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Occupational Health and Safety in New Zealand: NOHSAC: Technical Report 7

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3.3   Legislative framework

Section 3.3 describes New Zealand’s legislative framework and discusses a range of issues raised by stakeholders in relation to the framework. It does not review New Zealand’s current framework in comparison to international best practice in health and safety legislation.

New Zealand’s legislative framework contains three key pieces of legislation that provide for different components of the occupational health and safety framework:

Regulations, approved codes of practice (ACOP), industry codes of practice, best practice guidelines, industry publications, and manufacturers’ information sit under the statutes and provide for a range of operational details. This structure is outlined in Diagram 1 (see page 24).

In addition to the three main statutes, a further five pieces of primary legislation also impact on occupational health and safety. There are also a small number of sets of regulations that remain in force, although older parent Acts have been revoked. These are discussed in section 3.3.4 of this report.

Diagram 1

3.3.1   The Health and Safety in Employment Act 1992

The HSE Act is the principal Act aimed at preventing injuries, illnesses and accidents in the workplace. It provides a three-tiered framework: statute, regulations and ACOP. Further detail is provided through industry codes, guidelines and other best practice material.

The Department of Labour administers the HSE Act in all workplaces, except on ships and on operating aircraft. On ships, the HSE Act is administered by Maritime New Zealand. On operating aircraft, the Act is administered by the Civil Aviation Authority (CAA). Further information on the administration and enforcement of the Act is discussed in section 3.5 of this report.

3.3.1.1   The Health and Safety in Employment Act 1992

The HSE Act’s objective is to promote the prevention of harm to all persons at work and other persons in, or in the vicinity of, a place of work. The scope of the Act is broad and encompasses elements of public safety by stating that people should not be adversely affected by workplace activities.

The Act establishes a performance-based framework to promote excellence in health and safety management. In particular, it requires that all harms and workplace hazards are identified and managed appropriately and that all practicable steps are taken to ensure health and safety in the workplace. The Act requires employee participation in this process and encourages good faith co-operation in workplaces.

The Act imposes a range of duties on employers, persons who control places of work, persons who sell or supply plant for use in workplaces, self-employed people, principals to contracts, employees, people receiving on-the-job training and volunteers. Frequently a person will have duties under more than one section of the Act (eg, a person may have duties as an employer, as someone who controls the workplace, and/or as a principal to a contract). The same duty may apply to more than one person at a time. This means that more than one person may be held liable for the same breach of the Act.

The HSE Act implements a performance-based regime, but a range of normative standard-setting processes are also provided to assist in compliance with its provisions (eg, provisions for ACOP and standards).

The HSE Act also provides for accident investigations, powers of Department of Labour staff or other enforcement staff, and a range of enforcement measures such as notices, fines and imprisonment. In terms of implementing the HSE Act, provision is made for the Prime Minister to designate specific functions or roles to other agencies if specialist knowledge is required, with these agencies being responsible to the Minister (such as designation of enforcement activities to the CAA and Maritime New Zealand).

3.3.1.2   Regulations made under the HSE Act

Section 21 of the HSE Act enables regulations to be made to outline duties of specific persons in specific circumstances, set minimum standards for the management of hazards where alternative control measures are not always effective, and provide for administrative matters covered in the Act or for additional detail on general duties in the Act.

There are four main groups of regulations made under the HSE Act:

The HSE Regulations 1995 apply to all workplaces. They:

3.3.1.3   Approved codes of practice: the HSE Act

Section 20 of the Act enables the Minister of Labour to direct the Department of Labour to prepare, and submit for the Minister’s approval, a statement of preferred practices, aims, arrangements, principles, characteristics, components, configurations, elements or states relating to work, plant, protective clothing or protective equipment, substances or practices relating to a particular health and safety issue. Such statements are approved by the Minister and become ACOP.

Compliance with an HSE ACOP is not mandatory but it can be used as evidence of good practice. However, complying with an ACOP may not be sufficient to meet a duty holder’s requirement to take all practicable steps (depending on the circumstances).

Process used to develop and maintain an HSE ACOP

Section 20 of the HSE Act outlines the process that the Department of Labour must follow when developing or updating an ACOP. The Act requires that:

The Department does not appear to have a standardised process for identifying ACOP topics under the HSE Act, nor for reviewing and updating existing ACOP. Discussions with stakeholders perceive this as being due to internal resourcing issues at the Department.

Current HSE ACOP

There are currently 30 HSE ACOP. Table 5 identifies the range of HSE ACOP by industry and identifies whether a code has been reviewed. In summary, five HSE ACOP have been reviewed recently including two ACOP that have been reviewed multiple times, 11 HSE ACOP are currently undergoing review or have been scheduled for review, and 14 HSE ACOP have never been reviewed. It is unclear whether this indicates that the ACOP is considered to currently contain relevant best practice information and has been judged as not requiring review or whether review has not been contemplated.

Table 5 Current HSE ACOP
TITLE DATE OF PUBLICATION SCHEDULED REVIEW DATE
Forestry
ACOP for safety and health in tree work – Part 1 (Arboriculture) 1994 Under review
ACOP for safety and health in tree work – Part 2
(Maintenance of trees around power lines)
1996 Under review
ACOP for safety and health in tree work – Part 3 (River and stream operations) 1998 Not stated
ACOP for forest operations – Part 5 (Timber stacking, packeting
and transportation)
1994 Under review
ACOP for safety and health in forest operations 1999 Reviewed: 2005 Not stated
ACOP for helicopter logging 2001 Not stated
Industrial processes
ACOP for safety in photoengraving and lithographic processes 1993 Not stated
ACOP for the prevention, detection and control of fire and explosion
in New Zealand dairy industry spray drying plant
1993 Not stated
Machinery
ACOP for the design, safe operation, maintenance and servicing of boilers 1996 Reviewed: 2000
2004
2005
ACOP for roll over protective structures on tractors in agricultural operations 2001 Reviewed: 2004 Under review
ACOP for the design, manufacture, supply, safe operation, maintenance
and inspection of cranes
2001 Under review
ACOP for training operators and instructors of powered industrial forklifts 1995 Under review
ACOP for passenger ropeways in New Zealand 1998 Reviewed: 2003 Not stated
ACOP for pressure equipment (excluding boilers) 2001 Not stated
ACOP for load-lifting rigging 2001 Not stated
ACOP for power-operated elevating work platforms 1995 2005
Construction and building maintenance
ACOP for demolition 1994 May be 2006
ACOP for excavation and shafts for foundations 1994 Not stated
ACOP for managing hazards to prevent major industrial accidents 1994 Not stated
ACOP for operator protective structures on self-propelled mobile
mechanical plant
1999 Under review
ACOP for power-actuated hand-held fastening tools 1995 Under review
(revocation)
ACOP for the safe erection and use of scaffolding 1995 Under review
(revocation)
ACOP for the safe handling, transportation and erection of pre-cast concrete 2002 Not stated
Mining
ACOP for the prevention of sulphur fires and explosions 1993 Not stated
Chemicals
ACOP for the management of substances hazardous to health in the
place of work
1997 Under review
ACOP for the safe use of timber preservatives and anti-sapstain chemicals 1994 Not stated
ACOP for safety and health in the manufacture of paint, printing inks
and resins
1993 Not stated
ACOP for the safe use of isocyanates 1994 Not stated
General
ACOP for the safe use of visual display units in the place of work 1995 Under review
ACOP for the management of noise in the workplace 1996 Reviewed: 2002 Not stated

Source: This information was sourced from an internal Department of Labour paper.

3.3.2   The Hazardous Substances and New Organisms Act 1996

Many workplaces manufacture, transport, use and dispose of hazardous substances. The HSNO Act is a critical part of New Zealand’s framework to ensure that people in workplaces are not harmed by exposure to any such substances. The legislative framework set out by the HSNO Act is similar to that provided for by the HSE Act, in that there is a principal Act (the HSNO Act), a suite of regulations made under the principal Act, and ACOP and approved guidelines.

The Ministry for the Environment administers the HSNO Act, although the Act charges the Environmental Risk Management Authority with many functions. Responsibility for enforcing the HSNO Act falls to the following agencies:

The operationalisation of the HSNO enforcement function is discussed in section 3.5.

3.3.2.1   The HSNO Act

The HSNO Act aims to prevent, mitigate or otherwise manage the adverse effects that hazardous substances and new organisms pose to the health and safety of people, by managing the substance throughout its life cycle. The Act provides a framework to assess and approve hazardous substances and new organisms. It sets out controls on hazardous substances and new organisms and requires applications to be made for their introduction and management. The Authority (through its operational arm, ERMA New Zealand) may either decline or set controls on the import, manufacture and use of hazardous substances and new organisms. The Act also provides for the appointment of warranted enforcement officers.

The HSNO Act reformed the way that hazardous substances are dealt with in New Zealand. As part of the consolidation process, all existing hazardous substances are in the process of being transferred from the multiple-legislation regime to the “One Act, One Authority” regime set out in the HSNO Act. This process is ongoing at the time of the publication of this report.

3.3.2.2   Regulations

Section 140 of the HSNO Act provides for regulations to be made to support the implementation of the Act. The most relevant regulations are general sets of regulations that outline the skills and knowledge required to hold office under the HSNO Act, and regulations that classify hazardous substances and set out control mechanisms that must be applied when dealing with these. Other sets of regulations relate to the information requirements that must be used (ie, labelling, packaging, signage, advertising, documentation and tracking requirements).

3.3.2.3   Approved codes of practice: the HSNO Act

Section 78 of the HSNO Act enables ERMA New Zealand to issue, amend, approve or revoke an ACOP on the control of a hazardous substance. This section also gives ERMA New Zealand the ability to approve codes of practice developed by other people if it considers these to be acceptable (eg, ACOP developed under the HSE Act can be recognised under the HSNO Act). Section 79 sets out the consultation and notification process that must be undertaken as part of the approval process. Like the HSE ACOP, HSNO ACOP provide a mechanism to assist people to achieve compliance with the controls set out in the legislation.

Development and review process

ERMA New Zealand has a well-documented process for developing and approving HSNO ACOP.[14] This process involves the following steps:

It is important to note that ACOP approved under the HSNO Act may be developed by any party and presented to ERMA New Zealand for approval. This is a significant difference from the HSE ACOP regime, which requires the Minister of Labour to direct development. This may affect the length of time taken to develop ACOP under the HSNO Act compared to those developed under the HSE Act.

Current HSNO ACOP

To date, ERMA has approved four ACOP: the Exempt Laboratories Code of Practice (June 2004), Signage for Premises Storing Hazardous Substances (September 2004); Management of Agrichemicals (September 2004); and Code of Practice for Thermoplastic Stationary Tanks (December 2005).

ERMA New Zealand notes that there are an additional 13 planned ACOP currently under development, but it is possible that a larger number are under development by industry of which ERMA New Zealand is unaware.[xxiii] Four of these codes have been submitted to ERMA New Zealand for its final approval. The remaining codes are completing the drafting and consultation process. ERMA New Zealand has also approved two guidelines on the control of hazardous substances.

3.3.3   The Injury Prevention, Rehabilitation, and Compensation Act 2001

The IPRC Act sets out New Zealand’s injury prevention, compensation and rehabilitation framework. The legislative framework consists of a principal Act, with regulations providing the operational detail required for the system to function. The IPRC Act is administered by ACC.

3.3.3.1   The IPRC Act

The IPRC Act aims to provide a fair and sustainable scheme for managing personal injury, including harm that is caused by exposure to various hazards in a workplace. It provides a strong focus on rehabilitation of injured or ill persons and on ensuring fair compensation for claimants who have experienced loss from injury or disease.

The Act provides for:

The operational details of the work-related prevention, compensation and rehabilitation scheme are discussed in section 3.6 of this report. Injury data information management is discussed in section 5.2.

3.3.3.2   Regulations made under the IPRC Act

The IPRC Act provides for the enactment of a range of regulations on the funding mechanisms for the ACC scheme, entitlement and compensation payment, services, and reviews and appeals. Regulations made include those outlining the funding mechanisms for the ACC scheme, those governing entitlement and compensation payments, those relating to services, and regulations providing for review and appeal mechanisms.

3.3.4   Other pieces of legislation

3.3.4.1   Statutes

In addition to the three key pieces of legislation, other pieces of legislation that can impact on occupational health and safety are:

The Health Act and the Electricity Act are currently under review.

The transport sector is governed by both the main pieces of health and safety legislation and detailed, industry-specific rules. For example, the HSE and HSNO Acts place general duties on people in the aviation industry. Rules made under the Civil Aviation Act 1990 (such as the rules on the carriage of dangerous goods) place specific requirements on the aviation industry regarding the carriage of goods.

3.3.4.2   Regulations

Section 24 of the HSE Act provides for the retention of seven sets of regulations made under other Acts that it repealed. These provide for health and safety practices in specific situations. These sets of regulations are:

The majority of these regulations are administered by the Ministry of Health.

3.3.5   Standards, guidelines and best practice documents

The performance-focused approach provided for in the HSE and the HSNO Acts means that those with duties under these Acts do not have to meet specific standards but are required to take all practicable steps to fulfil their duties (in the case of the HSE Act). In order to assist duty holders to know how to best undertake these steps, a range of standards, guidelines, industry codes of practice and best practice documents are available. These help to determine what an acceptable means of compliance is. The development of these documents tends to be collaborative, with input from a range of stakeholders. Often, if a collaborative process has been followed, a high level of buy-in can be achieved. Funding for developing standards, industry codes of practice and best practice documents comes from a range of sources, including the State, joint government and industry-funded documents, or pure industry-funded documents. There are, however, too many documents in each of these categories to list individual titles.

3.3.6   Stakeholder comments about the legislative framework

Stakeholders provided many comments about the legislative framework, including broad comments about the implementation of the legislative framework and very specific comments on certain amendments that could be made to particular legislation. This section discusses these comments.

3.3.6.1   Stakeholder comments about the HSE Act

All sectors supported the direction set by the HSE Act; however, issues were raised in respect of certain specific provisions of the Act. A brief description of the issues raised is provided in this section.

More significant concerns focused on the implementation of the legislative framework (eg, the issues caused by moving from a prescriptive framework to an enabling framework and compliance costs). This is discussed in section 3.5.9.

Specific issues identified in respect of the provisions of the HSE Act

Stakeholders raised the following issues about specific provisions of the HSE Act:

Stakeholders were concerned that the current definition lacks clarity on the thresholds for serious harm, is inconsistent with the definition of “harm”, and introduces an inconsistency between the HSE Act’s definition of harm and the breadth of the harm provided for under the IPRC Act’s definition of work-related personal injury [section 28 of the IPRC Act refers] and under the Electricity Act 1992 [section 16 refers].

Review of the definition of serious harm is identified as an action in the Workplace Health and Safety Strategy [section 1a(4) refers] and is included as upcoming on the Department of Labour’s work programme.[4]

Stakeholders raised concerns about the ability for employers to indemnify against reparation payments handed down for breaching the Act. Currently, it is unlawful to indemnify against fines handed down under the HSE Act but indemnity can be provided for reparations.

The Department of Labour is aware of the reparation indemnity issue.

Multi-employer sites are workplaces in which two or more employers operate (eg, a construction site). Different employers may have varying health and safety protocols but the HSE Act includes no requirement for these protocols to be co-ordinated. It is possible that conflicting protocols could be applied at a workplace or that people in that workplace are uncertain of which protocol to follow, leading to confusion and possibly decreased health and safety.

Stakeholders considered that there is limited inclusion of specific duties for members of design teams (eg, architects, engineers, designers, etc.) in ensuring health and safety.

The project team notes that Part Seven of the HSE Regulations 1995 imposes specific duties on designers, manufacturers and suppliers, although these duties appear to be restricted to designers, manufacturers and suppliers of plant and protective clothing and equipment.

The enabling rather than prescriptive focus of the HSE Act was favoured by the industry and employer stakeholders that commented on this issue. However, stakeholders noted that a considerable level of prescription is required for this model to work in practice, especially in terms of ensuring that employers have a sufficient level of information about health and safety requirements.

Other stakeholders identified that confusion extends to the concept of “all practicable steps” where there is scope for different definitions and minimum standards to apply.

Issues regarding the HSE Regulations 1995

Three stakeholders commented that there is a need to review the HSE Regulations to ensure that the regulations assist in the administration of the Act and clarify certain duties.

Three specific issues were raised:

The project team notes that reviewing the HSE Regulations is identified as an action in the Workplace Health and Safety Strategy Action Plan [1a(4) refers].

Issues regarding the HSE approved codes of practice

All sectors raised concerns that some of the HSE ACOP are out-of-date, are inconsistent with the wider legislative framework, or are not consistent with current best practice and, if used, could result in negative health and safety outcomes.[xxxii] One health professional body noted that ACOP can include complicated language and that they can be inaccessible.

Stakeholders also raised concerns about the process employed by the Department of Labour to develop and review ACOP. They expressed the view that the process is bureaucratic, time-consuming and potentially costly. Five stakeholders further commented that the Department of Labour did not appear to prioritise or provide sufficient budget for the review and amendment of ACOP.

Two industry stakeholders considered that it was useful to have a recommended best practice approach endorsed by the government. Twelve stakeholders supported industry-developed codes of practice.[xxxiii ]

Stakeholders did not identify any topics that may require an ACOP to be developed.

3.3.6.2   Stakeholder comments about the HSNO Act

Most of the comments received on the HSNO framework were received from stakeholders with an interest in the control and management of hazardous substances. The most common comment made was that the HSNO framework is very complex, although this did not appear to signify whether stakeholders supported the current HSNO framework or not.[xxxiv] One government stakeholder noted that the workability of the framework should be smoother following the passing of the HSNO (Approvals and Enforcement) Amendment Act 2005.

3.3.6.3   Stakeholder comments about the IPRC Act

Three stakeholders[xxxv] considered that the no-fault focus provided by the ACC system could contribute to lax attitudes toward occupational health and safety because the government meets the cost of addressing personal injury.

Stakeholders made no comments about the scope or content of the IPRC Act. However, significant comment was made about the operation of the incentive programmes provided for in the Act and about inter-agency collaboration. These issues are discussed in sections 3.9 and 5.1.

3.3.6.4    Stakeholder comments about other pieces of legislation

Four stakeholders[xxxvi] noted that many of the older regulations need to be reviewed to ensure that they remain relevant and reflect technological advances, and to ensure that there is no overlap between the provisions of these regulations and those provided for under the HSE or HSNO Acts. The project team is aware that work is underway to review the older regulations.

Three government agency stakeholders noted that the differences between the application of the transport-specific rules and the main occupational health and safety legislation could be confusing for the industry; however, the stakeholders appeared to be satisfied with the flexibility offered by the ability to take prosecutions under either piece of legislation.

3.3.7   Conclusions

Overall, New Zealand’s legislative framework provides a sound basis for managing occupational health and safety, particularly because of the consolidated approach taken during the recent reforms of legislation in this area.

3.3.7.1   Content of the Acts and the supporting legislation

A number of specific issues arise in regard to the content of each of the three main Acts (the HSE Act, the HSNO Act and the IPRC Act). Some of these appear to be relatively minor (such as the provisions for agricultural accommodation). Other issues, such as the definition of serious harm, are more significant.

Action 1a(4) of the Workplace Health and Safety Strategy outlines a process for continuous improvement of the legislative and administrative framework. This issue is also identified by the Department of Labour as part of its work programme.[4] Included in this work programme is the development, review and alignment of the legislative instruments discussed in the present report.

The development of ACOP and other material under the HSE and HSNO Acts is vital to provide the level of detail required if the performance-based framework is to operate in the correct way, and to ensure that duty holders under these Acts have access to the right information to enable compliance. The issues raised by stakeholders about the development of this material indicate that additional focus may be required here. For example, three HSE ACOP require review which has not been scheduled: the ACOP for demolition; the ACOP for managing hazards to prevent major industrial accidents (which does not reflect current technology); and the ACOP for the prevention, detection, and control of fire and explosion in New Zealand dairy industry spray drying plant (which makes reference to outdated standards and has been superseded by an industry-developed code of practice).

3.3.7.2   Interface between the three main Acts

The HSE and HSNO Acts are generally consistent in terms of principle, and no major inconsistencies in their content were identified. However, there are some differences in the level of prescription provided for across these two Acts. For example, the HSE Act requires that duty holders take all practicable steps to ensure harm does not occur. Relatively little information on how to achieve this across all workplaces is provided (although considerable prescription still applies to some specific activities under the older regulations). The HSNO Act, however, includes lots of prescription in its framework (eg, in relation to labelling, packaging documentation etc.).

There are also interface issues regarding the ACOP made under the HSE Act and those provided for in the HSNO Act: there is no mechanism available under the HSE Act to enable an ACOP approved under the HSNO Act, although such a mechanism is provided through the HSNO Act. This means that there are some areas of duplication across the ACOP (eg, between the HSE ACOP for the management of substances hazardous to health in the place of work and the HSNO ACOP: Management of agrichemicals). Having two documents effectively covering very similar topics creates additional compliance issues for workplaces and an additional administrative burden for government agencies. In such instances, there may be opportunities for stakeholders to seek to co-ordinate development (including the possible pooling of resources) to ensure that ACOP can meet the needs of both Acts rather than having two separate documents.

3.3.7.3   The enabling, performance-based approach

The enabling approach provided for under the HSE and HSNO Acts implemented a different way of thinking about health and safety in New Zealand. Previously, compliance had been driven by meeting a particular standard or technical requirement. The new approach provides for a more flexible regime that enables the prevention of work-related harm; however, it is necessary to ensure that a suitable range of material detailing approved means of complying with the provisions of the Acts is available to duty holders.

The implementation issues associated with a performance-based regime are discussed in section 3.5.10.

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