FM Summit 2016 Health and Safety at Work Act 2015: What do you need to know? Jennifer Mills, Partner Rachael Judge, Associate Anthony Harper 5 May 2016 REJ-N-79-1

Health and Safety at Work Act Duty framework: “All reasonably practicable steps” test Impact on multiple duty holders Worker participation Due diligence role for those in governance Tiered liability regime Notification and reporting Enforcement

Health and Safety at Work Act: Duty framework: PCBUs (1) PCBU: “a person conducting a business or undertaking” PCBU must ensure, so far as is reasonably practicable the health and safety of: workers who work for the PCBU workers whose activities are influenced or directed by the PCBU other persons as it relates to the work carried out by the PCBU

Health and Safety at Work Act: Duty framework: PCBUs (2) PCBUs cont’d … duties of a PCBU are all associated with the carrying out of work PCBU must eliminate/minimise risks to extent to which the person has or would reasonably be expected to have the ability to influence and control the matter to which risks relate “workplace”: place where work is being carried out, or is customarily carried out, for a business or undertaking “worker”: an individual who carries out work in any capacity for PCBU, including “volunteer workers”

Health and Safety at Work Act: Duty framework: PCBUs (3) Other duties on PCBUs include: duty of PCBU who manages or controls a workplace duty of PCBU who manages or controls fixtures or fittings duty of PCBU who installs, constructs or commissions plant or structures duty of PCBU who supplies plant, substances or structures .

Health and Safety at Work Act: Reasonably practicable steps (1) HSEA requires “all practicable steps” to be taken to ensure safety all steps that it is reasonably practicable to take in the circumstances having regard to prescribed matters New Act creates a test of “reasonably practicable steps” a step which is, or was, at a particular time, reasonably able to be done taking into account prescribed matters

Health and Safety at Work Act: Reasonably practicable steps (2) Prescribed matters to weigh up when considering what is a “reasonably practicable step” likelihood of the hazard or risk occurring degree of harm that might result from the hazard or risk what the PCBU knows or ought to reasonably to know about the hazard or risk and ways of eliminating or minimising the risk

Health and Safety at Work Act: Reasonably practicable steps (3) Cost factor taken into account weighed up with other relevant matters to identify what is a “reasonably practicable step” BUT, this must be done after assessing the extent of the risk and the ways of eliminating or minimising it. The more likely the hazard or risk, or greater the potential harm, less weight should be given to the cost of eliminating the hazard or harm

Health and Safety at Work Act: Impact on multiple duty holders (1) In some instances a number of parties will have duties in relation to the same matter All duty holders: Retain responsibility for the performance of that duty Must discharge the duty to the extent to which they have the ability to influence or control the matter

Health and Safety at Work Act: Impact on multiple duty holders (2) If more than one person has a duty in relation to the same matter, the duty holders must: Will be an increase in contractual provisions and in discussions, engagement and reporting between contracting parties Consult Co-operate Co-ordinate activities

Health and Safety at Work Act: Impact on multiple duty holders (3) Policy considerations Identify other relevant PCBUs and relevant workers Provide guidance on form and timing of consultation Identify consequences of breach

Health and Safety at Work Act: Worker participation (1) General duty to involve and engage with workers on health and safety matters All duty holders are required to have worker participation practices appropriate to the workplace what is “appropriate” will depend on the size of the business and level of risk involved Health and Safety at Work (Worker Engagement, Participation, and Representation) Regulations 2016

Health and Safety at Work Act: Worker participation (2) Powers of health and safety representatives: PCBU has corresponding duties, including to consult with representatives, allow them time to perform their functions and provide necessary resources To enter and inspect workplace To request information from PCBU To direct unsafe work to cease To issue provisional improvement notice

Health and Safety at Work Act: Worker participation (3) Functions of health and safety committees: to facilitate co-operation between PCBU and workers to assist in developing health and safety standards, rules, policies or procedures and to make recommendations relating to health and safety to perform any other functions agreed with the PCBU or prescribed by regulations PCBUs have corresponding duties, including to consult and allow committee members time to perform their functions

Health and Safety at Work Act: Due diligence role for those in governance (1) Definition of officers: director, partner any other person who occupies a position in relation to the business or undertaking that allows that person to exercise significant influence over the management of the business or undertaking (for example, a chief executive) expressly excludes “a person who merely advises or makes recommendations”

Health and Safety at Work Act: Due diligence role for those in governance (2) McKie v Al-Hasani & Kenoss Contractors Pty Ltd Australian decision (ACT) Project Manager found not to be an officer Same approach likely in New Zealand

Health and Safety at Work Act: Due diligence role for those in governance (3) Officers must exercise due diligence to ensure PCBU complies with its obligations Officers must exercise the care, diligence and skill that a reasonable officer would exercise in the same circumstances taking into account the nature of the business, officer’s position and responsibilities

Health and Safety at Work Act: Due diligence role for those in governance (4) “Due diligence” requires directors and officers to acquire, and keep up to date, knowledge of work health and safety matters and gain understanding of nature of operations of PCBUs, and hazards and risks associated ensure appropriate resources and processes available and used ensure appropriate processes for receiving information regarding incidents, hazards and risks and ensure processes for complying with obligations are created and implemented

Health and Safety at Work Act: Tiered liability regime (1) Significant penalty increase to a maximum penalty of $3m for corporates and $600k for individuals Maximum terms of imprisonment increase from 2 to 5 years Small individualised fines for other specific offences

Health and Safety at Work Act: Tiered liability regime (2) Offence Individual Officer Corporate   Breach with reckless exposure to risk of serious injury/death 5 years and/or $300,000 5 years and/or $600,000 $3,000,000 Breach with exposure to risk of serious injury or death $150,000 $300,000 $1,500,000 Breach of duty under the Act $50,000 $100,000 $500,000  

Health and Safety at Work Act: Notification and reporting (1) Duty of PCBU to notify regulator of “notifiable events” Notifiable event the death of a person a notifiable injury or illness a notifiable incident An unplanned or uncontrolled incident that exposes a worker or any other person to a serious risk to that person’s health and safety from exposure to prescribed items

Health and Safety at Work Act: Notification and reporting (2) Duty to notify notifiable event PCBU must ensure the regulator is notified of a notifiable event as soon as possible after becoming aware failure – maximum fine of $10,000 for an individual, $50,000 for others Requirements to keep records PCBU must keep a record of each notifiable event for at least 5 years from date on which notice of the event is given to the regulator failure – maximum fine of $5,000 for an individual, $25,000 for others

Health and Safety at Work Act: Notification and reporting (3) Duty to preserve sites PCBU which has management or control of workplace where notifiable event occurred must take all reasonable steps to ensure site is not disturbed until authorised by an inspector duty does not prevent any action to assist an injured person; remove a deceased person; that is essential to make the site safe or minimise risk of a further notifiable event; or is authorised by a constable or inspector

Health and Safety at Work Act: Notification and reporting (4) A potential minefield for duty holders Good practice will see internal investigations being conducted under privilege No obligation to provide regulator with internal reports generated for the purpose of taking legal advice

Health and Safety at Work Act: Notification and reporting (5) Privilege against self incrimination: Retained by individuals No longer applies to corporates Application of Utumapui v Bull (CA)

Health and Safety at Work Act: Enforcement Enforcement tools include power to issue guidance, warnings enter workplaces for purpose of informing and securing compliance and gathering information, can obtain search warrants issue improvement, prohibition and non-disturbance notices, take remedial action if not complied with accept enforceable undertakings from duty holders given in connection with a contravention or alleged contravention issue infringement notices without prior warning an bring prosecutions

Questions

Contact details Partner Tel: +64 9 356 2621 Jennifer Mills Partner Tel: +64 9 356 2621 Email: jennifer.mills@ah.co.nz