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Health and Safety Update – March 2017

Home Insights Health and Safety Update – March 2017

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Contributed by: Malcolm Crotty, Adrian Olney, Kylie Dunn, and Mark Campbell

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Published on: March 13, 2017

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Health and Safety Year in Review

Nearly a year has passed since the Health and Safety at Work Act 2015 came into force on 4 April 2016, which presents a useful opportunity to review the more noteworthy cases and events in health and safety. While no cases of significance have been decided under the new legislation, WorkSafe has been involved in a number of other activities which have piqued the interest of business owners, employees and health and safety advisers across the country.

WorkSafe

WorkSafe’s Strategic Plan for Work-Related Health 2016 to 2026
In September 2016, WorkSafe released its Strategic Plan for Work-Related Health, which outlines the role that the regulator will take to support businesses to manage health and wellbeing at work.

WorkSafe describes two interrelated dimensions to workplace health: the effects of work on health (physical, ergonomic, chemical, biological and psychosocial risks) and the effects of health on work (impairment, mobility and sensory risks).

The strategy takes a broader approach than is contained in the Act itself to guiding persons conducting a business or an undertaking (PCBUs) in the promotion of health and wellbeing, such as encouraging active lifestyles and promoting worker resilience, in addition to more formal health and safety protection. Three guiding themes are emphasised over the ten-year period:

  • invoking industry leadership to influence system-wide action;
  • ensuring regulatory effectiveness through improving their capabilities for engaging, educating and enforcing better risk management; and
  • achieving change that is meaningful and significant in the way prioritised risks are managed.

Despite a perceived complexity of work-related health, including some long-latency periods between exposure and illness, and changing work environments, WorkSafe believes there are opportunities to improve New Zealand’s performance on workplace health, such as a greater emphasis on prevention, management and consciousness of work-related health risks and improvements in technology to innovate and re-design risky work.

Cases

MSD Not Discharged
In what was probably the highest profile health and safety case of 2016, the Ministry of Social Development was convicted and sentenced for its failure to take six practicable steps to ensure the safety of employees at the Ashburton branch of Work and Income New Zealand, following the tragic shooting of two employees. 

At the time of the attack, a Crown organisation could not be fined for a health and safety breach, but the Court indicated that if it had handed down a fine, it would have been $16,000. That included a 60% reduction due to the Ministry’s attempts to make amends, and its efforts to address health and safety issues after the shooting.

The fine indication was far below the then statutory maximum of $250,000, reflecting a low level of culpability as well as the Court’s finding that the Ministry's failures did not cause the shooting.  WorkSafe did not seek a sentence of reparations, and the Court noted that the Ministry had made several payments to affected persons already.

The Ministry had unsuccessfully sought a discharge without conviction.

Rentokil Initial Convicted Over Hepatitis Contraction
Given WorkSafe’s focus on workplace health, it is significant that cleaning company Rentokil Initial Ltd was fined $29,250 under the Health and Safety in Employment Act following a worker becoming infected with Hepatitis B, despite the fact that it offered testing for immunity to the disease and vaccination to those not immune.

District Court Judge Rowe rejected Rentokil’s claims that its policies should shield it from culpability, because no testing was done in the case of this employee. In fact, the employee had asked about the risk of contracting the disease and had been told that while the company would pay for testing, it was “not practice” and that toilets were not biohazards because sanitisers were used.

Judge Rowe also pointed out that even though the employee may have contracted the disease outside of work, if protection offered in the workplace would also protect an employee outside of work, it cannot be a defence to say that the disease may have been contracted elsewhere.

Overall, the fine was adjusted from a starting point of $50,000 to reflect Rentokil’s cooperation, good safety record and guilty plea. It was acknowledged that the company had good overall practices, but had failed to take simple, low-cost measures to prevent illness in this case. This serves as a useful reminder that high-level policies mean very little if not followed up with sound practices on the ground.

An interesting comparison may be found in the United Kingdom, also involving an employee who contracted a disease that may not have been caused by the employee’s job. A company was fined £1.8 million for not maintaining its water systems to prevent the growth of the bacteria that cause Legionnaire’s disease, notwithstanding that no evidence of the bacteria was found.

Reports

Directors Taking More Active Role in Health & Safety – Report
According to insurer Marsh’s recently published Directors’ Risk Survey Report for 2016, company directors are taking more of an interest in risk management in their companies – largely due to the advent of the Health and Safety at Work Act 2015.

The report (which was undertaken in partnership with the Institute of Directors) revealed that 37% of public company boards, 21% of private company boards, and 25% of government entities have seen a significant increase in interest at Board level in insurance and risk management. While risk was considered in a broad sense (including risk of cyber attack, business disruption and brand reputation), health and safety would appear to play a part in the perception of this risk.

Directors surveyed cited the Health and Safety Act 2015, which imposes more onerous obligations and penalties on directors, as the principal driver for this increase in engagement. The report found that other key drivers included the perception that greater risks are present in the current environment, and that some organisations still do not have an established risk management framework.

The findings of the report tend to suggest that the Health and Safety Act 2015 has succeeded to some extent in one of its policy aims by effecting a cultural and structural shift within organisations in New Zealand in the health and safety space. Whether this will continue to be the case as the Act's novelty wears off will be an interesting question in the years ahead.

DOC Workers at Risk?
A recent report compiled by the Environmental Defence Society and funded by the Law Foundation of New Zealand makes some interesting observations about the state of health and safety among Department of Conservation rangers, who are put in harm's way more often than realised.

The report, entitled ‘Last Line of Defence’, argues that under the current framework, government agencies are under-resourced and do not have the tools to crack down on law-breaking. Notably, the report stipulates that the Department of Conservation’s compliance, monitoring and enforcement officers are, “often operating unaccompanied in remote areas and may encounter malicious persons,” and the several officers referred to in the report, highlighted the commonness of gang-related environmental offending such as marine poaching and illegal logging. 

While the execution of search warrants is required to be undertaken with a sworn Police officer present, the report notes that other activities are carried out purely by DOC staff who may not have received adequate training. While this is obviously a very specific case, it illustrates again the wide variety of health and safety concerns in New Zealand workplaces, and highlights the potential for workers to be put at risk by members of the public.


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. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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