Health and safety
The Health and Safety at Work Act 2015 (HSW Act)
On 4 April 2016, the Health and Safety at Work Act 2015 (HSW Act) came into force. The HSW Act replaces the Health and Safety in Employment Act 1992 (HASIEA) and is a response to the scrutiny placed on our health and safety practices following the Pike River tragedy. The maximum penalties under the Act are six times higher than under the HASIEA.
The HSW Act places duties on the following categories of people:
- A person conducting a business or undertaking (PCBU) and includes an individual, a partnership, a company, and an association;
- Officers of a PCBU;
- Workers; and
- Other people at a workplace.
A PCBU includes managers of a site, suppliers, importers and manufacturers. PCBUs must ensure, so far as reasonably practical, the health and safety of its workers and of other workers whose activities are influenced or directed by the PCBU. It must also ensure that the health and safety of any other person isn’t put at risk because of the work being carried out. This includes providing a safe work environment, with safe equipment, and suitable procedures in place. A PCBU who designs, manufactures, or is in any other way involved in the supply of any plant, substances or structures must ensure that not only is their own workplace safe, but also that those plant, substances or structures are without risk to the health and safety of the people who will be working with them.
Officers of a PCBU include the directors of a company and partners of a partnership, a general partner of a limited partnership, and for other types of business, people in a similar role. It also includes any other person occupying a position that allows them to exercise significant influence over the management of the business, such as a chief executive, but does not include a person who merely advises or makes recommendations to the management team.
The duty imposed on officers is onerous. Officers must exercise due diligence to ensure that a PCBU complies with all of its obligations. This should be done not only by ensuring that the PCBU has appropriate health and safety policies, which are adhered to, but ensuring it has appropriate resources to implement its health and safety obligations, and that hazards are recognised and eliminated or minimised. This means that directors of a large entity, who may have little or no practical involvement in a business, must also comply with the due diligence obligations in order to avoid possible prosecution. Failure to exercise due diligence means they Officers can be liable for negligence or recklessness.
Workers (including employees, contractors, volunteers, apprentices and trainees) have their own obligations to take care for their own health and safety, and to ensure that they do not put the health and safety of others at risk. They must also comply with any policies and procedures issued by the PCBU, and any other instructions that they receive from the PCBU. Failure of a worker to follow a reasonable health and safety instruction or policy of his or her employer may lead to disciplinary action under their employment agreement and also prosecution under the Health and Safety at Work Act.
Any other person at a place of work must also look out for their own health and safety and ensure that their acts or omissions don’t affect the health and safety of others.
Health and Safety Representatives
Because duties are owed by workers as well as by PCBUs and officers, it is important that workers are involved in the health and safety policies of a business. To facilitate this, the HSW Act sets out a number of requirements for worker participation.
A PCBU 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.
A PCBU may decide that one or more health and safety representatives should be elected to represent the workers. If the PCBU does not initiate this, a worker may request that an election for a health and safety representative be held. In addition to or as an alternative for a health and safety representative, a PCBU may establish a health and safety committee, or the establishment of a committee may be requested by five or more workers or by a health and safety representative. A PCBU will have to comply with a request for a health and safety representative or committee if they have 20 or more workers, or are in a high-risk industry.
Details of what will constitute a high-risk industry will be finalised in regulations, but are currently classified as those with potential for catastrophic risk, those with high risk of death or serious injury, and those with exposure to asbestos. The proposed list of 57 industries is based on industries that have had 25 fatalities per 100,000 workers since 2008 or a serious injury rate of more than 25 per 1000 workers since 2008, and includes industrial manufacturing and processing, public transport and freight, fishing and aquaculture, building and construction, mining, and forestry.
A health and safety representative will be entitled to receive additional health and safety training. They also will be able to issue improvement notices against any person who they believe is contravening a provision of the legislation, or to direct a worker to cease work if they believe that the work would expose someone to a serious risk.
Penalties under the HSW Act are six times higher then under the HASIEA. There is a three tier system to penalties following an established breach:
offences of reckless conduct, where a person under a health and safety duty without reasonable excuse engages in conduct that exposes any individual to whom a health and safety duty is owed to a risk of death or serious injury or illness may be convicted and penalised:
up to $300,000 or a term of imprisonment not exceeding 5 years for an individual who is not a PCBU or an Officer of a PCBU;
up to $600,000 or a term of imprisonment not exceeding 5 years for a PCBU or an Officer of a PCBU; and
up to $3,000,000.00 for any other person.
offence of failing to comply with health and safety duty that exposes an individual to the risk of death or serious injury or illness may be convicted and penalised:
up to $150,000 for an individual who is not a PCBU or an Officer of a PCBU;
up to $300,000 for a PCBU or an Officer of a PCBU; and
up to $1,500,000 for any other person.
offence of failing to comply with health and safety duty may be penalised:
up to $50,000 for an individual who is not a PCBU or an Officer of a PCBU;
up to $100,000 for a PCBU or an Officer of a PCBU;
up to $500,000 for any other person.
In addition to the above penalties, the Act provides for new orders which may be imposed at sentencing, such as:
- adverse publicity orders, requiring the offender to publicise in a particular manner the offence, its consequences, and the penalty imposed;
- restoration orders, requiring an offender to take specified steps to remedy any matter caused by the offence;
- project orders, requiring an offender to undertake a specific project for the general improvement of work health and safety; and
- court-ordered enforceable undertakings, adjourning the proceeding for up to two years, during which the offender undertakes to comply with certain conditions.
Proceedings for offences under the Act may be bought by WorkSafe (or other designated authority) within 12 months of the date of the incident to which the offence relates, or within 6 months of a coronial repot.
However, private prosecutions bought by a person other than WorkSafe may be bought within 2 years after the incident to which the offence relates.
How can you protect yourself?
As is the case under the HASIEA, under the HSW Act it is not unlawful to pass on or contract out of responsibility for health and safety nor can a can you obtain insurance for any fine ordered to be paid under the HSW Act, although statutory liability cover remains available for any order of reparation.
PCBUs, Officers, Workers and any other person owing a duty can minimise their financial risk by:
- Undertaking a review and update of their health and safety policies and ensure that all parties understand and comply with the new HSW Act. We are happy to assist you with this process.
- Protecting your assets from creditors by transferring your assets out of your personal ownership and into the ownership a discretionary trust. The ins and outs of this arrangement and how it relates to you can be conveyed during a free 30 minutes appointment with the trust experts at Helmore Ayers Lawyers. We are also happy to hold a short seminar at your work place to educate your employees about how they can minimise the financial risk associated with their role.
- Directors may wish to revise their remuneration based on the increased financial risk under the HSW Act. We can assist you with a new agreement in this regard.
Feel free to contact Peter O'Dea, Partner of Helmore Ayers Lawyers, for a no-obligation chat about how this relates to you on 03 366 5086 or 022 130 9529 or use the contact form below.
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Phone 03 366 5086
38 Birmingham Drive, Riccarton, Christchurch 8440
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