Why Health and Safety is important
Health and Safety have become a part of our daily lives. We have become accustomed to seeing it everywhere we go, whether it is through people wearing protective gear, the Hazard Registers on the office notice board, instructions on how to perform some tasks where there is a degree of risks to the task, and the list goes on and on. We also frequently hear about Health and Safety in the news where there was an industrial / workplace accident and/or where someone was seriously injured and sometimes even killed.
Today, more than ever before, every business owner (and director), has a legal obligation to ensure the safety of their employees, customers and the general public (visitors to your place of work) when it comes to Health and Safety matters.
Health and Safety Legislation
In New Zealand, Health and Safety are regulated by the Health and Safety at Work Act of 2015 (HSaW, or the Act). This new Health and Safety legislation came into effect on 4 April 2016 and replaced the old Health and Safety in Employment Act of 1992 (HSE).
The new Health and Safety at Work Act – what does it mean for me?
Person Conducting a Business or Undertaking (PCBU)
A key aspect of the Health and Safety at Work Act 2015 is the creation of a new duty holder, known as a Person Conducting a Business or Undertaking (PCBU). A PCBU means quite simply ‘a Person Conducting a Business or Undertaking’:
- whether the person conducts a business or undertaking is alone or with others; and
- whether or not the business or undertaking is conducted for profit or gain.
The PCBU is a broad concept, which will encompass the existing duty holder categories (such as employers, principals, and persons in control of a place of work) under the Health and Safety in Employment Act 1992.
A PCBU does not include:
- employees or directors of PCBUs (directors are covered as officers – see below),
- volunteer associations, and
- occupiers of a home who employ or engage another person solely to do residential work.
How does the term “PCBU” apply to me?
Every company is classed as a PCBU, and as a company owner, you are therefore responsible for providing a safe environment for your employees and customers (visitors) alike.
The Health and Safety at Work Act 2015’s definition of a ‘Worker’ is broad, but it means that a ‘worker’ is a person who carries out work in any capacity for a PCBU. This could mean as an employee, contractor or a volunteer.
How does the term “Worker” apply to me?
Every person that perform any work for you as a salaried employee, contractor or even a volunteer is classified as a worker.
Directors and/or Officers
Another significant change to the new Health and Safety at Work Act 2015 is the introduction of a positive duty on officers to exercise due diligence to ensure that the PCBU complies with that duty or obligation. This is a key change from the HSE Act, where directors of a company can only be held liable where they have directly participated in, contributed to, or acquiesced in their company’s failure. Under the new Health and Safety at Work Act 2015, officers may be convicted for a breach of due diligence regardless of whether the PCBU has been convicted of an offence.
Directors and Officers are defined as:
- directors of companies
- partners in a partnership
- any general partner in a limited partnership
- any person in a position, comparable with that of a director in a body corporate or unincorporated body; or
- any other person occupying a position in a PCBU that allows the person to exercise significant influence over the management of the business (i.e. a chief executive).
Due diligence imposed on Officers requires them to take reasonable steps to:
- acquire, and keep up-to-date, knowledge of work health and safety matters;
- gain an understanding of the hazards and risks associated with those operations;
- ensure the PCBU has and use appropriate resources and processes to eliminate or minimise risks;
- ensure the PCBU has appropriate processes to respond to information regarding incidents, hazards, and risks promptly;
- ensure the PCBU has and implements processes for complying with any duty or obligation under the Act.
How does this apply to me?
You/your Director(s) and designated Officer(s), have a legal duty to regularly review and update their safety systems, ensuring the safety of employees and visitors to your premises.
The new ‘due diligence’ obligation was introduced to ensure that Directors or Officers (those within a position of responsibility) makes sure the safety standards relating to their PCBU are of an appropriate standard.
The Health and Safety at Work Act 2015 will replace the current standard under the HSE Act (‘All Practical Steps’) with a new ‘reasonably practicable‘ standard. ‘Reasonably practicable’ is defined as “…that which are, or was, at a particular time, reasonably able to be done about ensuring health and safety, taking into account and weighing up all relevant matters”, including:
- the likelihood of the hazard or the risk concerned occurring;
- the degree of harm that might result from the hazard or risk;
- what the person concerned knows, or ought reasonably to know, about the hazard or risk; and ways of eliminating or minimising that risk;
- the availability and suitability of ways to eliminate or minimise the risk; and
- after assessing the extent of the risk and available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The Act creates three offence tiers relating to breaches of the Health and Safety duties. The offences and the respective maximum penalties can be summarised as follows:
- Reckless Conduct (has a duty and exposes any person to whom the duty is owed to risk of death or serious injury/illness and is reckless as to that risk) – fines up to $3 million (or $600,000 and/or up to five years’ imprisonment for individuals).
- Failure to comply with a Duty (with exposure to the risk of death or serious injury/illness) – fines up to $1.5 million (or $300,000 for individuals).
- Failure to comply with a Duty (no exposure to death or serious injury/illness) – fines up to $500,000 (or $100,000 for individuals).
In addition to the fines and imprisonment that may be imposed, the Health and Safety at Work Act 2015 provides for new orders which the court may impose at sentencing:
- 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.
- Health and Safety project orders – requiring an offender to undertake a specific project for the general improvement of work Health and Safety.
- Court-ordered enforceable undertakings – adjourning the proceeding for up to two years, during which the offender undertakes to comply with certain conditions.
How does this apply to me?
The company Directors and Officers can be charged and convicted. If an incident occurs (which may or may not result in injury) they may be found guilty of the highest offence which is ‘Reckless Conduct’, which carries a maximum fine of up to $3million on the company and up to $600,000 on the Directors.
If the company employs the services of a third party (contractor) and requests their Health and Safety Plan (or equivalent safety material) and inspects it and concludes that the safety measures are of a high enough standard, it would be highly unlikely that you will be found liable if any incident occurred where the contractor was responsible for the safety around the incident.
What OSH24 can do for you
The OSH24 website is an online Health and Safety tool aimed at supporting Small to Medium Enterprises in meeting the requirements of the New Zealand Health and Safety legislation.
We support our clients with these tools to make Health and Safety as easy as possible by offering business owners a system to manage Health and Safety in their workplace.
We help you demonstrate that your business meets the set of specified (minimum) requirements as required by Health and Safety legislation.
OSH24 have all the required tools, templates, resources and necessary expertise to assist and support you in becoming and then staying compliant with Health and Safety requirements.
Health and Safety compliance is a journey, and we can help you get on, and stay on, the right road with your Health and Safety.