The stressful health and safety changes: beyond the hype

February 2003

By Tracey Taylor, Senior Solicitor

The inclusion of stress and fatigue as official workplace hazards was guaranteed to secure plenty of advance publicity for the new Health and Safety in Employment Amendment Act, which comes into force on 5 May.

However, there is more to the Amendment Act than just stress, and employers need to look beyond the hype to ensure that they are properly prepared for the introduction of the legislation.

The new legislation

After much debate and speculation, the Health and Safety in Employment Amendment Act 2002 was passed on 20 December 2002 and will come into effect on 5 May 2003.

The Act amends the existing provisions of the Health and Safety in Employment Act 1992.

A health and safety culture shift

The Amendment Act encourages New Zealand businesses to actively manage the health and safety of their workplaces.

Minister of Labour Margaret Wilson commented after the passage of the Amendment Act that:

"…there has to be a culture shift in our workplaces. 'She'll be right mate' when it comes to health and safety is unfortunately all too often the way it is done. People cut corners. They cut corners to save costs, or because they feel immortal, or because to some extent, being a reasonably young society, we take risks. And while that can be positive on occasions, it can also have disastrous consequences."

The Act also rebalances the roles of employers and employees in providing a safe and healthy workplace.

Whilst employees can expect their employer to provide a healthy and safe workplace, employees also have an important part to play in making sure they stay healthy and safe.

The Act reflects this by:

• Placing duties on employees to ensure their own health and safety;
  
  
• Ensuring employees have input into health and safety at work; and
  
  
• Giving employee health and safety representatives a special role in promoting health and safety.
  
  

Employee participation in health and safety

Under the Amendment Act, employers must provide reasonable opportunities for their employees to participate effectively in ongoing processes to improve health and safety in the employees' places of work.

Employers with more than 30 employees must develop an employee participation system. If you have fewer than 30 employees, you must still develop an employee participation system if requested to do so by an employee.

The notion of "good faith", given supremacy under the Employment Relations Act 2000, also appears in the Amendment Act.

The Amendment Act says that employers, employees and unions must "co-operate in good faith" to agree an employee participation system.

All parties have six months to agree upon a system. If no agreement is reached within this time, the Act prescribes a number of systems that will apply, depending on the size of the workplace.

Workplaces with more than 30 employees must hold an election for at least one health and safety representative. If there are less than 30 employees, an election must still be held if an employee or a union has requested an employee participation system.

Employers must also allow health and safety representatives at least two days' paid leave each year to attend health and safety training. The total leave obligation depends on the number of employees.

Stress and fatigue classified as hazards

The Amendment Act clarifies the duty to systematically address hazards in the workplace ­- and explicitly refers to stress and fatigue as workplace hazards.

The health and safety legislation has always covered stress and fatigue but recent court rulings, some involving large awards of compensation, and sensational publicity have worried many employers.

Despite the hype, we believe the Amendment Act will not automatically result in an increase of stress claims - and employers don't need to panic about employees who turn up to work tired after a busy weekend.

Prosecutions relating to stress are only likely in very serious cases - but employers should check the systems they have in place to monitor employee work loads and stress levels.

There is good news - the Act says that the effective management of stress in the workplace requires employers and employees to work together to develop systems and frameworks for managing hazards such as stress and fatigue.

OSH, the Occupational Safety and Health Service, is preparing guidelines to prepare employers for the changes and to clarify what constitutes a hazard; we recommend that employers read these guidelines as they become available.

Next steps

So, as an employer, what does all this mean - and what should you be doing before the Amendment Act comes into effect in May?

Over the next few months, we suggest that you review your current workplace safety procedures and encourage you to work with your employees (and unions where applicable) to reinforce existing systems or establish new systems where required.

OSH has also set up a website, www.workinfo.govt.nz, which contains information about the Amendment Act and details of information seminars planned for March 2003.

Communication and teamwork are emphasised in the Amendment Act - and its number one objective is prevention.

These are all concepts with which we are already familiar and if we embrace the new legislation with a positive attitude, we should see positive results.

Advice and information

Bell Gully's Employment Team can advise you on all types of employment issues, including preparation for the new Health and Safety in Employment Amendment Act. Contact the team at the numbers below for more information.