Working Safer: The future of health and safety regulation in New Zealand Wellington, September 2014

Objectives Understand context to reform and regulatory framework Identify key regulatory changes Explore what the changes mean for you and your organisation Practical and common sense solutions to get “reform ready”

Context to reform Pike River Independent taskforce Blueprint for reform Most significant change in 20 years

Future regulatory framework Health and Safety at Work Act Regulations (Developed to support the Act) Approved codes of practice and guidance (Issued by WorkSafe NZ to support Act and Regs) Clear mandate to reduce injury and death toll by 25% by 2020 Increased funding Range of compliance and enforcement tools

Key changes examined Duty holders –PCBU –Officer –Worker Penalties Worker participation

PCBU Person (or company) conducting a business or undertaking Excludes: People engaged solely as worker or officer Volunteer association Occupier of home who engages another for residential work Class of persons prescribed by regulation Duty Holders Officer For Company: Director For partnership: Partner For limited partnership: General partner For Body Corp/ Equivalent of Director Others: Any other person who makes decisions that affects the whole or substantial part of the business of the PCBU (e.g. CEO) For Unincorporated body: Equivalent of Director Worker Includes: Employee | contractor | sub-contractor | employees of contractor or sub contractor Employee of labour hire company | apprentice/trainee | volunteer

General duty to manage risk Duty requires persons to ensure so far as is reasonably practicable: 1.Eliminate H&S risks; and 2.Minimise H&S risks if can’t eliminate. Reasonably practicable – what is reasonably able to be done taking into account: –Likelihood –Consequence –Ways to eliminate/minimise –Cost Cannot transfer duty

PCBU duty of care Primary duty to ensure health and safety of workers Includes: Providing safe working environment Providing safe plant, structures and systems of work Ensuring safe handling and storage of plant, structures and substances Providing adequate facilities for worker welfare Providing information, training and supervision Monitoring worker health and conditions in workplace Specific duties for PCBU: Controls workplace, fixtures, fittings or plant, Designers, manufacturers, importers and suppliers of plant, substances or structures Install, construct or commission plant or structures PCBU

Officer due diligence duty Officers must exercise due diligence to ensure that the PCBU complies with its duties. This places a positive duty on people at the governance level of an organisation to actively engage in health and safety matters Take reasonable steps to: know health and safety matters understand nature of operations and associated hazards and risks ensure that the PCBU uses appropriate resources and processes to eliminate or minimise risks ensure that the PCBU has appropriate processes to receive and evaluate information, and responding in a timely way ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU; and verify the provision and use of the resources and processes. Officer H&S Hazards and Risks Officer Worker, Rep, Committee

Worker Must, while at work: Take reasonable care for own safety Ensure acts/omissions do not adversely affect others Comply with reasonable instructions from PCBU Cooperate with reasonable H&S policies and procedures Worker

Multiple PCBU – supply chain PrincipalContractor Sub- contractor Worker PCBU’s Consultation Consult, coordinate, cooperate Selection, chain supervision and monitoring

Offences and penalties– duties TierOffencePenalty Reckless conduct without reasonable excuse, exposes person to risk of death/serious injury/illness, and is reckless as to the risk of that person. Corp: $3m fine (cf:$500k) Officer: 5 yrs/$600k Other individuals: 5 yrs/$300k Note: Limitation period = 2 years Failing to comply (death/serious injury) Person with duty who simply fails to comply (exposes a person to risk of death or serious illness or injury) Corp: $1m fine (cf:$250k) Officer: $300k fine Other individuals: $150k fine Failing to comply simply fails to comply with a requirement Corp: $500k fine Officer: $100k fine Other individuals: $50k fine TierOffencePenalty

Other offence and penalties Note sample of other offences, include: –Failure to notify regulator of notifiable event ($50k) –Failure to preserve site ($50k) –Failure to engage workers (s61, $100k) –Failure to have worker participation practices ($100k) –Failure to comply with PIN ($250k) –Failure to comply with non-disturbance notice ($250k) –Enters into, offers to enter into insurance against fine ($250k) PCBU

Other enforcement tools* *Image from Institute of Directors presentation, Professor Gregor Coster, Chair, WorksSafe NZ, 6 August 2014 Improvement notices Prohibition notices Non-disturbance orders Enforceable undertakings Infringement notices Paying regulators investigation and prosecution costs Adverse publicity orders H&S project orders Training orders

Exemption from liability Office holder not liable for duties of officers: –Member appointed/elected to community board –Elected councillor for local authority –Elected member of local board (e.g. DHB) –School board of trustee Unincorporated association not liable but officer and members may be

Application of prosecutions to public sector Currently, crown entity, government department, or government-related organisation can be prosecuted as if it were a body corporate –Liable to same penalties as that imposed on body corporate –Court may not sentence to a fine. Possibility this may be reviewed through reform

Worker engagement and participation All PCBUs must: Engage with workers on H&S matters Have have effective worker participation practices and provide reasonable opportunities for workers to participate effectively Health and safety reps (HSR) Selection and appointment to represent Learning and development Civil and criminal immunity in performing function in good faith Health and safety committees (HSC) Facilitate cooperation, assist in policies, make recommendations

Get reform ready Review: benchmark current practice Key areas: –Contractor procurement and management –Incident and investigation management (protect legal exposure) –Worker participation guidelines –Monitoring, reporting and analysis

I don’t hold a duty of due diligence if I’m an elected official (you have duty, but exempt from liability) I can’t be liable if an employee does something stupid No harm done = no harm done (mathematically true perhaps) No reporting = no problems I can contract out of my H&S obligations and duties Myths Fines are insurable (wrong – in fact it will be an offence)

Kane Patena Partner DDI: Sam Moore Senior Solicitor DDI: For further H&S advice contact us: Good compliance practice is the best regulatory protection