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employment

Reporting near-misses and workplace injuries

Key Takeaway

In New Zealand, employers (Persons Conducting a Business or Undertaking - PCBUs) have a legal obligation under the Health and Safety at Work Act 2015 to notify WorkSafe of serious workplace injuries, illnesses, or deaths (notifiable events) and serious near-misses (notifiable incidents). Workers also have duties to report hazards and incidents, and rights to a safe workplace without discrimination. The Employment Relations Act 2000's good faith provisions also underpin how workplace safety matters are handled.

Reporting Workplace Near-Misses and Injuries in New Zealand

New Zealand law places significant emphasis on workplace health and safety. Reporting near-misses and workplace injuries is a critical component of preventing future harm and ensuring a safe working environment. This involves specific obligations for employers and workers, primarily under the Health and Safety at Work Act 2015 (HSWA).

Key Legislation

The primary legislation governing the reporting of workplace incidents, including injuries and near-misses, is the Health and Safety at Work Act 2015 (HSWA). This Act sets out the duties of persons conducting a business or undertaking (PCBUs) and workers regarding health and safety. The Health and Safety at Work (Incident Notification) Regulations 2016 provide further detail on the notification process.

The Employment Relations Act 2000 (ERA) also applies generally to employment relationships, particularly concerning good faith, which can influence how health and safety matters are addressed within an employment context. The Accident Compensation Act 2001 (ACA) establishes the framework for injury compensation, which is separate from, but often follows, workplace incidents.

What Constitutes a Notifiable Event or Incident?

The HSWA defines specific types of events that require notification to WorkSafe New Zealand, the national health and safety regulator.

Notifiable Event

A "notifiable event" is defined as the death of a person, or a person suffering a serious injury or serious illness, arising out of the conduct of a business or undertaking [Source: Health and Safety at Work Act 2015, s 23].

A "serious injury or illness" includes:

  • An injury or illness requiring the person to be admitted to a hospital as an inpatient.
  • An injury or illness requiring immediate treatment for specific severe conditions (e.g., amputation, serious head injury, serious burn, spinal injury, loss of bodily function).
  • Any infection or illness that is attributable to work, including infectious diseases, illnesses caused by exposure to hazardous substances, or sexually transmissible infections from working with human blood or body fluids [Source: Health and Safety at Work Act 2015, s 24].

Notifiable Incident (Near-Miss)

A "notifiable incident" is an unplanned or uncontrolled incident in relation to a workplace that exposes a worker or any other person to a serious risk to their health or safety arising from an immediate or imminent hazard [Source: Health and Safety at Work Act 2015, s 25]. This definition covers what are commonly referred to as "near-misses" – situations where serious harm could have occurred but, by chance, did not.

Obligations of Persons Conducting a Business or Undertaking (PCBUs)

A Person Conducting a Business or Undertaking (PCBU) is a broad term that includes employers, self-employed persons, and organisations that run a business or undertaking. PCBUs have primary responsibility for health and safety in the workplace [Source: Health and Safety at Work Act 2015, s 17]. Their key obligations include:

  • Primary Duty of Care: PCBUs must ensure, so far as is reasonably practicable, the health and safety of workers and other persons affected by the work of the business or undertaking [Source: Health and Safety at Work Act 2015, s 36]. This includes providing a safe work environment.
  • Duty to Notify WorkSafe: If a notifiable event or notifiable incident occurs, the PCBU must notify WorkSafe New Zealand immediately after becoming aware of it. Notification must be given by the fastest possible means (e.g., telephone) and followed by a written notice within 48 hours if required by WorkSafe [Source: Health and Safety at Work Act 2015, s 23, s 25; Health and Safety at Work (Incident Notification) Regulations 2016].
  • Preserve Site: For a notifiable event, the PCBU must ensure the site where the event occurred is not disturbed until authorised by an inspector, or to protect life, prevent further injury, or rescue a person [Source: Health and Safety at Work Act 2015, s 53].
  • Keep Records: PCBUs must keep records of notifiable events for at least 5 years [Source: Health and Safety at Work Act 2015, s 56].
  • Consultation with Workers: PCBUs must, so far as is reasonably practicable, consult with workers who are, or are likely to be, directly affected by a health and safety matter, including incident reporting procedures and outcomes [Source: Health and Safety at Work Act 2015, s 49]. This includes establishing processes for workers to report incidents.

Rights and Obligations of Workers

A worker is an individual who carries out work in any capacity for a PCBU, including employees, contractors, apprentices, and volunteers [Source: Health and Safety at Work Act 2015, s 19]. Workers also have important roles and responsibilities in maintaining a safe workplace:

  • Obligation to Take Reasonable Care: Workers must take reasonable care for their own health and safety and for the health and safety of others who may be affected by their acts or omissions. They must also comply with any reasonable instruction given by the PCBU and cooperate with any reasonable health and safety policy or procedure of the PCBU [Source: Health and Safety at Work Act 2015, s 45]. This includes reporting hazards and incidents.
  • Right to a Safe Workplace: Workers have a right to a safe and healthy workplace, as PCBUs have a primary duty to provide one [Source: Health and Safety at Work Act 2015, s 36].
  • Right to Raise Concerns and Refuse Unsafe Work: Workers have the right to raise health and safety concerns with their PCBU, a health and safety representative, or WorkSafe. They also have the right to cease or refuse to carry out work if they believe it poses a serious risk to their health or safety, provided they notify the PCBU immediately [Source: Health and Safety at Work Act 2015, s 84].
  • Protection from Discrimination: PCBUs must not treat a worker adversely (e.g., dismiss, disadvantage) for exercising a right or complying with a duty under the HSWA, such as raising a health and safety concern or reporting an incident [Source: Health and Safety at Work Act 2015, s 83].

The Role of Good Faith

The Employment Relations Act 2000 places an obligation of good faith on all parties to an employment relationship [Source: Employment Relations Act 2000, s 4A]. Good faith requires parties to be active and constructive in their employment relationships, to be responsive and communicative, and not to do anything to mislead or deceive each other [Source: Employment Relations Act 2000, s 4]. While the specific legal duty to report incidents stems from the HSWA, the overarching good faith obligation encourages open communication and cooperation between PCBUs and workers regarding health and safety matters, including the reporting and investigation of near-misses and injuries.

Accident Compensation Claims

If a workplace injury or illness results in treatment from a health professional or time off work, it may lead to an Accident Compensation Corporation (ACC) claim. ACC is New Zealand's no-fault personal injury scheme, providing financial and treatment support for injuries, regardless of who caused them [Source: Accident Compensation Act 2001]. While the process of making an ACC claim is separate from notifying WorkSafe, a workplace incident requiring WorkSafe notification will often also result in an ACC claim.

When to Seek Independent Legal Advice

For specific interpretations of health and safety obligations, worker rights, or employment relations issues concerning workplace incidents, it is recommended that individuals or PCBUs consult with a legal professional or relevant official body. Guidance can be sought from WorkSafe New Zealand for health and safety matters, Employment New Zealand for employment rights and obligations, or from organisations like Community Law Centres for free legal advice.

Key Resources