We specialise in health and safety matters. If a workplace accident has occurred, you are facing investigation, you have been charged, or you simply want to ensure your business is meeting its obligations, please get in touch with our team.
Health and Safety
The Health and Safety at Work Act 2015 creates wide-ranging duties that impact almost every single New Zealander. It can have significant implications for you and your work.
Who does it apply to?
The HSWA is intentionally designed to have the widest application possible. It captures work undertaken in traditional commercial entities (like companies, partnerships, and sole traders) but extends to not-for-profits, commercial trust arrangements, and, in some cases, volunteer associations.
Businesses and other entities have what is known as the “primary duty” (in addition to other specific duties). In essence, the primary duty requires the entity to ensure the health and safety of workers, and the public who may encounter the work being undertaken, so far as reasonably practicable.
The other duties imposed can be upstream duties (design, manufacture, import, supply and installation) or downstream duties (when work is being conducted).
Where there are multiple businesses or undertakings conducting related work (think a building site with separate builders, plumbers, electricians, drainlayers, gasfitters), you all need to work together to ensure health and safety risks and hazards are appropriately managed.
It is not just businesses that owe duties. Anyone in the workforce will have some sort of duty imposed on them, whether you are an employee, contractor, manager, CEO, Director or anything in between. For example:
- “Workers” have a duty to take reasonable care of their own health and safety (and that of others), and to comply with reasonable instructions and policies in the workplace.
- “Officers” (including CEOs) have a personal duty to exercise “due diligence” to ensure that the relevant entity complies with its duties. This includes a role in ensuring the entity has appropriate policies, procedures and processes.
In addition, all duties imposed by the HSWA are non-delegable, and you cannot be insured against any fines imposed.
You don’t have to have caused an injury or fatality to be prosecuted
While successful prosecutions usually involve an injury or harm to a person, a failure to comply with a health and safety duty imposed on you is all that is required for a regulator to take action. A “near miss” can be enough.
Enforcement options include:
- warnings and duty holder reviews;
- notices you must comply with (or risk being prosecuted), including Improvement Notices, Prohibition Notices, and Non-Disturbance Notices;
- enforceable undertakings; and
- criminal prosecution.
The stakes are high
There are potentially significant penalties for anyone convicted of an offence under the HSWA. Depending on the level of the offence, maximum penalties range from:
- Workers: fines of $50,000–$300,000 and up to 5 years’ imprisonment;
- Officers: fines of $100,000–$600,000 and up to 5 years' imprisonment;
- Business or undertaking: fines of $100,000–$3,000,000.
Other sentencing outcomes (usually in addition to a fine) can include orders that you:
- advertise your offending (adverse publicity order);
- undertake training (training order);
- complete a project (project order);
- make reparation payments (payments to victims); and
- pay costs orders (paying the costs of the regulator for investigating and prosecuting you).
Other duties you need to know about
In addition to the wide-ranging duties to ensure the health and safety of workers and the public (so far as reasonably practicable) there are a range of other duties, under both the HSWA and the regulations made under the legislation, that you need to comply with in certain circumstances. These include:
- Notifying the regulator (one of WorkSafe, Maritime New Zealand or the Civil Aviation Authority) of particular events, effectively telling on yourself. These include a death, certain injuries or illnesses, or incidents (like an electric shock, spillage of certain substances or a fall from a height).
- Preserving the site where a “notifiable event” has occurred, ensuring it is not disturbed until authorised by an inspector.
- Keeping records of notifiable events.
- Engaging with workers about health and safety and worker participation practices.
- Maintaining and reviewing effective risk and hazard control measures.
How we can help
What we have included in this article is just scratching the surface. Health and Safety is a complex topic, even for those who regularly deal with it.
We can:
- help you understand your duties as either a business or other entity, an officer, or a worker;
- assist you to comply with your duties;
- let you know when you need to notify the regulator of an incident or event;
- advise you on how to comply with or challenge Improvement, Prohibition or Non-Disturbance Notices;
- manage an investigation or enforcement process with you;
- engage with the regulator on your behalf; or
- represent you in Court (if worst comes to worst).
The content of this article is general in nature and not intended as a substitute for specific legal advice.
