Employment Law - New Health and Safety Legislation - Employment Lawyer Auckland - Dukesons Business Law

April 2016

This update isn't legal advice - if you want advice on an employment law issue or on any business law or commercial law issue, please contact me. I've had over 25 years experience as business lawyer or commercial lawyer in Auckland. Employment law is an important part of my practice.

INTRODUCTION

While this update is longer than usual, it's only a cursory summary of some key aspects of the new Act (HSWA), which came into force on 4th April 2016.

As an employment lawyer in Auckland, new employment law, and employment law cases, seem to be never ending. In relation to the HSWA, it’s quite possible that it will create anxiety for low risk, small businesses (some will see the HSWA as cracking a nut with a sledge hammer) and that there will be many uncertainties for any sized business e.g. just how far must an employer go in terms of looking to H& S issues when holding say, the Christmas party? Some Employment Lawyers view the HSWA as overkill.

The HWSA requires any person carrying on a business or undertaking (a PCBU) to do what is reasonable practical to identify and eliminate or reduce risks to safety.

  • Mostly, it doesn’t matter what the business or undertaking is – the legislation applies to offices where sedentary occupations are carried out as well as to operations that would more clearly give rise to risk. It doesn’t matter whether the PCBU is company, partnership or sole trader, or any other form of legal entity.
  • More than one PCBU could be involved in relation to a work place. Think of a construction site. PCBUs will include suppliers of product or equipment, the owner of the site, the head contractor, subcontractors, etc. In such a case, PCBUs may need to consult, co-operate, and co-ordinate with each other, to do what is reasonably practical to identify, eliminate or reduce risks. Just what will be required of each PCBU will depend on the extent to which a PCBU can control or influence things.
  • Designers, importers, and retailers of products that could give rise to harm in the work place must do what is reasonably practical to eliminate or reduce those risks.
  • “Officers” of PCBUs will have due diligence obligations, to ensure that their PCBU complies with the legislation. That means understanding what risk there may be and ensuring that appropriate procedures are in place and are followed. Officers must have personal knowledge of these things. (More on this below).
  • Workers, contractors, and other persons visiting “work” sites will also have obligations to look out for their own safety and for the safety of others.

Fines for breaching the Act can be severe.

THE PRIMARY DUTY - PCBUs

A PCBU must, as far as is reasonably practicable, to the extent that the PCBU can influence or control matters:

  • provide and maintain a workplace that is without risks to health and safety.
  • provide and maintain safe plant and structures and safe systems of work.
  • ensure the safe use, handling and storage of plant, structures and substances.
  • provide adequate facilities for the welfare of workers.
  • provide information, training, instruction, or supervision that is necessary to protect all persons from risks to their health and safety arising from work.
  • monitor the health of workers and the conditions at the workplace for the purpose of preventing injury or illness.

PCBUs will need to:

  • identify hazards;
  • assess the level of risk for each hazard;
  • take all reasonably practical steps to eliminate or reduce the risks (preventative measures);
  • provide for worker engagement;
  • provide for appropriate training (record the training) and supervision;
  • ensure that incidents (including near misses) are reported and documented;
  • ensure that serious incidents are reported to WorkSafe;
  • ensure that there is an emergency plan
  • have policies and procedures in place to enable these steps to be done and to provide for the reporting of hazards and risks (and review the policies and procedures regularly).

NATURE OF DUTY – REASONABLE PRACTICABILITY TEST

Reasonable practicability balances the likelihood of a risk occurring, against the time, trouble and cost that would be necessary to avert that risk. It takes into account all relevant matters including the potential degree of harm, knowledge as to existence of the risk and the available control measures.

OFFICERS’ RESPONSIBILITIES – DUE DILIGENCE

The Act requires ‘officers’ of a PCBU to assume a due diligence duty, to ensure that the PCBU complies with its obligations. The duty of due diligence requires the officer to exercise the care, diligence and skill that a reasonable officer would exercise in the same circumstances, taking into account the nature of the business, the position of the officer, and the nature of the responsibilities undertaken by the officer.

So, an officer’s duty to manage risk is limited to doing what is within their ability to control or influence. The officer’s duties will take into account the role that they have in the business, their position and the nature of their responsibilities.

An officer includes:

  • directors;
  • anyone occupying a role that is comparable to a director;
  • partners;
  • a general partner in a limited partnership;
  • anyone who exercises significant influence over the management of the business or undertaking.

An officer will be required to have up-to-date knowledge of health and safety matters, understand the risks and hazards associated with the business (need to know about the business at ground floor level), and ensure the PCBU has (and uses) appropriate resources/processes to comply with their duties, which include responding, in a timely way, to information regarding incidents, hazards and risks and to take reasonably practical steps to identify eliminate or minimise the risks.

An officer must discharge the duty personally. This will mean inspecting and understanding sites, understanding how work is done, being able to identify and assess risks, etc.

WORKERS

Workers are individuals who carry out work for the PCBU including employees, contractors and sub-contractors, apprentices, trainees and even volunteers in some cases. Workers can also be employees of labour hire companies.

Essentially, their duties are:

  • take reasonable care to ensure the health and safety of themselves and others in the workplace;
  • comply with the health and safety policies and procedures of the PCBU;

and they have the right to refuse to undertake unsafe or dangerous work.

WORKER ENGAGEMENT

All PCBUs, regardless of size, must have practices that provide 'reasonable opportunities' for workers to participate effectively in improving work health and safety in the organisation.

The HSWA doesn’t specify what types of worker participation practices PCBUs must have. Different types of practices will suit different workplaces and the important thing is that workers can be involved in an effective way. What is 'reasonable' in terms of participation opportunities provided will vary depending on the circumstances of the particular PCBU.

A PCBU may decide that one or more health and safety representatives should be elected to represent the workers. If the PCBU doesn’t 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 5 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 only if they have 20 or more workers, or are in a high-risk industry.

OTHER REFERENCES INCLUDE:

  • Guide for Small Business, Site Safe, February 2016;
  • Special Guide, MBIE March 2016;
  • Good Governance for Directors, guideline for directors by the Institute of Directors and Work Safe 2016.

Feel free to send a link to this Update to anyone who would be genuinely interested.

Please contact me if I can help you with any company law issue or any business law or commercial law issues.

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Telephone: (64) 09 379 4556

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Copyright 2016

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Telephone: +64 9 379 4556 Mobile: 021 404 306. Fax: +64 9 379 4557 Email: steve@dukesons.co.nz