This is the first of 2 articles on the Health and Safety Legislation changes in 2015. We look at Duties and Offences.
The Health and Safety at Work Act 2015 is part of the Government’s package of reforms to address New Zealand’s high workplace injury and death rates. It will come into force on 4 April 2016.
Purpose of the Act
The Act’s purpose is to protect workers and other persons against harm to their health, safety and welfare by eliminating or minimising risks arising from work or high-risk plant.
Persons conducting a business or undertaking
The Act imposes duties on persons conducting a business or undertaking (PCBUs) and officers of a PCBU.
Every PCBU must ensure, as far as reasonably practicable:
- the health and safety of its workers while they are at work.
- that the health and safety of other persons is not put at risk by its work.
- where the PCBU is managing or controlling a workplace, that the workplace poses no risk to the health and safety of any person.
Where the PCBU conducts a farming business, the farmer’s duty to manage or control the workplace extends only to farm buildings or structures that are necessary for the operation of the business and the areas immediately surrounding them. Other parts of the farm will not be considered a workplace, unless work is being carried out in that part of the farm at the time.
Reasonably Practicable
A PCBU must ensure the health and safety of its workers and other persons ‘so far as is reasonable practicable’. ‘Reasonably practicable’ is defined to mean:
… that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including –
- the likelihood of the hazard or the risk concerned occurring; and
- the degree of harm that might result from the hazard or risk; and
- what the person concerned knows, or ought reasonably to know, about –
- the hazard or risk; and
- ways of eliminating or minimising the risk; and
- the availability and suitability of ways to eliminate or minimise the risk; and
- after assessing the extent of the risk and the 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.
Officers and the duty of due diligence
Officers of a PCBU must ‘exercise due diligence’ to ensure that the PCBU complies with its duties or obligations under the Act.
Officers are defined as:
- Company directors;
- Partners in a partnership;
- Any person occupying a position comparable to that of a director of a company if the PCBU is a body corporate or an unincorporated body; and
- Any other person occupying a position that allows them to exercise significant influence over the management of the business or undertaking (for example, a chief executive).
‘Due diligence’ includes taking reasonable steps to:
- acquire knowledge of work health and safety matters and to keep up to date on those matters; and
- gain an understanding of the nature of the PCBU’s operation and the risks and hazards associated with it; and
- ensure that the PCBU uses appropriate resources and processes to eliminate or minimise risks to health and safety; and
- ensure the PCBU has processes for considering and responding to information regarding incidents, hazards and risks; and
- ensure the PCBU has processes for complying with any duties or obligations under the Act.
The Act imposes a duty on every officer of a PCBU. A company with a director and a chief executive will have two officers, both of whom must comply with the due diligence duty.
Duties on workers
The term ‘worker’ is broadly defined. It includes individuals working in any capacity for a PCBU whether as an employee, contractor or subcontractor, apprentice or trainee, a person gaining work experience or a volunteer worker.
While at work, workers must take reasonable care for their own health and safety. They must also take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons. Any other person at a workplace is under the same duties.
Offences
A person commits an offence if they fail to comply with a duty under the Act. The Act has three tiers of offences:
- Reckless conduct;
- Failure to comply with a duty that exposes an individual to risk of death, serious illness or serious injury;
- Failure to comply with a duty.
An officer of a PCBU may be found guilty of an offence of failing to exercise due diligence regardless of whether the PCBU has been found guilty of an offence under the Act.
Reckless conduct
A person commits the offence of reckless conduct if they:
- have a duty under the Act; and
- engage in conduct that exposes an individual to whom that duty is owed to the risk of death, serious injury or illness; and
- are reckless as to that risk.
On conviction, the maximum penalties are:
- imprisonment for up to five years or a fine of up to $300,000 for an individual (not a PCBU or an officer);
- imprisonment for up to five years or a fine of up to $600,000 for an individual who is a PCBU or an officer;
- A maximum fine of $3,000,000 for a PCBU.
Failure to comply with duty exposing an individual to risk of death, serious illness or injury
If a person fails to comply with a duty under the Act and that failure exposes an individual to a risk of death, serious injury or serious illness, an offence is committed. If convicted:
- an individual who is not a PCBU or an officer may face a fine of up to $150,000;
- an individual who is a PCBU or an officer may face a fine of up to $300,000;
- a PCBU (other than an individual) may face a fine of up to $1,500,000.
Failure to comply with a duty
The last category of offence applies to people to have a duty under the Act but fail to comply with it. Maximum fines for this type of offence are:
- $50,000 for individuals who are not PCBUs or officers of PCBUs;
- $100,000 for individuals who are PCBUs or officers of PCBUs;
- $500,000 for PCBUs that are not individuals.
Other penalties
The court may make the following orders if it convicts a person of an offence under the Act:
- It may require an offender to publicise the offence, its consequences, the penalty imposed, and any other related matter (an adverse publicity order).
- It may make an order requiring the offender to remedy any matter caused by the commission of the offence (a restoration order).
- It may order the offender to undertake a specified project for the general improvement of work health and safety (a work health and safety project order).
- It may adjourn the proceeding for up to two years while an offender complies with the conditions of an undertaking he or she has given (a court-ordered enforceable undertaking).
- It may issue an injunction requiring the offender to cease conduct that contravenes the Act (an injunction).
- It may require the offender to undertake training or arrange for one or more workers to undertake training (training orders).
- It may order the offender to pay a sum towards the costs of the prosecution that it thinks just and reasonable (order for payment).
Regulations
Regulations are being developed to support the new Act. Once the regulations have been finalised, WorkSafe will issue formal guidance to support the Act and regulations. This guidance will become available before the Act comes into force in April 2016.
See also our other article on this topic covering Worker Engagement, Participation and Representation.
For further information and advice please contact our Partner Nathan Gray.