Safety Nets News – Issue 1

Welcome to the first edition of Nets Blog, our place for raising issues, updating on what the team at Safety Nets NZ has been up to recently and generally discussing anything to do with the world of health and safety, soft fall protection generally and safety nets in particular.

Perhaps the biggest issue for anyone in business at the moment is getting to grips with the new health and safety legislation that is planned to be rolled out this year, and in this first issue of NetBlog I want to just comment on the new Health and Safety Bill, and steps being taken by the SNNZ team to ensure we remain current and compliant with regards to the new legislation.

The new Bill has been developed by the independent task force on workplace health and safety, and the Royal Commission on the Pike River Coal Mine tragedy. Ultimately it will create the Health and Safety at Work Act which will replace the Health and Safety in Employment Act 1992.

The Bill comprises 6 parts which:

1. Outline the purpose, commencement, application and key principals of the Act.
2. Outline the duty framework of the new Act.
3. Creates duties which provide for better levels of participation of the work force in matters of health and safety.
4. Establishes an effective enforcement regime
5. Provides for effective sharing fo information, and requires development of a health and safety at work strategy.
6. Makes amendments to WorkSafe NZ Act 2013, and various other Acts.

The Act will introduce a new entity, a person conducting a business or undertaking (PCBU) and impress on the PCBU a primary duty to ensure, as far as reasonably practical, the health and safety of the PCBU's workers and other people associated with work carried out by the PCBU.

It imposes a positive due diligence duty on officers of PCBU's to ensure that the PCBU complies with its health and safety obligations.

Some key questions to be considered...

Who will be responsible for health and safety at work under the new law?

A person conducting a business or undertaking (PCBU) is to ensure, so far as is reasonably practicable, the health and safety of workers and others affected by the work. Moving to the PCBU concept ensures that the duties lie with those people in the best position to control risks to health and safety at work, and that those duties are appropriate to their role at work.

How will the PCBU approach work in practice?

PCBU's will have the duty to engage with workers and to have participation practices regarding health and safety matters.

There is also duty owed to other people affected by the work being done. Specific duties extend to upstream participants in the supply chain (e.g PCBU's that are designers, manufacturers, importers and suppliers of plant, substances, and structures that will be used in a workplace).
The duties of a PCBU are all associated with the carrying out of work. The definition of a "workplace" is a place where work is carried out for a business or undertaking and includes ay place where a worker goes, or is likely to be, while at work. The definition of a 'worker' is a person who carries out work in any capacity for a person conducting a business or undertaking.

What will directors' duties be under the new law

The proposed law will create a due diligence duty so that those in governance roles must proactively manage workplace health and safety. Directors and other officers of a PCBU will be required to exercise due diligence to ensure that the PCBU complies with its duties. A due diligence duty supports the new regime, because officers set the direction and provide leadership in health and safety for their organisation, including making resource decisions.

The due diligence duty will be individual to the officer. If the officer exercises due diligence, they are not liable regardless of the conduct of the PCBU or other officers.
The due diligence duty will be defined to match the governance role of the officers. It will include, for example, a requirement that the officer take reasonable steps to:

• gain an understanding of the nature of the operations of the PCBU and generally the hazards and risks associated with those operations, and
• ensure the PCBU has, and implements, processes for complying with its duties.

Failure to comply with a due diligence duty could result in prosecution and a fine, the maximum level of which would be determined by whether or not the officer's failure exposed a person to a risk of death or serious injury or illness. An officer would only face a term of imprisonment if he or she was also proven to have been reckless as to the risk- which means that there must be proof that the officer had foreseen dangerous consequences that could well happen, together with and intention to continue the course of conduct regardless.

What will the penalties be under the new regime?

There will be a new tiered liability regime and overall, a significant increase in the maximum penalty levels over the current law to sanction and deter duty holders from breaching their workplace health and safety duties. The use of graduated categories of offences and penalties will provide better guidance to the Court about appropriate fine levels.

The Australian tiered model which will be used as a basis of the new offences and penalty regime is as follows.

Category 1 Reckless conduct applies to a person who has a health and safety duty and, without reasonable excuse, engages in conduct that exposes and individual to a risk of death or serious injury or illness, and is reckless as to the risk. The maximum penalty for an individual PCBU officer is $600,000 (or $300,000 for an individual who is a worker or other person} or five years imprisonment, or both, and for a body corporate is $3 million.

Category 2 Failure exposing to serious risk: applies to a person who fails to comply with their health and safety duty, and the failure exposes an individual to a risk of death or serious injury or illness. The maximum fine for an individual PCBU or officer is $300,000 (or $150,000 for an individual who is a worker or other person) and for a body corporate is $1,500,000.

Category 3 Failure: applies to a person who fails to comply with their health and safety duty. Maximum fine for an individual PCBU or officer is $100,000 ( or $50,000 for an individual who is a worker or other person) and for a body corporate is $500,000

What are the changes for worker participation?

The proposals will strengthen the legal framework for worker participation. This will not be overly onerous - it is about what is appropriate for size of the firm and level of risk. The worker participation part of the Bill will include a general duty to involve and engage with workers on health and safety matters. All duty holder will be required to have worker participation practices appropriate to the workplace.

So in summary, the new Act will generally require all persons in a position of responsibility to step up and take ownership of all issues relating to health and safety.

At Safety Nets NZ Limited we have been proactive in embracing the requirements of the new Act, and have already committed to the positive due diligence duty required of officers of PCBU's with our regime of:

• regular tool box talks
• upskilling of workers
• continuing improvement development of jobs control systems.
• presentations to all clients teams to reinforce key safety element of netting systems.
• establishment and leadership of the recently incorporated society , Fall Arrest Safety Nets Association (FASNA).

To discuss this topic with Safety Nets NZ or to find out more about us:

Contact Craig Daly
craig@safetynetsnz.co.nz
021 782 583

SAFETY NETS NZ LIMITED
PO Box 305 206, Triton Plaza, Mairangi Bay
FREEPHONE: 0800 NETSNZ (638 769)
Telephone: (09) 478 9047