as to whether employers can possibly eliminate mental harm and hazards when they are such amorphous concepts.
The following is a brief note on the Department of Labour's other key proposals.
Encouraging PartnershipThe Government intends to ask Parliament to change the Act to say that employers must give employees opportunities to participate effectively in workplace health and safety. For example, proposed new clauses 19C, 19D and 19F provide for employees (and any union) to elect an employee health and safety representative. That person’s task will be to consult with inspectors and promote employee interests on the health and safety committees. The concern here is the potential for unions and/or individual employees to abuse the process for employment relations purposes. In practice, therefore, the amendments may do anything but encourage partnerships between employers and employees.
Effective EnforcementA range of new enforcement mechanisms is proposed. One example is that people other than inspectors (for example, a union) will be able to commence a prosecution for an offence under the Act. Note, again, the concern here is that health and safety issues will be used for industrial relations purposes.
Penalties under the Act will also be increased greatly. For example, the penalties for offences that the offender knows are likely to cause serious harm have been increased from a maximum of one year’s imprisonment to two years and the fine from a maximum of $100,000 to $500,000.
© The Lawlink Group Ltd 2002
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters. Any reference to law and legislation is to New Zealand law and legislation.
Cameron Tyson is a solicitor in the commercial team of the Wellington and Lower Hutt Lawlink firm of Gibson Sheat. He practices in the areas of company and competition law as well as intellectual property.
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Gibson SheatEmail: cameron.tyson@gibsonsheat.com