New Zealand: The new health and safety regime - what does it mean for the farming industry?

The new Health and Safety at Work Act 2015 (HSW Act) is now less than a month away from being in force. If you haven't yet caught up on the changes in the way health and safety will be dealt with, this is now the time to get all of your procedures and processes in place.

The main things that you should be aware of are:

  • you need to set up or update your health and safety system to comply with the new legislation;
  • you will need to assess the risks and hazards on your farm, and re-evaluate these risks on a regular basis;
  • you need to involve your workers in assessing and managing the risks;
  • codes of practice are available, and these will show you ways to eliminate or minimise the risks;
  • potential fines for breaches of the HSW Act are increasing substantially;
  • you cannot insure against these fines, although insurance can cover you for any reparation payments, and the cost of a lawyer defending you.

Key points of the HSW Act

The focus of the HSW Act is to protect workers and other people against harm to their health, safety and welfare by eliminating or minimising risks at work.

The HSW Act places obligations on:

  • a person conducting a business or undertaking, which includes a self-employed individual, a partnership, and company, and an association (this person is referred to in the HSW Act as a PCBU);
  • officers of a PCBU (such as the director or CEO of a company);
  • workers (including contractors); and
  • other people at a workplace, including family who live on the farm and visitors.

Who has duties under the HSW Act on a farm?

The legal entity that operates a farm will be a PCBU, whether it is an individual, partnership, trust, or company.

The PCBU has the principal duties under the HSW Act, to ensure the health and safety of its workers and of other workers whose activities are influenced or directed by the PCBU. It must also ensure that the health and safety of any other person isn't put at risk because of the work being carried out. 

An officer (such as the farmer in charge) has a duty is to exercise due diligence to ensure that a PCBU complies with its obligations. This should be done by ensuring that the PCBU has appropriate health and safety policies, which are adhered to, and that hazards are recognised and eliminated or minimised.

Workers (including employees, contractors, volunteers, apprentices and trainees) have their own obligations to take care for their own health and safety, and to ensure that they do not put the health and safety of others at risk. They must also comply with any policies and procedures issued by the PCBU, and any other instructions that they receive from the PCBU.

Reducing health and safety risk in your farming business

You will need to assess the farm to see where there are risks to health and safety. These risks will need to be eliminated where reasonably practicable, and otherwise minimised.

The types of risks that exist on farms will vary, depending on the type of farming that you do, the location that you are in, the equipment that you use, and many other things. It is important not to take a pro-forma approach, but to properly consider the risks that apply specifically to your farming operation.

These risks can cover a wide range of aspects of life of the farm, beyond what you would usually consider. This could include risks relating to:

  • fires, whether a wildfire resulting from weather conditions or a fire in machinery;
  • drowning in waterways on the farm, including rivers, lakes and ponds; and
  • driving on the roads around the farm, particularly if the farm is in an area with a lot of tourists or high-traffic volume.

You will need to review your risks and the steps that you have taken to deal with them on a regular basis. It is not enough to consider them once and then not turn your mind to them again. Health and safety needs to be an ongoing consideration in the operation of your farm.

In the event that an accident occurs on your farm, being able to show that you had assessed the risks and implemented the recommendations in the good practice guides will be an important factor in showing WorkSafe that you took all reasonably practicable steps that were available to you.

To assist with risk assessment and provide advice on how to eliminate or minimise those risks, WorkSafe has collaborated with ACC to create the Safer Farms website for farmers. On this website you can find good practice guides on a variety of subjects, and a step-by-step process for making a health and safety plan.  

Access to farms by the public

One of the duties of a PCBU is to ensure that the workplace, in this case the farm, doesn't risk the health and safety of any person. However, there are two important provisos to this for farms.

First, there is no duty owed to any person who is at the workplace for an unlawful purpose. This means that if a person has come on to your farm for the purpose of stealing stock or equipment, you will not owe them a duty under the HSW Act. However, it is important to note that this exception relates to people who come on to the farm for an "unlawful purpose", not just those who are unauthorised. A person who is hiking on a track on your farm may not have been specifically authorised by you to be there, but will not be there for an unlawful purpose.

The second concession for farms is that the duty applies only in relation to the farm buildings and any structure or part of the farm immediately surrounding the farm buildings that are necessary for the operation of the business or undertaking. There is no standard duty of care under the HSW Act in relation to the main house on the farm (so that a farm house is treated like any other house in New Zealand), or in relation to any other part of the farm, unless work is being carried out in that part at the time.

A person hiking on your farm is likely to be away from the main farm buildings, and therefore you will not owe a duty to them unless there is work being done in the area where they are. On a practical basis, this means that if, for example, you are digging holes for new fence posts, you should put up warning signs in that area while the work is underway.

Children and young people on farms

Regulations made under the HSW Act specify some additional requirements for the health and safety of children and young people. They specify that no worker (and that includes someone who is helping out and not being paid) under the age of 15 should:

  • be present in the workplace when there is work involving the use of hazardous substances in that area;
  • be involved in any heavy lifting which could be harmful to the worker's health;
  • be involved in any work at or near machinery in the workplace; or
  • drive a vehicle (such as tractors, quad bikes, and other farm machinery), or ride on a vehicle with an attached implement, or ride on an implement attached to a vehicle, unless the implement is specifically designed for such purposes.

However, a worker aged between 12 and 15 years may drive or ride on a tractor being used for agricultural purposes, if he or she is either fully trained in or is currently being trained in the safe operation of the tractor, or of any implement being drawn by or attached to the tractor.

Quarries

A fatality at a Canterbury limestone quarry in 2015 highlighted the risk of non-compliance with health and safety standards for the extractive industry. This has led to an emphasis on health and safety for quarries, and new safety guidelines.

However, WorkSafe has confirmed that "small-scale, non-complex extraction on farmland for farming purposes only" is not affected by the changes. Any extraction of gravel from river beds where there is no processing is not of concern. 

The only farm-based quarrying operations of concern to WorkSafe are those which have some of the standard risks of the industry, such as high walls and the use of explosives. In those cases, the regulations will need to be complied with, including the requirement for the quarry manager to hold a Certificate of Competence.

Accommodation

Many farms provide accommodation for some or all of the farm workers.

The PCBU has a duty to maintain the accommodation so that the worker is not exposed to risks to his or her health and safety arising from the accommodation. The farm will therefore need to periodically inspect the property, and respond in a timely manner to any complaints raised by the workers living in the accommodation. This is similar to the responsibilities that any landlord has to their tenants.

This could mean ensuring that your farm accommodation has sufficient heating and working fire alarms, and that any electrical appliances provided are in good condition, as well as more specific farm related hazards, such as ensuring that any farm animals are separated from the accommodation by suitable fencing.

Penalties

If any of the duties in the HSW Act are breached, there are a number of different penalties open to WorkSafe.

A WorkSafe inspector can turn up at any time, unannounced, to review your farm's operations.

Even if no incident has taken place, a WorkSafe inspector can issue notices, including:

  • an improvement notice, requiring a PCBU to take steps to prevent a breach of the legislation or to remedy a current breach, non-compliance with which can result in a fine of up to $250,000 for a company or $50,000 for an individual;
  • a prohibition notice, prohibiting the carrying on of an activity that involves a serious risk to a person's health and safety, where non-compliance can result in a fine of up to $500,000 for a company or $100,000 for an individual; and

These notices are the likely options for WorkSafe inspectors who see unsafe practices when visiting farms, including for people not wearing appropriate safety equipment such as helmets on quadbikes, or wearing hearing protection around loud machinery.

WorkSafe may also prosecute a duty holder for any breach of the legislation. If a prosecution for a breach is successful, the court can impose a range of penalties, including:

  • fines, which can vary depending on the actual breach, up to a maximum of $300,000 for an individual, $600,000 for an officer, and $3,000,000 for a PCBU;
  • a prison sentence of up to five years;
  • reparation payable to a person injured by a breach; and
  • costs payable to WorkSafe.

The maximum penalties have increased substantially from the previous levels. This is likely to mean that the amounts ordered by the courts will have similar increases when the new legislation comes in to force, particularly for incidents that the courts see regularly.

You will not be able to obtain insurance for any fine ordered to be paid under the HSW Act, although statutory liability cover remains available for any order of reparation, and for the cost of a lawyer representing you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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