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employment

Employer obligations to provide a safe workplace

Key Takeaway

In New Zealand, employers, known as PCBUs, have a primary duty under the Health and Safety at Work Act 2015 to ensure, so far as is reasonably practicable, the health and safety of their workers and others affected by their work. This involves providing a safe environment, safe equipment, and necessary training and supervision.

Employer Obligations for a Safe Workplace in New Zealand

In New Zealand, employers have significant legal obligations to ensure a safe workplace. The primary legislation governing workplace health and safety is the Health and Safety at Work Act 2015 (HSWA). This Act places a duty of care on businesses and individuals to manage risks and protect workers and others from harm. Additionally, the Employment Relations Act 2000 sets out general principles of good faith that underpin the employment relationship, including matters related to safety.

The Health and Safety at Work Act 2015

The Health and Safety at Work Act 2015 (HSWA) is the principal legislation for health and safety in New Zealand workplaces. It aims to reduce work-related deaths and injuries by setting clear responsibilities for everyone in the workplace.

Primary Duty of Care for a PCBU

The HSWA places a primary duty of care on a person conducting a business or undertaking (PCBU). A PCBU is a person (or organisation) who is running a business or undertaking, regardless of whether it is for profit or gain [Source: Health and Safety at Work Act 2015, s 17]. This includes employers, self-employed people, and organisations.

The PCBU must ensure, so far as is reasonably practicable, the health and safety of workers and other persons affected by the work carried out by the business or undertaking [Source: Health and Safety at Work Act 2015, s 36(1)].

Reasonably practicable means what a reasonable person in the PCBU's position would do to ensure health and safety, taking into account: the likelihood of a hazard or risk occurring, the degree of harm that might result, what the person knows (or ought to reasonably know) about the hazard or risk and ways of eliminating or minimising it, the availability and suitability of ways to eliminate or minimise the risk, and the cost of eliminating or minimising the risk (weighed against the risk itself) [Source: Health and Safety at Work Act 2015, s 22].

The primary duty of care specifically includes, but is not limited to, the following obligations:

  • Providing and maintaining a work environment that is without risks to health and safety [Source: Health and Safety at Work Act 2015, s 36(2)(a)].
  • Providing and maintaining safe plant and structures [Source: Health and Safety at Work Act 2015, s 36(2)(b)]. Plant refers to machinery, vehicles, equipment, and tools.
  • Providing and maintaining safe systems of work [Source: Health and Safety at Work Act 2015, s 36(2)(c)].
  • Ensuring the safe use, handling, and storage of plant, substances, and structures [Source: Health and Safety at Work Act 2015, s 36(2)(d)].
  • Providing adequate facilities for the welfare of workers at work [Source: Health and Safety at Work Act 2015, s 36(2)(e)].
  • Providing information, training, instruction, or supervision necessary to protect all persons from risks to their health and safety arising from work [Source: Health and Safety at Work Act 2015, s 36(2)(f)].
  • Monitoring the health of workers and the conditions at the workplace to prevent illness or injury [Source: Health and Safety at Work Act 2015, s 36(2)(g)].

Duty to Consult with Workers

PCBUs have a duty to consult with workers (and their health and safety representatives) on health and safety matters. This consultation must be effective and allow workers a reasonable opportunity to contribute to decision-making processes that affect their health and safety [Source: Health and Safety at Work Act 2015, s 49].

Consultation is required when:

  • Identifying hazards and assessing risks [Source: Health and Safety at Work Act 2015, s 50(a)].
  • Making decisions about ways to eliminate or minimise risks [Source: Health and Safety at Work Act 2015, s 50(b)].
  • Making decisions about the adequacy of facilities [Source: Health and Safety at Work Act 2015, s 50(c)].
  • Proposing changes that may affect the health or safety of workers [Source: Health and Safety at Work Act 2015, s 50(e)].

Worker Participation

Workers have the right to be represented on health and safety matters. This can include through Health and Safety Representatives (HSRs) or Health and Safety Committees (HSCs). A PCBU must establish an HSC or allow the election of HSRs if requested by a worker or if required by regulation [Source: Health and Safety at Work Act 2015, Part 3, Subpart 2 & 3].

Workers also have the right to cease unsafe work if they reasonably believe it poses a serious risk to their health or safety [Source: Health and Safety at Work Act 2015, s 84].

Notifiable Events

A notifiable event is a specific type of incident that must be reported to WorkSafe New Zealand. It includes: a death, a serious injury or illness, or a dangerous incident [Source: Health and Safety at Work Act 2015, s 23].

If a notifiable event occurs, the PCBU must:

  • Notify WorkSafe immediately after becoming aware of the event [Source: Health and Safety at Work Act 2015, s 56].
  • Preserve the site where the event occurred until a WorkSafe inspector arrives or directs otherwise, to allow for investigation [Source: Health and Safety at Work Act 2015, s 57].

Worker Obligations under HSWA

Workers also have obligations under the HSWA to contribute to a safe workplace. They must:

  • Take reasonable care for their own health and safety [Source: Health and Safety at Work Act 2015, s 45(a)].
  • Take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons [Source: Health and Safety at Work Act 2015, s 45(b)].
  • Comply with any reasonable instruction given by the PCBU [Source: Health and Safety at Work Act 2015, s 46(a)].
  • Cooperate with any reasonable policy or procedure of the PCBU relating to health or safety [Source: Health and Safety at Work Act 2015, s 46(b)].

The Employment Relations Act 2000

The Employment Relations Act 2000 (ERA) outlines the fundamental principles governing the employment relationship in New Zealand. While the HSWA specifically addresses health and safety, the ERA's overarching principle of good faith also applies to workplace safety matters [Source: Employment Relations Act 2000, s 4].

Good faith requires employers and employees to be active and constructive in their employment relationships. This means being honest, open, and communicative, which naturally extends to discussions and actions related to maintaining a safe work environment and addressing safety concerns [Source: Employment Relations Act 2000, s 4]. A failure to address genuine health and safety concerns in good faith could be considered a breach of this general duty under the ERA.

When to Seek Independent Legal Advice

Navigating employment law, particularly complex health and safety obligations, can be challenging. If a PCBU or worker has specific questions about their duties, rights, or the application of health and safety legislation to their unique situation, it is advisable for them to seek independent legal advice. Information regarding health and safety can also be obtained from WorkSafe New Zealand. For general employment queries, Employment New Zealand is a key resource. For free legal advice, individuals can contact Community Law Centres throughout New Zealand [https://communitylaw.org.nz/].

Key Resources