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Health and Safety Update – December 2015

Home Insights Health and Safety Update – December 2015

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Contributed by: Richard McIlraith, Kylie Dunn, Malcolm Crotty, Adrian Olney and Mark Campbell

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Published on: December 14, 2015

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Health and Safety – a New Year’s Resolution?

Anyone who has ever set themselves a New Year’s resolution will understand that change can take a little time to bed in and become second nature. For that reason, anyone engaging a “worker” should start preparing now to ensure they will be complying with the Health and Safety at Work Act (HSWA) when it comes into force on 4 April 2016.

We have already had many clients seeking our advice on what the HSWA will mean for them, and have presented seminars to directors, managers, and employees on the topic. This bulletin sets out some requirements of the new Act at a general level, but please contact us if you would be interested in a presentation more targeted to your business.

What’s New in Health and Safety

The current Act requires employers, principals and others to take all practicable steps to ensure the safety of certain people. That does not substantively change under the new Act, and many organisations are well on the way to making any necessary adjustments. However, the framework for identifying who owes what duties to whom has changed significantly.

One area of great interest has been the new due diligence duty imposed on “officers” of a PCBU (meaning a “person conducting a business or undertaking”). Officers themselves may be prosecuted if they breach that duty.

A person is an officer of a PCBU if they occupy a position allowing them to exercise significant influence over the management of the PCBU's business or undertaking. Directors of companies, partners of partnerships (other than of limited partnerships) and general partners of limited partnerships are all expressly included in the definition of “officer”, and senior management (including chief executives) can also have a “due diligence” obligation.

An officer must “exercise due diligence” to ensure that the PCBU they exercise influence over is complying with its obligations. That does not require officers to step into the shoes of the PCBU to fulfil those obligations, but instead requires them to take reasonable steps to ensure that those obligations are being met. Such steps will include maintaining an up-to-date knowledge of health and safety matters, understanding the nature of a PCBU’s operations and the risks and hazards associated with those operations, and ensuring the PCBU has processes in place and resources available to it to meet its obligations under the HSWA.

The HSWA also includes new requirements to provide workers with representation in respect of health and safety matters. These rules apply to employers with more than 20 workers and to those in “high risk” industries.  Unfortunately, the definition of “high risk” is not yet finally settled (see below).

WorkSafe Annual Report Released

The health and safety regulator, WorkSafe New Zealand, has released its annual report for 2014/15.

The most significant event looming over the report is, of course, the soon-to-be-in-force Health and Safety at Work Act 2015, as well as related regulations which will inform many of the day-to-day workings of the new regime. The report identifies what WorkSafe's targets are and how it expects to get achieve them.

WorkSafe’s targets are:

  • Zero catastrophic events (such as the Pike River mine disaster);
  • a 25% drop in all workplace injuries and fatalities by 2020;
  • a trend down in fatalities from electrical and gas accidents; and
  • a 50% drop in asbestos-related disease by 2040.

The report identifies several key strategies which are actively pursued by WorkSafe: “Targeting risk”; “Working together”; “Working smarter”; and “Strengthening our organisation”. More broadly, it seems that WorkSafe is focusing on increasing worker participation and 'buy-in' from all levels. This is tied to a three-step “way of working”: Engage, Educate and Enforce.

In terms of enforcement, the report briefly outlines WorkSafe’s prosecution record in 2014/15: 3,300 notifications, 780 investigations and 106 prosecutions of which 96 were successful (91%). That may be reflective of WorkSafe’s preference for influencing culture rather than bringing prosecutions as a means to effect change. 

The majority of the report is dedicated to the positive effects that engagement and education have had on health and safety, notably through “Duty-Holder Reviews”. These are investigations undertaken by employers, guided by WorkSafe, after an incident has taken place. One example given in the report is where a company learned that it could install a particular safety guard on a machine which had caused an injury, rather than relying on increased training and updated procedures. The report claims that a Duty-Holder Review allowed the company to “learn from the experience in a way that it might not otherwise have done”.

One difficulty that WorkSafe reports facing is a culture of mistrust from the businesses it inspects. It appears that the agency is working to address this by highlighting the ability of investigators to proactively assist businesses in “navigating the new legislation” and by providing “practical solutions”.

Another important feature of the report is the discussion of new initiatives such as the High Hazards Unit and Mines Inspectorate, as well as a case study on the forestry industry and a section on the Christchurch recovery. This specialised approach to particular areas or industries is in line with WorkSafe’s efforts to ‘Work smarter’, and is likely to be well received by businesses concerned about the possibility of a general regulator not fully understanding the complexities of specialist industries.

Businesses with concerns about how the new health and safety regime will affect them are unlikely to learn anything new from the report, although the emphasis on achieving an increased level of understanding in the coming months is promising. New information is likely to be released steadily, although all eyes are, for the moment, fixed on the Government rather than the regulator.

High Risk Pies in Skies

The WorkSafe report’s ‘Targeting risk’ section reiterates previous statements by WorkSafe that forestry, manufacturing, construction and agriculture have the highest rates of injury claims. However, there is limited discussion on how this may be reflected in the law. Conversely, the Government’s present draft regulations specifying the ‘high risk’ industries which are required to elect health and safety representatives currently exclude agriculture. The draft regulations attracted some adverse comment earlier in the year, as worm farming was classified as one of New Zealand’s ‘high risk’ industries, to the exclusion of dairy farming.

This potential inconsistency between WorkSafe’s view of agriculture and the draft regulations may be indicative of a differing approach to injury prevention. Whereas WorkSafe is clearly attempting to bring about change through influencing workplace attitudes and culture to normalise health and safety measures, Government policy (at least in terms of health and safety representatives) appears to be focused on preventing major injuries and catastrophic events. This leaves aside all matters of implementation which, as the worm farmers of the country will tell you, has proven more difficult than it might appear.

Meanwhile, ACC has released a set of statistics which indicate that dairy farming is the industry with the highest number of individual claims from 2015. That said, the figures were not adjusted for the relative numbers of participants in each industry, or for the severity of the claims themselves.

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This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.

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