Applying the Guidelines Responsibilities for employers

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1 FACT SHEET QUAD BIKE SAFETY Last year the Department of Labour (DOL) i produced a set of quad bike guidelines to clarify the responsibilities of employers under the Health and Safety in Employment Act 1992 (HSE Act). The guidelines explain how to manage quad bike hazards when using bikes on the farm. They can be found on the DOL website Relationship between HSE Act obligations and the guidelines While the Guidelines are not a law like the HSE Act, DOL believe following the guidelines is good practice and is a way to take all reasonable and practicable' steps to ensure safety on the farm. In a prosecution, a court is able to use the guidelines to help decide whether or not someone has complied with the obligations or provisions of the HSE Act. Therefore, if an employee was injured on a quad bike and a prosecution was brought against an employer, proof the employer had followed the guidelines could help to show they had done everything reasonably possible to keep people on their farm safe. Outline of the Guidelines ii Choosing the right vehicle for the job Thinking about the task, carriage of goods, ground conditions, driver capability- does the job require a quad bike, or could it be more safely done with a two wheeler or Ute? Table guide for vehicle use is attached to the Guidelines. Speak to vehicle dealers/supplier about your own farming situation and the terrain and conditions it will encounter. Also read the manufacturers recommendations, maintenance information and limitations or restrictions of the quad bike. Riders must be trained/experienced enough to do the job Before anyone rides your quad bikes assess their skills. If they need training the best option is a skills course. For information on accredited training providers visit: NZQA or call Or contact your local quad bike dealer and ask about courses in your area. Don t let kids ride adult quad bikes Quad bike manufacturers set minimum ages for using their bikes based on the age when young people have sufficient strength, body weight and mental ability to master the safe riding techniques. On all adult-sized quad bikes (over 90cc) sold in New Zealand that age is 16 or older. Managing hazards under the HSE Act It is your duty to take all practicable steps to control each hazard on your farm. The most common hazards faced by quad bike users on farms are outlined thoroughly in the Guidelines, along with guidance about ways for farmers and other riders to effectively control those hazards: Operating a quad bike ensure riders have the knowledge, skills, and training necessary to operate them or are closely supervised until competent Quad bike loss of control wear a helmet at all times, recognize dangerous areas by establishing no-go zones in the farm s Health and Safety plans Carrying passengers, attachments and modifications, towing and carrying loads always within the recommended limits or regulations Fact Sheet Quad Bike Safety Page 1

2 Mechanical failures conduct a pre-operation check before riding, and ensure the bike is in reliable working condition by undertaking regular maintenance checks ( a pre-operation checklist and routine maintenance checklist is included in the Guidelines). Multi-tasking manufacturers recommend riders keep both hands on the handlebars and both feet on the foot pegs while riding. Wherever possible, stop the quad bike before performing another task, or use another vehicle. Working alone in isolation tell someone where you are working and when you plan to return, and have regular check in times; Personal factors, e.g. fatigue, stress, attitude (over-confidence, recklessness). A sample quad bike rider competency assessment checklist is attached to the Guidelines. Unauthorised access to the quad bike e.g. visitors, young children or inexperienced workers. Most importantly - Always wear a helmet Helmets can be the difference between walking away from an accident and suffering a permanent, life-changing brain injury. Applying the Guidelines Responsibilities for employers The first port of call should be supplying all employees, contractors and other regular visitors to the farm who use quad bikes with a copy of the guidelines or notifying them of where to find them. Educating people on the farm about the hazards and ways to minimise them is part of your responsibilities under the HSE Act. Keep in mind it is not enough for employers to just provide helmets for workers and others who ride their bikes. Employers need to take steps to ensure these helmets are worn, and other safety initiatives implemented are followed, such as speed limits, no passengers, and routine preoperation checks. The most obvious and effective way to ensure this is to do so yourself. Problems often arise when employees claim it is their personal choice not to do so, and they are happy taking the risks. This is not their choice to make, as it is the employer who will be held responsible for accidents that occur on their farms, if the employer is shown to be aware their employees are not working safely. Also, employees too have a duty to keep themselves and others out of harm s way, and the Department of Labour has prosecuted employees for failing to do this. Your response should be the same as it would be if the worker did other serious things like turned up drunk, or consistently failed to follow simple work instructions. Clearly communicate to the employee that wearing a helmet prevents injury, and that helmets must be worn or disciplinary action will be taken. You can use employment agreements to spell out that workers must comply with all health and safety requirements, including wearing helmets. The agreement can state that not complying with health and safety requirements would be considered serious misconduct and could result in disciplinary action, including their employment being ended. It has been noted by the authority the enforcement of health and safety requirements through disciplinary action is a 'reasonable and practicable' step to keep their employees and farm safe. It is important that you lead by example - don t expect your employees to wear a helmet if you don t. The legal consequences for failure to comply There is no specific law covering helmets, training, rider age, passengers and towing/carrying limits on quad bikes. However, when quad bikes are being used for work purposes as they are on farms - they are covered by the Health and Safety in Employment Act. This Act requires employers to take all practicable steps to prevent employees and others from being harmed in their workplace. Fact Sheet Quad Bike Safety Page 2

3 For farm quad bikes, these steps would include all recommendations contained in the manufacturers' manuals/operating instructions, along with the recommendations in the Guidelines. Both would be good place to start in terms of meeting your obligations in the HSE Act. In terms of enforcement, the DOL Inspectors have the authority to visit workplaces to assess safety and investigate accidents. The DOL s enforcement tools range from negotiating agreements for safety improvements, to issuing warning notices requiring improvements, to stopping use of dangerous equipment and in serious cases prosecution. In the most serious of cases, employers are prosecuted for failing to take all practicable steps to ensure their employees safety one recently was fined $78,000 and ordered to pay reparations of $60,000; and another fined $25,000 and ordered to pay reparations of $20,000. In both cases, the employees were not adequately trained and were not wearing helmets. One sustained a serious skull fracture and long-term brain damage, and the other sustained serious internal injuries and died three days later. In both cases the sentencing Judge s remarked that the obvious practicable steps to avoid injury was not taken the provision of training and the provision of a helmet. One Judge concluded with a warning to farmers, that if they allow their employees to undertake those risks, then farmers could expect their culpability to be assessed at a high level if there is an accident. More examples of these case studies, and lessons learned by other farmers can be found at Self-employed or farmers without employees Self-employed farmers still have the same duties under the HSE Act as outlined above - section 17 of the Act states that every self-employed person shall take all practicable steps to ensure that no action or inaction of the self-employed person while at work harms the self-employed person or any other person - including visitors, contractors, or anyone in a place under your control. Furthermore, employers and self-employed people who use their own quad bikes should also be aware of other duties may exist, for example the duty of persons in charge of dangerous things under the Crimes Act This duty will be breached where human life is endangered because adequate care has not been taken. 'Adequate care' is likely to be judged with reference to the Guidelines, the standards in the HSE Act along with common sense and industry practice. More importantly to note, is that this duty will make a person criminally liable for their actions or inactions. Quad bikes are also likely to be deemed motor vehicles for the purposes of the Land Transport Act Accordingly, drivers of quad bikes may be liable for offences committed in breach of sections of that Act, such as the duty placed on drivers not to be reckless or dangerous. Please note that this does not apply solely to vehicles driven on roads alone. Duties and responsibilities under the HSE Act for employers The HSE Act requires employers to take all reasonable and practicable steps to make sure that all employees, contractors and visitors to their farms are free from any work hazards and accidents. This includes: Making sure that equipment is safe for employees to use; Providing protective clothing and equipment for employees and making sure they use it (which includes leading by example); Stopping unsafe behaviour when you see it happening; Making sure that employees are not exposed to hazards arising out of transport in or near their workplace under the employer's control; Developing procedures to deal with any emergencies that could arise while employees are at work; and Fact Sheet Quad Bike Safety Page 3

4 Making sure that all employees are trained in health and safety knowledge, practices and procedures including the identification and control and management of hazards. The Act is specific on how to consider and control/deal with potential hazards once they are identified: 1) The first is to try eliminate the hazard, if possible; 2) If this cannot be done, then to try and isolate the hazard (i.e. physically blocking the hazard off); 3) If unable to do either, then you need to minimise it (i.e. by skills training, education) The Act also sets out obligations and responsibilities on behalf of the employee, to ensure that their duties are carried out safely and without injury to themselves, other members of the company, employees of subcontractors, and the community. It is a requirement that all employees observe safety regulations and rules to ensure that a safe working environment is maintained. Hazard and Accident Reporting Hazard reporting is an important duty for both employees and employers. The immediate hazard reporting process allows employees to report hazardous conditions or practices as they notice them. This procedure allows for prompt reporting and subsequent corrective actions - once a hazard is identified and reported, then you have a chance to eliminate, isolate or minimise it. Similarly with accidents and near misses - as an employer you have a legal obligation under the HSE Act to record and investigate incidents that occur on the farm to stop them reoccurring, Employers must record in a register every accident that harmed (or might have harmed): Any employee at work; Any person in a place of work or under your control every occurrence of serious harm to yourself while at work, or as a result of any hazard you were exposed to while at work. An entry must be completed for every accident, near-miss, incident, or any occurrences of serious harm which results from exposure to a hazard in a place of work. The categories of information required to be recorded in the register are set out in the Health and Safety in Employment (Prescribed Matters) Regulations 2003 (see link below). A hazard and accident register can also be found in the Federated Farmers OSH Manuals. Instances of serious harm must be recorded in your accident register and notified to DOL. You can go to the DOL website to report serious harm (see the link noted below). Serious harm includes: trauma injuries, that amounts to or results in permanent loss of bodily function, or temporary severe loss of bodily function (e.g. crushing or other injuries from being caught in a machine); Incidents where an employee or other person is in grave danger (e.g. accidental contact with an underground mains power supply). Serious burns requiring referral to a specialist Any harm that causes the person harmed to be hospitalised for a period of 48 hours or more commencing within 7 days of the harm's occurrence. Important contacts For more information about the following, go to: The Health and Safety in Employment Act The Guidelines for the Safe Use of Quad Bikes - HSE Act and DOL enforcement - NZQA Training Facilities - Notifying serious harm or accidents on the farm/workplacehttp:// Health and Safety in Employment (Prescribed Matters) Regulations Fact Sheet Quad Bike Safety Page 4

5 Or for free independent legal advice regarding employment and OSH matters, call 0800 FARMING ( ). Federated Farmers worked with DLA Phillips Fox to produce this factsheet. i Please note the Department of Labour was incorporated into the Ministry of Business,Innovation and Employment on July ii Please note this factsheet is intended as a summary, and not aimed to cover all information contained in the Guidelines, so please refer to them for the full safety requirements and details of good practices around the use of quad bikes. CONTACT Federated Farmers of New Zealand fact sheets are produced for our members by the Federation as a quick and easy reference guide to general information on topics of interest. If you wish to reproduce the information please ensure that you provide appropriate acknowledgement of the Federation as the source. To either seek further advise on information on the material contained in this fact sheet or to order a contract or agreement ring The information contained within these fact sheets should not be relied upon in lieu of legal advice. If you require specialised legal advice, please contact Federated Farmers team of employment lawyers and OSH specialists. Fact Sheet Quad Bike Safety Page 5