New lines of responsibility

New laws governing workplace health and safety come into effect on 4 April, 2016. However, while there’ll be increased liabilities and fines, the key question for business owners is, ‘what must we do to be safe and compliant?’ It’s time to get proactive.

By Glenn Baker

When New Zealand’s Health and Safety in Employment Act came into force 23 years ago there were high expectations of addressing the country’s alarming workplace injury and death toll statistics.

While much has been achieved over subsequent years, the Independent Taskforce on Workplace Health and Safety recently identified a number of shortcomings in New Zealand’s approach to workplace health and safety. The result is a new law, the Health and Safety at Work Act 2015, which comes into effect on April 4.

The Act is part of the government’s Working Safer programme, aimed at reducing this country’s workplace injury and death toll by 25 percent by 2020 – a commendable target. But, as MBIE (Ministry of Business, Innovation & Employment) points out, it will require significant leadership and action from business, workers and the government to achieve that goal.

So what will be the biggest outcomes from the new regulations? Janet Brothers, managing director of Life Care Consultants, a Hamilton-based workplace healthcare company, believes the biggest change is the focus on a full-tiered approach to responsibilities.

“No longer will it be just be the ‘boss and the worker’,” she says. “[Responsibility will entail] everyone from the boardroom to suppliers, to joint venture partners, to sub-contractors and their subbies.”

However, she cautions, this may be advantageous or it could just be a ‘pass the buck’ exercise. The emphasis from the correspondence and media to date has focused on the increased liabilities and fines (up to $3 million for companies; up to $600,000 for officers and possible imprisonment up to five years) she says, but has been light on ‘what do we need to do to be safe and compliant?’

Brothers advises businesses to first examine how compliant they are with the existing legislation and consider what enhancements they need to make to ensure compliancy with the additional obligations. “These will include the responsibilities surrounding the Person Conducting Business or Undertaking (PCBU). I believe training for competency will be a far greater risk if ignored and will need to become far better managed to not only ensure compliance but also a return on investment from the training dollar.”

She believes many health and safety professionals are very competent in the safety aspect of workplace health and safety but a number struggle with the health and well-being aspect.

“The new legislation has an emphasis on the health of employees, in particular the effects of chemicals and the deaths associated with workplace health hazards.

“If ‘health and safety’ is truly integrated into the business a proactive rather than a ‘tick the box’ philosophy will give a return on investment,” adds Brothers. “What does good health look like? Is it purely protecting staff from asbestos, for example, or is it helping staff to be fit and healthy to increase productivity and reduce down time?”

Certainly the introduction of PCBU requires further explanation – it’s seen as a significant development for safety management in New Zealand businesses, particularly the overlapping nature of responsibilities between the PCBUs that make up the supply chain for a particular service or supply of goods. This is the view of Carl Stent, national H&S manager for NIWA, chair of the New Zealand Association of Accredited employers and former SiteSafe board member, who’s worked extensively within the safety industry and knows H&S legislation backwards.

“As business owners, especially the directorial officers of the business, you need to be hands-on in your understanding of how the Health and Safety at Work Act is being addressed in business operations. This is particularly so with risk management. It will not be possible for businesses to ‘push risk down’ or avoid management of risk by means of contract or transference.

“The expectation is to take all reasonably practicable steps to eliminate risk. Where this is not achieved, minimisation intervention is required,” he says.

“What business owners will have to come to terms with is that ‘minimise’ means substitution, isolation, prevention or re-engineering. PPE (personal protective equipment) and administrative controls are no longer the go-to solution for safety minimisation,” explains Stent.

Risk management has always been at the heart of safety management and ‘risk’ is best defined as the opportunity for loss or gain, he says. “The new Act offers the opportunity for risk management thinking to be more central to safety management. Where business owners take on this approach they will be well positioned to understand how safety management contributes greatly to organisational business gains, not just regulatory compliance.”

Stent’s advice for business owners is to focus less on the detail of the Act, and more on the business concepts of overlapping PCBUs, risk management of the potential for loss, participation of your workforce in finding solutions for safety challenges, and collaboration with your supply chain to identify, assess, control and check the management of safety hazards and risk.

A higher level of safety compliance
Safety legalisation and regulation in New Zealand has been significantly less directive than in the UK or Australia over the past 30 years, says Stent, and historically we‘ve had low levels of regulatory authority, court imposed penalties and union influence.

“The new Act changes all of that by adopting the architecture of the Australian Model Law Act, something very foreign to New Zealanders,” he says. “Unlike Australian businesses who are already functioning at a higher level of safety compliance, New Zealand business will have a rude awakening. They’ll have to shake off dust and cobwebs in their historical slumber of safety thinking and then sprint in an effort to comply.”

For those New Zealand businesses who have already taken on safety best practice, this will be much less so, he says.

Going forward, Stent’s advice for business owners on health and safety best practice is to:

1. Involve your workers by genuinely engaging them and sharing information.
2. In order of priority, focus on safety leadership, then safety behaviour, and then safety systems – why? Because the first two will inform the fit for purpose system solution you need in your business.
3. Understand why all business activity involves risk. Risk is accompanied by threat of harm or damage and when you reduce those you increase business gains.
4. Understand that safety is about a relationship between people, plant and processes. Optimise the gains in that triangle of complexity and you minimise the impact of safety incidents.

Meanwhile, get to know how the changes to the legislation impact your industry and your business. “No doubt there will be some high profile cases which will set a precedence”, says Life Care’s Brothers. “And you’d be better off not being one of those businesses!”

Enforcement is more likely too, with WorkSafe increasing the number of inspectors from 137 to 195 and indicating there’ll be more on-site inspections.

Brothers says her business has produced short digital health education packages designed for toolbox meetings and induction programmes. “These will help meet the training and education obligation under the Act as well as give staff the understanding and knowledge to manage and reduce some of their own health risks.”

Another company in a good position to help business owners comply with the new legislation is Christchurch-based Mango, which markets a proven cloud-based Quality, Health, Safety and Environmental (QHSE) Management solution.

Mango’s chief marketing officer Craig Thornton agrees that business owners will no longer be able to gamble with employee’s safety as the regulators have more powers to apply a financial penalty to the employee, management and owners. He says the Mango solution provides an overview of what’s going on and delivers all due diligence information on one system.

His advice for business owners right now is to first engage with staff on health and safety.

“With their staff they should be doing a gap analysis on their systems with the new legislation. Gaps should be looked at closely and action plans put in place to fill those gaps.”

Business owners should also attend briefing sessions with industry associations, Institute of Directors or Chambers of Commerce, he adds. And if they need technical advice, they should engage a suitable consultant.

“The first agenda items on board or management meetings should be on health and safety performance,” he says. “Business owners need to be visible and repeat the same H&S message to their staff; they need to show employees this is important.

“Don’t look at H&S as a problem or an overhead/compliance cost. Accept it and see how you can get value from it.”

Thornton believes business owners must take authority and responsibility for H&S and not outsource to a consultant ‘because that’s easier’.

Going forward, the biggest challenge will be the engagement and participation with staff and building a safety culture, he says.  

“Having a safety culture is key to having a workable, sustainable and manageable health and safety system. Constantly talking about health and safety with staff will, over time, help make H&S just business as usual. It’ll become ‘this is what we do around here’ and standards will be set that everyone will comply to.”