POSTED MARCH 2016 Copyright Reference Publishing 2016. All rights reserved
The Health and Safety at Work Act
April 4 is the big day – are you ready?
On the 4th of April this year an event will take place that will fundamentally change the business landscape in New Zealand.
That event is the coming into force of the new Health and Safety at Work Act 2015.
Every business in New Zealand, every director, manager, and worker will be affected by this Act, be required to comply with its many provisions, and be liable for its substantial penalties, by that date. There is no transition period; you need to be compliant by 4 April.
The underlying thrust of the new legislation is to bring about a cultural and attitudinal change to the issue of safety in the New Zealand workplace.
No longer can worker safety be an afterthought way down the list of business priorities; from April on it will be very much to the fore. Businesses and business owners, officers and workers are all required under the Act to be proactive in safety matters, actively engaged, trained, and document what they do.
Misunderstandings and confusion
There is quite a lot of misunderstanding and confusion about this new Act and what it really means for businesses.
There is quite a bit of fear as well. There are already reports of businesses closing because they consider their costs of compliance, in both time and money, would be prohibitive. And film maker Peter Jackson recently highlighted the fear among upper levels of management when he resigned as a director from Weta Workshop, of which he owns 30 percent, because under the Act directors can be fined up to $600,000 or go to gaol for five years if they are deemed not to have carried out their health and safety duties with due diligence.
Effectively, this means directors must get much closer to the coal-face of the businesses they govern, get more involved in their day-to-day operation, and stay fully informed about their health and safety activities and issues. The days of the sleeping, silent director are over.
A dip into the 188-page Act soon shows why there is confusion in the marketplace about what is required and exactly how to comply. It’s a very wordy affair and, possibly deliberately, not precise in many areas.
This comment on the Worksafe website is typical of the style of the Act:
“Together with your workers, you can determine the best way to meet your duties. What is reasonable and practical will depend on workers’ views and needs, the size of your business and the nature of its risks. The law enables flexibility and innovation: the focus is on effectiveness rather than whether any particular system is in place . . .”
Yeah right, but really, we do need to know what practical steps we need to take before the inspector comes knocking, because he or she will be looking for specific proof that measures that comply have been put in place. What are those measures?
Before we look at that, it might be useful just to briefly consider the “new legal entity” invented by the authors of the Act, and central to its provisions.
This entity is the “PCBU” which we are told stands for “Person Conducting a Business Undertaking.” But it is not that at all. The Worksafe website explains: “While a PCBU may be an individual person or an organisation, in most cases the PCBU will be an organisation, for example, a business entity such as a company.”
Confused? How can a person be an organisation?
Effectively the Act is saying the business organisation itself, whether it be a sole trading enterprise, a company, corporation, local body, or whatever, has obligations under the Act and so do its controlling officers, directors, management, workers, and “other people who come to the workplace such as visitors or customers.” All are liable to fines, or even imprisonment, for breaches. Businesses can be fined up to $3 million.
In general terms . . .
The Act says a PCBU must ensure, so far as is reasonably practicable, that the health and safety of workers and other people are not put at risk by its work.
This is called the “primary duty of care” and means ensuring, so far as is reasonably practicable, the health and safety of:
- those who work for the PCBU (eg employees or contractors, including their subcontractors or workers) while they are at work in the business or undertaking
- those whose work activities are influenced or directed by the PCBU while carrying out the work (eg a franchise company whose franchise requirements influence or direct the workers of the franchisee).
- other perople who may visit or come in contact with the PCBU or be affected by its activities (ie the public).
This requires . . .
- providing and maintaining a work environment that is without risks to health and safety.
- providing and maintaining safe plant and structures.
- providing and maintaining safe systems of work.
- ensuring the safe use, handling and storage of plant, structures and substances.
- providing adequate facilities for the welfare of workers.
- providing information, training, instruction, or supervision to protect all people from risks to their health and safety arising from work for or with the business or undertaking and monitoring the health of its workers.
In practical terms . . .
This article is in no way attempting to be definitive on what businesses need to do to be compliant with the new Act.
Each business is different from its neighbours and must address its own potential problems in its own way.
Most will also probably at some stage have to employ the services of a specialist advisor and/or attend workshops where the detail of the Act can be fleshed out. But just remember, even if you employ an expert advisor and do exactly what they say, you still cannot pass the blame on to them when something goes wrong because they are expressly exempt under the Act.
Things to do now
However, in spite of all the above, if you haven’t given health and safety matters the attention you should have over recent times, here are a few of the things you should start to do immediately if you are to have any hope of complying by 4 April.
- Assess your workplace and business for hazards and risks.
- Get your staff involved, engaged and informed in this.
- Put the required warning signs in place.
- Acquire and fill out an Emergency Procedures Workbook.
- Document everything you have done.
- Set a schedule for regular review of all of the above.
So, if you are an “officer” of a PCBU (ie a director, manager, even owner), the first thing to do in addressing your compliance requirements under the new Act, is to identify all of the potential health and safety hazards that might be on the work site, or concerning machinery, plant, systems or practices of the PCBU or business entity.
Fill out a sheet showing the name of the hazard or risk and possible injuries or illnesses that could arise from it. Then note down how it is to be either ‘eliminated, isolated or minimised’ and the controls needed to achieve these outcomes. These become your safety goals.
Finally, list the first aid requirements and emergency procedures that would be required for this hazard or risk if something went wrong.
From the start, involve and/or engage the staff or anyone else who might be affected by the operation of the enterprise.
If staff number 20 or more (or the business is classified as being high-risk) your arrangement with them will need to be formalised by the appointment of a HSR (Health & Safety Representative) or HSRs.
It may also (if the workers want it) need to set up a Health & Safety Committee, or Committees where there are multiple work sites or disparate activities requiring widely different controls (called work groups under the Act).
Health & Safety Representatives are elected by five or more workers from a work group, have some statutory powers, and basically represent the workers on health and safety matters. They also have statutory obligations under the Act.
Enterprises with 19 or less staff, and not deemed to be high-risk (which is most of the nursery industry), are not required under the Act to have either a H&S Representative or a H&S Committee, but they can if they want.
In most cases management of small enterprises will just ask their staff to identify what they think might be hazards in the workplace and work with them to come up with management or elimination plans. This consultation has to be regular and ongoing.
Staff are also required to report any faulty plant or machinery, maintenance or repairs needed. This can be a plus: a South Auck-land company using a lot of conveyor lines recently said that because it was now being alerted to damaged rollers or bearings earlier than previously, it had saved thousands in serious repairs and downtime.
Remember, in all of the above, documentation is key. When meetings were held, what was discussed and decided, must all be documented. It will be those documents that the inspectors will be looking for when they visit. Even if your enterprise complies with the legislation, you can still be fined for not having the documentation.
Ok, so you’ve identified your hazards, involved your staff, and come up with some solutions, ways to minimise the risk and set safety goals going forward.
Next, make sure any unresolved hazards you have identified are clearly identified with appropriate signage. Signage might have to start right at the entrance to your work site – if you have hazardous materials on site you must have a sign on the front gate warning of this.
There are quite a few other areas where a Workplace Safety inspector would expect to see signs, such as where the muster station is, and places such as where first aid kits or fire extinguishers are kept.
There will need to be an ‘electrical hazard’ sign on the power switchboard.
You should also have a visitor’s sign-in, sign-out book, and ensure it gets used.
Emergency Procedures Workbook
By now you will have gathered enough information to start filling in your Emergency Procedures Workbook. You can find a sample of this document on the Workplace Safety website, or you can get one from Reference Publishing (see panel at left).
This booklet has blank charts where all the essential information, emergency contact numbers etc, that would be needed in case of a workplace accident or emergency can be entered and so are all in one place which everyone is aware of and can easily reach.
Included should be the names and contact numbers of management and key staff, and people trained in first aid and/or CPR
There are also pages to record the location(s) of first aid kits and what is contained in each. And there are a couple of charts where managers can document when fire drills or other evacuation tests have been carried out, when emergency plans have been tested or reviewed, and when emergency equipment and first aid materials have been checked. Inspectors will be looking for this information should they call.
The Emergency Procedures Booklet also comes with basic procedures of what to do in case of a fire, hazardous substance spill, or LPG leak.
So as you can see, once your emergency systems, materials and strategies have been set up, it is now also incumbent on company officers to regularly review them, and always involve staff when doing so.
There are also now increased requirements to document incidents as well as accidents in the workplace. Incidents are events which could have resulted in injury but didn’t. All serious incidents or accidents (which are defined in detail in the Act) must be reported to Workplace Safety as well. Forms exist for this.
A couple of oddities in the Act are worth noting.
First, it expressly forbids charging staff for health and safety equipment or “anything done, or provided, in relation to health and safety,” and this includes requiring them to provide their own safety gear. (One wonders what would happen if a worker kept “losing” their helmets or other gear). Workers can voluntarily provide their own health and safety gear so long it is of a standard satisfactory to the PCBU.
Another provision of the Act forbids the taking out of insurance which seeks to “indemnify a person for the person’s liability to pay a fine or infringement fee under this Act.”
In other words, you can’t insure against getting caught or indeed, contract out your responsibilities to other parties.
Finally, it states that “a PCBU who manages or controls a workplace does not owe a duty . . . (under the Act) . . . to any person who is at the workplace for an unlawful purpose.”
This is interesting and would presumably have exonerated a company in the US many years ago, which had a burglar fall through a skylight while climbing over the roof of its factory – that company was heavily fined for having an unsafe skylight!
No use complaining
Anyway, like it or not, the Health and Safety at Work Act 2015 will soon begin to loom large on the business horizon. It will bring anger, resentment and frustration in many quarters but really, there’s no point in ranting or raving or trying to fight it – it is going to happen.
Health and safety advisors are saying it all looks daunting at first, but is pretty simple stuff when you get down to it. It’s just that there is a hell of a lot of it and the requirements for documentation and time input are high, especially early on.
After that, let’s hope it becomes just another chore in an already busy working day.