4 April 2016 was a frightening date for many New Zealand businesses, as a dark cloud loomed and cast a shadow over business owners and executive managers—the new health and safety at work laws.
Leading up to this date, NZ businesses worked themselves into a state – eagerly searching for answers on how the coming laws would impact their business and your Australian counterparts were starkly reminded of the model work health and safety laws ‘D-Day’ back in 2012.
For good reason, NZ businesses reacted similarly to Australia only a few years ago. Concerned about the unknown, many questions are being raised and deeply considered:
- What is a PCBU?
- Who is an Officer?
- What is due diligence?
- What is the likely penalty for a duty of care breach?
- What do I need to do as an officer to avoid personal liability and going to jail?
- What does the business as a PCBU need to do in addition to what is already in place?
It certainly didn’t help that people were wandering around heightening the fear of individual duty holders and businesses. An article published by Radio NZ ‘Scare-mongering’ Over New Regulations‘ (15 January 2016) said that the Secondary School Principals’ Association reported schools had been inundated with calls from consultants over previous months, telling them they “could go to jail” when the Health and Safety at Work Act 2015 kicked in on April 4.
While the issue raised by these ‘Consultants’ is technically true (those Executive Managers deemed ‘officers’ under the Health and Safety at Work Act are obliged to exercise due diligence and can be held personally responsible for PCBU safety breaches), the likelihood that the Regulator was going to target Officers as soon as April 4 hit were doubtful.
This point was reinforced by WorkSafe New Zealand’s chief executive Gordon MacDonald. The Radio NZ article quoted Mr MacDonald’s point of view, stating that “Our position is that if people are doing the right thing now by the existing law, the changes they need to make to cope with the new law are probably not that significant… But if people aren’t complying with the new law, then this is a wakeup call for them.”
There is a definitely misnomer that the new laws introduce a whole new duty of care. The fact is employers now deemed PCBU’s under the Health and Safety at Work law have always had a duty of care to workers. The changes we see with the new Health and Safety at Work Act are around terminology – providing clarity to individuals and businesses as to who owes a duty of care and the extent of it.
I can liken the fear of the NZ Health and Safety at Work laws to the Y2K disaster that never was. 1999, the arrival of the new millennium was a time of fearmongering, where many assumed that as of 1 January, 2000, entire computer systems were going to fail…… the fear this time around was that as of 4 April, the Regulators would walk right in and commence prosecution for safety breaches under the new laws…..it didn’t happen right?
So, how will the new Health and Safety Work Act play out for businesses in NZ?
With the luxury of experience, NZ businesses can look to the Australian roll-out of the model work health and safety laws in order to provide clearer expectations and assist with preparation and implementation.
Looking back, the first year the model work health and safety laws were introduced in Australia was all about learning the ropes. Regulators didn’t pounce on businesses, waving the new rule book expecting them to comply with each new section introduced. The role of the Regulator (which very much still exists today) was to take a position of Advisor and Enforcer, focusing on the fundamental elements of primary duty of care. For example, providing:
- safe systems of work
- adequate information, instruction, training and supervision.
The first year gave Australian businesses an opportunity to understand the new terminology and obligations imposed on them – a year to plan – a year to get systems right and comply.
The good news is that dark cloud will dissipate with time. You’ll come to understand that there will not be a BIG BANG!
For now, a PCBUs focus should be:
- A primary duty of care – ensuring the health and safety of workers and others exposed to operational risks.
- Doing everything so far as is ‘reasonably practicable’ to ensure that the health and safety of workers and others is not impacted by the activities carried out by the business.
- Getting back to basics – consult with your workforce, ensure you have identified those activities and things that can cause harm to people, develop safe systems of work, and provide your workers with very clear instruction, information, training and supervision which is adequate to ensure they carry out their work in the safest way possible.
Multiple Duty Holders
The Health and Safety at Work Act recognises that there may be multiple duty holders who share a duty of care in regards to workers carrying out work on behalf of each of the businesses.
In this case, the law requires each duty holder to communicate with each other by the process of consultation, cooperation and coordination. It’s really not complex – it’s about identifying who else is responsible for a health and safety matter and engaging with that PCBU to work out what can be done to manage the issue. Coordinating with each other as to who will control the risk and to what extent.
It has been only in the last year – three years after the new laws were imposed – that Australian businesses have witnessed the outcomes of breaches under the model work health and safety laws.
In a recent case in Queensland, a manufacturing company was prosecuted for breaching their primary duty of care as a PCBU and ordered to pay a fine of $30 000 [note: the maximum penalty for this type of breach is $1.5million].
The incident resulted when a worker was using an auger when the auger grabbed and removed the glove on his left hand; the worker suffered partial amputation of a finger and dislocation of another finger. The findings of the investigation found that while the worker had received a general induction to the workplace, the procedure on the safe use of portable power tools was not explained.
Following the incident, the defendant developed a safe work procedure specific to the task of operating the auger and included it as part of the workers’ induction. [Details of successful prosecution against E184454, WorkSafe QLD]
This case is an example of the common prosecution made under new safety laws in Australia. The fundamental obligations of duty of care are the basis for a successful prosecution, where the PCBU has failed to ensure the health and safety of workers.
Again, these duties are not new for businesses, they are the core of duty of care.
We suspect that history will repeat itself. While NZ may have a period of grace to wrap their heads around the new law, it’s not a time to sit back and wait either. Remember that the primary duty of care and the due diligence obligations of an officer are a ‘positive duty’. This means you need to carefully plan for health and safety and not wait until something goes wrong before you put systems and training into place.
WorkPro can assist by helping you implement a simple method of delivering and managing job and industry work safety education and induction, and licence/ticket expiry management. Importantly, our platform provides you the ability to transparently prove and demonstrate your co-operation with the law, to assist with compliance.