1. FM Summit 2016 Health and Safety at Work Act 2015: What do you need to know?
Jennifer Mills, Partner
Rachael Judge, Associate
Anthony Harper
5 May 2016
REJ-N-79-1

2. Health and Safety at Work Act
Duty framework: “All reasonably practicable steps” test
Impact on multiple duty holders
Worker participation
Due diligence role for those in governance
Tiered liability regime
Notification and reporting
Enforcement

3. Health and Safety at Work Act: Duty framework: PCBUs (1)
PCBU: “a person conducting a business or undertaking”
PCBU must ensure, so far as is reasonably practicable the health and safety of:
workers who work for the PCBU
workers whose activities are influenced or directed by the PCBU
other persons as it relates to the work carried out by the PCBU

4. Health and Safety at Work Act: Duty framework: PCBUs (2)
PCBUs cont’d …
duties of a PCBU are all associated with the carrying out of work
PCBU must eliminate/minimise risks to extent to which the person has or would reasonably be expected to have the ability to influence and control the matter to which risks relate
“workplace”: place where work is being carried out, or is customarily carried out, for a business or undertaking
“worker”: an individual who carries out work in any capacity for PCBU, including “volunteer workers”

5. Health and Safety at Work Act: Duty framework: PCBUs (3)
Other duties on PCBUs include:
duty of PCBU who manages or controls a workplace
duty of PCBU who manages or controls fixtures or fittings
duty of PCBU who installs, constructs or commissions plant or structures
duty of PCBU who supplies plant, substances or structures .

6. Health and Safety at Work Act: Reasonably practicable steps (1)
HSEA requires “all practicable steps” to be taken to ensure safety
all steps that it is reasonably practicable to take in the circumstances having regard to prescribed matters
New Act creates a test of “reasonably practicable steps”
a step which is, or was, at a particular time, reasonably able to be done taking into account prescribed matters

7. Health and Safety at Work Act: Reasonably practicable steps (2)
Prescribed matters to weigh up when considering what is a “reasonably practicable step”
likelihood of the hazard or risk occurring
degree of harm that might result from
the hazard or risk
what the PCBU knows or ought to reasonably to know about the hazard or risk and ways of eliminating or minimising the risk

8. Health and Safety at Work Act: Reasonably practicable steps (3)
Cost factor
taken into account
weighed up with other relevant matters to identify what is a “reasonably practicable step”
BUT, this must be done after assessing the extent of the risk and the ways of eliminating or minimising it. The more likely the hazard or risk, or greater the potential harm, less weight should be given to the cost of eliminating the hazard or harm

9. Health and Safety at Work Act: Impact on multiple duty holders (1)
In some instances a number of parties will have duties in relation to the same matter
All duty holders:
Retain responsibility for the performance of that duty
Must discharge the duty to the extent to which they have the ability to influence or control the matter

10. Health and Safety at Work Act: Impact on multiple duty holders (2)
If more than one person has a duty in relation to the same matter, the duty holders must:
Will be an increase in contractual provisions and in discussions, engagement and reporting between contracting parties
Consult
Co-operate
Co-ordinate activities

11. Health and Safety at Work Act: Impact on multiple duty holders (3)
Policy considerations
Identify other relevant PCBUs and relevant workers
Provide guidance on form and timing of consultation
Identify consequences of breach

12. Health and Safety at Work Act: Worker participation (1)
General duty to involve and engage with workers on health and safety matters
All duty holders are required to have worker participation practices appropriate to the workplace
what is “appropriate” will depend on the size of the business and level of risk involved
Health and Safety at Work (Worker Engagement, Participation, and Representation) Regulations 2016

13. Health and Safety at Work Act: Worker participation (2)
Powers of health and safety representatives:
PCBU has corresponding duties, including to consult with representatives, allow them time to perform their functions and provide necessary resources
To enter and inspect workplace
To request information from PCBU
To direct unsafe work to cease
To issue provisional improvement notice

14. Health and Safety at Work Act: Worker participation (3)
Functions of health and safety committees:
to facilitate co-operation between PCBU and workers
to assist in developing health and safety standards, rules, policies or procedures and to make recommendations relating to health and safety
to perform any other functions agreed with the PCBU or prescribed by regulations
PCBUs have corresponding duties, including to consult and allow committee members time to perform their functions

15. Health and Safety at Work Act: Due diligence role for those in governance (1)
Definition of officers:
director, partner
any other person who occupies a position in relation to the business or undertaking that allows that person to exercise significant influence over the management of the business or undertaking (for example, a chief executive)
expressly excludes “a person who merely advises or makes recommendations”

16. Health and Safety at Work Act: Due diligence role for those in governance (2)
McKie v Al-Hasani & Kenoss Contractors Pty Ltd
Australian decision (ACT)
Project Manager found not to be an officer
Same approach likely in New Zealand

17. Health and Safety at Work Act: Due diligence role for those in governance (3)
Officers must exercise due diligence to ensure PCBU complies with its obligations
Officers must exercise the care, diligence and skill that a reasonable officer would exercise in the same circumstances
taking into account the nature of the business, officer’s position and responsibilities

18. Health and Safety at Work Act: Due diligence role for those in governance (4)
“Due diligence” requires directors and officers to
acquire, and keep up to date, knowledge of work health and safety matters and gain understanding of nature of operations of PCBUs, and hazards and risks associated
ensure appropriate resources and processes available and used
ensure appropriate processes for receiving information regarding incidents, hazards and risks and ensure processes for complying with obligations are created and implemented

19. Health and Safety at Work Act: Tiered liability regime (1)
Significant penalty increase to a maximum penalty of $3m for corporates and $600k for individuals
Maximum terms of imprisonment increase from 2 to 5 years
Small individualised fines for other specific offences

20. Health and Safety at Work Act: Tiered liability regime (2)
Offence
Individual
Officer
Corporate
Breach with reckless exposure to risk of serious injury/death
5 years and/or $300,000
5 years and/or $600,000
$3,000,000
Breach with exposure to risk of serious injury or death
$150,000
$300,000
$1,500,000
Breach of duty under the Act
$50,000
$100,000
$500,000

21. Health and Safety at Work Act: Notification and reporting (1)
Duty of PCBU to notify regulator of “notifiable events”
Notifiable event
the death of a person
a notifiable injury or illness
a notifiable incident
An unplanned or uncontrolled incident that exposes a worker or any other person to a serious risk to that person’s health and safety from exposure to prescribed items

22. Health and Safety at Work Act: Notification and reporting (2)
Duty to notify notifiable event
PCBU must ensure the regulator is notified of a notifiable event as soon as possible after becoming aware
failure – maximum fine of $10,000 for an individual, $50,000 for others
Requirements to keep records
PCBU must keep a record of each notifiable event for at least 5 years from date on which notice of the event is given to the regulator
failure – maximum fine of $5,000 for an individual, $25,000 for others

23. Health and Safety at Work Act: Notification and reporting (3)
Duty to preserve sites
PCBU which has management or control of workplace where notifiable event occurred must take all reasonable steps to ensure site is not disturbed until authorised by an inspector
duty does not prevent any action
to assist an injured person; remove a deceased person;
that is essential to make the site safe or minimise risk of a further notifiable event; or is authorised by a constable or inspector

24. Health and Safety at Work Act: Notification and reporting (4)
A potential minefield for duty holders
Good practice will see internal investigations being conducted under privilege
No obligation to provide regulator with internal reports generated for the purpose of taking legal advice

25. Health and Safety at Work Act: Notification and reporting (5)
Privilege against self incrimination:
Retained by individuals
No longer applies to corporates
Application of Utumapui v Bull (CA)

26. Health and Safety at Work Act: Enforcement
Enforcement tools include power to
issue guidance, warnings
enter workplaces for purpose of informing and securing compliance and gathering information, can obtain search warrants
issue improvement, prohibition and non-disturbance notices, take remedial action if not complied with
accept enforceable undertakings from duty holders given in connection with a contravention or alleged contravention
issue infringement notices without prior warning an bring prosecutions

27. Questions

28. Contact details Partner Tel: +64 9 356 2621
Jennifer Mills
Partner
Tel: