The Health and Safety in Employment Amendment Act 2002

Introduction

Stress in organisations is a growing problem. It takes a toll on individual health and wellbeing, and on an organisation’s profits. New Zealand’s Health and Safety in Employment Amendment Act has raised awareness and discussion about the responsibilities of employers in the prevention of stress-related illness. Employers can be liable for considerable damages, in ways they had never contemplated in the past. The purpose of the new legislation is to extend and consolidate the current law concerning health and safety in the workplace, especially pertaining to stress and fatigue. A regular process must be carried out to identify hazards and eliminate, isolate or minimize them. Employee involvement is strongly encouraged. The employer may be liable for the effects of stress that arises outside the workplace. The coverage of the law is extended, and the penalties for offences, increased.

Changes to the Health & Safety Employment Legislation

• Stress and fatigue are emphasized in a new way, even though they were covered in the previous legislation.
• Stress and fatigue can be viewed as forms of harm (detrimental effects) in themselves, but here, they are also considered as hazards i.e. causes of further harm.
• They can have many causes.
• Employers are required to seek out and deal with the conditions causing stress and fatigue the same way as any other hazard in the workplace. They are required to take 'all practicable steps' to do so.
• Principal ways of hazard identification rely on employee information, since most causes of stress and fatigue are invisible to outsiders.
• Principal remedies and prevention methods will rely on good management practices, which are often policy, scheduling and people-related.

Implications for employers

• Wider coverage of staff including mobile workers, contractors, volunteers working for the benefit of an employer and ‘loaned employees’.
• Liability focuses on the issue of not responding in a timely and effective fashion to notice of a significant hazard. That is: if a notice is ignored, or all practicable steps are not taken to effect a solution.
• Fines are bigger, imprisonment longer.
• Can’t insure against fines, but can insure for costs incurred in defending a suit.
• There must be an Employee Participation System.
• Trained Health and Safety Representatives can issue hazard notices.
• No discrimination against a health and safety representative is allowed.
• Companies must provide safety equipment and clothing.
• The act reiterates the right to refuse work, which the employee believes, would cause harm.
• The Crown can still prosecute. Private prosecutions will now be possible but only once OSH has decided not to take prosecution action.
• Infringement notices will be introduced for clear-cut breaches of the Act or Regulations. They will only be able to be issued by an OSH Inspector.
• Infringement offences will not create a criminal conviction and it is possible to appeal them.
• OSH inspectors have wider powers of entry.

This legislation has important implications for the practice of management. There are many other significant points that may be observed.

• Ignoring stress is now more risky than ever. Stress and fatigue can no longer be considered as just things to be endured.
• Organisational cultural factors, such as the “go hard or go home” mentality, or the “profit at all cost” attitude, can not be allowed to threaten employees’ wellbeing. While appealing to the ego, these attitudes are harmful in the long term.
• Skill levels of managers are more important than ever.
• Talking with employees about the nature of the stress hazards they experience, and ways to eliminate it, is essential.
• Talking with a troubled employee about the likely effects of stress or fatigue, severity and duration of impact on work performance is valid.
• Focus on work performance is the legitimate task of the manager or supervisor.
• Counselling troubled employees about their private lives should be strictly avoided, for fear of compounding liability.
• Access to professional counselling help should be straightforward.

Disclaimer: This information is a summary, for educational purposes only. We recommend that you also consult OSH or seek legal advice.