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Brief Counsel

Health and safety guide for directors

22 May 2013

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​To promote a better workplace health and safety culture in New Zealand, the Ministry of Business, Innovation and Employment (MBIE) and the Institute of Directors have produced a set of good governance guidelines.

This fulfils a recommendation from the Pike River Royal Commission and from the Independent Taskforce on Workplace Health and Safety.  The Government is aiming to deliver its response to the rest of the Taskforce’s recommendations by the end of July. 

Directors should equip themselves with a copy of the governance guideline, which is available here.  It is targeted at, but not restricted to, organisations with 20 or more employees.
A key message is on the importance of boards ensuring that they can exert “informed” leadership:
“Directors need to be aware of the organisation’s hazards and risks.  They should have an understanding of hazard control methods and systems so that they can identify whether their organisation’s systems are of the required standard.  They should understand how to measure health and safety performance so they can understand whether systems are being implemented effectively”.
This requirement to be informed includes staying up-to-date with legislative changes. 
Boards are also persuaded to develop a specific charter which defines their role in leading health and safety within the organisation and the role of individual directors.  It says that a board may consider delegating a lead role to a special committee or to an individual board member with particular expertise.  It may also seek specialist external advice as necessary.  However, while tasks can be delegated, directorial responsibility cannot.
Boards should use targets to lift the organisation’s performance.  Such targets should be measurable, challenging but realistic and should contain a mix of lag and lead indicators.   
The guidelines include a useful list of diagnostic questions to assist boards to determine whether they are meeting their responsibilities and accountabilities effectively.  They also provide a number of case studies which help illuminate the issues at stake.  

Status of the guidelines

The guidelines are voluntary but, as Labour Minister Simon Bridges pointed out on Morning Report this week, the courts will look to them as a guide to what good corporate health and safety practice looks like.
In relation to the Taskforce recommendations to increase criminal liability, he said that he was “seriously considering” creating a new offence of corporate manslaughter but indicated that he is much less persuaded of the need to make individual directors liable for manslaughter charges for workplace health and safety breaches. 
He queried how effective such provisions had been in the UK and Australia, saying that there had been no successful prosecutions in either country because the lines of accountability were too diffuse to meet the necessary standard of proof for a criminal conviction.
Chapman Tripp’s commentary on the Taskforce’s report is available here.   
Our thanks to Heather McKenzie for writing this Brief Counsel. For further information, please contact the lawyers featured.

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