Health and Safety Law Update – including tips to avoid non-compliance
Health and safety at work is a recent topic of interest, especially given the increased responsibility of all workers and the significant penalties that can be borne for non-compliance with the Health and Safety legislation which came into effect in April this year.
The Health and Safety at Work Act 2015 effectively shares the responsibility of work safety among all levels in the workplace, aims to promote greater employee participation in health and safety, and increases the penalties for noncompliance with the law.
All levels have responsibility
Health and safety will no longer just be up to the boss or manager of the work place. All companies, or individuals in the case of sole traders, bosses, managers, employees of different ranks, even volunteers in some cases will be responsible for ensuring that health and safety is kept in their workplace. Such people are described as Persons Conducting a Business or Undertaking (PCBUs).
Any PCBU is responsible for the health and safety of themselves, those working for them, including any contractors and volunteers, and even customers and visitors of the business.
PCBUS have duties to ensure, as far as “reasonably practicable”, that the workplace is devoid of risks to the health and safety of those within the work place. Reasonably practicable means that which was reasonably able to be done at the time regarding the health and safety having regard to all the relevant factors (such as the likelihood of the hazard occurring and the degree of harm that could occur, what the person involved knew or ought to have known regarding the risk of the hazard, and the availability of measures to avoid the risk).
In general, PCBU responsibilities include:
- providing and maintaining a work place that is as free of health and safety risks as possible;
- identifying hazards;
- implementing, maintaining and reviewing effective control measures;
providing instructions, information and training on health and safety to those in the workplace;
- providing adequate workplace facilities and protective equipment;
- facilitating discussions and involvement from those in the workplace regarding health and safety risks and protection from risks;
- monitoring the health and safety of those in the workplace and ensuring that any risks are mitigated.
(A more thorough list of duties can be found in the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016).
All PCBUs contain individuals (“Officers”) who are senior in role and thus more influential in their management and decision making over others in the workplace (eg managers, company directors, partners). Such officers must ensure that they communicate with those below them to ensure that they are fully aware of the risks that exist, the accidents and hazards and the methods used to deal with them or mitigate such risks. Officers have a positive duty to ensure that PCBUs comply with their duties for health and safety. Previously, directors of companies could only be held liable where they had directly contributed to a company’s failure to comply but now, they must ensure that the company complies. Thus there is greater responsibility to ensure that health and safety measures are in place.
But just because you are not the highest up in rank does not mean to say that the responsibility for health and safety only rests with the bosses. Workers now have greater responsibility for the health and safety of themselves and others in the work place. This includes ensuring that they understand the health and safety polices their work place has, complying with such policies and taking reasonable care for their own safety and to ensure that they don’t harm others.
What about volunteers? Volunteers are generally included under the legislation and come under the same responsibilities as workers. The legislation doesn’t cover casual volunteers or volunteers within some activities (eg fundraising).
Greater employee participation
The new legislation also aims to promote the greater involvement of employees in health and safety practices and discussions. Those who work ‘on the front lines’ often know more about the health hazards they face on the job than their managers or the CEO would, and could provide greater input into the most effective mitigation practices. Thus worker involvement through Health and Safety Committees and regular discussions is a great way for a workplace to ensure greater health and safety and to ensure compliance with the Act.
The penalties for non-compliance of the Act is possibly the most talked about n=matter under the new laws as they are now more significant. The severity of the penalty ofcourse depends on the seriousness of the offence but also what level of duty the offender had under the Act.
There are numerous offences listed within the Act. The most serious offences are for breaches of the duties contained in sections 36 – 46 of the Act and include:
- Reckless conduct regarding a health and safety duty (s47);
- Failing to comply with a health and safety duty that exposes an individual to the risk of serious injury or serious illness or death (s48); and
- Failing to comply with a health and safety duty (s49).
The penalties for non-compliance with the legislation are more significant than previously and Officers now also face personal liability. Penalties include being given infringement notices by WorkSafe NZ Inspectors that a breach has occurred, being fined up to $1.5 million, and/ or even jail time for a maximum sentence of 5 years. Insurers will not cover such fines. Therefore, health and safety is no small matter.
So what can a workplace do to ensure compliance?
The best way to avoid noncompliance is to ensure that you act safely, implement health and safety measures, and document what is being done as evidence. Eliminating all risks to health and safety is impossible but recognising the risks and putting in place ways to mitigate them as best as possible is the key.
What each workplace requires will depend on how many risks are involved and the level of hazards to health and safety that exist. But in general, all workplaces should:
- Read through the Health and Safety legislation to get an in depth understanding of the duties for workplaces;
- Regularly discuss and assess health and safety in the workplace;
- Ensure that policies and procedures, including for emergency procedures, are documented and known by those in the workplace;
- Set up Health and Safety Committees and appoint representatives who can report on risk and incidents to higher levels;
- Document hazards, accidents and near misses accurately and report to the Health and Safety representatives and seniors;
- Ensure that such hazards and risks are then controlled, prevented or eliminated;
- Record what has been done to achieve this;
- Ensure that training is provided and discussions facilitated to involve all levels of those in the work place with health and safety. Are visitors and volunteers also being made aware about the workplace’s health and safety policies?;
- Have regular discussions and review and update polices as required.
If you are worried about whether your workplace would comply with such legislation or are concerned about a health and safety matter that you are experiencing, please contact our offices without further obligation.