Occupational Safety and Health
PART ONE: APPLICATION OF THIS GUIDE 9-29
**
PART TWO: SEX WORKER HEALTH 31-41
PART THREE: WORKPLACE AMENITIES 43-50
PART FOUR: PSYCHOSOCIAL FACTORS 51-60
Thursday 29 July 2004
New health and safety guidelines for sex industry
A new health and safety guide for the sex industry will help protect workers, clients, and public health, says Mike Cosman of the Department of Labour’s Occupational Safety and Health service (OSH).
The development of A Guide to Occupational Health and Safety in the New Zealand Sex Industry was recommended by the Justice and Electoral Select Committee when it was considering the Prostitution Reform legislation last year.
The guide was then developed by OSH in consultation with the New Zealand Prostitutes Collective, industry representatives, ACC, the Ministry of Health, New Zealand Police, and Local Government NZ. It was largely based on health and safety guidelines produced for the Australian sex industry.
The issues of health and safety for sex workers and clients are very serious, and some, such as the risk of sexually transmitted infections, have serious public health implications too,” Mr Cosman said.
Since the Prostitution Reform Act was passed into law, the sex industry operates under the same health and safety rules as any New Zealand industry, he said.
Acting Director of Public Health Dr Douglas Lush said the guide would be a valuable resource for the sex industry to understand how to meet their health and safety requirements, including how to protect themselves and their clients from the risk of infection by adopting and promoting safer sex practices.
This is something we couldn’t develop before the change in legislation,” says Catherine Healy of the New Zealand Prostitutes Collective. ” Now we can offer a lot of practical advice that will support sex workers in working safely.”
The guide is intended for sex industry owner/operators and employers, sex industry workers, and those who are self-employed. It covers a broad range of topics, including sex worker health, security and safety from violence, and how to report accidents or incidents of harm.
The guide is available in PDF form on the website www.osh.govt.nz
**Further information:
**Richard Ninness, Communications Director, Department of Labour, or Dionne Barton, Communications Advisor, Department of Labour, 04 915 4390 or 027 446 3538
Catherine Healy, National Coordinator, New Zealand Prostitutes Collective, 04 382 8791 or 027 496 0700
John Saunders, Media Advisor, Ministry of Health, 04 496 2265 or 025 283 0251
Jon Neilson, Media Relations Manager, New Zealand Police, 04 474 9482
Media Contact:
Dionne Barton, Senior Communications Advisor, Department of Labour, Wellington
Tel: 04 915 4256 or 027 296 9680
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A Guide to Occupational Health and Safety in the New Zealand Sex Industry
Acknowledgments
These guidelines are based on those developed by the Scarlet Alliance, an Australian forum for sex workers’ rights organisations, and the Australian Federation of AIDS Organisations, titled A Guide to Best Practice:
Occupational Health and Safety in the Australian Sex Industry, compiled
by David Edler.
OSH acknowledges the New Zealand Prostitutes Collective who provided industry-specific information and understanding of the sex industry in New Zealand.
The Ministry of Health, the New Zealand Police and Local Government
New Zealand also made contributions.
OSH’s Strategic Policy Unit led the development of the Guide.
Published by the Occupational Safety and Health Service
Department of Labour
PO Box 3705
Wellington
New Zealand
www.osh.dol.govt.nz
Issued: June 2004
ISBN 0-478-28001-7
Contents
About this Guide ………………………………………………………………………………………………………………….6
Foreword ……………………………………………………………………………………………………………………………..7 ****PART ONE: APPLICATION OF THIS GUIDE 9-29**
Glossary of Terms ……………………………………………………………………………………………………………….10
1: Introduction …………………………………………………………………………………………………………………..17
What does occupational health and safety involve? 17
Employer-employee relationships 18
Who is an employee in the sex industry? 18
2: References in this Guide …………………………………………………………………………………………………..20
3: Roles and Responsibilities ………………………………………………………………………………………………. 21
Prostitution Reform Act 2003 21
Health and Safety in Employment Act 1992 23
Sex worker organisations 27
Unions 27
Regulatory agencies 28
PART TWO: SEX WORKER HEALTH 31-41
4: Sexual Health Education for Sex Workers, their Clients and Management …………………………….32
5: Sexual Health Assessment for Sex Workers ………………………………………………………………………..34
Immunisation 34
6: Personal Protective Equipment ………………………………………………………………………………………..35
Storage and handling of PPE, sex toys and other equipment 35
Storage and handling of waste including used PPE 37
Condom breakage or slippage 37
Sexually transmissible infections 39
7: Reproductive Health ………………………………………………………………………………………………………..40
Pregnant workers 40
Avoiding unintended pregnancy 40
8: Overuse Disorders ……………………………………………………………………………………………………………41
PART THREE: WORKPLACE AMENITIES 43-50
9: Cleanliness of Workplace Amenities ………………………………………………………………………………….44
Showers, baths and toilets 44
Linen 44
Laundry facilities and cleaning linen 44
Cleaning of body fluid spills 45
Sanitary facilities 45
Disinfection of swimming and spa pools 46
Bars and food preparation areas 46
10: First Aid ……………………………………………………………………………………………………………………….47
11: Fire Safety ……………………………………………………………………………………………………………………48
12: Heating and Cooling ………………………………………………………………………………………………………49
13: Lighting……………………………………………………………………………………………………………………….50
PART FOUR: PSYCHOSOCIAL FACTORS 51-60
14: Security and Safety from Violence ………………………………………………………………………………….52
Responsibilities of employer 52
Example of procedure with a threatening client 53
15: Alcohol ………………………………………………………………………………………………………………………..54
16: Drugs …………………………………………………………………………………………………………………………..55
17: Smoking in the Workplace ……………………………………………………………………………………………..56
Smoke-free indoor workplaces and licensed premises 56
Under-18 access to cigarettes 57
Complaints 57
18: Complaints …………………………………………………………………………………………………………………..58
19: Employee Participation …………………………………………………………………………………………………..59
20: Workplace Documents ……………………………………………………………………………………………………60**APPENDICES 61-79**
Appendix 1: Roles of Regulatory Agencies …………………………………………………………………………….62
Department of Labour 62
Public health 64
Public health laws 65
Appendix 2: Accident Recording and Notification …………………………………………………………………..67
Recording any harm that occurs to people in a place of work 67
Notification and reporting requirements 67
Accident scenes not to be disturbed 68
Appendix 3: New Zealand Prostitutes Collective …………………………………………………………………….69
Appendix 4: Department of Labour Offices …………………………………………………………………………… 70
Occupational Safety and Health 70
Employment Relations 72
Immigration 72
Appendix 5: Health Agencies ………………………………………………………………………………………………..74
**OCCUPATIONAL HEALTH AND SAFETY IN THE NZ SEX INDUSTRY 5
**FACT SHEETS 81-100
Fact Sheet 1: Safety and Security Guidelines for Sex Workers Who Provide Outcall ………………….82
Bookings 82
Getting to the job 83
Doing the job 83
Operators’ responsibility for outcall worker safety 83
Fact Sheet 2: Examination of Clients Prior to Provision of Service …………………………………………..85
Fact Sheet 3: Action to be Taken in the Event of Condom Breakage and Slippage …………………….86
During vaginal or anal sex 86
During oral sex 87
During trick sex 88
Preventing pregnancy after condom breakage or slippage 88
Medical follow-up 88
Fact Sheet 4: Minimum Employment Rights ………………………………………………………………………….89
Minimum employment rights 89
Your employment agreement 91
Union membership rights 92
Employment relationship problems 92
Fact Sheet 5: Employee Participation Systems………………………………………………………………………..93
Employee participation 93
Frequently asked questions 93
Fact Sheet 6: ACC ……………………………………………………………………………………………………………….96
What levies must be paid? 96
What injuries are covered for workplace injuries? 96
What entitlements can be expected? 97
Other rehabilitation and support services 97
Fact Sheet 7: Health and Safety Information Resources ………………………………………………………….98
Prostitution Reform Act 2003 98
STIs 98
Further Information 99
Fact Sheet 8: Smoke-free Resources…………………………………………………………………………………….100
**6 OCCUPATIONAL HEALTH AND SAFETY IN THE NZ SEX INDUSTRY
**About this Guide
THIS GUIDE HAS BEEN WRITTEN FOR EVERYONE INVOLVED IN THE NEW ZEALAND
sex industry: sex workers both employed and self-employed, operators, owners and others such as sex worker organisations.
As all these groups have different information needs, this is a lengthy document. Rather than trying to read and absorb all the information in this Guide, we suggest you browse through it initially and decide which sections are most relevant to you.
The Guide is in four parts.
Part One has information about the terms and concepts used in the Guide, and the legal responsibilities of the various parties, and will be of most use to employers and sex worker organisations.
Part Two covers sex worker health and particularly the responsibilities that employers have towards employees, although employee responsibilities are also dealt with.
Part Three covers the amenities required in brothels and will be of most use to owners and employers.
Part Four, on psychosocial factors such as violence, alcohol and drugs, will also be of most use to employers, although employees should also be aware of their employers’ obligations.
The Appendices have information about regulatory agencies and other agencies that can offer health and advice. The contact details were correct at going to print but will not necessarily remain current.
The Fact Sheets will be of most use to workers in the industry,
whether employees or self-employed. They may be freely copied and distributed.
We would like to hear from you about how useful you find this Guide and any suggestions you have for improving it. Please use the tearout reply card provided at the back of this book. Postage is free. No names or personal details are required.
OCCUPATIONAL HEALTH AND SAFETY IN THE NZ SEX INDUSTRY 7
Foreword
WHEN THE PROSTITUTION REFORM BILL WAS BEING CONSIDERED BY THE
Justice and Electoral Select Committee, committee members recommended that health and safety guidelines should be developed for the sex industry. As the lead agency responsible for workplace health and safety, the Department of Labour’s Occupational Safety and Health Service (OSH) led the development of this Guide.
The Prostitution Reform Bill was passed into law on 27 June 2003.
This means that the sex industry now operates under the same health and safety rules as any New Zealand industry. This Guide is intended for sex industry owner/operators, the selfemployed, employers, managers and workers. It covers a broad range of topics and is relevant to all New Zealand sex workers, regardless of their location or mode of work. Where the standards it proposes are also legal duties, this is noted.
When developing guidelines OSH works with employer and worker groups in the industry sector. For this Guide, OSH has consulted with the New Zealand Prostitutes Collective as well as with self-employed sex workers and owners/operators. A Guide to Best Practice: Occupational Health and Safety in the Australian Sex Industry, a publication developed by Australia’s Scarlet Alliance and the Australian Federation of AIDS Organisations, was used as a model. The Ministry of Health, ACC, New Zealand Police, Local Government New Zealand and the Department of Labour’s Employment Relations Service (ERS) have had significant input into their specialist areas. This is a first, and not a final edition, and OSH welcomes feedback that will assist with the development of a second edition. There is an evaluation form at the back of the book.
Like all New Zealanders, workers in the sex industry have the right to come home from work safe and well. This Guide is a significant step towards securing that right.
Bob Hill
General Manager, Workplace Health and Safety
OCCUPATIONAL HEALTH AND SAFETY IN THE NZ SEX INDUSTRY
**P A R T O N E: A P P L I C AT I O N O F T H I S G U I D E
GLOSSARY OF TERMS 10
1: INTRODUCTION 17
2: REFERENCES IN THIS GUIDE 20
3: ROLES AND RESPONSIBILITIES 21
10 OCCUPATIONAL HEALTH AND SAFETY IN THE NZ SEX INDUSTRY
A P P L I C A T I O N O F T H I S G U I D E
**
Glossary of Terms
ACC means the Accident Compensation Corporation, as the agency responsible for the administration of the Injury Prevention, Rehabilitation and Compensation Act 2001.
Accident means, in terms of the Health and Safety in Employment Act (HSE Act), an event that:
. causes any person to be harmed or
. in different circumstances, might have caused any person to be harmed.
At work means, in terms of the HSE Act, in relation to any person, present for gain or reward in that person’s place of work. Section 10 of the Prostitution Reform Act (PRA) describes a sex worker providing commercial sexual services as “at work” for the purposes of the HSE Act.
All practicable steps is an important term under the HSE Act. It describes the standard of care that is required of people with duties under the Act,
i.e. employees, employers, principals, self-employed persons, persons in control of the place of work, and sellers and suppliers of plant for use in the place of work. It is defined in section 2A of the Act as, in relation to achieving any result in any circumstances, meaning all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to:
. the nature and severity of the harm that may be suffered if the result is not achieved and
. 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
. the current state of knowledge about harm of that nature and
. the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means and
. the availability and cost of each of those means.
A person required 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.
Antiviral is a term describing a type of drug which blocks the replication of particular viruses.
B& D stands for bondage and discipline.
Brothel is defined by the Prostitution Reform Act as any premises kept or habitually used for the purposes of prostitution. It does not include premises at which accommodation is normally provided on a commercial basis if the prostitution occurs under an arrangement initiated elsewhere.
Business of prostitution, in terms of the PRA, means a business of providing, or arranging the provision of, commercial sexual services.
Client, in terms of the Prostitution Reform Act, means a person who receives, or seeks to receive, commercial sexual services.
Commercial sexual services, in terms of the Prostitution Reform Act, means sexual services that:
. involve physical participation by a person in sexual acts with, and for the gratification of, another person and
. are provided for payment or other reward (irrespective of whether the reward is given to the person providing the services or another person).
Communicable disease (synonym infectious disease) is an illness due to a specific infectious agent or its toxic products that arises through transmission of that agent or its products from an infected person, animal or reservoir to a susceptible host. It may be transmitted directly or indirectly, or indirectly through an intermediate plant or animal host, vector or the inanimate environment.
Contractor is defined by the HSE Act as a person engaged by another person (otherwise than as an employee) to do any work for gain or reward.
Dams, originally used for dental clinic procedures, were a thick latex square. Later modified at the instigation of Workers in Sex Employment, to a very thin, rectangular latex barrier, dams are utilised during oral/vaginal and oral/anal sex to prevent transmission of sexually transmissible infections (STIs).
District Health Board means a District Health Board established under section 19 of the New Zealand Public Health and Disability Act 2000.
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PART ONE A P P L I C A T I O N O F T H I S G U I D E
Employee is defined by the HSE Act as any person of any age employed to do any work (including commercial sexual services) for hire or reward under a contract of service. The contract (or agreement) may be express or implied, written or verbal. For the purposes of the Act, the definition of employee includes trainees, loaned workers, and volunteers in some circumstances.
NB: A sex worker is not an “employee” of a client for commercial sexual services. Employee participation system is any arrangement between an employer and employees (and employee organisations where appropriate) that allows the participation of employees in processes relating to health and safety in the place of work, so that:
. all persons with relevant knowledge and expertise can help make the place of work healthy and safe and
. when making decisions that affect employees and their work, an employer has information from employees who face the health and safety issues in practice.
Employer is defined by the HSE Act as a person (including a company) who or that employs any other person to do any work (including commercial sexual services) for hire or reward under a contract of service. The contract may be express or implied, written or oral.
NB: A client for commercial sexual services is not an “employer” of the sex worker providing the services.
Harm in terms of the HSE Act means illness, injury or death and includes physical or mental harm caused by work-related stress.
Harm minimisation is defined by the National Drug Policy 1998 as: “an approach that aims to minimise the adverse health, social and economic consequences of drug use, without necessarily ending such use for people who cannot be expected to stop their drug use immediately. The primary goal of this approach is a net reduction in drug-related harm rather than becoming drug-free overnight, although harm minimisation strategies often lead to a reduced number of people who use drugs over time.”
Hazard in terms of the HSE Act means 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 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 (i) above resulting from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour.
Health information, in terms of the PRA, means information on safer sex practices and on services for the prevention and treatment of sexually transmissible infections.
Health and safety inspector is a person appointed under section 29 of the HSE Act to carry out a range of functions under that Act.
HIV stands for Human Immunodeficiency Virus. Infection with this virus may result over time in a person having AIDS, which stands for Acquired Immune Deficiency Syndrome.
HSE Act, in this Guide, stands for the Health and Safety in Employment Act 1992.
The insertive partner during sex places their penis, other body part or a sex toy into the mouth, vagina, neo-vagina or anus of the other person.
An inspector in terms of the Prostitution Reform Act is a person authorised by section 25 to determine whether or not there is compliance with the safer sex requirements of that Act. The inspector may be a Medical Officer of Health or a suitably qualified person appointed by them.
Medical Officer of Health is a person appointed by the Director-General of Health under the Health Act 1956.
Medical Officers of Health are employed by District Health Boards and have a number of roles and responsibilities set out under several statutes and regulations including the
PRA. Legislated roles and responsibilities include information-gathering, reporting and notification, entry and inspection into premises of various sorts, sampling or testing, compulsorily requiring or giving a medical examination, and isolation or detention of patients in a centre for care and treatment.
Neo-vagina is the name used for a constructed vagina, which replaces the male genitalia, removed during a surgical process undertaken by some male to female transgender people.
Notifiable disease is a disease that, by legal requirements, must be reported by medical practitioners to public health services (Health Act 1956).
Operator is defined by section 5 of the PRA, in relation to a business of prostitution, as a person who, whether alone or with others, owns, operates, controls, or manages the business and includes (without limitation) any person who -
(a) is the director of a company that is an operator or
(b) determines -
(i) when or where an individual sex worker will work or
(ii) the conditions in which sex workers in the business work
or
(iii) the amount of money, or proportion of an amount of money, that a sex worker receives as payment for prostitution
or
(c) is a person who employs, supervises, or directs any person who does any of the things referred to in paragraph (b).
A sex worker who works at a small owner-operated brothel is not an operator of that business of prostitution and for the purposes of the PRA, a small owner-operated brothel does not require an operator.
Operator certificate means a certificate issued to an operator of a business of prostitution under section 35 of the Prostitution Reform Act.
Outwork is where a sex worker provides commercial sexual services in a client’s own home, hotel room or place other than a brothel.
Personal protective equipment (PPE) in this document refers to items such as condoms, dams, water-based lubricants, and latex and non-latex gloves as well as items required for proper maintenance of equipment and facilities such as disinfection agents.
Person who controls a place of work in terms of the HSE Act is a person who, in relation to a place of work, 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.
A home may be a place of work, but the person whose home it is does not have the duties of a person in control of a place of work in relation to it.
Place of work is defined by the HSE Act as a place (whether or not 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.
It includes a place under the control of the employer where an employee:
. comes or may come to eat, rest, or get first aid or pay or
. where their duties require them to report in or out, get instructions, or deliver goods or vehicles or
. through which they must pass to reach a place of work.
In the case of outcall work, this would include a client’s home or hotel, as well as the premises where a business is operated.
PRA, in this document, refers to the Prostitution Reform Act 2003.
Principal is defined by the HSE Act as a person who or that engages any person (otherwise than as an employee) to do any work for gain or reward.
A client who engages a sex worker for commercial sexual services may be a principal in terms of the Act.
Prostitution, refer to “Business of prostitution”, above.
Public health, depending on the context, means either the health status of populations (or sections thereof) or, the science and art of preventing disease, prolonging life and promoting health.
The receptive partner during sex has their mouth, vagina, neo-vagina or anus entered by the other partner using their penis, other body part or a sex toy.
Self-employed, in relation to a sex worker, means a person providing commercial sexual services to clients, but who is not an employee.
A self-employed person may be a sub-contractor to an operator of a business of prostitution, work at a small owner-operated brothel, or work alone as a sex worker.
Serious harm is defined by the HSE Act as death, or harm of a kind described by regulation or in Schedule 1A of the HSE Act. It includes any case of permanent or temporary severe loss of bodily function, hospitalisation for more than 48 hours, and a range of illnesses and injuries that may arise from work.
Seroconversion is the appearance of specific antibodies in a person as a result of infection or immunisation.
Sexually transmissible infection (STI) means an infection or disease spread by the transfer of organisms from person to person during sexual contact.
Sex worker means a person who provides commercial sexual services.
Significant hazard means, in terms of the HSE Act, a hazard that is an actual or potential cause or source of:
. serious harm or
. 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 person’s exposure to the hazard or
. harm that does not usually occur, or usually is not easily detectable, until a significant time after exposure to the hazard.
S& M stands for sadism and masochism.
Small owner-operated brothel is defined by the Prostitution Reform Act as a brothel:
(a) at which not more than four sex workers work and
(b) where each of those sex workers retains control over his or her individual earnings from prostitution carried out at the brothel.
Sub-contractor means someone who contracts her/his services to another.
Sub-contractors are not covered by minimum wage, holidays or employment dispute resolution services, and are responsible for paying their own accident compensation levies. In terms of the HSE Act, she/he may be considered “self-employed”.
Taping, tucking or strapping refers to the practice of securing the male genitals up between the legs using surgical tape or tight undergarments.
17
1: Introduction
OCCUPATIONAL HEALTH AND SAFETY IS A BROAD TERM USED TO REFER TO ANY
issue, task or condition in a workplace that may impact on the health and wellbeing of the people who are working there.
In New Zealand, all workers, no matter what industry they work in, have the right not to suffer harm through carrying out the normal requirements of their work.
Health and safety for sex workers changed significantly with the passing of the Prostitution Reform Act 2003, which decriminalised the provision of commercial sexual services. The Act provided for the certification of brothel operators. It placed duties on operators, sex workers and clients to follow safer sex practices.
It also set public health requirements for the sex industry, and provided for inspection and enforcement of brothels by Medical Officers of Health.
In addition to the Prostitution Reform Act’s specific requirements for the sex industry, the Health and Safety in Employment Act 1992 also provides for the health and safety of all people in places of work or those affected by work activities. For sex workers, it contains health and safety duties and processes for all issues other than the safer sex/public health requirements of the Prostitution Reform Act 2003.
What does occupational health and safety involve?
Occupational health and safety means more than just meeting the minimum standards of the PRA, or general requirements for cleanliness, providing fire extinguishers, or repairing faulty electrical equipment. It involves being aware of health and safety hazards in the workplace and actively working to manage those hazards to prevent harm to the person’s health and wellbeing. At a practical level, it means:
. making sure that beds are in good repair and give proper support
. ensuring that outfits worn by workers when seeing clients are comfortable, appropriate for the worker and do not affect posture if worn for long periods without regular breaks,.
. ensuring the workplace, and access to it, is safe for workers and there are plans to deal with hazards or emergencies
18
. supplying water-based lubricants and massage oils which are non-allergenic and
. ensuring that workers have adequate breaks between clients and between shifts, to avoid stress and fatigue.
Frequently these issues cannot be dealt with by a simple specification or the application of a single rule. Instead they require an employer, principal, or other person who controls the place of work to think constructively, to consult with employees, and to adopt “best practice” approaches to health and safety issues in the workplace. These guidelines therefore set out the basics of compliance with health and safety legislation and give some directions on achieving good practice, but should only be seen in that light, not as a minimum standard which must be followed “to the letter”.There should always be agreement between workers and management to work out appropriate and relevant policies.
Employer-employee relationships
The basis on which people are employed is important to their health and safety. The employment relationship and the definition of employer and employee are central to the organisation of work in New Zealand. The existence or otherwise of an employment relationship determines:
. access to employment dispute-resolution processes
. entitlement to join a union and collective bargaining
. rights and obligations under statute law, such as accident compensation
. annual leave, sick leave, bereavement leave and public holidays
. superannuation and other employee benefits
. coverage under occupational health and safety legislation and
. obligations for tax.
In the past, sex workers have not generally been given full “employee” status, not least because it was a crime to benefit from the earnings of prostitution. However, the Prostitution Reform Act allows the sex industry to be more consistent with other industries in this respect.
Who is an employee in the sex industry?
The employment standing of sex workers – that is, whether or not a person is an employee – is not an issue under the Prostitution Reform Act. That law describes duties to follow safer sex practices for “sex workers”, regardless of the terms of their employment (section 9). A similar duty applies to the “clients” of commercial sexual services, and there is a duty on operators to promote safer sexual practices (section 8).
However, the nature of employment arrangements is more important in determining the duties that apply under the Health and Safety in Employment Act, which applies to the sex industry as it does to any other.
It may be difficult to determine whether sex workers are employees or “self-employed” sub-contractors to the operators of businesses. This difficulty is heightened by the perceived benefits to owners and operators of treating workers as independent contractors or contract workers, rather than as employees, regardless of the reality of the working relationship.
20
2: References in this Guide
THE TERM “EMPLOYEE” IS DEFINED BY THE HEALTH AND SAFETY IN EMPLOYment (HSE) Act 1992 as a person of any age employed to do any work (other than residential work) for hire or reward under a contract of service. For the purposes of ensuring occupational health and safety, the HSE Act also includes trainees and people gaining work experience, “loaned” employees, and volunteers in some circumstances.
The employment agreement or contract need not be formal or written. Even where the words “independent contractor” are used, this may not be the case. (This has been established by case law.) The definition is similar to, but not quite the same as, that under the Employment Relations Act (ERA). Nor is it the same definition as applies under tax law.
There may be situations where a sex worker is a “self-employed” contractor. However, even in such cases, under the HSE Act, the operator who contracts their services will still have the duties of a principal, or a person who controls a place of work.
In this Guide, the terms “employee”, “employer”, “principal”, “contractor” and “self-employed person” are used consistently with their definitions under the HSE Act. (Refer to the Glossary of Terms at the beginning of this Guide.)
Where the terms “sex worker”, “operator”, or “client” are used, they have the meanings that apply under the Prostitution Reform Act 2003.
The health and safety practices described in this Guide should be followed by all workers, regardless of their employment or contractual standing.
21
3: Roles and Responsibilities
OPERATORS, SEX WORKERS AND CLIENTS HAVE ROLES AND RESPONSIBILITIES
under the laws dealing with prostitution, occupational safety and health and public health. The sex industry is also covered by the employment relations and accident compensation laws. Those roles and responsibilities are described here.Prostitution Reform Act 2003
The Prostitution Reform Act came into effect in June 2003. It decriminalised prostitution, and applies to all participants in the sex industry – operators, sex workers and their clients. The Act contains a range of provisions concerning:
. where a business of prostitution is conducted
. who may operate businesses, and means of inspection
. the rights of sex workers to go unharmed, and to withdraw their services at any time
. the minimum age and employment rights of sex workers and restrictions preventing people who are not New Zealand citizens or permanent residents from participating in the sex industry
. health and safety requirements.
These guidelines only discuss the health and safety provisions of the PRA, as set out in sections 8-10 of the Act. Operators in particular should refer to the PRA itself with respect to the other duties.
Operators
The PRA applies to every operator of a business of prostitution, whether or not the business is based at a brothel. Section 8 of the Act creates duties for operators to ensure that sex workers and their clients follow practices that protect them from sexually transmitted infections. It also requires operators to take all other reasonable steps to minimise the risk of sex workers or clients acquiring or transmitting sexually transmissible infections, including providing information to sex workers and clients.
The PRA’s definition of “operator” is reproduced in the Glossary of Terms.
22
Information on safer sex
The PRA requires operators to take all reasonable steps to give health information (whether oral or written) to sex workers and clients.
If the person operates a brothel, they must display health information prominently in that brothel. “Health information” is defined in the Glossary.
The PRA also makes it an offence to state or imply that a medical examination of a sex worker means the sex worker is not infected, or likely to be infected, with a sexually transmissible infection.
Sheaths or barriers
The PRA requires every operator to take all reasonable steps to ensure that no commercial sexual services are provided by a sex worker, unless a prophylactic sheath or other appropriate barrier is used. This duty applies if those services involve vaginal, anal or oral penetration or another activity with a similar or greater risk of acquiring or transmitting sexually transmissible infections.
Where the sex worker is an employee of the operator, then any such sheath or barrier must be provided by the operator.
For further information on how operators may meet these requirements, refer to sections 4-6 of this Guide.
Sex workers
The PRA’s health and safety requirements apply to every person who provides commercial sexual services.Section 9 of the PRA requires every sex worker not to provide commercial sexual services unless they have taken all reasonable steps to ensure that a prophylactic sheath or other appropriate barrier is used. This duty applies if those services involve vaginal, anal or oral penetration or another activity with a similar or greater risk of acquiring or transmitting sexually transmissible infections.
The PRA also makes it an offence for a sex worker to state or imply that a medical examination of them means that he or she is not infected, or likely to be infected, with a sexually transmissible infection.
Refusal or withdrawal of consent
Section 17 of the PRA gives every sex worker the right to refuse to provide, or she/he continue to provide, a commercial sexual service to any person. The fact that the person has entered into a contract to provide commercial sexual services does not limit the sex worker’s ability to withdraw his or her services or consent.
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Clients
The PRA’s requirements apply to any person who receives, or seeks to receive, commercial sexual services. Section 9 of the PRA requires every client of a sex worker not to receive commercial sexual services unless they have taken all reasonable steps to ensure that a prophylactic sheath or other appropriate barrier is used.
This duty applies if those services involve vaginal, anal or oral penetration or another activity with a similar or greater risk of acquiring or transmitting sexually transmissible infections.
Health and Safety in Employment Act 1992
The object of the Health and Safety in Employment (HSE) Act is to promote the prevention of harm to all people at work or in the vicinity of places of work. To do this, the legislation creates a range of duties for people with different roles in places of work. Most of the terms below to describe roles under the HSE Act are defined in the Glossary of Terms.
Persons who control a place of work
The operator of any business providing commercial sexual services has a duty under the HSE Act to make sure that any premises or equipment they operate are safe. This means ensuring that hazards do not harm any people who are:
. lawfully at work in the place (as employees, contractors etc.)
. there as customers or to undertake an activity or
. in the vicinity.
In some circumstances, there may also be a duty to warn authorised visitors of any significant hazards in a place of work.
These duties are set out in section 16 of the HSE Act.
Defining a “place of work”
Wherever a person performs commercial sexual services is a “place of work” in terms of the HSE Act. This includes the premises of a brothel or other business that provides commercial sexual services. In the case of a sex worker who provides outcall, it includes a client’s home or hotel, a car, a public place or elsewhere that services are provided.
A “place of work” is where work has, is, or will be going on for gain or reward.
A “person who controls a place of work” is defined widely by the HSE Act (see Glossary of Terms). It includes the owner, occupier or person in possession of a place of work or any part of it.
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A home may be a “place of work”, but the person whose home it is does not have the duties of a person who controls a place of work.
What the duty means for brothel operators
Brothel operators need to ensure that their premises, and any furnishings, plant or equipment in them, are safe – not only for those who work on the premises, but also for guests and clients. In some cases, operators may be responsible for places of work or equipment beyond their actual premises. Essentially, this means operators are responsible for managing all hazards to which people in a place of work may be exposed. This is in addition to the duties of operators under the Prostitution Reform Act.
Employers
Employers have the most duties under the HSE Act. Most are directed towards keeping employees safe and healthy – although there are others.
In the case of the sex industry, an employer may be a brothel owner or operator, an outcall service proprietor or manager, or a massage parlour owner or manager.
An employer is defined by the HSE Act as a person (including a company) who or that employs any other person to do any work for hire or reward. The person must be employed under a contract of service (employment agreement). For the purposes of the HSE Act, the contract or agreement may be express or implied, written or verbal.
A client for commercial sexual services is not an “employer” of the sex worker providing the services.
Employers are required to take “all practicable steps” (see Glossary of Terms) to protect the health, safety and welfare of their employees at work. This includes providing a workplace that is safe for employees and free from health risks. For employers to meet their responsibilities they must:
. Maintain places of work under their control in a safe condition and provide and maintain systems of work that are safe and without risk to health, including safe access to and from the workplace (section 6).
. Provide and maintain work-related equipment (including personal protective clothing and equipment), at no cost to the employee (section 10).
. Identify and manage any hazards in the place of work (sections 7-10).
. Make arrangements for the safe use, handling, storage and transportation of equipment and substances, and provide employees with adequate information (sections 6 and 12).
. Develop emergency procedures and provide employees with the information they need about them (section 6 and 12).
. Provide the information, instruction, training and supervision needed to ensure the health and safety of all employees (sections 12 and 13).
. Where employees are exposed to hazards, monitor their exposure and, where necessary, their health in relation to the hazard, and inform employees of the results of monitoring(sections 10 and 11).
. Provide reasonable opportunities for employees to participate effectively in the improvement of health and safety (section 19B).
. Record, notify and report as appropriate any accidents or occurrences of serious harm to employees or others in the place of work (section 25).
Sections 4-13 of this Guide provide more detail on accepted means of employers meeting these duties. Appendix 2 provides more detail on accident and illness recording, notification and reporting requirements.
An employer’s duties under the HSE Act are in addition to those of the Prostitution Reform Act 2003.
Self-employed people
Where a sex worker is self-employed, including as an “independent contractor” to an agency or other operator of a business of prostitution, they have a general duty under the HSE Act to maintain their own safety and health and that of others.
The duty is to take “all practicable steps” to ensure that no action or inaction by them while at work harms the self-employed person or any other person. A self-employed person is also required to record, notify and report to OSH any serious harm (injuries or illness) that they or others suffer as a result of their work activities (section 25). These duties are in addition to the Prostitution Reform Act’s requirements for sex workers to follow “safer sex” practices.
Employees
All employees have a duty under the HSE Act to act responsibly, and to perform their work in accordance with safety standards applied by their employer. Employees are expected to take “all practicable steps” to ensure their own health and safety and that of others (section 19).
“Employees” are usually employed under an agreement with their employer. Alternatively, they may be volunteers, trainees, or “loaned” workers that are deemed “employees” by the HSE Act.
Where an employer provides work equipment, systems of work or personal protective clothing or equipment designed to protect employees and/or others in the workplace, then employees must use them.
Safe systems of work might include requiring employees to follow a set procedure when disinfecting sex aids, or in the case of a sex worker who provides outcall, a process to follow when visiting a client.
Employees must be adequately trained and supervised.
They must also be provided with, and have ready access to, relevant information on emergency procedures and any hazards they face.
The employer should consult employees on the best ways of achieving health and safety, and on the effects of any changes to the workplace or how work is done.
Employees in turn should co-operate with employers in meeting their health and safety obligations. Employees should also be encouraged to participate in improving health and safety, either by electing health and safety representatives or committee members, or by contributing to processes directly themselves.
The HSE Act provides that an employee may refuse to perform any work which they believe is likely to cause them serious harm. This right is in addition to the protections for sex workers contained in sections 16 and 17 of the Prostitution Reform Act.
Principals
A person who engages another person (other than as an employee) to do any work for gain or reward is a “principal”, i.e. to a contract, in terms of the HSE Act. This includes any operator of a business of prostitution who engages sex workers as “independent contractors”. In some situations it may also include a client, or another purchaser of sexual services (for themselves or others) who engages sex workers to provide services in a place other than a brothel – such as in a hotel room, vehicle or home.
An operator of a business of prostitution who is a principal to a sex worker working as an “independent contractor” has a duty to take “all practicable steps” to ensure that the sex worker is not harmed while carrying out any work that she/he was contracted to do (section 18). A principal to a contract is required to notify and report to OSH any occurrences of serious harm to a self-employed person that occurs while she/he is working for them as a contractor (section 25).
The section 18 duty under the HSE Act may apply where a client or another person engages a sex worker under a contract to provide commercial sexual services in a place other than a brothel. To the extent that the purchaser is able, they must take all practicable steps to ensure that the sex worker is not harmed while carrying out their work. This is in addition to the “safer sex” requirement of section 9 of the Prostitution Reform Act and other protections under the criminal law.
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Clients
Clients who visit a brothel for commercial sexual services are unlikely to have any duties under the HSE Act, although they do have the “safer sex” duty under section 9 of the Prostitution Reform Act. Clients also have the protection of the duties on brothel operators as “persons who control a place of work”, just as if they were visiting a supermarket or a gymnasium.
In some situations a client of a sex worker who provides outcall or an outworker who commissions commercial sexual services may be a “principal” in terms of the HSE Act, and have a duty to ensure the safety and health of the sex worker (see Principals, above).
Sex worker organisations
The New Zealand Prostitutes Collective (NZPC) contracts to the Ministry of Health to provide sexual and reproductive health promotion and community-based peer education programmes. Outside of this contract, NZPC operates to improve the rights and conditions of sex workers. It advocates for the interests of sex workers and also works to help individuals at a workplace level.
NZPC has branches in Auckland, Tauranga, New Plymouth, Wellington, Christchurch and Dunedin. Outreach workers cover other areas of the country, such as the Hamilton, Hawke’s Bay, Manawatu, and Nelson (see Appendix 3 for details).
Unions
There is no single union in New Zealand that represents the interests of sex workers. Some unions are seeking to have sex workers join them, making their services available to people in the sex industry – helping to negotiate contracts and maintaining the interests of sex workers.
Sex workers may choose whether or not they join a union.
Joining a union gives sex workers access to a collective employment contract where one exists otherwise, it permits one to be negotiated.
Collective employment agreements
Sex workers who are employees may have either an individual or collective employment agreement with their employer. The Employment Relations Act 2000 requires employment agreements to be in writing. Employees in a workplace have a right to join a union, and it is open to a workers’ union to negotiate on behalf of its members for a collective employment agreement. Provided that they are authorised to do so by the member, unions may also represent a worker on individual employment issues and agreements.
Only a registered union can negotiate with an employer for a collective employment agreement. As part of any negotiation, the parties must act in “good faith”. This includes requirements to meet, and to consider and respond to each other’s proposals. It does not mean they have to reach agreement. The parties can seek the assistance of a mediator from the Department of Labour’s Employment Relations Service when negotiations become stalled.
When a collective employment agreement is in force with an employer, or a group of employers, the agreement only applies to those employees who are members of the union. Other workers would need to negotiate individual agreements. The exception is for new workers.
Where a new employee commences work in an establishment where a collective employment agreement exists, that employee is automatically covered by the conditions in the collective for the first 30 days of employment. During that time they can decide to join the union and become a party to the collective, or if they do not join the union they would then need to negotiate an individual employment agreement.
For detail about what might be included in employment agreements, and for a range of other information about employment relationships, employers and employees alike may seek assistance about employment related matters through the Employment Relations Infoline (0800 800 863) or visit the Employment Relations website www.ers.dol.govt.nz.
Regulatory agencies
Occupational health and safety, accident compensation, prostitution and public health laws all regulate health and safety at work. Details of the applicable legislation, and the agency responsible are summarised in the table on page 29.
Appendix 1 contains more information on the roles of regulatory agencies and the legislation they administer. Fact Sheet 6 describes the role of the ACC in more detail.
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Legislation Area it covers in relation to the sex industry Agency responsible
Prostitution Reform The PRA decriminalised prostitution and The Ministry of Health Act 2003 covers such matters as: is responsible for the
. safeguarding the human rights of sex workers inspectorate and the health and protecting them from exploitation and safety requirements
. setting health and safety requirements in under section 8-9 of the Act. regard to safe sex
. the rights of territorial authorities to make bylaws
. certification of the operators of businesses of prostitution.
Health Act 1956 The Health Act 1956 and associated Medical Officers of Health regulations specify certain infectious diseases, as appointed by Director such as STIs, which are notifiable to the Medical General of Health
Officers of Health. Medical Officers of Health may undertake prevention and control measures in relation to these diseases.
Health and Safety The HSE Act covers health and safety in all The Occupational Safety and in Employment workplaces. Health Service of the Act 1992 Department of Labour.(Civil Aviation Authority in aviation and Maritime Safety Authority in shipping sectors respectively).
Employment Relations The ER Act covers employment relationships The Employment Relations
Act 2000 in the workplace. Service of the Department of Labour Injury Prevention, The IPRC Act governs the accident Accident Compensation Rehabilitation and compensation scheme, which provides Corporation Compensation Act accident insurance for all New Zealand 2001 citizens, residents and temporary visitors to New Zealand.
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