A lawyer from a leading NZ firm explains why employers need to be carrying out intensive reviews of their health and safety management – and how they should be doing so.
The Health and Safety at Work Act (HSW) Act was passed by Parliament recently – but what does this mean for employers?
The Act will come into force on 4 April 2016, after which new obligations – and consequences for breaching them – will be enforceable.
Once in effect, the HSW Act will place new obligations on:
According to Brian Nathan, partner at Duncan Cotterill, the change that businesses are most concerned about is the inclusion of liability for officers.
Under the Act, an officer at a company – who can anyone who occupies a position that allows them to exercise significant influence over the management of the business (such as a CEO or director) – would run the risk of being personally liable over serious harm incidents if they haven’t been carrying out due diligence.
“This is the most fundamentally driven change because of the risk of additional liability which, until now, has been difficult for WorkSafe to shed home,” Nathan told HRM.
“I think it’s a different concept for some employers – particularly at less sophisticated companies – to come to grips with. Due diligence is something that we, as lawyers, are accustomed to talking about, but it’s a different way of thinking for business operators.”
Enforcement
Nathan advised that employers “really need to be undertaking a comprehensive review of their health and safety policies and practices”.
“Companies need to be ensuring that there are appropriate resources applied to health and safety management,” he said. “Ensure that you’re implementing, monitoring and reviewing your processes – this is something that needs to be constantly looked at.
“It’s all very well to have implemented a Health and Safety plan in relation to a particular aspect of a business, but it would be no good if in 12 months it has just gathered dust from lack of monitoring or review. Employers also need to make sure they listen to the staff who are at the sharp end of it.”
A WorkSafe inspector will have a number of options under the HSW Act to issue notices, without an incident having taken place. The inspector can issue:
Courts can also order reparation to be paid to a person injured by a breach, costs to be paid to WorkSafe, adverse publicity orders, and orders for restoration – amongst others.
Worker participation
Workers – including employees, contractors, volunteers, apprentices and trainees – will have their own obligations to take care of their own health and safety, and to ensure that they do not put the health and safety of others at risk. They are also obligated to comply with any policies and procedures issued by their employer.
Because duties are owed by workers as well as by companies and officers, it is important that workers are involved in drawing up the health and safety policies of a business. To facilitate this, the HSW Act sets out a number of requirements for worker participation.
A company will need to consult with their workers when identifying hazards in the workplace, making decisions about how to eliminate or minimise those hazards, developing procedures for anything to do with health and safety, and making decisions about facilities for worker welfare.
The risk category of a workplace will also come into play when these considerations are being made – an aspect of the HSW that Nathan referred to as “strange and disappointing”.
“It’s a bit strange and disappointing that the political process has led to the odd categorisation of certain industries as ‘high risk’ above others,” he told HRM, noting the classification of worm farming as more ‘high risk’ than cattle farming.
The Act will come into force on 4 April 2016, after which new obligations – and consequences for breaching them – will be enforceable.
Once in effect, the HSW Act will place new obligations on:
- A ‘person’ conducting a business or undertaking (PCBU) – this includes individuals, partnerships, companies and associations
- The officers of a PCBU
- Workers
- Other people at a workplace
According to Brian Nathan, partner at Duncan Cotterill, the change that businesses are most concerned about is the inclusion of liability for officers.
Under the Act, an officer at a company – who can anyone who occupies a position that allows them to exercise significant influence over the management of the business (such as a CEO or director) – would run the risk of being personally liable over serious harm incidents if they haven’t been carrying out due diligence.
“This is the most fundamentally driven change because of the risk of additional liability which, until now, has been difficult for WorkSafe to shed home,” Nathan told HRM.
“I think it’s a different concept for some employers – particularly at less sophisticated companies – to come to grips with. Due diligence is something that we, as lawyers, are accustomed to talking about, but it’s a different way of thinking for business operators.”
Enforcement
Nathan advised that employers “really need to be undertaking a comprehensive review of their health and safety policies and practices”.
“Companies need to be ensuring that there are appropriate resources applied to health and safety management,” he said. “Ensure that you’re implementing, monitoring and reviewing your processes – this is something that needs to be constantly looked at.
“It’s all very well to have implemented a Health and Safety plan in relation to a particular aspect of a business, but it would be no good if in 12 months it has just gathered dust from lack of monitoring or review. Employers also need to make sure they listen to the staff who are at the sharp end of it.”
A WorkSafe inspector will have a number of options under the HSW Act to issue notices, without an incident having taken place. The inspector can issue:
- Improvement notices, which requiring an organisation to take steps to prevent a breach of the legislation or to remedy a current breach
- Prohibition notices, which ban the continuation on of an activity that involves a serious risk to a person’s health and safety
- Non-disturbance notices, requiring a site to be preserved, both where a notifiable event has occurred and in other circumstances
Courts can also order reparation to be paid to a person injured by a breach, costs to be paid to WorkSafe, adverse publicity orders, and orders for restoration – amongst others.
Worker participation
Workers – including employees, contractors, volunteers, apprentices and trainees – will have their own obligations to take care of their own health and safety, and to ensure that they do not put the health and safety of others at risk. They are also obligated to comply with any policies and procedures issued by their employer.
Because duties are owed by workers as well as by companies and officers, it is important that workers are involved in drawing up the health and safety policies of a business. To facilitate this, the HSW Act sets out a number of requirements for worker participation.
A company will need to consult with their workers when identifying hazards in the workplace, making decisions about how to eliminate or minimise those hazards, developing procedures for anything to do with health and safety, and making decisions about facilities for worker welfare.
The risk category of a workplace will also come into play when these considerations are being made – an aspect of the HSW that Nathan referred to as “strange and disappointing”.
“It’s a bit strange and disappointing that the political process has led to the odd categorisation of certain industries as ‘high risk’ above others,” he told HRM, noting the classification of worm farming as more ‘high risk’ than cattle farming.
