The policy development debate is now over. The reformed law has been enacted and commenced on 4 April. There has been much alarmist speculation during the process but inevitably the outcome will not be as draconian as some commentators have predicted.
To be effective law must be fair, clear, predictable and enforceable. Only time and future case law will tell if these criteria have been met in this instance.
Now that the law change has arrived the time for talking and debating is over, it is up to our industry to get on with understanding and complying with the new legislation whether we agree with the direction of the reform or not.
The central pillar of the new Health and Safety at Work Act 2015 (the new Act) is a greater emphasis on business owners and management to protect all employees and workers on their premises who are influenced or affected by their activities. One of the key planks of this obligation is that contractors and sub-contractors who may not even have a direct relationship with the business they are working at must be protected by that business’s health and safety provisions. The days of off-loading responsibilities for a contractors’ health and safety are over.
This new approach has specific relevance to the way transport services are provided and how transport operators interface with clients and other participants in the transport chain. In many cases the lead contractor controlling a worksite will be expected to protect the sub-contractors in exactly the same way they would be expected to protect and ensure the safety of employees. The idea of a tick box approach to health and safety has been swept away as the new requirements require an active approach to risk identification, risk assessment and safety management.
From the many discussions the Road Transport Forum has had with transport operators the concept of vicarious liability will be a challenge for our industry. Of course we will not be the only ones, but we cannot hide behind others, this is something that we need to get our heads around very quickly.
The new Act’s provisions take the principle of vicarious liability many steps further than we are used to in New Zealand, even when the control of contractors and subcontractors may not be direct. The concept applies to directors as much as it applies to all employees and contract workers.
The new Act says that everyone from company directors to casual labourers have health and safety responsibilities. Those liabilities are judged on their ability to influence or control work based on their position within the business.
The new Act places obligations on company ‘officers’ to ensure an organisation is complying with its health and safety obligations. The term ‘officer’ is defined and includes directors, partners and chief executives.
Directors can be held personally responsible for any breaches of the new Health and Safety at Work Act with potential penalties for the most serious breach being $600,000 or five years in jail, or both. As a comparison the maximum penalty for a director for a serious breach used to be $500,000 or two years’ imprisonment, or both. The maximum fine for corporations has also been increased to $3 million.
Officers are responsible for taking reasonable steps to understand health and safety matters, including the nature of the processes and systems in their workplace such as the use of vehicles and machinery and the hazards and risks associated with those. They must ensure the business or organisation has processes and resources to eliminate or minimise health and safety risks and make sure the organisation complies with all its health and safety obligations.
Officers will monitor and review resources and processes to ensure they are fit for purpose and are being used appropriately. They will also make sure there is an effective worker engagement process in place.
A full explanation of the new Act’s provisions can be found from WorkSafe’s website at the following link and is well worth operators getting their heads around.
http://bit.ly/234lS07 (PDF)
