Health and Safety Guidelines

Health and Safety Guidelines for the On-Hire Industry

These guidelines should be read and applied by the: Client engaging an Agency to fill an assignment Agency sourcing a person to fill the assignment Person controlling the assignment workplace Person employed to complete the assignment. These guidelines have been produced by the On-Hire Safer Industry Forum, which consists of representatives from the On- Hire Industry, the New Zealand Branch of the Recruitment & Consulting Services Association, ACC, the Council of Trade Unions and the Occupational Safety and Health service to promote and encourage best practice health and safety within the industry.

Foreword Hon. Margaret Wilson Minister of Labour Hon. Ruth Dyson Minister for ACC We are delighted to provide the foreword for this guideline publication, and to have the opportunity to publicly congratulate the On-Hire Employment Services Industry on a significant health and safety initiative. On-Hire Employment Services is a unique and rapidly growing industry. Technological advances and changes in work practices have resulted in the need for a flexible and adaptable workforce. Both employers and individuals have recognised the benefits associated with a more flexible employment relationship. The industry's unique nature means that it faces some unique injury prevention challenges. Therefore, it is pleasing to see that industry members, the Recruitment & Consulting Services Association, New Zealand Council of Trade Union representatives and the government agencies responsible for the health and safety of workers the Accident Compensation Corporation and Department of Labour Occupational Safety and Health Service have come together to develop the guidelines through the On-Hire Employment Forum. The On-Hire Employment Forum has done well to get the representatives together and gain commitment to reduce illness and injury to those working in this industry. The guidelines will make an important contribution to the government's commitment to reduce workplace injuries. This publication is a significant step forward because it represents consensus by the On-Hire Employment Industry on practical ways to reduce injuries and illness for that industry. It sets out the minimum acceptable agreed standard for all parties in the employment arrangement the employee, the client and the employment agency. The collaborative approach taken to develop the guidelines is also consistent with the government s new health and safety in employment legislation. We have put a framework in place that provides for everyone to work together to reduce the economic and social costs of workplace illness and injury. There is no doubt hazard management is most effective when the issue is jointly owned and driven by the people who know the ins and outs of the work and workplaces involved. Once again, we congratulate all those who have been involved in the development of this initiative. Hon. Margaret Wilson Minister of Labour Hon. Ruth Dyson Minister for ACC 1

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Contents Introduction...4 The Health and Safety in Employment Act 1992 and the On-Hire Industry...5 The Standard Required...6 The Agency...7 General Responsibility...8 Employee Participation...11 Hazard Identification and Control...14 Protective Clothing and Equipment...17 Training, Supervision and Information...19 Accident Reporting and Investigation...21 The Client...22 The Temp...23 Definitions...24 3

Introduction These Guidelines have been produced by the On-Hire Safer Industry Forum, which consists of representatives from the On-Hire Industry, the New Zealand Branch of the Recruitment & Consulting Services Association(RCSA), ACC, the Council of Trade Unions and the Department of Labour s Occupational Safety and Health service (OSH). They apply to the situation where an On-Hire Agency pays or rewards a person (a Temp ) to work in a specific assignment in the workplace of its Client. The aim is to promote and encourage best practice health and safety with all stakeholders in the On- Hire Industry and to assist all parties involved to understand their legal responsibilities and to work together to maximise the safety of the person doing the work. They contain: 1. A plain language explanation of the legal responsibilities of: The Agency The Client and person controlling the workplace The person doing the work (the Temp). 2. Guidelines for the above parties to assist them to fulfil their responsibilities, including references to further information in support of the guidelines. 3. Relevant definitions, including key terms defined in the Health and Safety in Employment Act 1992 and the Health and Safety in Employment Regulations 1995. Implementation of the Guidelines will be considered by an OSH inspector carrying out a compliance assessment or investigating a serious harm illness or injury as one of the practicable steps participants in the On-Hire Industry could take to ensure the health and safety of the Temps. This publication may be freely reproduced except for advertising, endorsement or commercial purposes. Please acknowledge the source as being the On-Hire Safer Industry Forum. The information is current as at October 2003. 4

The Health andsafety in Employment Act 1992 and the On-Hire Industry The Act is about making work activities safe and healthy for everyone connected with them. It seeks to achieve this by: Assigning responsibilities to all people connected with the work activity. In the On-Hire Industry these are the Agency, the Client and the Temp Requiring a systematic approach to making the work situation safe and healthy Defining the standard of performance required of the people connected with the work activity. The circumstances of the On-Hire Industry mean that: 1. The Agency has responsibilities The Agency pays the Temp to work on a specific assignment at the workplace of the Client and meets the definition of an employer in the Act [Section 2]. It does not usually supervise the dayto-day tasks the Temp will be performing, nor does it usually control the place of work where they are required to perform the work. This does not diminish the responsibilities of an Agency, as an employer, to do all things reasonably practicable to ensure its employees are not harmed while at work. 2. The Client has responsibilities The Client engages the Agency to source the Temp and meets the definition of a principal in the Act [Section 18]. The Client also usually controls the workplace where the Temp is working and therefore meets the definition of a person who controls a place of work in the Act [Section 16]. The Act requires the Client to: Take all practicable steps to ensure the health and safety of the Temp while at work Ensure that the Temp is not harmed by any hazard that is or arises in the place of work that the Client controls. The Act makes it very clear that the same responsibilities can be imposed on both the Agency and the Client and that these responsibilities are not diminished or affected by the fact that they are also imposed on others [Section 2(2)]. 3. The Temp has responsibilities The Temp is employed by the Agency to work in the workplace of the Client for a defined period of time and meets the definition of an employee as defined in the Act [Section 2]. The Act [Section 19] requires the Temp to: Take all practicable steps to ensure their safety while at work, including wearing and appropriately use suitable personal protective clothing and equipment. Take all practicable steps to ensure that no action or inaction of theirs while at work causes harm to themselves or to any other person. More information about the Act is available in the OSH publication A Guide to the Health and Safety in Employment Act available on the www.osh.govt.nz site. 5

The Standard Required The Act defines the standard required for most duties as taking all reasonably practicable steps [Section 2A]. In summary, all reasonably practicable steps are what can reasonably be expected given the circumstances, state of knowledge, resources, etc. The Act require steps to be taken only in known circumstances or in circumstances that could reasonably be known about. A step is practicable if it is able to be done. Whether a step is also reasonable takes into account: The particular circumstances The nature and severity of any harm that may occur The degree of risk or likelihood of harm occurring How much is known about the hazard and the ways of eliminating, isolating or minimising the hazard The availability, effectiveness and cost of possible safeguards. The degree of risk and severity of potential injury or harm must be balanced against the cost and feasibility of the safeguard. The cost of providing safeguards has to be measured against the consequences of failing to implement them. It is not simply a measure of whether the person can afford to provide the necessary safeguards. Where there is a risk of serious, or frequent, injury or harm, a greater cost in the provision of safeguards may be reasonable. Any judgement of whether a safeguard is reasonably practicable is to be made taking common practice and knowledge throughout the industry into account. A claim by an individual person that they did not know what to do about a hazard would not be successful if the hazard were widely known to others in the industry and safeguards were in use. Fact sheet: Taking all Practicable Steps available on the www.workinfo.govt.nz site. 6

The Agency is responsible for meeting the duties of an employer as defined in the Act. The key duties are to: 1. Take all practicable steps to ensure the health and safety of the Temp while at work. 2. Provide reasonable opportunities for the Temps to participate in the Agency s health and safety processes and, where required, have an employee participation system. 3. Have a system to identify workplace hazards, to control significant hazards and to monitor the effectiveness of the controls. 4. Provide, make accessible to, and ensure all the Temps use protective clothing and equipment where significant hazards have been identified. 5. Ensure that all the Temps are trained in, or are supervised by a person who has knowledge and experience of the work, plant or substance. 6. Have a system for workplace accidents, illnesses and near hits to be recorded, investigated and reported. 7

1. The Agency s general responsibility to ensure the health and safety of the Temp The Act requires the Agency to take all practicable steps to ensure the health and safety of the Temp while on assignment [Section 6]; and, in particular, to: a) Provide and maintain a safe working environment; b) Provide and maintain health and safety facilities; c) Ensure that plant and equipment is safe for the Temp to use; d) Ensure the Temp will not be exposed to hazards from the way the work is organised or carried out; e) Have procedures for dealing with emergencies. The Act also requires the Agency to take all practicable steps to ensure that no action or inaction of the Temp, while on assignment, harms any other person [Section 15]. The Agency s responsibilities as an employer are not diminished by the fact that the Agency does not control the environment in which the Temp works, but the practicable steps which the Agency can take to fulfil those responsibilities are different from those of other employers. In summary, the Agency should: Develop a health and safety policy detailing how the Agency will ensure the health and safety of Temps on assignment Develop and implement health and safety procedures detailing specifically how the health and safety policy will be implemented Obtain information from each Client about the work that Temps will be required to do For each Client, agree and include health and safety requirements in the Contract for Services Maintain administrative records. Health and Safety Policies A health and safety policy is a visible means of demonstrating commitment to health and safety and details how the Agency intends to ensure the health and safety of its employees. It should state: Management will meet their health and safety responsibilities Management will support and encourage employee consultation and participation in health and safety Management will support the safe and early return to work of injured employees Workplace incidents and injuries will be accurately reported and recorded What the managers responsibilities for health and safety are What the employees health and safety responsibilities are. It should be: Widely distributed (e.g. on noticeboards, in health and safety training materials and manuals) Signed and dated by a senior manager (e.g.#ceo/md/site Manager) Reviewed by management every two years. Health and Safety Procedures The Agency should have health and safety procedures detailing the practicable steps managers and employees will take to implement the health and safety policy. This should include the steps consultants and employees are to follow when: Reporting hazards Health and safety concerns with the Client s workplace are raised Notifying changes to the workplace or the work tasks Reporting accidents and injuries Responding to emergencies Participating in health monitoring (if required) Participating in a return to work/rehabilitation programme (if required). An Introduction to Employer Rights and under the Health and Safety in Employment Act Improving Workplace Safety and Health for Small Business How to Manage Hazards for Small Business All publications available at www.workinfo.govt.nz 8

1. The Agency s general responsibility to ensure the health and safety of the Temp (continued) Obtaining Information from the Client The information that the Agency should seek and the Client provide includes details of the: 1. The type of work the Temp will be required to perform. The information should detail how the actual assignment and tasks are organised and carried out e.g. information concerning the amount of manual handling involved, repetitive work, work completed in a confined space, shift work and/or unsociable hours. The job title (e.g. process worker) is not sufficient to assist the Agency to match the skills of the Temp to the task(s) to be carried out, nor does it assist the Agency to identify potential hazards involved and to be in a position to enquire about specific hazard controls. 2. Plant, equipment, substances and materials to be used or handled. The information should detail the nature of plant, equipment, substances and materials that will be used by the Temp, the control mechanisms and any health monitoring systems in place. 3. Legislation, standards and codes of practice applicable to the work. 4. Working environment. The information should detail the physical nature or conditions of the workplace e.g. information concerning extremes of temperature, working at heights, noisy environments or confined spaces, the control mechanisms and any health monitoring systems. 5. Client s health and safety management system. The information should detail any recognised safety management programme of which the Client is a member e.g. ACC Partnership Programme, ACC Workplace Safety Management Practices programme, Farmsafe, Sitesafe. 6. Knowledge, skills and experience required to be able to perform the tasks safely and competently, including: (i)the tasks the Temp will be required to perform that could involve a risk of harm to themselves or others if the Temp has an impairment e.g. minimum visual ability required for truck drivers (ii)where restrictions or limitations exist, details of how or whether people with impairments could be reasonably accommodated (iii)the licences, qualifications or competencies required. The Contract for Services The Agency and Client should agree and include in the Contract for Services details of how each party will meet their health and safety responsibilities. The Contract for Services should cover the: 1. Evidence the Agency requires prior to the Temp commencing the assignment to confirm it is satisfied with the steps used by the Client to identify and control hazards. 2. Process that will be used to: Inform Temps of the hazards and control mechanisms in the workplace 9

1. The Agency s general responsibility to ensure the health and safety of the Temp (continued) Notify the Agency of newly identified hazards and control mechanisms Notify the Agency in the event of a workplace injury or illness Notify the Agency in the event of an infringement, improvement, prohibition or suspension notice relating to or affecting the Temp or the assignment. 3. System the Agency will use to monitor the effectiveness of the controls used to isolate or minimise the likelihood of harm arising from significant hazards that it is not practicable to eliminate. 4. Applicable legislation, standards and codes of practice associated with performing the assignment. 5. Need for and type of protective clothing and equipment required and the system the Agency will use to monitor the need for, use of and effectiveness of that clothing and equipment. 6. Supervision and training that will be provided. 7. Actions that will be taken if the health and safety of the Temp are compromised. Administration 1. Ensure records and documents are maintained throughout each step of the on-hire employment process. Particular attention should be given to recording problems or concerns relating to the health and safety of temporary employees and the actions taken to address them. 2. Other records that should be kept on file include: Job applications Interview notes Notes on reference checks Licences and certificates of competency Details of employment during the course of contracts with the Agency Correspondence with temporary employees and Clients Client enquiry or job order forms A copy of the Contract for Services as agreed, signed and dated by the Client Completed workplace inspection checklists and notes, signed and dated by field staff/consultants Completed temporary employee induction checklists or records signed and dated by employees Records of workplace visits to monitor the health and safety of temporary employees Training records signed and dated by the employees Health monitoring results and follow-up correspondence Accident/Incident reports and the outcomes of investigations Serious harm notifications forwarded to OSH Notes and actions taken to address hazards or concerns raised by the temporary employees. 10

2. The Agency s responsibility to involve Temps in health and safety processes 2. (a) General responsibility The Act requires Agencies to provide reasonable ongoing opportunities for Temps to be involved in health and safety processes [Section 19B]. Reasonable opportunities are defined in the Act [Section 19B] as opportunities that are reasonable in the circumstances, having regard to relevant matters such as the: Number of employees employed by the employer Number of different places of work for the employees and the distance between them Likely potential sources or causes of harm in the place of work Nature of the work that is performed and the way that it is arranged or managed by the employer Nature of the employment arrangements, including the extent and regularity of employment of seasonal or temporary employees Willingness of employees and unions to develop employee participation systems Overriding duty to act in good faith. The Agency must be able to demonstrate how it provides reasonable opportunities for Temps to be involved in health and safety processes. Best practice health and safety processes recognise the value the person doing the work can offer to the safety of the workplace. The circumstances of the On-Hire Industry mean that the workplace is not limited to one particular site nor is it normally that of the Agency. What is required will vary depending on the Agency and what is reasonable. In smaller Agencies it may be reasonable to seek feedback from employees on an ongoing basis and create an environment where health and safety issues can be raised and discussed at any time. In larger Agencies a regular system of health and safety meetings may be reasonable. The Agency is responsible for ensuring employees are involved in health and safety processes. This recognises that health and safety processes include: Training in health and safety Hazard and significant hazard identification Mechanisms to control significant hazards (elimination, then if that is not possible isolation and if that is not possible minimising the possibility of the hazard to cause harm) Systems to monitor the effectiveness of controls where hazards have been isolated or minimised Systems for reporting work-related accidents, illnesses and near misses. To meet its responsibility to involve Temps in health and safety, the Agency should ensure Temps have reasonable opportunities to bring to its attention any concerns with: 1. The health and safety processes agreed between the Agency and Client to: Inform Temps of the hazards and control mechanisms in the workplace Notify the Agency of newly identified hazards and control mechanisms Notify the Agency in the event of a workplace injury or illness Notify the Agency in the event of an improvement, prohibition or suspension notice relating to or affecting the Temp or the assignment Monitor the effectiveness of the controls used to isolate or minimise the likelihood of harm arising from significant hazards that it is not practicable to eliminate Ensure adequate supervision and training are provided. What is Employee Participation? Involving Employees in Safety at Work: Developing an Approach that Suits Your Workplace Employee Participation Systems Health and Safety Representatives All publications available at www.workinfo.govt.nz 2. The health and safety practices in the Client s workplace. 3.The health and safety practices in the Agency s workplace. 11

2. The Agency s responsibility to involve Temps in health and safety processes (continued) 2. (b) Responsibility to have an employee participation system The Act requires Agencies to develop a system for employee participation where: (1) The agency has 30 or more employees (including Temps) who have worked more than 180 hours in the previous 12 months (2) Fewer than 30 employees (including Temps) have worked more than 180 hours in the previous 12 months, and a request is made by one of those employees or a union representing them. In such circumstances, the employer, employees, and any union representing those employees, must co-operate in good faith on health and safety matters [Section 19C]. The Act allows the flexibility for Agencies, Temps and unions to agree on a system that works best for their workplaces. It does not have to fit any particular structure or formula, as long as it gives Temps a reasonable opportunity to have input into health and safety. The Act requires Agencies (that are required to develop an employee participation system and whose system includes elected health and safety representatives) to ensure the representatives have ready access to sufficient information about health and safety systems and issues in the workplace to perform their functions effectively. The Act allows an existing system to continue if it is acceptable to the Agency, Temps and the union and it provides reasonable opportunities for Temps to participate effectively in health and safety and it has a process for review. If there is a health and safety committee, health and safety representatives must comprise at least half of the committee. The only defined requirement of an employee participation system is that it must have a process for it to be reviewed [Section 19C(3)]. The Act provides a default employee participation system that will apply if there is no agreement between the Agency, employees and the union within 6 months [Section 19D]. This default employee participation system requires an election of at least 1 health and safety representative or of up to 5 health and safety representatives to be members of a health and safety committee. 12

2. The Agency s responsibility to involve Temps in health and safety processes (continued) 2. (c) Responsibility to provide paid leave for health and safety training Where an Agency s employee participation system includes health and safety representatives, those representatives are entitled to two days paid leave to attend approved health and safety training [Section 19E]. This is subject to several provisos: Employers, workers and unions may agree to increase or decrease this entitlement as part of the overall employee participation system. Section 19F also puts a cap on the total number of days paid leave to which health and safety representatives are entitled (if no agreement has been reached to increase or decrease the entitlement). Training Leave Pointers Training of health and safety representatives is very important. Section 19G of the Act requires that the training must be an approved course of occupational health and safety as notified in the Gazette. Sections 78 and 79 of the Employment Relations Act 2000 apply as if the health and safety representative is an eligible employee and the leave is employment relations education leave. An employer may refuse leave on the grounds set out in Section 78 (3) of the Employment Relations Act. Maximum total number of days paid leave that employer is required to allow to be taken Employees Max. no. paid leave days 1-5 2 6-50 6 51-280 1 day for every 8 employees or part of that number 281 or more 35 days plus 5 days for every 100 employees or part of that number A union acting on behalf of the employee may give the employer notice in accordance with Section 236 of the Employment Relations Act. 13

3. Hazard Identification and Control The Agency is responsible for having in place a system to identify workplace hazards to which the Temp may be exposed whilst completing the assignment, to control significant hazards and to monitor the effectiveness of the controls. The Act requires the Agency to have in place effective systems to: a) Identify hazards and significant hazards to new and existing Temps [Section 7] b) Take all practicable steps to control significant hazards by: (i)elimination [Section 8] (ii)if elimination is not possible, then by isolation [Section 9] (iii)if isolation is not possible, then by minimising the possibility for the hazard to cause harm [Section 10] c) Monitor the effectiveness of controls used to isolate or minimise workplace hazards and significant hazards [Section 10] d) Regularly evaluate the possible severity of injury or illness arising from exposure to an identified hazard, in order to determine whether it is a significant hazard [Section 7]. The Agency cannot contract out of these responsibilities, nor can it transfer them to its Client. To meet this responsibility the Agency should satisfy itself that the hazard identification and control processes the Client has in place are sufficient to minimise the likelihood of the Temp being harmed. It also should ensure the Temp selected is fully informed of the hazards and control mechanisms and is sufficiently knowledgeable, skilled and experienced to complete the assignment, given the hazards and control mechanisms. There are practicable steps the Agency can take to meet this responsibility, including: 1. Obtaining detailed information from the Client concerning the: Assignment and the workplace Health and safety management system used by the Client e.g. ACC Partnership Programme, ACC Workplace Safety Management Practices programme, Farmsafe, Sitesafe Knowledge, skills and experience required to complete the assignment in a safe and competent manner given the identified hazards and control mechanisms Significant hazards to which the Temp will be exposed and the Client current methods for controlling these hazards. The information required can be obtained: Directly from the Client when they enquire about an assignment From the Agency files in the case of regular Clients. In this situation the Agency also needs to obtain sufficient information from the Client to confirm the documented records are current and accurate. Additional information can be obtained by a suitably trained and informed person conducting a workplace visit to: Observe work practices and the operation of machinery or processes Assess and determine if the hazards to which the Temp may be exposed have been identified and controlled Negotiate arrangements to improve hazard control mechanisms, if found to be unsatisfactory. The results of the workplace visit and any negotiations with the Client should be documented and kept on file. 2. Checking the Client has effective hazard identification and control systems, for the work the Temp will be doing In practice, it is the Client who controls the place of work where the Temp is working. However, it is the legal responsibility of the Agency to have in place an effective system to ensure hazards to which the Temp may be exposed are identified and controlled. To meet this responsibility the Agency should satisfy itself that the hazard identification and control processes the Client has in place are sufficient to minimise the likelihood of the Temp being harmed. 3. Selecting a suitable Temp to complete the assignment The Temp selected for the assignment needs to have sufficient knowledge and experience to complete the assignment in a safe and competent manner given the identified hazards and control mechanisms. 14

3. Hazard Identification and Control (continued) The Agency should also confirm the Temp: Has no pre-existing injuries, conditions or disabilities that are directly relevant to their ability to perform the assignment and which may put them or other persons at risk of injury or illness Has no injury or medical condition caused by gradual process, disease or infection that performing the assignment may aggravate e.g. hearing loss, sensitivity to chemicals and repetitive strain injuries. In some situations this may require a fitness for work medical assessment to confirm suitability. The Agency may choose to obtain written acknowledgement from the Temp that they have received the health and safety information and that they have no concerns regarding the assignment or their suitability to carry out the work involved. This could be included in the terms and conditions of the employment agreement between the Agency and the Temp. In this situation: The Agency should ensure the Temp has had sufficient opportunity to consider the health and safety information they have received before signing such an acknowledgement The acknowledgement on its own is unlikely to be sufficient to demonstrate that: (i)the Agency has taken all practicable steps to ensure the health and safety of the Temp while at work (ii)the Temp is trained in the use of equipment, substances and protective clothing and equipment [Section 13]. The Act requires an employer to monitor employees exposure to significant hazards that have not been eliminated or isolated 4. Monitoring the effectiveness of the hazard control mechanisms The Agency is responsible for having in place a system to monitor the effectiveness of the controls used to isolate significant hazards or to minimise the likelihood of significant hazards causing harm to the Temp completing the assignment. Practicable steps the Agency can take to meet this responsibility include: 1. Conducting workplace visits A suitably trained and informed representative of the Agency should make regular visits to the workplace to: Discuss the job, conditions and supervision with the Temp Inspect the workplace, and observe the work processes and practices Confirm the need for, use of and effectiveness of protective clothing and equipment (where required) Ensure that health monitoring is being carried out (where required) Confirm the terms of the Contract for Services are being met. The frequency depends on the length of the assignment and should be consistent with the hazards and control mechanisms associated with the assignment. Additional workplace visits should be conducted when the Agency is notified of: 15

3. Hazard Identification and Control (continued) A change to the workplace or work tasks that may put the Temp at increased risk An injury to the Temp The issuing of infringement improvement, prohibition or suspension notices by OSH A hazardous situation. The visits should involve the Agency and Client discussing health and safety and, where necessary, reaching agreement as to what action will be taken to address any issues or concerns. 2. Having feedback mechanisms The Agency health and safety procedures should provide a mechanism for the Temp to feed back to the Agency any issues or concerns with their health and safety whilst on assignment. This is a practicable step the Agency can take to involve Temps in health and safety and, where required, could be formalised in the Agency s employee participation system. The Act also requires an employer to monitor whether employees health has been affected by such hazards [Section 10(2)]. Employees must give their informed consent before health monitoring is carried out. Monitoring the Temp s Health The Agency is responsible for: Taking all practicable steps to obtain the Temp s consent to the monitoring of their health in relation to the effectiveness of the controls used to minimise the likelihood of significant hazards The Agency causing harm to the Temp completing the assignment (continued) Monitoring the Temp s health in relation to exposure to the significant hazard, with their informed consent. Examples of monitoring include monitoring exposure to noise, dusts, vapours etc., to ensure that levels do not exceed the nominal protection factors of protective clothing and equipment where they are required to be worn/used by Agency employees. As the employer, it is the Agency s responsibility to ensure that any necessary workplace monitoring is carried out. The terms and conditions of the Contract for Services should set out the processes that the Agency and the Client have agreed regarding health monitoring of Agency employees. In relation to health monitoring, it is useful to have a baseline from which to measure. For example, if a temporary employee is to do typing, an assessment of musculo-skeletal symptoms may be made prior to their placement with the Client company. Where measures to protect the health and safety of temporary employees are not being maintained, the Agency must take action to ensure its employees health and safety are not compromised. 16

4. Agency s responsibility to provide and ensure the use of protective clothing and equipment The Agency is responsible for providing, making accessible to and ensuring Temps use protective clothing and equipment. The Act requires the Agency to provide, make accessible to and ensure Temps use protective clothing and equipment to protect themselves from any significant hazard that is not practicable to eliminate or isolate and to which the Temp continues to be exposed [Section 10(2)]. It prohibits the payment of an allowance or extra remuneration or making it a pre-condition of employment that the Temp provides their own protective clothing and equipment [Section 10(3)]. The Agency is responsible for determining the need to provide or make accessible protective clothing and equipment. Protective clothing and equipment are required when it is not possible to eliminate or isolate a significant hazard to which the Temp may be exposed whilst completing the assignment. It is a practicable step to minimise the potential for the hazard to cause harm to the Temp. Practicable steps the Agency can take include: 1. Determining the need to provide or make accessible protective clothing and equipment. The Agency should obtain sufficient information from the Client concerning the hazards and control mechanisms in the Client s workplace to confirm: That it is not practicable to eliminate or isolate one or more significant hazards That the Temp may be exposed to this significant hazard(s) The likelihood that harm to the Temp can be minimised by providing protective clothing and equipment The type of protective clothing and equipment required. The Act acknowledges that the Temp may genuinely prefer their own protective clothing for reasons of comfort or convenience. This is discussed below. 2. Providing the Temp with suitable protective clothing and equipment or, if the Temp has voluntarily elected to provide their own protective clothing, confirming that it is suitable. The Agency should assess and confirm that the protective clothing and equipment are adequately designed to minimise the potential for the hazard to cause harm. It should also ensure that they are: Fitted correctly Supported by training in their use, maintenance and need Regularly cleaned, maintained and replaced. Personal Protective Clothing and Equipment All publications available at www.workinfo.govt.nz The Act acknowledges that the Temp may genuinely prefer their own protective clothing for reasons of comfort or convenience. Temps who Choose to Provide their Own Protective Clothing The Act acknowledges that there are some instances where a Temp may prefer to provide their own protective clothing. However, it is unlawful for the Agency to discriminate on the grounds that a Temp has chosen or not chosen to provide their own protective clothing. It is also unlawful to create an impression that providing their own protective clothing is a precondition of employment. Temps who choose to provide their own protective clothing relieve the Agency of the responsibility to supply that protective clothing. The Agency continues to have other obligations in this situation: The Agency should be able to demonstrate that the Temp chose to provide their own protective clothing without any coercion or inducement from the Agency The Agency should be satisfied that the protective clothing provided by the Temp is suitable for the purpose The Temp can change their mind, after giving the Agency reasonable notice, and choose that the Agency provides the protective clothing The Agency remains responsible for providing protective equipment. The dispensation applies only to protective clothing The Agency remains responsible for ensuring the Temp uses the protective clothing. 17

4. Agency s responsibility to provide and ensure the use of protective clothing and equipment (continued) Ownership of Protective Clothing and Equipment Protective clothing provided by the Temp remains their property. Protective clothing and equipment provided by the Agency remain the property of the Agency, and the Agency may choose to require them to be returned to it by the Temp at the completion of the assignment. The Agency may choose to include in the employment agreement between it and the Temp provisions: Requiring the Temp to return any protective clothing and equipment provided by the Agency at the completion of the assignment Enabling the Agency to deduct a specified amount from the Temp s wages upon the non-return of any protective clothing and equipment at the completion of the assignment. In this situation the Agency should ensure the Temp has had sufficient opportunity to consider the fact that a deduction may be made from their wages for this reason. It is not sufficient to state that the Agency can deduct any monies owing by the employee from their wages. It is not lawful for the Agency to require the Temp to pay a bond, or for a bond to be deducted from their wages, at the commencement of an assignment. Ensuring the Temp uses the protective clothing and equipment The Agency is responsible for ensuring the use of the protective clothing and equipment by the Temp and the effectiveness of the protective clothing and equipment. Temps have a legal obligation to wear suitable protective clothing and use suitable protective equipment, in circumstances where they are exposed to significant hazards. The Agency should point this obligation out to the Temps and include a requirement that the Temp uses the protective clothing and equipment in the employment agreement between it and the Temp. It should also actively take steps to monitor compliance, including seeking confirmation from the Client that protective clothing and equipment are being used correctly. 18

5. Training, Supervision and Information The Agency has responsibility to ensure that the Temp has, or is supervised by a person who has, knowledge and experience of the work, plant or substance. The Act [Section 13] requires the Agency to take all practicable steps to ensure that every Temp who does work of any kind, or uses plant of any kind, or deals with a substance of any kind, in a place of work: Either has or is supervised by a person who has knowledge and experience of similar places, and work, plant or substances of that kind as to ensure that the employee doing the work, using the plant or dealing with the substance is not likely to cause harm to the employee or other people Is adequately trained in the safe use of all plant, objects, substances and protective clothing and equipment that the Temp is or may be required to use or handle. Supervision Supervision is especially important when the: Temp is still learning the safety management practices within that workplace Temp is inexperienced in the tasks to be carried out Assignment is hazardous and the Temp has only recently been trained. In such circumstances, the Agency is responsible for taking all practicable steps to ensure the Temp is supervised by someone who has sufficient knowledge and experience in the work they will be completing and in the use and handling of any plant and substances to which they may be exposed during the assignment. Practicable steps the Agency should take to meet this responsibility include: Discussing with the Client the supervision they will provide and satisfying itself that it is acceptable and confirming the details in the Contract for Services Obtaining information from the Client confirming that the supervisor to be provided by the Client has sufficient knowledge and experience of similar work, locations, plant or substances to minimise the likelihood of the Temp causing harm to themselves or other people Obtaining information from the Client confirming that the supervisor is adequately trained in the safe use of all places, objects, substances and protective clothing and equipment that the Temp is or may be required to use or handle. Training Alternatively, the Agency is responsible for taking all practicable steps to ensure the Temp has sufficient knowledge and experience in the work they will be completing and in the handling of any substances to which they may be exposed during the assignment. To meet this responsibility the Agency should discuss the information the Client has provided concerning the assignment with the Temp, and obtain details of their knowledge and experience in the work they will be completing and in the handling of any substances to which they may be exposed during the assignment. The information should include details of the induction training provided to the Temp, including familiarisation with the operations, facilities, policies, procedures and hazard management procedures and any ongoing on the job training. This is particularly important where the Temp: Is not experienced in the type of work to be carried out. Has not previously worked for the Client in that area. Training and Supervision for Small Business All publications available at www.workinfo.govt.nz The Agency is responsible for taking all practicable steps to ensure the Temp is adequately trained in the safe use of all plant, objects, substances and protective clothing and equipment that they are using or handling or may be required to use or handle. 19

5. Training, Supervision and Information (continued) The Act also requires the Agency to ensure the Temp has been given, and is provided with ready access to, information in a form and manner that they are reasonably likely to understand about what to do in the event of an emergency arising whilst they are using any plant or handling any substance [Section 12]. Information The Agency is also responsible for ensuring the Temp has been given information in a form that they are reasonably likely to understand about what to do in the event of an emergency arising whilst they are using any plant or handling any substance. Practicable steps the Agency should take to meet this responsibility include: Providing general induction training to the Temp e.g. the RCSA CD-ROM SmartStart induction programme Sighting licences, certificates of competency, education records, training records, apprenticeship records, etc Reviewing records of previous assignments to confirm experience Discussing the information the Client has provided concerning the assignment with the Temp and assessing their level of training Discussing with the Client the training they will provide and satisfying itself that it is acceptable and confirming the details in the Contract for Services. Providing training, including induction training, in the operations, facilities, policies, emergency procedures and hazard management procedures is a practicable step the Client can take to ensure that the Temp is not harmed while completing the assignment. The Agency should provide the Temp with the information it has obtained from the Client and encourage the Temp to raise any concerns regarding the assignment or their suitability to carry out the work involved given the: Nature of the work Type of working conditions Plant and equipment to be operated Substances or materials to be used or handled Identified hazards and control mechanisms Supervision and training provided by the Client Conditions applying to the job, including the wearing of protective clothing and equipment Knowledge, skills, experience and competencies required to perform the job safely Hazards that the Temp will or may create whilst completing the assignment and the steps to take to minimise the likelihood that these hazards will cause harm to others. The information must be provided in a form and manner that the Temp is reasonably likely to understand. 20

6. System for recording, investigating and reporting workplace accidents, illnesses and incidents The Act requires the Agency to: Record in a register every workplace accident that harmed (or might have harmed) the Temp [Section 25(1)]. The details that must be included in the register are prescribed in regulations made under the Act. Notify the nearest OSH office as soon as possible after becoming aware of the details of any accident that caused serious harm and within 7 days give OSH written notice [Section 25(3)]. Investigate all accidents, harm and near hits recorded in the register to determine whether they were caused by a significant hazard [Section 7(2)]. Note:If a person suffers serious harm while at work, the scene of the accident must not be disturbed until authorised by an OSH inspector or a Police officer [Section 26] unless to: (a)save life or prevent suffering (b)maintain public access for essential services e.g. electricity, gas (c)prevent serious damage or loss of property. The OSH inspector will advise whether OSH wishes to investigate the accident and what action may be taken in the meantime. To keep a workplace safe and healthy, and as part of an effective system for identifying and managing hazards in the workplace, employers (Agencies and Clients) have to maintain accident registers, investigate any serious harm, and report cases of serious harm to OSH. Recording The Agency s accident register must include the details of all accidents or incidents that harmed or might have harmed a Temp while on assignment. In order to ensure that this responsibility is met, the Agency should include in the Contract for Services with the Client a requirement for the Client to inform the Agency of any accident or incident involving a Temp on assignment. The Agency should also include in the employment agreement between it and the Temp a requirement that, if the Temp is injured or an incident occurs in a workplace that might have injured the Temp, the Temp must notify the supervisor assigned to them by the Client and also inform the Agency as soon as possible. Notification to OSH When serious harm occurs to a Temp at work, both the Agency and the Client must: 1. As soon as possible after becoming aware of the serious harm, notify OSH by telephone or by fax (NOT by mail), describing: What has happened To whom Where. 2. Within seven days, provide written notice, containing the required details, to their nearest OSH branch. If the Agency does not know about the incident within seven days, written notification must be made as soon as possible after it becomes aware of the incident. An Agency may come to an agreement with a Client that the Client will notify OSH on behalf of the Agency. Any such agreement should be recorded in the Contract for Services and should specify that: Any notification to OSH must state that it is on behalf of both the Client and the Agency A copy of the notification must also be provided by the Client to the Agency. If the Agency becomes aware of serious harm to a Temp and has not received advice from the Client that OSH has been notified, the Agency should itself notify OSH. Accident Investigation The main purpose of an accident investigation is to determine how similar accidents might be prevented in future. The Client is required to investigate accidents to Temps in places of work controlled by the Client. The Agency should participate in and assist with the Client s investigation, where appropriate, and obtain from the Client a copy of the investigation findings. The Agency also needs to investigate accidents to its Temps in order to assist in the review of the Agency s own health and safety management system. Emergencies and Incident Investigation for Small Business Temporary Impairment: Dealing with an Employee s Temporary Impairment Recording and Reporting Serious Harm Serious Harm Definition of Serious Harm Recording and Reporting Accidents Accident Register and Form for Notification of Serious Harm All publications available at www.workinfo.govt.nz 21

The Client 1. As a principal A principal is defined in the Act as a person who engages any person to do any work for gain or reward [Section 2]. The Client engages the Agency to source the Temp and meets the definition of a Principal. As a Principal the Client is required to take all practicable steps to ensure that the Temp is not harmed while doing any work that they have been engaged to do [Section 18]. Principals cannot contract out of these obligations. 2. As a person who controls a place of work A person who controls a place of work is defined in the Act [Section 2] as someone who is: a) The owner, lessee, sublessee, occupier, or person in possession, of the place or any part of it; or b) The owner, lessee, sublessee, or bailee, of any plant in the place. For example, on a construction site the owner of the building, the construction company and the contractors who work for the construction company may all be people who control that place of work. The duties of each person will vary, however, depending on how much effective control each of them exercises over the workplace. The fact that a number of people may have the same duties under the Act does not diminish or affect each persons obligation to comply fully with those duties. The Client will usually meet the definition of a person who controls the place of work and, if this is the case, is required to take all practicable steps to ensure that no hazard harms people who are lawfully at work, including the Temp [Section 16]. Persons who control a place of work cannot contract out of these obligations. 3. As an employer in their own right The Client is not the employer of the Temp but may be an employer in their own right. If this is the case the Client is required to meet the responsibilities of an employer defined in the Act with respect to their own employees. This includes: 1. Taking all practicable steps to ensure that no action or inaction of any employee while at work harms any other person [Section 15]. 2. Recording in a register every accident that harmed (or might have harmed) their employees or any other person (including the Temp) in a place of work controlled by the Client [Section 25(1)(a)]. 3. Notifying the nearest OSH office as soon as possible after becoming aware of the details of any accident that caused serious harm (whether to their own employees or any other person, including the Temp) and within seven days giveing OSH written notice [Section 25(3)]. 4. Investigating all accidents, harm and near misses recorded in their register to determine whether they were caused by a significant hazard in a place of work under the Client s control [Section 7(2)]. In all three circumstances, the following applies, in the event of an accident: If a person suffers serious harm while at work, the scene of the accident must not be disturbed [Section 26] until authorised by an OSH inspector or Police officer, unless to: a) Save life or prevent suffering b) Maintain public access for essential services e.g. electricity, gas c) Prevent serious damage or loss of property. The OSH inspector will advise whether OSH wishes to investigate the accident and what action may be taken in the meantime. 22

The Temp General responsibilities The Temp is responsible for meeting the duties of an employee defined in the Act. The Act [Section 19] requires the Temp to take all practicable steps to ensure: Their safety while at work, including wearing suitable protective clothing and equipment That no action or inaction of theirs while at work causes harm to any other person. Right to refuse work The Act also gives the Temp the right to refuse to perform work if they believe it is likely to cause serious harm to them [Section 28A]. The Temp may continue to refuse to do the work if: a) They attempt to resolve the matter with the Agency as soon as practicable after first refusing to do the work; and b) The matter is not resolved; and c) The Temp believes on reasonable grounds that the work is likely to cause serious harm to them. The Act notes that reasonable grounds include advice from a health and safety representative that the work the Temp is required to perform is likely to cause serious harm to them. The health and safety representative must have reasonable grounds for believing the work is likely to cause serious harm. The Temp cannot refuse to do work that, because of its nature, inherently or usually carries an understood risk of serious harm unless the risk has materially increased beyond the understood risk. The Temp must do any other work within the scope of their employment agreement that the Agency reasonably requests. Other rights The Temp has rights as an employee corresponding to the responsibilities of the Agency as a employer; in particular: The right to have a safe and healthy working environment The right to know about the hazards the Temp will face while at work The right to participate in health and safety procedures. References Working Together so We All Go Home Safe and Well! Employee Rights Under the Health and Safety in Employment Act The Right to Refuse Dangerous Work All publications available at www.workinfo.govt.nz Employees What You Should Know About the Health and Safety in Employment Act 1992 www.osh.govt.nz/order/catalogue/153.shtml 23

Definitions All words have their common or dictionary meaning unless otherwise defined below: Act Agency All practicable steps The Health and Safety in Employment Act 1992 and subsequent Amendments and Regulations. An employment agency, a consultancy, a temporary or contract labour business or an on-hire employment services business that employs a person to work for a defined period in the workplace of its Client. All steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to: a) The nature and severity of the harm that may be suffered if the result is not achieved; and b) The current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and c) The current state of knowledge about harm of that nature; and d) The current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and e) The availability and cost of each of those means. To avoid doubt, a person required by this Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about. Client Employee Employer Good Faith Harm Hazard A person, company, organisation or legal entity or to whom a recruitment Agency provides hired labour in the form of temporary employees. A person employed by any other person to do any work (other than residential work) for hire or reward; and, in relation to any employer, an employee of the employer [Section 2]. A person who or that employs any other person to do any work for hire or reward [Section 2]. As set out in the Employment Relations Act 2000. (a) Illness, injury, or both; and (b) Includes physical or mental harm caused by work-related stress. Harmed, unharmed and to harm have corresponding meanings [Section 2]. (a) An activity, arrangement, circumstance, event, occurrence, phenomenon, process, situation or substance (whether arising or caused within or outside a place of work) that is an actual or potential cause or source of harm; and (b) Includes: (i) A situation where a person s behaviour may be an actual or potential cause or source of harm to the person or another person; and (ii) Without limitation, a situation described in subparagraph (i) resulting from physical or mental fatigue, drugs, alcohol, traumatic shock or another temporary condition that affects a person s behaviour. Hazardous has a corresponding meaning [Section 2]. 24

Definitions Health and safety representative Healthy Place of work Principal Safe Serious harm Significant hazard An employee elected, as an individual or as a member of a health and safety committee, to represent the views of employees in relation to health and safety at work [Section 2]. Unharmed; and health has a corresponding meaning [Section 2]. A place (whether or not within or forming part of a building, structure or vehicle) where any person is to work, is working, for the time being works, or customarily works, for gain or reward; and, in relation to an employee, includes a place, or part of a place, under the control of the employer (not being domestic accommodation provided for the employee): (a) Where the employee comes or may come to eat, rest or get first-aid or pay; or (b) Where the employee comes or may come as part of the employee s duties to report in or out, get instructions, or deliver goods or vehicles; or (c) Through which the employee may or must pass to reach a place of work [Section 2]. A person who or that engages any person (otherwise than as an employee) to do any work for gain or reward. (a) In relation to a person, not exposed to any hazards; and (b) In every other case, free from hazards; and unsafe and safety have corresponding meanings [Section 2]. Death, or harm defined by Order in Council or in the First Schedule of the Act [Section 2]. A hazard that is an actual or potential cause or source of: (a) Serious harm; or (b) Harm (being harm that is more than trivial), the severity of whose effects on any person depend (entirely or among other things) on the extent or frequency of the persons exposure to the hazard; or (c) Harm that does not usually occur, or usually is not easily detectable, until a significant time after exposure to the hazard [Section 2]. 25

Printed October 2003 ISBN 0-478-27911-6 ACC 1355