Changes to 'serious harm' definition
Hon Trevor Mallard
Minister of Labour
23 October 2008 Media Statement
Changes to 'serious harm' definition
Labour Minister Trevor Mallard announced today the government is changing the definition of 'serious harm' under the Health and Safety in Employment Act 1992.
The term ‘serious harm’ is important because it sets a benchmark that imposes a legal obligation on employers to report workplace illness and injury, and to manage the hazards that caused them.
"The new definition aims to make the law clearer, so it will be easier for employers to understand their obligations to report worker injuries to the Department of Labour, Civil Aviation Authority or Maritime New Zealand (for the relevant sectors). Public consultation last year provided almost unanimous support from 116 submitters that there was a need to revise the definition of 'serious harm'," Trevor Mallard said.
The proposed new definition will replace the current list of conditions and circumstances with a simpler three-stage test.
'Serious harm' will comprise three main categories
• trauma injury: physical harm arising from a single accident or event and defined by the degree of physical incapacity
• acute illness or injury caused by exposure to certain workplace hazards, and requiring medical treatment
• chronic or serious occupational illness or injury: physical or mental harm requiring hospital admission, in-patient surgery, or able to be confirmed by a specialist medical diagnosis.
For trauma injury the new definition will replace the problematic term "temporary severe loss of bodily function" (that is in the current definition) with "physical incapacity". "Physical incapacity" will mean a person is "unable to perform their normal duties for a period of seven or more calendar days".
The new definition will also clarify the coverage of cases of chronic occupational illness and disease, and occurrences of mental harm arising from the workplace. Also included will be cases of acute illness or injury, or unconsciousness, resulting in medical treatment and caused by: lack of oxygen; hazardous substances; electrical, combustible or mechanical energy sources and falls from height.
These incidents are included because they point to hazards in the workplace that need to be addressed immediately.
"The current definition has always been difficult for users to interpret and apply and there have been gaps in coverage," Trevor Mallard said.
"Because its wording is unclear, various court cases and attempts by the Department of Labour to provide guidance have failed to provide clarity. The proposed new definition will be clearer and more transparent for users. It will improve the level and quality of reporting and compliance with the Health and Safety in Employment Act generally.
"It will set an appropriate and effective threshold for reporting of serious harm for the purposes of the Act, balance employer and employee concerns, and improve the law’s effectiveness."
The Department of Labour, together with Maritime NZ and the CAA, was notified of about 6500 occurrences of serious harm in workplaces each year. Most reports were to the Department of Labour.
The Parliamentary Counsel Office will now start drafting an Order in Council to replace the current First Schedule of the Health and Safety in Employment Act 1992 with a new definition of 'serious harm'. The Health and Safety in Employment (Prescribed Matters) Regulations 2003 would be similarly changed.
It is hoped the new definition will be in place by the end of 2008.
For a summary of the submissions received, go to www.dol.govt.nz