Part 3: Duties of employees

This part describes how the Act applies to employees, in terms of duties and rights. Employees also have duties in relation to:

• Accidents (see part V of this guide); and
• Assisting health and safety inspectors and/or departmental medical practitioners as appropriate (see part VI).

3.1 The meaning of "employee"

An "employee" is defined in section 2 of the Act. An employee is any person who is employed to do any work for hire or reward under a contract of service.

In addition, some regular voluntary workers, and workers who do not receive any payment, such as family members helping in a family business, or students or trainees gaining unpaid work experience, may be deemed "employees" under the Act (sections 3C- 3F).

People receiving training assistance are "employees", and their employing agency or host employer has the duties of an employer in relation to them.

An employee may be permanent, temporary, casual, full-time, or part-time. They may be of any age, or have any degree of experience or responsibility in the workplace - the Act applies to an apprentice or new employee as well as a senior executive.

The duty applies to employees in all industries and occupations.

Exemption

An important exemption is that someone employed to work in or on the residence of the employer is not an employee in terms of the Act.

See 1.4, Coverage is broad.

3.2 The employee's general duty

What the Act expects of employees is summarised in the employee's general duty of care, set out in section 19. It requires that if you are an employee, then you should take all practicable steps to ensure:

• Your own safety at work; and
• That no action or inaction by you while at work causes harm to any other person.

More specifically, the section states that where suitable protective clothing or equipment is provided by the employer, the employee must use it.

These responsibilities do not detract from the duties of the employer or others. Where there are breaches of the law, more than one party may be subject to enforcement action as a result of any incident.

When an employee suspects work is unsafe

The effect of section 19 is to create an obligation for employees not to undertake work which is unsafe, or which involves unsafe practices. Where an employee becomes aware of an unsafe work situation or practice, they should make it safe, or if they cannot, inform their supervisor or manager. There may be occasions when this involves refusing unsafe work (see below).

The extent of the employee's general duty

The employee's general duty applies to all people who are within the definition of "employee" given above.

The scope of the duty is wide, because it extends to not causing harm to "any other person" - whether fellow employee, employer, visitor, or member of the public. For an employee to have failed in the duty, harm does not need to have occurred to themselves or another person. The action or inaction only needs to have been likely to have caused harm, and the standard of care required is "all practicable steps" (see 1.5, All practicable steps).

Because the standard of care is "all practicable steps", the degree of care and responsibility that is expected may vary from one employee to another. A surgeon leading an operating team, for example, is expected to exercise the "reasonable skill and care" of his or her profession, as is a shearer, or a clerical assistant - but in a practical sense, the reasonable expectation of an employer, or the law, varies in each case.

It is important to note that the duty applies to acts or omissions. Section 19 therefore refers to any action by an employee and other things that an employee may forget to do or choose not to do (i.e. an omission) in the place of work.

Managers and supervisors. The duty to avoid causing harm to others may also place greater responsibilities on managers and supervisors, where the number of people who may be affected by their decisions on safety and health matters could be considerable.

When employees come into contact with the public. There are also likely to be occasions when managers, supervisors or employees in contact with the public represent the health and safety interests of their employer. Employees should be aware when this situation arises. The general duty of employees not to cause harm to others, should be considered alongside the employer's duty to ensure their employees do not cause harm to others (section 15).

Particular duties

Below is an expansion of what the employee's duty under section 19 means in a practical sense, and when read in conjunction with the corresponding duties of employers set out in other sections of the Act.

Following the employer's instructions regarding hazards in the place of work

This requirement corresponds with the employer's duty to identify and manage hazards (sections 7-10), provide the necessary information on hazards (section 12), and provide adequate supervision and training (section 13).

Employees are also required to follow improvement or prohibition notices (see 3.3, below).

Reporting hazards

Where an employee becomes aware of a hazard, and is unable to correct it, they should report it to their supervisor or manager. Any procedure that sets up a chain of command or delegates the task of receiving hazard reports should ensure there is prompt action to fix the problem or refer it on to someone who can address it.

The legal responsibility to ensure that employees are not exposed to hazards rests principally with employers. In addition, supervisors who do not follow an agreed reporting procedure could be affecting the safety and health of other people through an omission at work, and may be failing to meet their duty as employees.

Using and caring for protective clothing and equipment and emergency equipment

Section 19 contains a specific duty for employees to use suitable protective clothing and equipment provided by the employer.

This duty corresponds with the employer's duties to, provide any necessary protective clothing and equipment and ensure its use (section 10(2)(b)), and to provide information and training in its use, care and storage (sections 12 and 13) - also with the duty to develop emergency procedures (section 6).

An employee must not misuse or damage equipment. For example, it would be an offence to deliberately render fire-fighting equipment inoperative, or to remove guards from the dangerous parts of machinery without good reason. This requirement will usually apply when an employer has provided the necessary information on hazards (section 12), and supervision and training (section 13), and an employee's actions to misuse or damage are quite deliberate.

[Refer also to the fact sheet, Personal protective clothing and equipment.]

Co-operating with the monitoring of workplace hazards and employees' health

Where a significant hazard is minimised (i.e. not eliminated or isolated) an employer is required to monitor employees' exposure to the hazard and - with the employees' permission - their health.

It is mandatory for an employee to follow the employer's instructions and co-operate in the monitoring of workplace hazards.

However, for an employer to monitor an employee's health as required by section 10, the employee must give their permission. An employer is required to take "all practicable steps" to gain an employee's permission to monitor an employee's health, although an employee may refuse. Where this is the case, it does not limit the employer's responsibility to monitor other employees, and to continue to take all practicable steps to minimise employees' exposure to the significant hazard.

Employees are also required to comply with monitoring by departmental medical practitioners (see 3.3 below).

Reporting work-related injuries or ill health

Employers are required to record and evaluate all accidents or harm, including "near misses" where injury or harm could have occurred (section 25). They are then required to investigate whether the incident was caused by a significant hazard (section 7(2)), and, if so, control the hazard.

If employers are to meet this requirement, employees need to report all occurrences of harm or incidents to their immediate supervisor or manager.

This applies to physical injuries, and to the early symptoms of illness or disease that may be connected with work. For this reporting to occur, employees should have received information from the employer about the early symptoms of which they should be aware (section 12). For example, keyboard operators should be aware of the symptoms of occupational overuse syndrome, or a spraypainter aware of the symptoms of being sensitised to isocyanate-based paints.

Situations where an employee may face enforcement action for failing to meet the general duty

Infringement notices may be issued to employees where there has been prior warning.

It is OSH's policy that prosecution of employees for breach of section 19 does not occur unless the employer has provided the employee with the opportunity to perform at the required safe level. This usually means that an employee prosecuted will have:

• Disobeyed clear instructions;
• Acted recklessly;
• Been grossly negligent;
• Been "skylarking"; or
• Wilfully ignored an obvious hazard.

Harm does not need to have occurred. The action or inaction only needs to have been likely to have caused harm.

It is important to remember too, that employers and employees may both face enforcement action from the same incident. Negligence on the part of an employee does not mean the employer will not face enforcement action, or that a court will turn a blind eye to an employer's failure to meet their duties.

[Refer to 6.5, offences and penalties, and the fact sheet, Infringement notices.]

The right to refuse to do work that is likely to cause serious harm

An employee may refuse to do work if they believe that the work they are required to do is likely to cause serious harm to him or her (section 28A).

Having formed a belief that the work is likely to cause them serious harm, the employee may continue to refuse to do the work if:

• They attempt to resolve the matter as soon as practicable after their refusal; and
• The matter isn't resolved; and
• The employee believes, on reasonable grounds, that the work is likely to cause serious harm to him or her.

The Act specifies that "reasonable grounds" for refusing work exist if a health and safety representative advises the employee that the work is likely to cause serious harm to that him or her. The health and safety representative must also have "reasonable grounds" for offering any such advice (section 28A(3) and (4)).

The "right to refuse" cannot be exercised where the particular work inherently, or usually carries an understood risk of serious harm -unless the risk has materially increased beyond the understood risk (section 28A (5)). This means for example, that a firefighter accustomed to fighting single storey house fires would not be able to refuse to do that work, unless another additional hazard, such as flammable liquids were present. Similarly, a rigger equipped and accustomed to work at heights would need the addition of another hazard, such as high winds, or a risk of lightning strike, to exercise the right.

Where the right to refuse is exercised by an employee, that employee must do any other work within the scope of their employment agreement that the employer reasonably requests (section 28A(6)).

The right to refuse work under the Act does not limit the employee's right to refuse work under other legislation or the common law (section 28A (6)).

The Act explicitly requires employers, employees and their representatives to deal with each other in good faith in any situation involving the right to refuse unsafe work.

Any dispute or question about the application of the right to refuse is an employment relationship problem for the purposes of the Employment Relations Act 2000 (section 28A (8)).

[Refer to the fact sheet, Right to refuse dangerous work]

Examples:

1. Desmond worked as a skilled and experienced electrician servicing substations and other facilities for his employer, power authority MegaEnergy Ltd. The company had a set of stringent protocols for assessing and planning jobs, and to ensure the safety of its workers and others from day to day. Desmond was familiar with these procedures, and was technically competent.

   One day Desmond and his co-worker, Les were given instructions to service a particular component of a substation. They chose the tools and equipment they needed from their depot, including a stepladder for gaining access, and drove to the substation to begin work.

   When they arrived, Desmond realised that the stepladder wouldn't provide adequate access to the disconnectors he needed to service, unless he stood it on top of part of some related circuit breaker equipment. It also meant placing the stepladder adjacent to a 33,000 volt supply line, which was contrary to safety requirements. A properly positioned extension ladder would have provided an alternative, safe means of access, but also meant a trip back to the depot to get it. Because he had not completed the required checklist evaluation of the task beforehand, Desmond probably made the decision to use the stepladder prematurely.

   While he was standing on the ladder, working on the disconnectors, Desmond caused a "flashover" between the equipment he was working on and the high-voltage line. He received an electric shock causing burns to his face and arms, and cuts to his shoulders. He spent three days in hospital.

   Desmond was convicted and fined for failing to ensure his own safety as required by section 19(a).

2. Josh worked as a rigger for Column'n'Beam Steel Fabricating Ltd, which was contracting for the supply of structural steel to a large construction project.

   To give access to an area where steel was being fabricated, the principal to the contract had built an elevated catwalk. However, it had become a matter of pride for Josh - who was experienced with work at heights - to ignore the catwalk and walk across to the elevated place of work along a narrow steel beam, and without any restraint or fall arrest device. Column'n'Beam's supervisor on the site was aware of the action, when one day a health and safety inspector saw Josh make his entry.

   Josh was convicted for failing to ensure his own safety under section 19(a). Column'n'Beam Ltd were also convicted for failing to ensure employee safety as required by section 6.

3. Gordon managed several staff at a regional distribution depot for a manufacturing company, Topstuff Ltd. It was company policy to encourage youth training and employment, and Gordon co-operated with local secondary schools to provide work experience for pupils.

   This meant that one day secondary pupil, Tania was working at Topstuff's depot under the supervision of Gordon. Tania helped unload materials from a forkhoist, and when that task was done, Gordon instructed her to ride on the forks of the forkhoist to another part of the depot. While the forkhoist was being driven there, it came in contact with some shelving, and the end of Tania's thumb was crushed, leading to its eventual amputation.

   Gordon was convicted and fined for failing to ensure the safety of others under section 19 (b).

3.3 Requirements by health and safety inspectors and departmental medical practitioners

Inspectors

The Act provides for health and safety inspectors to issue improvement notices or prohibition notices to employees, employers, or others who control a place of work.

Improvement notices are issued by inspectors to employers, but may also be served to an employee. They are issued when an inspector believes an employer or employee has failed or is failing to observe a particular provision of the Act, and that the failure will continue. A notice contains a description of which section of the Act is being breached, how it is being breached, a statement of what needs to be done to rectify it, and a date for compliance.

Where an employee is issued with an improvement notice, it is an offence not to comply (section 39 (5)).

For more information, see 6.3, Improvement and prohibition notices.

Prohibition notices are issued by inspectors when they believe that failure to comply with a provision of the Act could lead to serious harm. They prohibit the use of a particular machine, process or other source of the hazard.

Prohibition notices are fixed near to the part of the place of work that they relate to. A copy is also given to the person in charge of the "activity, building, place of work, plant, process, situation, structure or substance" - and this person may be an employee.

When an employee is issued with a prohibition notice, they are responsible for ensuring that the prohibited action does not occur (section 42 (2)).

An employee who is aware of the existence of a prohibition notice also commits an offence if they do not comply with it (under the general duty of section 19).

For more information, see 6.3, Improvement and prohibition notices.

Departmental medical practitioners

The Act provides for the monitoring of employees' health by departmental medical practitioners (doctors employed by the Department of Labour to enforce health requirements of the Act).

Where a departmental medical practitioner is satisfied that an employee's health is affected by exposure to a significant hazard, they may issue a written notice (under section 36), requiring the employee to:

• Be examined by a medical practitioner and their fitness for work assessed; and/or
• Provide a sample for testing or analysis.

Suspension notices. Where a departmental medical practitioner is satisfied on reasonable grounds that an employee has been harmed by exposure to a significant hazard, they may issue a suspension notice requiring an employee to stop doing anything that "constitutes, causes, or enhances" their exposure to the hazard (section 37).

A suspension notice may also be issued where an employee's exposure is suspected and the employee has refused to be medically examined or to provide a sample.

Whenever a suspension notice is issued to an employee, a copy is also given to the employer, who is required to ensure that it is complied with.

For more information, see 6.2, Departmental medical practitioners.

3.4 Rights of employees and health and safety representatives in relation to information

The Act requires employers to provide employees with information on the hazards they may encounter or create in their work (section 12).

It also requires employers to make available to employees the results of workplace health and safety monitoring (section 11).

Information on hazards

Before an employee starts work of any kind, their employer must inform them of:

• Emergency procedures (developed under section 6(e));
• Hazards they may be exposed to while at work;
• Hazards they may create while at work which could harm others;
• How to minimise the likelihood of these hazards becoming a source of harm to themselves or others; and
• The location of safety equipment.

This applies to the employee's:

• Doing work of any kind;
• Using plant of any kind; or
• Dealing with a substance of any kind.

The information must be in a form that each employee who needs the information can reasonably easily understand - whether or not English is their first language. Technical information - such as material safety data sheets, or operating manuals - may also need to be interpreted or explained further.

When employers give information on hazards to employees, they are required to check that it has been understood. This is an important issue for employees, and although there is no legal obligation for employees to "speak up" when information may not be fully understood, it is important to do so to help the employer meet their obligations.

The employer must also ensure that having provided such information, the employee has ready access to it.

Information for health and safety representatives

Where health and safety representatives are appointed in a place of work, section 12(2) requires that the employer ensure that all representative have ready access to sufficient information about health and safety systems and issues in the place of work to enable them to perform their functions effectively. (refer to 2.6, Employee participation.)

Hazard notices may be issued to employers by trained health and safety representatives, who may also advise employees of the existence of any such notice.

Refer to 2.6, Employee participation.

Information on health monitoring

Employers are required (by section 11) to inform employees of the results of any health and safety monitoring undertaken to meet the hazard management requirements of the Act (i.e. under section 10).

This relates both to:

• Individual health monitoring; and
• Workplace exposure monitoring (in relation to an individual's place of work).

Where an employee's health or place of work is monitored - as an individual or one of a group of individuals - the employer is required to provide the results of any monitoring to them, whether or not they request it.

Other employees in the place of work where general monitoring is carried out may request the results of the monitoring. Where this happens, the employer is required to make available the results, and in doing so, protect the privacy of those monitored.

The duty to provide information may overlap with an employer's duty to provide training and supervision. For more information see 2.4 and 2.5 above.

Examples:

1. Mahia worked as an apprentice boilermaker at Tycho Brahe Ltd, a small engineering business of which Peter was the managing director.

   One day Mahia decided to use arc welding equipment to cut the tops off two steel drums. He had not been told by Peter, or anyone else, that it was an activity that required a special procedure to avoid the risk of explosion.

   Mahia managed to cut the top off the first of the drums, but while he was cutting the second it exploded, causing him to suffer third-degree burns to his face, hands and shoulders.

   Tycho Brahe Ltd were convicted for failing to provide information on hazards to an employee (section 12), and for failing to ensure employees are not exposed to hazards (under section 6).

2. Lesley and Sid worked at the engineering works of Blacksmith's Engineering Ltd. They did a variety of semi-skilled work surrounding the assembly and finishing of structural steelwork. This involved the use of flammable solvents for vapour degreasing or paint application.

   One day Lesley was using a hand-held grinder to remove burrs from a tubular portal. Sid was preparing the equipment and materials needed for applying a coating, when a spark flew from the grinder into the midst of the materials and caused a small fire.

   Because neither Sid nor Lesley knew of any emergency procedures, or where the appropriate extinguishers for a solvent fire were kept, they were unable to control the fire and it burnt the workshop down.

   Blacksmith's Engineering were convicted for failing to meet the requirement to provide information to employees under section 12.

3.5 Participating in the improvement of health and safety

Employers have a duty to provide reasonable opportunities to employees to participate effectively in ongoing processes for improvement of health and safety in their place of work (section 19B).

This applies in particular to the processes set out in sections 6-13 of the Act.

Employees therefore have a right to participate in this process in their place of work. The Act specifies circumstances where a system is required to be in place to properly canvas the views of employees. Safety and health committees and representatives provide a means for such consultation and co-operation, and their establishment is encouraged.

[Refer to 2.6, Employee participation, and the fact sheet, Employee participation]