The Department of Labour have begun a three year push for effective standards for machinery in the workplace, after seeing far too many of this type of accident.  This accident, and others like it, could have been avoided if the conveyor had been identified as a potential hazard and was properly guarded.

Businesses should be aware of their legal obligation to guard machinery properly.  However all businesses, whether they use machinery or not, should take this case as a timely reminder to put systems in place to identify and mitigate workplace hazards.  Businesses should also train employees to identify and manage hazards.

If you would like more guidance on hazards in the workplace see the ‘Safety Action Plan’ in our Downloads section, or feel free to phone us on 0800 733 424 for a relaxed and confidential initial chat.

The company’s safety plan was found to not be up to industry standards and they did not have the necessary safety equipment.

The obligations to ensure the safety of staff, customers and visitors apply in all work places and not just those which appear to be dangerous.  All employers and all staff must take all practicable steps to identify all hazards in the workplace.  Once identified then the hazards should be eliminated if possible.  If they cannot be eliminated then they need to be minimised or isolated.

Have a quick walk around your premises today and note all hazards that could result in injury.  You may be surprised at the number of hazards there are in every work place, no matter how seemingly risk free, such as overloaded shelves or cleaning chemicals in the staff tea room.  Each has the potential for harm and should be identified, eliminated, minimised or isolated.

Make sure you take the safety of customers, visitors and staff seriously and ensure your safety plan is current and up to standard.  A failure to take the basic steps could end up costing someone either through an injury or by being very expensive if OSH get involved.

For an initial chat on whether your safety plans are sufficient give Alan Knowsley a call on 0800 733 424.

Fumes from an LPG powered forklift poisoned 11 workers. The employer has now instigated an electric forklift only policy in enclosed spaces.

Could this have been you? We recommend you regularly review your workplace to identify hazards and then take steps to eliminate, isolate or minimise them.

If you are unsure what to do we have a simple Safety Action Plan you can follow.

We also can assist you with policies and procedures to help make sure you keep your money in your business working for you rather than paying fines for health and safety breaches.

Legally School Boards and their staff have a general duty to take reasonable care to prevent harm to students because they have direct responsibility for students who are legally obliged to attend school.  The duty does not mean that every possible harm must be avoided, but it does mean that reasonable care must be taken to ensure the safety of students both at school and during education outside of the classroom.  Penalties can be significant.  The Outdoor Pursuits Centre, for example, was fined $40,000 for breaching employer obligations and ordered to pay $440,000 in reparations to the survivors’ and victims’ families.

The ACC Scheme bars personal claims being brought against School Boards or their staff for student injury except in exceptional circumstances such as gross negligence or intentional harm.  In addition to that, government agencies such as OSH or the Ministry of Education can still hold the School Board or their staff accountable for any harm done to students.

Board Liability

School Boards are the most likely target of prosecution when harm to students occurs under the responsibility of a teacher, or any other individual or organisation whom the school has engaged.  If the Board can show it has acted in good faith and fulfilled its duty to take reasonable care liability may then pass onto the teacher or other individual or organisation responsible at the time of the student injury.

School Boards must act in accordance with the National Administration Guidelines (NAGs) and Health and Safety regulations. Whether at school or on camp, The Board of Trustees must take all practicable steps to ensure that:

• A safe physical and emotional environment is provided for students;
• No employee harms any student by act or omission; and
• No harm is caused to staff, students or other visitors.

Staff Liability

Teachers or other supervising staff can be personally liable and for their own negligence even face criminal charges.  This may happen if the teacher is found to have both:

1. Failed to discharge their general duty to take reasonable care; and
2. Known that their action or inaction would endanger the life or safety of another person.

Courts may set prevention standards high, especially for hazardous activities and young or novice students.  Therefore, any organiser must use reasonable knowledge, skill and care in preparing and managing activities.  This standard applied in the related case about the organiser of the 2001 Le Race held in Christchurch.  Although eventually acquitted on appeal, that organiser was originally convicted of criminal nuisance when a cyclist died during the race she had organised.

Criminal proceedings can be brought against a teacher or individual simultaneously with any proceedings brought against a School Board that is charged with not having taken reasonable care.  The Outdoor Pursuits Centre was charged because the Board had delegated responsibility to it as a specialist provider.

As for personal claims against School Boards or their staff, as said earlier these can only be made in exceptional circumstances.  The claimant must go beyond the Board’s accepted duty of care and must also show that:

1. There was harm done as a direct result of the action or inaction of the School Board or staff member; and
2. The risk of harm occurring was reasonably forseeable.

Suggested Guidelines

NAGs are available on the Ministry of Education website http://www.minedu.govt.nz/educationSectors/Schools/PolicyAndStrategy.aspx.  The Safety and EOTC guidelines issued by the Ministry of Education  are available at http://www.tki.org.nz/r/eotc/resources/safety_e.php and supplement the MoE’s Health and Safety Code and Worksafe at School publications.  Those guidelines offer safety management systems to ensure that outdoor education is effectively supervised.  Some important guidelines include:

1. Observe appropriate supervision with student and teacher ratios.
2. Establish effective student/parent complaint procedures.
3. Update safety policies in schools to check that are in line with legal obligations.
4. Establish risk assessment protocols to identify and manage potential risks before the activity occurs.
5. Provide safety management training for all staff, in conjunction with other relevant professional development.
6. Develop strategies for effectively handling untoward events that do occur, while also maintaining all legal and ethical obligations.
7. Provide for parental consent and disclaimers of liability.

Education outisde the classroom is fundamental to New Zealand’s curriculum.  Fears of harm and liability should not be used to justify dropping camps, trips and out of school activities.  Instead they should be dealt with effectively by implementing policies and strategies for operating as safely as reasonably possible.

Some cases include:

1. $125,000 fines and reparation following worker’s death. A fine of $35,000 for failing to ensure the safety of employees was imposed on an employer after a worker was electrocuted while working as a line mechanic. The company had already paid $38,000 to the family to cover expenses and had a life insurance policy of $100,000, which also went to the family.  The crane company also involved was fined $15,000 and ordered to pay reparation of $30,000. The crane operator was fined $2,500 with $5,000 reparation.The Court held that the employer’s fine would have been $75,000 apart from the guilty plea, reparation already paid and previous excellent record.
2. $12,000 fine for broken arm. An employer was fined $12,000 after a worker had their arm broken in four places by a conveyor belt. The company could have installed a guard or turned it off during maintenance. The hazard had been overlooked because maintenance on the conveyor belt was uncommon.
3. $65,000 fine and reparation for port death. A port company was fined $15,000 plus $50,000 reparation after a port worker was killed when a mooring rope broke. The Court held that the rope was not strong enough for its purpose.
4. Conviction for failing to report serious harm. An employer was convicted for failing to notify the Department of Labour of an incident where an employee suffered serious harm at work. The employee had slipped over on a wet floor and hurt their hand. A week later a fracture was diagnosed in the wrist.  Even though there was no evidence of permanent damage the Court held that the employee had suffered a temporary severe loss of bodily function and therefore the obligation to report to OSH arose when the fracture was discovered a week after the accident.The High Court said that the company’s failure to report was based on a genuine (but mistaken) belief and the company was therefore convicted and discharged. The Court overturned the original $5,000 fine.

   The Court went on to warn that other employers should not anticipate similar leniency, as they will have the opportunity to learn from the situation that this company found itself in.

What You Need to Know and Do

You need to know about the Heath and Safety provisions and how they will affect your business.

The major points are:

• The imprisonment penalty is up to 2 years.
• Maximum fines can be $500,000.
• Harm includes mental harm and stress.
• “All practicable steps” to avoid harm must be taken.
• Vehicles are places of work.
• Volunteers are now covered in some circumstances.
• All employees are entitled to participate in improving safety.
• Employees may refuse to do work if they believe it is likely to cause serious harm.
• Insurance against fines is illegal.

Who is Liable?

The Health & Safety in Employment Act places duties on employers, persons in control of places or plant, self-employed, principals (eg hirer of a contractor), people who sell or supply plant and employees.  You can be more than one of these at a time.

Volunteers – Are They Covered?

Volunteers who do work for another regularly on an ongoing basis and the work is an integral part of the business of the other person are covered by the amended legislation.  However, volunteers doing a fundraising activity (amongst other things) are excluded.  Even though volunteers are exempt in certain circumstances, from the Health and Safety legislation, the Crimes Act imposes duties to take care of everyone.

Eliminate, Isolate or Minimise Harm

You must take all practicable steps to identify then eliminate, isolate or minimise hazards.  This must be regularly reviewed. Keep written records of this process as proof that it was properly carried out. ” All practicable steps” now depends on the circumstances including the nature and severity of the harm, the current state of knowledge of the harm and its avoidance and the availability and cost of avoidance.

Mental Harm and Stress

Harm includes mental as well as physical and covers stress from work hazards.

An Australian security guard has been awarded $AUS1.9m against his employer for relentless and brutal bullying.  The employee was found to be suffering from major depression and post-traumatic stress disorder, which meant he was incapable of working again.

New Zealand employers are responsible for providing a safe working environment for employees and this includes protection from bullying.  You must have in place policies which make it clear that bullying is not tolerated and you must follow through to ensure that bullying is dealt with appropriately.

Employees Involvement in Planning

Employees must be given reasonable opportunities to participate in improving safety in the workplace.  If you have 30 or more employees you must follow a set process for adopting an employee participation scheme.  Employers must give some leave for health and safety training of employee representatives.

Insurance

It is unlawful to be indemnified or insured against fines under the Act.  You can still insure against reparation orders and these often exceed the fines in magnitude.

The only defence to a prosecution is a total absence of fault.

If your activities are covered by the Act you must:

• Keep a register of all incidents where a person was or might have been harmed.
• Report serious harm to OSH immediately and in writing within seven days.
• Do not disturb the accident scene (except for safety reasons) if serious harm occurs.
• Provide employees with an opportunity to have input into your safety plan.

Free Safety Action Plan

We have prepared an easy to follow Safety Action Plan.  If you would like a free copy then please contact me on aknowsley@raineycollins.co.nz or 0800 733 424 or check out our web on www.raineycollins.co.nz

Even if you are not covered by the Act still take all care to identify and eliminate or manage hazards so no one is hurt during your activities.

Christmas parties are a common part of seasonal festivities at workplaces and they are certainly to be supported! However, just like at any other activity your organisation undertakes, you need to ensure you have identified significant health and safety hazards and planned strategies to manage them.  Proper advance planning will mean that you have fulfilled your legal duty to take all practicable steps to keep people safe and lessened the chance that your business will face legal action if anything goes wrong.

Seven Suggestions for a Safe Santa Shindig are as follows:

1. Check the venue for the function to ensure it is safe.
2. Serve food with alcohol.
3. Ensure low alcohol and non-alcoholic beverages are available.
4. Designate some managers to stay sober.
5. Recognise and adhere to responsible alcohol policies.
6. If required, organise taxis or other transportation for employees to get home safely.
7. Provide a friendly reminder to all employees prior to the Christmas party about your policies on harassment, alcohol and drugs.

The first step is to identify all the things that can cause stress; think about things like your staffs’ work content, work relationships, their involvement in what’s happening in your business including in things like health and safety management and the support they have.

The second step is to think of ways to manage the things that cause staff stress, by eliminating, isolating or minimising them.

The following are ten tips to help you look after your staff and avoid an expensive prosecution under the health and safety legislation for stress related illness or injury:

1. Provide staff with information on stress symptoms;
2. Make it easy for staff to talk to you about stress concerns;
3. Have flexible work schedules;
4. Have family-friendly workplaces;
5. Familiarise yourself with work related stress counselling services that are available and use them where required;
6. Make sure that staff take annual leave;
7. Monitor the hours of staff and also their workload;
8. Ensure staff have regular training and updating in the areas that they are working;
9. Have strategies to encourage staff to communicate openly and honestly;
10. Create a healthy work-plan for your business and act on it.

Lawyers experienced in this important area will be able to review your present arrangements and advise on how best to get fully compliant with health and safety requirements.  For more information or to take the first steps to protect your interests call Alan Knowsley on 04 4736850 or aknowsley@raineycollins.co.nz (email).