Progress of the Health and Safety Reform Bill
The Health and Safety Reform Bill is before the Transport and Industrial Relations Select Committee. The report was due to be published on 30 March but this has now been delayed until 29 May 2015. The Bill is expected to be in force sometime in the second half of 2015. Initial regulations are also expected to come into force prior to the end of the year.
During the Committee’s recent annual review, WorkSafe noted that it is committed to “de-mystifying” health and safety requirements, and that it will publish sector-specific guidance on the new regime. WorkSafe also indicated that there will be a three to four month grace period before enforcement activities under the new law commence, although many larger organisations were already preparing for the change.
Check back here for updates on the progress of the Bill.
Feature – Quad bike safety: navigating the mire of legal risk
A recent decision of the District Court at Blenheim has highlighted again the legal risks for farmers and quad bike safety. In Worksafe New Zealand v Jones & Carlson DC Blenheim CRI-2014-006-000757 and CRI-2014-006-000758, 16 December 2014, Zohrab J fined two defendants $20,000 each for failing to wear helmets while riding quad bikes, despite prohibition notices having already been issued. Although in Jones, it was the riders themselves who were charged, liability under the Health and Safety in Employment Act 1992 (HSE Act) may also extend to employers whose employees use quad bikes in an unsafe manner, even where the employer did not know that behaviour was occurring.
In the present climate, in which 40% of workplace deaths in 2014 were on farms, we expect that agriculture will remain a major focus for Worksafe and the Court over the coming years. Clearly, not all penalties will reach the level ordered in Jones (that order reflected the particular circumstances, including the defendants’ disregard for the warnings already given by WorkSafe), at least not until the higher penalty regime under the Health and Safety Law Reform Bill comes into force. Nevertheless, safety-conscious (and prosecution averse) employers have been driven to take significant action to improve safety and avoid prosecution. For some, quad bikes have simply been abandoned in favour of safer vehicles. Others have taken disciplinary action against employees who do not comply with safety protocols, even going so far as to dismiss them.
Obligations under the HSE Act
The HSE Act requires employers to implement health and safety policies and “take all practicable steps” to identify and manage hazards in the workplace and thereby to ensure the safety of all employees while at work. What amounts to “all practicable steps” in relation to a particular hazard in a particular situation is highly fact specific. One relevant factor will be information available about the hazard. Sadly, but helpfully, quad bike safety has been the focus of numerous coronial inquests and comment.
Against that background, it might be expected that a safety-conscious farming operation would have policies in place in relation to quad bike safety. For example, a policy might make certain requirements of employees such as undertaking training, wearing a helmet, and checking tyre pressure and condition on a regular basis. It will also require employees to, for example, undertake hazard identification on a regular basis, and to report any safety incidents.
To assist employers in drawing up such policies, WorkSafe has issued guidelines for quad bike safety, which are complemented by similar factsheets from ACC and the NZTA. Those resources are available here.
It would not, however, be sufficient under the HSE Act for the safety-conscious farming operation to have a policy in place and leave it at that. Employers are also required to ensure those policies are being followed. So, for example, a farming operation might be required to ensure that each employee has read the relevant policy, provide training on quad bike safety, and to visit farming sites to ensure that employees are aware of, and are complying with, the policy. Those obligations may even extend as far as requiring an employer to take disciplinary action in response to breaches of health and safety protocol by employees.
As a practical matter, in addition to having and enforcing relevant safety policies, the safety-conscious farming operation should have a recording mechanism in place, so that its good work is able to be effectively demonstrated should WorkSafe arrive at the front gate. For example, farming operations might:
- implement a written induction protocol and training programme, which complies with any safety guidance provided by equipment manufacturers and is refreshed on an annual basis;
- record reported safety incidents; and
- maintain a “risks register” and note steps taken to mitigate any risks arising to quad bike safety.
There will, of course, be cost barriers for some operations to implementing sophisticated safety policies and working to change practices. For a large, corporate farming operation, those costs may be more absorbable than for a small independently owned farm. While the size of any farming operation may be relevant to the question of whether a particular step is “practicable”, even the smallest farming operation should not expect to get away with ignoring WorkSafe’s basic guidelines. Whatever the merits of any argument that wearing helmets prevents quad bike injuries, the decision in Jones suggests that wearing a helmet is one of those basic safety requirements that farmers will not be permitted to ignore.
When can an employer take disciplinary action as a “practicable step”?
In some circumstances, a “practicable step” might be to take disciplinary action against an employee who fails to comply with safety protocol to ensure the safety of quad bike operation on farms. However, employers are also required to comply with obligations they owe to employees as a matter of employment law.
The obligations owed by employers are set out in the Employment Relations Act 2000. An employer is not entitled to dismiss employees at its whim. A decision to dismiss an employee must be one that a fair and reasonable employer could have come to. The decision must be both substantively fair (ie the employer must have a good reason) and procedurally fair (ie the employer must have followed due process).
A decision to dismiss an employee will be substantively fair if the employee’s conduct amounted to serious misconduct. While each case will turn on its individual facts, a breach of safety protocol may amount to serious misconduct.
In order to ensure that a decision to dismiss an employee is procedurally fair, a farming operation should ensure that any unsafe act by an employee is adequately investigated, that any concerns in relation to such acts are adequately communicated to the employee, that the employee has a reasonable opportunity to respond, and that any explanation provided by the employee is considered with an open mind.
We suggest that, in most cases, a farmer is likely to be entitled to dismiss an employee who has breached safety protocol in circumstances where:
- that employee has been adequately trained and made aware of safety protocols;
- the employee has received at least one written warning in relation to a safety issue previously;
- nevertheless, the employee has failed to comply with the safety protocols; and
- due process as outlined above has been followed.
We anticipate that not every farmer will want to dismiss an otherwise good employee who breaches safety protocol; nor should they. Depending on the severity of the breach, it may be sufficient to meet the “practicable steps” test for the employer to take other actions in response. For example, the employee might be required to take further safety training, or to be monitored by a senior worker for a period of time.
WorkSafe launches “Safer Farms” initiatives
WorkSafe has launched its “Safer Farms” initiative in response to the “unsustainable high level of workplace injuries and deaths on New Zealand farms”, reinforcing the proactive approach that WorkSafe is taking to managing risks on farms. The purpose of the initiative is to assist the agricultural sector in managing health and safety risks. It can be expected that compliance with the various resources published as part of the “Safer Farms” initiative will be important for any farmer wishing to avoid a prosecution by WorkSafe. Those resources can be found here.
In other news
Failure to Tow the Health and Safety Line Results in Home Detention
The first sentence of home detention under the Health and Safety in Employment Act was entered last month against Arthur Britton of Britton House Movers Ltd. The company was transporting a house in rural Hawke’s Bay and Mr Britton was both foreman on the job and the truck driver. During transport, the house snagged a power line, which snapped and fell onto the roof of the house. Mr Britton then watched as an employee moved the line into a ditch with a wooden stick, before the entire convoy drove off without contacting the authorities. A nearby farmer waiting to move his sheep between paddocks was not notified. As a result, seven of his sheep and two of his dogs were killed by electrocution upon entering the ditch. The farmer himself only narrowly avoided the same fate as he was pulled back from the ditch by a co-worker. Mr Britton and the company were sentenced to four months’ home detention and a fine of $60,000, respectively. Viewed in combination with comments by WorkSafe at select committee last week that it will not inspect its way to compliance, the decision foreshadows a stricter approach to enforcement by both the courts and the regulator. That approach will only be strengthened by the new legislation later this year.
WorkSafe's year in review: Transport and Industrial Relations Select Committee
The Transport and Industrial Relations Select Committee (the Committee with oversight of the Health and Safety Reform Bill) held its annual review of WorkSafe earlier this month. As part of that review, WorkSafe Chair, Professor Gregor Coster, presented WorkSafe’s 2013-2014 Annual Report, reflecting on its first 15 months in operation. The key message was that, while it is too early to draw any firm conclusions, WorkSafe is happy with progress so far. Responding to questions from the Committee, Professor Coster and WorkSafe CEO Gordon MacDonald also noted WorkSafe’s intention to change workplace culture and to reduce deaths and serious injuries in the work place by 25% in 2020. Other “take home” points include:
- There remains some uncertainty about how WorkSafe will interact with other agencies (eg MBIE, Maritime NZ and ACC). However, WorkSafe is motivated to ensure that businesses have a seamless experience when working with multiple agencies. Professor Coster (who also sits on the board of ACC) discussed plans for WorkSafe and ACC to collaborate on injury prevention.
- WorkSafe emphasised that worker participation, with health and safety the responsibility of employer and employee, is a key aspect of its goal to change health and safety culture.
- WorkSafe will be looking to target specific sectors (eg agriculture, forestry, manufacturing and construction) in devising tailored guidelines and strategies for managing health and safety risk.
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This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.