In December 2002 the Health and Safety in Employment Act 1992 (“Act”) was amended, bringing in tough new provisions for workplace safety. Those provision came into effect on 5 May 2003.
The effects of the Act are far reaching and employers (and others) will need to ensure compliance. The key changes are set out below.
The Act requires increased employee participation health and safety process. If You employ more than 30 employees, or where one of your employees has requested it, you must develop an employee participation scheme.
There is now an entitlement to paid leave for representatives to undergo health and safety training. Suitably trained representatives can also now issue hazard notices.
Employers are liable for their employees. The definition of employees now includes volunteers undertaking work on a regular and ongoing basis (where the work performed is an integral part of the person’s business), along with people receiving on-the-job training or work experience.
Employees “on loan” are also the responsibility of the person for whom the work is being performed.
Don’t think the Act only applies to employers The owner of a building must now take all practicable steps to ensure that no hazard is, or arises in the workplace of the building he or she owns.
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One of the most far-reaching changes may be the inclusion of physical or mental harm caused by work related stress. Employers need to look closely at the work environment for their employees. Employee fatigue can also be treated as a hazard.
An employer can no longer insure against liability under the Act. If you already have insurance cover in place, the policy has no effect. Indemnifying another party for their liability under the Act is also prohibited.
If you have insured against liability, have a close look at your policy. You may want to seek a refund.
Penalties under the Act have been significantly increased, with maximum penalties of imprisonment of up to two years and/or a fine of up to %500,000, where a person has taken action which was reasonably likely to cause serious arm to a person (up from one year or a fine of not more than $100,000).
In other situations a person can be liable for a fine not exceeding $2500,000 and it is not necessary to prove that the person intended to take action alleged to constitute the offense.
Furthermore, inspectors can issue infringement notices (effectively an instant fine) of up to $4,000, where a person or a company fails, despite prior correspondence or notices, to take steps to remove a hazard.
The key changes of which you deed to be aware are:
- Increased Employee Participation (reflecting the good faith requirements in the Employment Relation Act).
- Land owners are affected.
- Employee work-related stress is an employer’s responsibility.
- Employers cannot insure against OSH claims.
- Higher penalties for breach of the Act.
Ensure any potential hazards in the workplace (defined as anywhere the work is performed) are identified and dealt with, and that you are aware of your obligations as an employer or employee. Don’t leave it until you are on the receiving end of enforcement action.
DISCLAIMER: All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.