PKF Francis Aickin Limited, Far North, New Zealand
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25 Jun 2015
Most business people will be aware that major changes are about to be made to Health and Safety obligations in the workplace, but many do not fully appreciate the extent of the changes that are proposed. The decision makers (directors, trustees, partners, CEOs etc) in virtually all organisations will have new responsibilities to exercise due diligence over the health and safety functions of their organisation. Essentially the Bill is all about improving work place health and safety. It seeks to do this by becoming more prescriptive, by defining responsibilites, and radically increasing the penalties for organisations and individuals who fail to carry out those responsibilites.
The Bill itself contains 312 sections over some 289 pages. It is fair to say that this Bill means business, and when it's passed, all directors, small business owners and trustees are going to have to get to grips with their new responsibilities.
Those that have studied the extent of the changes might be taking some comfort from the knowledge that in recent weeks Govt MPs have apparently questioned the reach of some aspects of the Bill. However, you cannot afford to think that you're going to escape a raft of new obligations, just because you are in a small organisation.
The Bill establishes 3 tiers of responsibility:
Persons conducting a business or undertaking (PCBUs)
This is the business entity, be it a Company, Trust, Partnership etc. Ordinarily, the only time a PCBU will be a person is in the case of a sole trader. The PCBU has the primary duty of care over it's workplace, it's activities, it's plant, equipment, designs and whatever else it does, to ensure as far as is practicable the safety of its workers and any other persons effected by what it does. The range of responsibility is wide. For example, a building business operating a building site is responsible for the whole site and all of those on it, whether they be employees or contractors. If all a business does is hire out plant, it is still responsible to ensure that the plant is as far as practicable, safe to use, wherever and whoever uses it.
Officers include directors, partners, trustees, and any other person who is responsible for making decisions which effect the whole or a substantial part of the business or undertaking.
The Bill imposes new obligations on anyone that is an officer of the PCBU. That means that ALL officers are implicated. There is no exemption for passive Directors or Trustees. It will no longer be acceptable to delegate responsibility for health and safety matters to one director, a manager or foreman without exercising the essential and specific due diligence requirements of the Act.
Clause 39 of the Bill defines 6 specific due diligence duties of officers. The duties include acquiring and keeping up to date knowledge of work health and safety risks and hazards, and ensuring that the organisation has procedures and tools to minimise or eliminate risks, and that the processes and tools are used.Note that school board trustees are exempt from prosecution for failure to comply with the clause 39 duties.
Workers: Workers have an obligation to take reasonable care to ensure the health and safety of themselves and others in the workplace, and to comply with the PCBU's instructions and procedures. PCBU's have an obligation in this Bill to engage with and provide the opportunity for workers to be involved. If any worker wishes for there to be one or more health and safety representatives elected, the PCBU must comply.
It is believed that the main Government objections at the moment relate to this requirement, and it has been suggested that a minimum workplace size of 20 employees may be established before the requirement for worker health and safety committees becomes effective.
Many businesses already have effective health and safety systems and procedures. The much maligned forestry contracting industry is a good example of a sector in which a large number of businesses have embraced health and safety. But for those who haven't, there is a lot to do, and now would be a good time to start. Remember that once this legislation is enacted, if a breach of duties occurs, there will be significant penalties for the officers as well as the organisation."
ALL officers are implicated. There is no exemption for passive Directors or Trustees."
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