Officers are people who hold governance and top management roles (e.g. directors and chief executives) who can "exercise significant influence over the management of the business or undertaking".
Individuals who merely advise or make recommendations to officers are not themselves officers (section 18(d) of the Health and Safety at Work Act 2015 (HSWA)).
Professionals engaged to advise a Person Conducting a Business or Undertaking (PCBU) on health and safety issues are not officers of the Person Conducting a Business or Undertaking (PCBU), although they could, in other roles, be Persons Conducting a Business or Undertaking (PCBUs) with duties under the Health and Safety at Work Act 2015 (HSWA).
An officer must exercise due diligence to ensure the Person Conducting a Business or Undertaking (PCBU) complies with its duties or obligations under section 44(1) of the Health and Safety at Work Act 2015 (HSWA).
The officer must exercise the care, diligence, and skill that a reasonable officer would exercise in the same circumstances, considering the nature of the business or undertaking and the officer's position and responsibilities (section 44(2) of the Health and Safety at Work Act 2015 (HSWA)).
Due diligence includes taking reasonable steps to (section 44(4) of the Health and Safety at Work Act 2015 (HSWA)):
There are significant penalties for officers who fail to meet their obligations. If you are an officer for an employer, you need to know them.
Prosecutions for breaches of the Health and Safety at Work Act 2015 (HSWA) are taken by WorkSafe New Zealand (WorkSafe) (section 143 of the Health and Safety at Work Act 2015 (HSWA)).
Private prosecutions may be taken, but only if WorkSafe New Zealand (WorkSafe) or another regulatory agency does not, or does not intend, to act (section 144 of the Health and Safety at Work Act 2015 (HSWA)).
Generally, WorkSafe New Zealand (WorkSafe) must bring a prosecution within 12 months, or six months where an enforceable undertaking has been contravened (section 146 of the Health and Safety at Work Act 2015 (HSWA)).
Under section 145 of the Health and Safety at Work Act 2015 (HSWA), if an offence is a continuing one, a further offence is committed on each day it continues. If a person repeats or continues conduct that constitutes an offence, proceedings may be brought for each repeated or continued offence.
In dealing with people convicted of offences other than infringement offences, a court must apply the Sentencing Act 2002, and consider:
In Sarginson v Civil Aviation Authority, the employer argued that the due diligence duties imposed on officers were limited to obligations of governance or directorial oversight. However, the High Court held that the duties of officers under the Health and Safety at Work Act 2015 (HSWA) were not so limited.
"While section 44(4) of the Health and Safety at Work Act 2015 (HSWA) makes it explicit that the requirement of due diligence extends to officers who are removed from the operations of a PCBU's business, that reach does not detract from the due diligence duties which are designed to apply across a spectrum of PCBUs and to apply to a wide range of businesses and organisations, small and large, with both flat and hierarchical structures."
Importantly, because officers can be prosecuted in their capacity as workers does not alter their obligations as officers, nor does it detract from the significance of failures to exercise due diligence in operational matters that place workers' health and safety at risk.
In WorkSafe New Zealand v Kimberley Tool & Design (NZ) Ltd, a company and one of its directors were prosecuted after an employee who was given inadequate training had two of his fingers amputated when his glove was caught in a metal press. The case was heard in Tauranga District Court on 18 October 2021. The judgment does not appear to be publicly available as a PDF, but details are available from WorkSafe New Zealand's (WorkSafe) court summary, the Institute of Directors (IoD), and Scoop.
This was the first successful prosecution and sentencing of a director under the Health and Safety at Work Act 2015 (HSWA).
"The prosecution of directors is a new legislative tool and at the time of the sentence indication as I recorded there were very few, if any, cases in which directors had been prosecuted. It is clearly an intention by Parliament that directors of companies are to be held accountable for decisions they make or do not make, particularly in relation to workplace safety issues and that they can no longer expect that the consequences of decisions they make or do not make will be the sole responsibility of the company and not of themselves."
WorkSafe New Zealand v Kimberley Tool & Design (NZ) Ltd — Tauranga District Court, 18 October 2021
In the circumstances, the District Court considered that the director, who received a modest income, should have a level of fine that would not cripple him. The evidence recorded that the director saw the company as his legacy to uphold given that it was a family-run business. The District Court imposed a fine of thirty-five thousand dollars ($35,000) on the director to be paid over five years. The company was fined one hundred and twenty thousand dollars ($120,000) and ordered to pay thirty thousand dollars ($30,000) in reparation.
Incredibly, this was Kimberley Tool and Design (NZ) Ltd's third conviction for incidents involving presses. At the time of the incident, the company was also non-compliant with three WorkSafe New Zealand (WorkSafe) Improvement Notices relating to non-implementation of a health and safety manual, inadequate safe operating procedure, and training issues.
Recently, Whakaari Management Limited (WML) was convicted of one health and safety charge relating to the fatal eruption. Overall, six companies pleaded guilty and six more had their charges dismissed. Whakaari Management Limited (WML) was the last party to receive a verdict.
In this, there are many lessons that need to be learned. But the primary one is:
It's not what you know — it's what you know for sure that just isn't so. In this incident, all of the parties tried to make it someone else's problem and avoided making real steps towards health and safety controls.
There is a long list of significant regulations: WorkSafe New Zealand's (WorkSafe) Regulations at a Glance. Please avail yourself of this material as it is substantial and important to understand if you want to come close to getting things right.
It is important for workers and management to consider and implement a number of sections of the Health and Safety at Work Act 2015 (HSWA) at the beginning of any business or undertaking.
If you or someone you know is considering raising a health and safety matter, or is ending employment because of health and safety and does not have a representative, then any delay in seeking the right advice can hurt any chances when it comes to any future process.
Working for Workers is happy to assist in engaging your employer on raising health and safety matters pursuant to your employment.
Working for Workers understands that it is hard to trust anyone when it comes to ending your employment.
Often, the experience of raising matters of health and safety and trying to resolve matters can be stressful and you often feel alone without representation.
Working for Workers advocates and representatives have the skills and expertise to help you out and restore balance to the situation.
No matter how bleak or difficult it seems, there are ways and means of getting your rights observed and your position protected in an early resolution process.
Please contact us today to discuss the matter and start turning things around for you.
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