Another firm was fined $43,000, and ordered to pay reparation of $40,000, to a young worker who was carrying out work on a casual basis, after a bucket attachment came loose and injured him.
A quarry operator, was also fined $36,000, and ordered to pay $21,118 in reparation and costs, after one of its employees fell from an elevated work platform on a hammer mill machine.
The above incidents are some examples of the types of incidents the new Health and Safety laws aim to prevent. While we have always had laws on Health & Safety in employment, there are some fundamental changes that you need to be aware of.
The Health & Safety at Work Act 2015 (the “Act”) came into force on Monday 4 April 2016. The new Act is all about accident prevention. The change is a shift in focus from recording health and safety incidents to proactively identifying and managing risks.
The Introduction of a PCBU. Under the current health and safety law, the obligation for health and safety predominately falls on the employer. With the new law, this obligation will extend to ‘all persons conducting a business or undertaking’ (“PCBU”). In short, this includes the company itself, all its directors and management personnel, its employees and even visitors and customers who visit the workplace.
Duties. On a construction site, there are overlapping duties, and the PCBU’s on site can include the head contractor, subcontractors, project managers, engineers, architects, other consultants and builders. Each PCBU who employs, engages or directs an individual to carry out any work in relation to a construction site will have a primary duty to ensure, so far as is reasonably practicable, the health and safety of all those individuals, and to provide a safe working environment. Where there are multiple PCBU’s, each PCBU has a duty as far as is reasonably practicable, to consult, co-operate and co-ordinate all activities with every other PCBU in relation to the same matter. Each PCBU will need to ask themselves the following questions:
1. Who do I have a duty to?
2. What is the scope of my duty?
Reasonably Practicable. A PCBU, in determining the extent of their scope of duty, needs to consider what is ‘reasonably practicable’ in the circumstances. Each PCBU must undertake an assessment of likely hazards and risks that may occur and take active steps to eliminate, isolate or minimise risks to health and safety. The greater the risk of serious or frequent injury occurring, then the greater the expected effort and resource. With the construction industry being a high hazard sector, the expected standard of care is higher, and special consideration will need to be given to the following:
- Access to site safety
- Ladders and access to height
- Loading and unloading of goods
- Personal protective equipment and clothing
- Moving machinery and objects
- And many more.
Worker’s Responsibilities. However, PCBU’s are not the only ones with such duties. Under the Act, safety is everyone’s responsibility. Workers, defined in section 19 of the Act as any individual who carries out work in any capacity for a PCBU will have duties to:
- Comply with all reasonable instructions given by a PCBU
- Take reasonable care for the health and safety of himself or herself, and the health and safety of others
- Cooperate with health and safety policies and procedures
The Exercise of Due Diligence as an Officer. The Act also creates a positive due diligence obligation on an officer. An officer can be any of the following:
- Company directors
- Partners in a partnership
- Any other person occupying a position comparable to a director of a company, or whose role allows the person to exercise significant influence over the management of the business or undertaking.
In order to fulfil an officer’s due diligence duty, an officer must take reasonable steps to actively monitor and evaluate management of health and safety of the business. This will involve identifying the hazards and risks that workers may face when working for the business, ensuring the business has appropriate systems in place in dealing with risks and hazards, and keeping up to date with health and safety issues.
Higher Penalties. Every officer, PCBU and worker will need to take these new laws seriously as the Act increases the penalties significantly for breaches. Currently, a conviction may bring a fine of up to $500,000, imprisonment for up to two years, or both. Under the new Act, three new offence categories have been established, with penalties ranging from $100,000 up to $600,000 and five years’ imprisonment for individuals, and $500,000 to $3 million for companies. In addition to increased fines, a successful prosecution for a breach gives the courts a range of penalty options, including:
- An order that reparation be paid to the individual injured by a breach
- Costs payable to WorkSafe
- Adverse publicity orders
- Training orders
- Orders for restoration
What does this mean for the construction industry? The new Act places a greater onus on managers, and company directors to proactively manage health and safety at work. Businesses and all PCBU’s should now take this as an opportunity to review their current approach to health and safety at work, and to rethink their construction contracts.
This article is not intended to be relied upon as legal advice. For further information contact firstname.lastname@example.org or anyone else from the Madison Hardy team.