• Peter Bateman
    134
    Essential industries remain operating under Level 4 lockdown, while many others are working out how to safely resume operations once NZ moves to Level 3.

    Grant Nicholson, a partner with Anthony Harper and a specialist in health & safety, will respond to questions relating to health & safety law in the context of operating in this pandemic environment.

    Select 'I'm attending' to receive a reminder.
    1587679200_1587682800_N_T_O12
  • SafetylawyerNZ
    60
    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?
  • Admin
    16
    Thanks Grant. If you wish to respond to his questions above, or to ask one of your own, please do so.

    Responses will enter the queue for moderation and potential release to the Forum on Friday morning before the session starts.

    Not all responses will necessarily be released to the Forum, depending on the volume of questions, any repetition of the same question, etc.
  • Peter Bateman
    134
    Grant, to what extent does the right to refuse unsafe work still hold? That is, if a worker in an essential industry felt unsafe because of a perceived risk of being exposed to someone with Covid-19, could they declare the work to be unsafe and refuse to do it?
  • Hillary Bennett
    27
    Hi Grant - to echo Todd Conklin, should the question a business should be asking be: do we have sufficient and effective controls in place to resume work?
  • SafetylawyerNZ
    60


    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.
  • Sheri Greenwell
    154
    What will be the legal position when parents are expected to return to work and they either don't feel it is safe for themselves, or they have concerns about their children going off to daycare or school, or if their children's school is not going to be open, and they don't have any paid leave options, so their household finances are already under strain? I know we can't expect the whole economy to just 'restart' at the flick of the switch - will there be some leeway for parents and families?
  • SafetylawyerNZ
    60


    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.
  • Craig Marriott
    140
    What is the balance to be struck between the risk to our individual employees, which may be extremely low given the likelihood of transmission in their area/job, and that of the broader community which may be much larger, when we're considering what is reasonably practicable?
  • Andrew
    271
    And some clarification between "feeling unsafe" and it factually being "unsafe"
  • Chris Hewitt
    5
    What about an employer's duty to consult on issues related to COVID-19? The speed at which COVID-19 developed in New Zealand, coupled with the fact that many businesses have been shut down for the last month, would have made full consultation impractical for many.
  • Sheri Greenwell
    154
    My employer has continued to operate as an essential business with strict protocols set by MPI to allow our operations to continue. We have taken the requirements seriously, especially for social distancing, which has led to several warnings to individuals for flouting these. I'm just wondering how well aligned ER will be with H&S and government's requirements during the state of emergency and lockdown requirements?
  • SafetylawyerNZ
    60


    I suspect many people around the country are struggling with this. When we move to alert level 3 next week people are still required to stay in their bubbles as much as possible, and parents have been asked to keep children home from school if they can. If a worker does not want to return to work in a business re-starting at level 3 then I suggest a proactive discussion with the employer about options - this might be working from home (when that is possible), performing alternate duties (again, if that is possible) or taking annual leave or special leave. When none of those options work though, I'm realistic that the need to keep a job and earn an income may take precedence. If that is the case, workers can and should ask questions about the steps being taken to keep them healthy and safe at work. The worker can also think about what additional precautions they might want to take to safeguard their health, over and above whatever their employer and workplace are doing. For example, if an employer is not providing masks (and I note that as recently as yesterday Dr Bloomfield was saying masks are not required for most people) a worker could still choose to wear one anyway, as long as it doesn't create a risk (eg entanglement, or impact on other PPE, or the ability to see, move and communicate).
  • SafetylawyerNZ
    60


    That's a great question. The law generally focuses on the risks to individuals, but section 36 of the Health and Safety at Work Act is broad enough to require consideration of risks to the wider community as "other persons" potentially put at risk from work. In reality, as long as organisations comply with the Ministry of Health guidelines I expect WorkSafe will be satisfied they have done everything reasonably practicable to look after the wider public. In a public policy sense, it seems to me that the Government is "setting the rules" right now, so its unreasonable to expect organisations to do more.
  • Andrew
    271
    Just as an aside can we do away with "social distancing". Its not. It is "physical distancing"
  • SafetylawyerNZ
    60


    That's a really valid comment, especially as the number of new COVID-19 cases remains <10 each day. In the absence of any evidence of significant community infection, it seems to me that the risk of infection is more a matter of perception than reality at present. That's why when organisations resume work next week I'm encouraging them to focus a lot of their re-start energy on critical risks, not just on changes to deal with COVID-19.
  • Jackie Brown-Haysom
    5
    Hi Grant, In your view, if a workplace suffers an outbreak of Covid-19 cases, would you expect WorkSafe to investigate, just as it would if there was an outbreak of other harms arising from health-related exposure? Or does the fact that this is a society-wide issue take the heat off PCBUs to some extent?
  • SafetylawyerNZ
    60


    WorkSafe is being pragmatic and not expecting perfection, but equally is being clear that the pandemic is not an excuse to ignore health and safety duties. It is important that organisations consult with their workers and business partners about whatever changes they intend to make when resuming work, but this doesn't require bureaucracy or formality. You're right about things changing quickly, and this means consultation needs to be an ongoing process. As an example, while many businesses are planning for a re-start at alert level 3 next week, they will also need to plan for what changes (if any) they make when (I'm being positive and not typing if!) when we move to alert level 2 and then, even later, to alert level 1.
  • SafetylawyerNZ
    60


    I'd like to hope there will be a lot of compassion and common sense. Ultimately though, there need to be consequences for people who are unwilling to follow the rules.
  • Andrew
    271
    even <5

    Last 10 days (a generous incubation period) there has been an average of 4.5 a day. All related to a person in a cluster, an overseas traveler or one of the 8 unconnected people. So not just "In the absence of any evidence of significant community infection," but actually "In the absence of any evidence of ANY community infection"
  • SafetylawyerNZ
    60


    Fair point, as physical distance is the key health concern. In my bubble I feel socially distanced at times too, and that's something organisations need to be aware of. Creating check ins between managers and staff is important while people are working at home, but so is creating opportunities for team members to connect socially, especially if there are workers living alone. Who knew two months ago that "Zoom parties" were even a thing?
  • Andrew
    271
    Grant. One of your questions "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?"

    Our prime minister has given us her definition of "elimination " in the context of this virus. So it seems to me as long as we are prepared to not tolerate it we should be good to go.

    (I'd also point out, in my view, that these "levels" are a totally ridiculous notion in our worklplace safety context)
  • SafetylawyerNZ
    60


    It will depend on the circumstances (what a typical lawyer's answer!), but no. I don't expect WorkSafe to investigate a workplace based cluster unless there is some evidence to suggest a failure by that workplace to follow the Ministry of Health guidelines.
  • Andrew
    271
    I like this one "• 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?

    So far the prevention of our ability to attend our premises has probably cost well over M$10's. When is enough is enough
  • Andrew
    271
    And this: "• 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?"

    In the absence of a Public Health Order, what legal requirement is there for us to implement contact tracing?
  • SafetylawyerNZ
    60


    While the word is the same, elimination means very different things in these two contexts. It seems to me you can reconcile them (as an academic exercise anyway) by importing the concept of what is reasonably achievable. That's obviously different when looking through a public health lens as opposed to an individual workplace.
  • Peter Bateman
    134
    Nearing the end of our Q&A hour - get any final questions for Grant in now!
  • SafetylawyerNZ
    60


    Now that's a question above my pay grade! I haven't seen organisations using cost as a reason to cut corners on their response to the pandemic, but I expect it is happening. The societal cost of what we are doing is something I expect we will judge politically and academically for years to come.
  • SafetylawyerNZ
    60


    I'm not aware of any current requirement. I expect there will be orders made under section 70 of the Health Act.
  • Hillary Bennett
    27
    Great conversation - thanks everyone
  • Peter Bateman
    134
    Let's wrap it up now. Grant - many thanks for having a crack at this and for your informative responses (and for revealing that it is possible for a lawyer to admit there is work above his or her pay grade, something I never thought possible).

    And thanks too to all participants - a good batch of questions to keep Grant on his toes!
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Welcome to the Safeguard forum!

If you are interested in workplace health & safety in New Zealand, then this is the discussion forum for you.