1. The current safety regime for electrical and gas work is defined in both the Health and Safety in Employment (HSE) Act, and in the "energy sector" Acts, the Electricity, Gas, Plumbers Gasfitters and Drainlayers (PG&D) Acts and regulations, (and in the related Standards and Codes of Practice). These promote safety by placing the responsibility for safety on workers and employers, by restricting defined tasks to licensed workers, and by prescribing safe working practices.

The Ministry of Economic Development administers the Electricity and Gas Acts

2. The Ministry of Economic Development (formerly the Ministry of Commerce) is responsible for administering the Electricity and Gas Acts, and their regulations, and for ensuring the safe supply and use of electricity and gas. The Ministry's functions currently include: the development of technical standards; provision of safety and technical information to the public and trade; safety education campaigns; administering safety aspects of the Electricity and Gas Acts and regulations; providing advice to the Minister of Energy on safety matters; and providing services to the Electrical Workers Registration Board (EWRB). The Ministry of Health administers the PG&D Act and regulations.

The Occupational Safety and Health Service administers the Health and Safety in Employment Act

3. The Health and Safety in Employment (HSE) Act 1992, administered by the Occupational Safety and Health Service (OSH) of the Department of Labour, covers the safety of all paid work while it is being carried out, including electrical and gas work. In contrast to the special purpose legislation, and to the Electricity Act in particular, the HSE Act imposes minimal prescriptive regulation, relies on performance-based criteria, and is not concerned with minimising risks of damage to property unless such damage could result in injury. Where necessary to ensure safety, additional regulations and Codes of Practice may be developed under the HSE Act.

1.1.2 Gaps and Overlaps

There is a significant overlap between the Electricity and Gas legislation and the HSE Act

4. A safety regime for electrical and gas work needs to deliver both safety while the work is being undertaken and safety of the completed work ("product safety"). Under the current regime, the workplace safety and health provisions of the energy sector Acts and regulations overlap significantly with those of the HSE Act. This arises from the difficulty of separating public and workplace safety and from a view that aspects of electrical and gas safety should be covered by special purpose legislation.

The HSE Act provides for safety in the workplace but not for comprehensive public safety

5. The Review considered the HSE Act capable of delivering safety while work is being carried out. However, the Act is not designed to provide comprehensive coverage of public safety. Once work is completed in public places and domestic situations the site ceases to be a place of work, and aspects such as maintenance and use become major factors influencing safety. In addition, proceedings under the HSE Act must be commenced within six months of the alleged offence, in accordance with the Summary Proceedings Act. This means that accountability for the continued safety of the completed work ceases after six months. As the risk to public safety is particularly high for such completed work as installations in domestic dwellings, either the HSE Act needs to be extended to provide better coverage of safety of the completed work, including its maintenance and use and the protection of property as well as people, or special purpose legislation (the energy sector Acts) continues to be needed.

The HSE Act should be recognised as the primary legislation covering workplace safety

6. The Review recommended that the HSE Act should continue to provide for worker safety. The Act is also recognised as the primary piece of legislation governing safety while the work is being carried out by electrical and gas workers, and for the safety of other workers using electricity and/or gas at work. The HSE regime appears to be working well in terms of providing for safety, especially for larger operations.

7. There is an interface with the Hazardous Substances and New Organisms (HSNO) Act, which sets up an overarching framework for controlling hazardous substances, including fuel gases. The Gas Act provides the controls through which HSNO Act obligations are fulfilled, and fits alongside the Dangerous Goods regulations. There is also an interface with the Building Act. The industries and groups consulted during the Review did not identify any practical problems of overlap and duplication with this other legislation.

1.1.3 Level of Prescription

The prescriptive nature of safety legislation leads to unreasonable costs

8. The electrical and gas licensing regimes are highly detailed and prescriptive. This has led to the following problems:

all sectors of the electrical industry (except some companies with employer licences) are required to use worker licensing as a means of ensuring safety, even where there may be better ways of achieving safety outcomes;
specific mandatory skill requirements for registration and licensing reduce opportunities for industry to develop training programmes to meet future needs;
there are excess training costs and lost remuneration when workers are compelled to acquire the full range of skills required for registration rather than the specific skills they need for their occupation; and
requiring a fuller range of skills than is needed for a particular job is a barrier to entry for workers; this may reduce the supply of people able to do particular kinds of electrical and gas work.

1.1.4 Accountability

There is confusion about who is responsible for gas and electrical workplace safety

9. There is confused accountability for electrical and gas safety. If people do not know their responsibilities under the legislation or are unsure if they are responsible for safety, important safety measures may be overlooked.

10. There is some evidence that employers consider electrical work done within the workplace as a special situation for which they have no responsibility apart from employing licensed workers. Some employers rely on the assumption that licensed workers have the full range of skills and knowledge necessary to ensure their own safety and the safety of the work. This is not necessarily the case when hazards arise from the conditions of the site rather than from the use or presence of electricity or gas.

11. The Review considered that changes were needed to ensure that the responsibility for protecting workers and the public from potential hazards rested with the person best able to control the situation. In the workplace this is the person in charge of the workplace. Depending on the circumstances, this might be an employer, an employee, or a contractor.

12. There is also some confusion about the responsibility of employers under the HSE Act for the safety of the public when electrical and gas workers are sub-contractors. The Review recommended that this be resolved through changes to the HSE Act.

1.1.5 Overall Safety Outcomes

13. The following outlines the overarching structure proposed for the energy safety legislation.

14. In relation to the safety of energy work the desired outcome is:

Work must be carried out safely and result in a safe product

legislation that sets an overarching obligation that all energy work (including work that is carried out where energy is present) be carried out in a safe manner and results in a safe, completed product;

Some work explicitly requires the worker to be competent

a provision that a specified range of energy work can only be carried out by a competent person;

Some work requires demonstration of competence

a provision that within the specified range of energy work that can only be carried out by a competent person, there is a subset of work that can only be carried out by a licensed person.

Certification systems should be standardised

15. In relation to the certification of energy work the desired outcome is:

a rationalisation and alignment of the various different forms that are currently used to certify energy work; (i.e. warrants of electrical fitness, periodic examinations, installations, appliance repairs, testing of appliances for second-hand sale, hire, and use on construction sites).

Sanctions should be prompt and fair

16. In relation to the process for sanctions relating to energy workers the desired outcome is to ensure that:

the seriousness of any offence matches the outcome;
the outcome is timely; and
natural justice and standard of proof requirements are satisfied.

1.2 Responses to 1999 Cabinet Decision

17. Here, and in following sections, the relevant parts of the 1999 Cabinet Decision are identified as the starting point for discussions and follow-up recommendations. All the Review recommendations are included in this report. They have been grouped by topic area.

1.2.1 Primacy of the HSE Act

Review Recommendation 1

The HSE Act should be recognised as the primary legislation governing safety while electrical and gas work is being carried out within a place of work.

The HSE Act provides limited safety protection for the general public

18. The HSE Act requires that all work be done safely and implies that completed work be left in a safe condition. The Act places the following duties on employers, including self-employed people, and on employees:

employers have a general duty to take all practicable steps to provide and maintain a safe working environment for their employees. A consequence of this is that any electrical and gas work in an employer's place of work must be done in a way that would ensure employees are safe and the work must subsequently be maintained to ensure that it is in a safe condition;
employers must take all practicable steps to ensure that no action or inaction of any employee while at work harms any other person; and
employees and self-employed people have a general duty to take all practicable steps to ensure that no action or inaction of theirs while they are at work harms themselves or any other person.

Changes to the HSE Act are required to increase workplace and public safety protection

19. There are two practical limitations on the application of the HSE Act in this context:

the Act applies only in places of work; and
enforcement action cannot be taken more than six months after work has been completed, an issue also for the Gas Act.

20. The second limitation is addressed in section 4.2.5 covering penalties.

EWP Recommendation 1

21. It is recommended that:

OSH, following any transfer of responsibility for electrical and gas workplace health and safety from the Ministry of Economic Development to OSH, publish specific guidelines to be used by employers, employees, and self-employed persons in the electrical and gas industries; and
the Government, as part of its planned review of the HSE Act, consider making more explicit the requirement to leave work in a safe condition, in concordance with the Building and Resource Management Acts.

It is noted that:

it is not considered appropriate to change the HSE Act in order to protect consumer safety.

Legislative Implications

22. Amend the HSE Act to alter the basis of the six month limit of enforcement from six months from the date of non-compliance to six months from the date of identification of non-compliance.

Administrative Issues

23. It is important to ensure that any necessary changes to the HSE Act and regulations relating to the energy sector be considered during the planned HSE Act review.

24. OSH would incur one-off policy development costs should changes to the HSE Act be necessary.

1.2.2 Energy Sector Legislation

Review Recommendation 2

Special purpose Acts (currently the Electricity, Gas, and PG&D Acts) are still needed to cover the safety of completed work, the continuing safety of the work, maintenance of electrical and gas appliances and fittings, and the safe use of electricity and gas.

Review Recommendation 5

The legislation should specify that: electrical and gas work should be done safely and left in a safe condition; people shall do only the work they are competent to do and shall be responsible for maintaining their competence; and that owners of assets are responsible for ensuring that their assets are maintained in a safe condition.

Review Recommendation 6

The Electricity, Gas, and PG&D Acts should be redrafted to be consistent in wording and approach with each other and the provisions in the HSE Act wherever possible.

Review Recommendation 28

The approach taken in the legislation to ensuring safety and the processes in the current HSE, Electricity, Gas, and PG&D Acts should be aligned as far as possible.

The limited coverage of the HSE Act means that public and product safety should be provided for in other legislation

25. The HSE Act was not designed to provide comprehensive coverage of public and consumer safety in public places and in domestic situations, once they cease to be places of work, (i.e. when the work is completed), or situations that were never "places of work" as defined in the HSE Act. Also, it was not designed to cover protection of property, or appliance safety outside the workplace. Hence, transfer of responsibility for electrical and gas workplace health and safety to the HSE Act regime does not remove the need for legislative protection of public and consumer safety. The energy sector Acts should remain, therefore, but would require a comprehensive revision to:

delete or modify provisions relating to workplace health and safety that have been transferred to the HSE Act regime;
create a consistency of language, approach, and requirement between these Acts and the HSE Act;
create a consistency between the various sectors of the energy industry (including supply and distribution, manufacture, installation, use, maintenance, and repair); and
take into account recent environmental and structural changes resulting from, for example, the Industry Training Act and the proposed establishment of the electrical licensing authority as an autonomous body.

26. Any review of the above Acts would necessitate a review of their dependent regulations.

Only competent workers should be employed

27. Legislation needs to emphasise the need for employers to employ people to do only work that they are competent to perform and to be responsible for ensuring that employees maintain their levels of competence.

EWP Recommendation 2

28. It is recommended that the energy sector Acts and regulations be amended to:

remove or modify references to workplace health and safety made redundant by the transfer of relevant responsibility to the HSE Act regime;
create a consistency of language with the HSE Act;
accommodate changes in the training, licensing, certification, and administrative structure and operations of the electrical and gas sectors resulting from the Review and from more recent legislation;
specify the need for employers to employ people to do only work that they are competent to perform and to be responsible for ensuring that employees maintain their levels of competence; and
focus on public, consumer, and product safety.

Legislative Implications

29. Amend the energy sector Acts to:

remove, where necessary, references to workplace health and safety made redundant by the transfer of relevant responsibility to the HSE Act regime;
create a consistency of language with the HSE Act; and
accommodate changes in:

the qualifications regime consequent upon the passing of the Education Act 1990, the Industry Training Act 1992, and the establishment of Industry Training Organisations (ITOs) and the New Zealand Qualifications Authority (NZQA);
the electrical licensing regime consequent upon transfer of responsibility for licensing criteria to an independent licensing authority; and
other certification, administrative and operational systems of the electrical and gas industries consequent upon recommendations elsewhere in this report.

Administrative Issues

30. Changes to the energy sector Acts and regulations would require a considerable commitment of resources by the Ministry of Economic Development, OSH, other government departments, Ministers, Parliamentary Counsel, Select Committees, and the House; and by industry and its representative organisations.

31. Following the enactment of the revised Acts and regulations a comprehensive public information campaign would be necessary.

1.2.3 Safety of Contractors' Work

Review Recommendation 40

The anomaly in s18 of the HSE Act in relation to contractors" responsibilities for public safety while work is being carried out should be addressed

Primary employers are not liable for public safety under the HSE Act

32. The Review noted that section 18 of the HSE Act places duties on primary employers in relation to contractors on site (and any subcontractors and/or employees of contractors and subcontractors), but that members of the public who may be put at risk by the work of the contractor are not included. A contractor has duties under the HSE Act for public safety, either as an employer or self-employed person, but the situation can occur where a contractor is not able to ensure public safety, for example because of contract conditions laid down by the principal. However, the primary employer can not be held accountable for any harm that a member of the public incurs as a result of the contractor's activities. This is inconsistent with the duty placed on employers to take all practicable steps to ensure that no action or inaction of any employee while at work harms any other person.

EWP Recommendation 3

33. It is recommended that the Government, in its planned review of the HSE Act, consider including correction of the anomaly in the Act relating to the safety of the public in respect of the work of contractors where the primary employer has control.

Legislative Implications

34. Amend the wording of the HSE Act to extend the duties of the primary employers to correct the anomaly relating to the safety of the public in respect of the work of contractors.

Administrative Issues

35. None are significant.

1.2.4 Energy Sector Regulations

Review Recommendation 3

Additional control over electrical and gas hazards [in the workplace] while the work is being carried out should be provided through regulations under the HSE Act where necessary.

Specific hazards should be identified in the regulations

36. The Review recommends that regulations be developed to provide minimum requirements for the management of electrical and gas hazards, similar to those under the HSE Act for petroleum pipelines.

Options for standard-setting include regulations, codes of practice, industry guidelines and training standards

37. The presence and use of electricity and gas pose hazards that require careful management to ensure the avoidance of serious harm to consumers and the public. Consequently, comprehensive safety procedures are needed. These procedures are provided for in various forms.

a Regulations

These are developed under the HSE Act as part of the Government's legislative programme.

Advantages: Highly specific and effective in law as a compliance/enforcement tool, high level of protection for workers and the public.

Disadvantages: Costly to develop and implement, difficult to amend in relation to changing industry environment and technology.

b Approved Codes of Practice and Standards

These are developed by industry under (usually) departmental sponsorship and approved by the appropriate Minister.

Advantages: Specific and effective in law as a compliance / enforcement tool, more easily amended than regulations.

Disadvantages: Development can be protracted, because of the need for Ministerial approval.

c Industry Endorsed Guidelines and Standards

These are developed and endorsed by industry.

Advantages: Regarded as best industry practice and can be used in legal argument, more easily amended than regulations and approved Codes of Practice.

Disadvantages: Not cited in statutes and subject to legal interpretation.

d Industry Training Standards

Safety procedures are incorporated into the National Qualifications Framework unit standards by the industry ITO (it should be noted that, already, nearly all occupational qualifications contain comprehensive safety standards).

Advantages: Front-end quality assurance, comprehensive coverage of the workforce.

Disadvantages: Not legally enforceable except through a licensing regime; may become outdated.

The regulations provide flexibility by deeming compliance with specific standards and should continue for new regulations under the HSE Act.

38. The energy sector Acts allow regulations to be made deeming compliance with specific Standards to be equivalent to compliance with the regulations. This formulation provides certainty to industry and at the same time provides flexibility by permitting alternative means of compliance, for example if technological change results in a Standard becoming obsolete. The same approach should continue for any new regulations made under the HSE Act covering worker and workplace safety. (This approach is not used in any regulations made to date under the HSE Act, but there is nothing in the HSE Act to prevent this being done.)

EWP Recommendation 4

39. It is recommended that

The following regulations be transferred to the HSE:


Electricity Regulations
Category 1 Provisions relating to worker safety
	reg 24 Work on live high voltage overhead electric lines
	reg 27 Assistance for work on certain live high voltage fittings
	reg 28 Work on live high voltage conductors of overhead electric lines
	reg 29 Work on live conductors of low voltage overhead electric lines
	reg 30 Distance limits for work near live overhead electric lines
	reg 31 Construction of overhead lines on existing poles or other supports
	reg 35 Responsibility of employers for associated equipment
	reg 36 Use of associated equipment
Category 2 Provisions relating to both worker and public/product safety needed to be retained in both sets of legislation, but reworded to ensure consistency:
	reg 17 Prescribed electrical work
	reg 25 Competency requirements for electrical workers
	reg 26 Safety tuition for electrical workers
	reg 32 Temporary earthing requirements
	reg 33 Further provisions relating to temporary earthing requirements
	reg 34 Warning notices, safety locks, and safety instructions
	reg 50 Notification to Secretary
	reg 69 Electrical safety
	reg 71 Identification of conductors
	reg 94 Protection against direct and indirect electrical contact
	reg 103 Secretary's exemptions from requirements
	reg 105 Issuing of urgent instructions
	reg 106 Details to be provided in reporting accidents
	reg 108 Approvals, modifications, permissions, etc under earlier regulations
Gas Regulations
Category 1 Regulations to transfer in entirety to HSE
	reg 8 Work on distribution systems
	reg 36 Protection of systems from damage
Category 2 Regulations requiring duplication in both sets of legislation
	reg 7 Safety of distribution systems
	reg 12 Safety of gas installations
	reg 16 Repairs and modifications to fittings and appliances
	reg 19 Maintenance and operation of CNG stations
	reg 21 CNG training
	reg 27 Notification to Secretary
	reg 30 Secretary's exemptions from requirements
	reg 32 Issuing of urgent instructions
	reg 33 Details to be provided in reporting accidents

Regulations under the HSE Act covering worker and workplace safety for electricity and gas should deem compliance with specific Standards to be equivalent to compliance with the regulations.

Legislative Implications

40. None (regulations would be made or revoked under the relevant Acts).

Administrative Issues

41. OSH and the industry would incur one-off costs in developing regulations, codes and guidelines, and there would be ongoing administration costs for OSH.

Jump to main page content.

Printed: 26/11/2009