STATEMENT BY HEALTH AND SAFETY IN EMPLOYMENT AMENDMENT ACT

The Health and Safety in Employment Amendment Act Implementation Advisory Panel is concerned that the public debate on the Health and Safety in Employment Amendment Bill ("HSEA Bill"), currently before Parliament, has not included some relevant information in relation to a number of the key issues.

The following statement is intended to contribute to the public debate. It is not intended to indicate support for or opposition to the substantive changes in the Bill as all Advisory Panel members reserve their right to comment to the Select Committee.

Increase in maximum fines

The HSEA Bill provides for an increase in the maximum fine from $100,000 to $500,000.

However, the following facts should be considered:

• Although the maximum fine will be increased to $500,000 for a prosecution under s 49 of the Act (where there is proven knowledge of the reasonable likelihood of serious harm) only three prosecutions have ever been taken under this section. All other prosecutions have been taken under s 50 of the Act for which the new maximum fine will be $250,000, up from $50,000.
• The average fine under the Act since it came into effect in April 1993 is $6,196.
• The High Court in Dept of Labour v De Spa Limited laid down the factors which Courts must take into account in deciding the amount of the fine, and these include the financial circumstances of the offender. The Court noted that "a fine at a particular level will obviously bear differently upon a small impecunious employer as opposed to a large financially strong employer".

It is therefore reasonable to assume that the average fines may well increase commensurately with the increase in the maximum fine, but that the financial circumstances of offenders, both employer and employee, will be taken into account in deciding the level of the fine.

Stress and Fatigue

At present the Act defines "harm" as meaning "injury, illness or both". The HSEA Bill clarifies that "harm" includes "physical or mental harm caused by work-related stress".

In considering the effect of this change regard should also be had to the following facts:

• It is the expectation of the Panel that the potential liability under the Act is directed at preventing serious and debilitating work-related stress and fatigue.
• There have been two recent cases on employer liability for stress conditions and a case note summary of those cases is attached as guidance for employers and employees.
• OSH already publishes guidelines on managing stress, and further best practice guidelines will be issued next year, after consultation with interested parties. The current guidelines are available on the Department of Labour website www.osh.dol.govt.nz.
• An OSH compliance strategy for the HSEA Bill will be developed which will provide guidance on potential liability under the Act.

Private Prosecution

Media reports on the HSEA Bill suggest that the present OSH Inspector monopoly on prosecutions will be eased to allow unions (only) to take private prosecutions.

However the following facts should be considered:

• The HSEA Bill will allow any person to take a private prosecution. This can only occur if OSH decides not to prosecute.
• It is normal practice under other legislation (e.g. Crimes, RMA and HSNO) for private prosecutions to be allowed.
• The HSEA Bill provides a clear process for private prosecutions that must be complied with. (cl 54 ff)
• A prosecution under the Act is a technical, and potentially expensive, process requiring proof to a high standard. Legal aid is not available for such a prosecution.