OFFICERS OF THE EMPLOYER AND THEIR OBLIGATIONS TO HEALTH AND SAFETY.
What is an Officer and what are their duties?
Officers are people who hold governance and top management roles (eg directors and cheif executives) can “'exercise signifigant influence over the management of the business or undertaking”
Individuals who merely advise or make recommendations to officers are not themselves officers (s. 18(d) of the Health and Safety at Work Act 2015).
Professionals engaged to advise a PCBU onhealth and satety issues are not officers of the PCBU although they could, in other roles, be PCBUs with duties under the Act.
An officer must exercise due diligence to ensure the PCBU complies with its duties or obligations (s. 44(1) of the Health and Safety at Work Act 2015.
The officer must exercise the care, diligence, and skill that a reasonable officer would exercise in the same circumstances, considering the nature of the business or undertaking and the officer'sposition and responsibilities (s. 44(2) of the Health and Safety at Work Act 2015)
Due diligence includes taking reasonable steps to (s. 44(4) of the Health and Safety at Work Act 2015.) :
Have an up-to-date knowledge of health and safety matters.
Understand the operations of the business or undertaking and of the associated hazards and risks.
Make certain the PCBU has, and uses, appropriate resources and processes to eliminate or minimise health and safety risks.
Ensure the PCBU gets and considers information on incidents, hazards and risks, and responds in a timely fashion.
Ensure the PCBU has, and implements, processes for complying with its health and safety duties and obligations.
Verify that the PCBU has appropriate resources and processes.
There are significant penalties for officers who fail to meet their obligations, and if you are an officer for and employer, you need to know them.
Prosecutions for breaches of the Health and Safety at Work Act are taken by WorkSafe (s. 143 of the Health and Safety at Work Act 2015).
Private prosecutions may be taken, but only if WorkSafe or another regulatory agency does not, or does not intend, to act (s. 144 of the Health and Safety at Work Act 2015).
Generally, WorkSafe must bring a prosecution within 12 months, or six (6) months where an enforceable undertaking has been contravened (s. 146 of the Health and Safety at Work Act 2015).
In dealing with people convicted of offences other than infringement offences a court must apply the Sentencing Act 2002, and consider:
The purpose of the Health and Safety at Work Act; and
The risk of, and potential for, illness, injury, or death that could have
occurred; and
Whether death, serious injury, or serious illness occurred or could
Reasonably have been expected to have occurred; and
The safety record of the person (including any warning, infringement
Notice, or improvement notice issued to the person, or enforceable
Undertaking agreed to by the person) to the extent that it shows whether
Any aggravating factor is present; and
The degree of departure from prevailing standards in the person's sector
or industry as an aggravating factor; and
The person's financial capacity or ability to pay any fine to the extent that it has the effect of increasing the amount of the fine.
In Sarginson v Civil Aviation Authority, The employer argued that the due diligence duties imposed on officers were limited to obligations of governance or directorial oversight. However, the High Court held that the duties of officers under the Health and Safety at Work Act 2015 were not so limited.
While s. 44(4) of the Health and Safety at Work Act 2015 makes it explicit that the requirement of due diligence extends to officers who are removed from the operations of a PCBU's business, that reach does not detract from the due diligence duties which are designed to apply across a spectrum of PCBUs and to apply to a wide range of businesses and organisations, small and large, with both flat and hierarchical structures.
Because they can be prosecuted in their capacity as workers does not alter their obligations as officers, nor does it detract from the significance of failures to exercise due diligence in operational matters that place workers' health and safety at risk.
In Worksafe New Zealand v Kimberley Tool & Design (NZ) Ltd, a company and one of its directors were prosecuted after an employee who was Slven inadequate training had 2 of his fingers amputated when his glove was caught in a metal press. In respect of directors' duties, the District Court reflected:
The prosecution of directors is a new legislative tool and at the time of the sentence indication as I recorded there were very few, if any, cases in which directors had been prosecuted. It is clearly an intention by Parliament that directors of companies are to be held accountable for decisions they make or do not make, particularly in relation to workplace safety issues and that they can no longer expect that the consequences of decisions they make or do not make will be the sole responsibility of the company and not of themselves.
In the circumstances, the District Court considered that the director, who received a modest income, should have a level of fine that would not cripple him. The evidence recorded that the director saw the company as his legacy to uphold given that it was a family-run business. The District Court imposed a fine of thirty five thousand dollars ($35,000} to be paid over five (5) years.
Recently, Whakaari/ White Island trial: Whakaari Management were convicted of one health and safety charge relating to fatal eruption. Overall, six companies have pleaded guilty and six more had their charges dismissed. Whakaari Management Limited (WML) was the last party to receive a verdict.
In this there are many lessons that need to be learned. But the primary one is:
It's not what you know, it what you know fdor sure that just isn't so. In this incident all of the parites tried to make it someone elses problem and avoided making real steps towards health and safety controls.
There is a long list of significant regulation acts: https://www.worksafe.govt.nz/laws-and-regulations/regulations/regulations-at-a-glance/ please avail yourself of this material as it is a lot and importand to understand if you want to come close to getting thigs right.
It is important for workers and management to consider and implement a number of sections of the Health and Safety at Work Act at the beginnning of any business or undertaking.
If you or someone you know is considering raising a health and safety matter, or is ending employment because of health and safety and does not have a representative, then any delay in seeking the right advice can hurt any chances when it comes to any future process.
Working For Workers is happy to assist in engaging your employer on in raising health and safety matters pursuant to your employment.
Working For Workers understands that it is hard to trust anyone when is comes to ending your employment.
Often, the experience of raising matters of health and safety and trying to resolve matters can be stressful and you often feel alone without representation.
You are not alone.
Working For Workers advocates and representatives have the skills and expertise to help you out and restore balance to the situation.
No matter how bleak or difficult it seems, there are ways and means of getting your rights observed and your position protected in a early resolution process.
Please contact us today to discuss the matter and start turning things around for you.