Yes, absolutely. There is clearly a lot of economic pressure on businesses to return to work as soon as they can, but the fundamental question should always be "can we work safely?". When answering, it is inevitable organisations will also consider the reasonableness of different options and look to balance health risks with the consequences of different strategies to eliminate or minimise the risk.

Sections 82-87 of the Health and Safety at Work Act continue as usual. Remember though, they only apply if the worker believes there is a "serious risk" and it has to arise from an "immediate or imminent" exposure to a hazard. WorkSafe has said that it expects workers will not need to cease work if their employer and workplace are following the Ministry of Health COVID-19 guidelines.

Thanks Peter, I'm looking forward to the discussion tomorrow.

I'm seeing clients dealing with rapidly changing requirements, staff (and business partners) feeling anxious, and the real risk of infection dropping as fewer and fewer new cases are reported (yay!). In these times, the solution for businesses is part survival, part reputational, and part health and safety (with a nod to wellness). Smart planning is obviously important, but so is remembering that an organisation's critical risks remain a big (and for many the biggest) concern, despite the pandemic.

To get some discussion going tomorrow, here are a couple of starter questions from me:

• Section 30 of the Health and Safety at Work Act requires elimination of risks rather than just minimisation when that is reasonably practicable. Should organisations really be returning to work at alert level 3?

• Section 23 of the Health and Safety at Work Act talks about the role of cost, and whether it is grossly disproportionate to risk, in deciding what is reasonably practicable. Are some organisations going to consider the cost of additional controls and let it affect what they do when work re-starts?

• Section 34 of the Health and Safety at Work Act requires consultation, cooperation, and coordination of activities between duty holders. How are organisations planning to interact with customers and onsite and supply chain business partners to keep people safe? For example, what can be done to allow contact tracing by the Ministry of Health if there are COVID-19 flare ups in the future?

Having a Code of Compliance is one piece of evidence a court would consider, but it isn't a complete defence. The question for a court would be whether the PCBU took all reasonably practicable steps to manage the risk of a fall. There have been several cases where a fall of less than 3 metres has been sufficient to see a defendant prosecuted and convicted.

I was really disappointed to hear Simon Bridges saying this stuff, as it reinforces the negative perceptions too many people have about health and safety, and ignores the value good health and safety provides. It seems to me that if "common sense" was so common, we wouldn't have the appalling health incident outcomes that we have. There is (in my view) a lot Simon can and should be hammering the Government about, but this is not one of those things.

I see lots of contracts with this type of clause, and routinely tell clients to refuse to agree it. As MattD2 says, a clause like that is unenforceable so even if it remains in a contract, the risk of needing to pay another party's fine after a later event is negligible. Section 29(2) of the Health and Safety at Work Act applies, and states that a person "must not...(d) pay to another person, or receive from another person, an indemnity for a fine".

It's worth noting that the Health and Safety at Work Act only prohibits indemnity for fines, and not for legal costs, reparations, or any other costs a party can incur.

I'm not aware of the section being considered by a Court, but to me the key message is that PCBUs need to comply with other laws, so that a failure to do so can be a practicable step, even if that other obligation is not specifically focused on safety. Examples might be things like complying with the Electricity Act when working with live cables, or the road transport laws for logistics/transport operators with trucks or other mobile plant.

Every Board should do this - I've spent a lot of time over the last 3 years giving this sort of presentation, and many Boards are now seeking refreshers and updates to help them keep it front of mind. A presentation on the due diligence duty is not enough on its own though. Officers need to think about their duties and construct a personalised plan to help them meet each element. This can be a combination of reports from management and external consultants, deep dives into critical risks, and face to face engagement with workers from across the business.

I love Michael's question. I encourage Boards do ask something similar, and to try to test how work as imagined by SOPs/SWMS etc is different from work as done "on the tools".

I agree with MattD2. Section 27 of HSWA relates to imposing levies or charges on workers, not PCBUs. I am not aware of the Court yet being asked to interpret the section, so the limits of what constitutes a levy or charge, and whether it can apply to a worker who is also a PCBU (eg a sole trader) are yet to be determined.

@Andrew: The Sentencing Act requires the court to take into account the financial capacity of the offender, whether it has the effect of increasing or reducing the amount of the fine. In reality though, it is usually a factor only considered to reduce the fine because the Sentencing Act also requires the court to take into account the "general desirability of consistency with appropriate sentencing levels".

I don't actually want the court to look at the turnover of NZ defendants and increase penalties (that would be bad for most of my clients!), but it is a valid option to consider if you believe the premise that larger fines will motivate changes to behaviour. I for one am doubtful about whether that premise is true, at least in a linear way. I agree with Chris that the court needs to have flexibility, and to not be constrained to just look at fines.

I find the reported outcomes really surprising, and wonder about the scope of the study and its participants, and what the data on non-fatal injury incidents looked like.

It is hard to imagine WorkSafe NZ will ever assert that providing marijuana is a reasonably practicable step for a PCBU to take to improve fatality performance ... but I bet recruitment interest would go through the roof for any PCBU who offered it :)

Documentation is an important part of any safety management system, but shouldn't be an end in itself. As the panel discussion at the Safeguard conference demonstrated, it's all about context and thinking about how to make safety meaningful and useful. Demonstrating compliance is always a necessary evil, but hopefully we are past the days of having long (and turgid) documents posted on walls for everyone to ignore.

I saw this too, and it immediately raised a red flag. Giving new workers an induction is H&S101, so it's disappointing if it's not happening. WorkSafe will jump all over it (and rightly so) if something goes wrong.

Hi all

I largely agree with Chris. In my view, section 27(1) HSWA does not prevent a PCBU charging another PCBU (except when the second PCBU is an individual), and I don't see anything else in HSWA to prevent it either.

That said, charging for inductions seems like a dodgy idea to me and is something I would urge clients not to implement. The head contractor always needs to ensure inductions are happening, and the cost is just a usual BAU expense. If imposing a charge makes it less likely inductions are completed then the head contractor will expose itself to risk (if people attend site without completing the induction) or limit the pool of available tradies (if only those willing to pay can obtain work). It's not hard to see WorkSafe asserting that a reasonably practicable step would be to provide inductions free of charge, especially as cost is only relevant to a practicable step when it is grossly disproportionate to the risk (see section 22(e) HSWA).

In any event this must be a false economy for any head contractor, as contract pricing by tradies will inevitably increase to recover the charge, in the same way as the cost of providing scaffolding or PPE etc is factored in, whether on a disclosed or undisclosed basis.

It seems to me that Lime only has duties when juicers are doing their work, and when maintenance is being done on the scooters (whether by juicers or anyone else). Otherwise, the connection Sam is trying to draw to work seems too remote. I agree with Peter that WorkSafe is not likely to see this as a priority, and suspect that no one else will bring it to court either as the ACC regime effectively protects Lime against almost any claims for personal injury. In that respect, setting up in NZ was a great choice of test location by Lime.

Knowing about a risk but not acting to fix it is inexcusable. It is also likely to result in prosecution for a "reckless" offence where the maximum penalty is a $3m fine (and imprisonment for individuals). At a minimum, WorkSafe will expect to see a duty holder take some interim steps (even if just signage and training) while a long-term solution is planned and implemented.

The problem with sentencing offenders is that it is complex and, often, poorly reported as some relevant details are either supressed or not referred to in ways that become public. That means laypeople form impressions of what is "fair" based on incomplete facts. I appreciate (and share) the concern that current punishments do not deter some offenders. I do not, however, support increasing penalties. Some thoughts to consider:

1. Fines and reparations (compensation to victims) are different and serve different purposes. Fines vary depending on the offence in question (in most cases for health and safety offending the maximum is $1.5m) while reparations are unlimited.
2. Reparations often cover two or three distinct things - compensation for "out of pocket" losses incurred (eg damaged property), compensation for future losses (eg loss of future income if unable to return to work), and compensation for emotional harm arising from the injuries suffered.
3. There is no good way to assess the economic value of emotional harm, but Judges have to try. In general, a death currently leads to $100-130k for emotional harm, with other injuries resulting in lesser awards. This is increasing over time, and is probably double what it was 5 years ago.
4. When an offender has limited means, the Judge must prioritise reparations over a fine.
5. When a fine is imposed, the Judge has to pick a starting point between zero and the maximum possible fine, then adjust it to take account of aggravating and mitigating factors. In reality, this usually means the fine gets reduced because most defendants can point to relevant mitigating factors (the most common is pleading guilty, which can result in a discount of up to 25% - some people may find that generous, but the court needs to incentivise people to plead guilty and not waste time running meritless defences, with all the aggravation to victims, witnesses etc this would bring).
6. As with all offenders, the Judge must consider the defendant's ability to pay a fine. Case law is clear that a company should not be put out of business by a fine unless there has been repeat offending or some completely egregious breach.

Larger corporates are already seeing their names plashed across the papers, and fines of $500k being imposed. If this isn't enough to motivate better behaviour, I'm not sure what monetary penalty is. The poster who mentioned bans on directors and officers may have a point about that being an additional motivator, but even then it seems draconian to me and may have perverse consequences with people being unwilling to accept reasonable risk.

Good discussion all :). It's important we keep victims at the centre of this, and remember that the goal is to encourage others not to make the same mistakes.

In NZ a claim would usually be covered by ACC, but the rules around mental injury generally require a diagnosable condition (eg PTSD - which I personally suffer when my hotdog comes with brown bread :)) , not just hurt feelings. Our courts don't tend to award significant damages for cases falling outside ACC, which gives an economic incentive not to sue. By comparison, it seems awards are higher in Australia and without ACC the culture is more supportive of making claims. I did scratch my head though at the comment "I suffered emotional harm so had to make a claim". I didn't realise it was compulsory...