The question management should usefully be asking is 'If WorkSafe turned up today and asked us, what could we say is being done?'
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When the Health and Safety at Work Act 2015 (‘HSW Act’) came into force in April 2016 one of the most nervously anticipated features was the introduction of a personal due diligence obligation on the ‘officers’ of a ‘person conducting a business or undertaking’ (‘PCBU’).
Company directors, people holding positions similar to company directors, partners in partnerships, and anyone else occupying positions in a business or undertaking that allow them to exercise significant influence over the management now face fines of up to $600,000.
Moreover, they also face prison sentences of up to five years if they don’t take steps to understand health and safety and ensure the PCBU they are involved in has good systems that are working well to identify and manage health and safety risks, and keep workers and others safe from harm.
This seemed onerous, but officers’ fears of prosecution and potential jail time were quelled (to some extent anyway) in March 2016 when WorkSafe New Zealand (‘WorkSafe’) issued a position statement setting out its expectations for officers. This statement signaled that WorkSafe only intended to investigate or prosecute individual officers when there is a systemic failure in the PCBU’s governance which is preventing it from meeting its duties.
The position statement wasn’t binding, but WorkSafe lived up to it and as time has passed officers have gained comfort (and in some cases complacency) about the new regime.
Something has changed, and WorkSafe may be shifting gear when it comes to officers’ due diligence. WorkSafe is increasingly asking questions about who the officers of a PCBU are, and what those officers are doing to properly engage in health and safety matters, as part of the investigation of workplace accidents.
It is timely for all PCBUs and their officers to have another look at what they’re doing, and to ensure that not only are appropriate processes in place to deliver good health and safety management in the business or undertaking, but also that the officers are being active, and can show what they have done to ensure the PCBU is doing the right thing.
Ultimately, officer due diligence is the responsibility of the individual officers, and each officer needs to be personally satisfied that he or she is doing enough. To help officers with this, the question management should usefully be asking is ‘If WorkSafe turned up today and asked us, what could we say is being done?’.
Grant Nicholson is a Partner at Kensington Swan and heads the firm’s dedicated health and safety team, the largest specialist practice of its type in New Zealand.