Tough prescription from the Health and Safety Taskforce

​New Zealand’s workplace injury rates are twice as high as Australia’s and six times higher than Britain’s – so it was probably to be expected that the Independent Taskforce commissioned by the Government to review our health and safety in employment (HSE) regime would dig deep.

Among the ideas the Taskforce has put up for consultation are: raising the benchmark for HSE compliance, making it a statutory duty for directors and officers to ensure that their businesses comply, and increasing the sanctions for non-compliance to include manslaughter.

Submissions are due on the Taskforce discussion paper by 16 November 2012.

New duties for directors?

Australia recently made it a positive duty on directors and officers to exercise “due diligence” to ensure that their businesses comply with the law. The Taskforce asks whether New Zealand should do the same, and whether this would encourage a stronger HSE focus and engagement.

At present, a director or officer is liable only if he or she participated in the offence in some way – by directing, authorising, assenting to or acquiescing in the failure.  In addition, he or she must have known that the situation was unsafe, or in breach of the legislation’s requirements. 

In essence, the test is one of “knowing assistance”.  There have been very few prosecutions under this section.

Manslaughter and corporate manslaughter?

The Taskforce questions whether the current framework provides enough levers and powers to encourage a safety-first culture.  A number of overseas jurisdictions apply broader criminal and civil sanctions, including manslaughter and corporate manslaughter. 

The Taskforce suggests that such offences, together with a duty of due diligence, should persuade those organisations with poor safety records to lift their game.

Raising the statutory bar

The current New Zealand requirement, in the Health and Safety in Employment Act, is that duty holders take “all reasonably practicable steps” to ensure safety at work.  This is a minimum standard, but it only applies to known circumstances, or those which “ought reasonably to have been known”.

In comparison, the Australian provision requires that “regard must be had to the principle that workers and other persons should be given the highest level of protection against harm […] as is reasonably practicable”.

The Australian legislation also creates a presumption in favour of safety over cost.  In New Zealand, there is no such presumption, although the courts routinely engage in arguments about the cost of safety measures, and whether the measure is “reasonably practical” having regard to its cost.

The Taskforce comments that a higher standard, together with a presumption in favour of safety over cost, might translate into higher standards in practice and more active enforcement.  

Chapman Tripp comment

This is the first wide-ranging review of the HSE regime in 20 years. We support the objective of strengthening New Zealand’s safety culture.  Businesses which make workplace safety a priority have achieved good results.  We can see the value in trying to encourage that focus more broadly.

We are concerned, however, about imposing more positive duties on directors and subjecting them to strict liability (criminal) offences.  In principle, we resist making individuals – directors or otherwise – criminally liable for anything short of deliberate or reckless conduct on their part. This has particular relevance in health and safety matters, when much of what matters is operational rather than governance issues. 

The thrust of the reforms to director liability in the Companies and Limited Partnerships Amendment Bill is to remove some of the “strict liability” offences. It is counter-intuitive to be loading such offences on to directors in other spheres – especially in health and safety.

Moreover, the offence of manslaughter already exists for individuals, and will apply in appropriate (if extreme) cases.  To create an offence of corporate manslaughter adds nothing, if the only difference it creates is semantic. Any other difference requires serious consideration of the desirability of creating a new crime.

We have some doubts as to whether changing the statutory standard to one which requires the “highest level of protection as is practicable” is truly different to the current standard.  But – to the extent that it emphasises compliance above the minimum – it could help to bring about a change in mind-set. Alternatively – if requiring only that regard be had for the principle, as is the case across the Tasman – New Zealand’s positive obligation to take "all practicable steps" appears more direct and purposeful.

Have your say

We can help you prepare your submission.  Submissions close on 16 November 2012.  The Taskforce is due to report back to Government with its final recommendations on 30 April 2013.

Our thanks to Marie Wisker for writing this Brief Counsel. For further information, please contact the lawyers featured. 

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Related topics: Health and safety; Employment

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