• Peter Bateman
    In the May/June edition of Safeguard magazine, Bruce McLaren from Maritime NZ describes a disastrous commercial fishing trip in which the vessel was lost and the crew narrowly escaped with their lives. The maritime regulator laid charges under the HSW Act against the PCBU and against one of its officers. Both were convicted

    Would a greater focus on laying charges against officers be a worthwhile strategy for WorkSafe NZ to adopt?

    You can respond in public here on the Forum, or privately here via a Survey Monkey form.

    An edited selection of responses will be published in the July/Aug edition, but with no names attached. One randomly selected person will receive a prize, namely a copy of the Health & Safety Handbook 2020, published by Thomson Reuters.
  • Sheri Greenwell
    It's good in theory, but such a move may well have the effect of further focusing Officer attention on avoiding legal liabilities (i.e., jail and fines) rather than genuinely addressing workplace safety needs, which typically manifests itself in micromanagement and interference with safety management activities. It also does little to build the foundations of trust so sorely needed to gain genuine traction in workplace safety.
  • Malcolm Eadie
    An ex pastor of mine had a saying - "there is nothing like a hanging to focus the mind"
  • Peter Bateman
    Whoa! I didn't realise the penalty provisions in HSW Act 2015 were so severe :lol:
  • Craig Marriott
    There is also a significant difference between directors of small organisations who are very hands-on and those of larger businesses that are operating a genuine governance model. I believe the officer duties were intended to emphasise the latter, but the Australian experience has been almost entirely owner-operator type convictions. I imagine these are easier to make stick.
    I would rather see an educational strategy first. Looking at most boards, there is a significant lack of people with detailed operational knowledge, let alone specific safety knowledge and, related to @Sheri Greenwell's comment above, almost every board went to lawyers to understand their obligations, rather than safety specialist to understand how to get better. The IoD guide has a very good set of questions for officers to ask, but no real guide as to what a good answer looks like.
  • Peter Bateman
    The Australian officer convictions have indeed been against small business owners who are 'on the tools' as it were. In that regard it is a similar outcome to those jurisdictions around the world which have introduced the crime of industrial manslaughter: it's the small business owner who gets charged and jailed.

    So far, we can say that directors/officers of large corporates have a near-zero risk of being personally charged with H&S offences or industrial manslaughter.

    I'm not arguing for wielding the big stick, but setting that aside - it doesn't seem fair, does it?
  • Sheri Greenwell
    Boards and senior managers definitely need to learn more about what actually constitutes "due diligence" and how to go about effectively conducting a sound due diligence review. There doesn't seem to be a lot of useful resources nor people who genuinely understand and know how to go about it (a great opportunity for you, perhaps?).

    It seems there is the interesting conundrum about how we don't know what we don't know, and opportunistic consultants (including lawyers) will happily take an organisation's money and offer assurances yet how does an organisation know how to select advisors on such subjects when they know so little about it themselves, especially if presented with a slick sales pitch? :chin:
  • Tony Walton
    You're on to it Sheri, agree entirely - my case study observations as well.
  • Jim at SAMs
    One of the senior managers fall back response was "I only know what I know" Very frustrating and I should have barked back louder and told him to get off his backside and "go find out what he didn't know"
  • Jim at SAMs
    Leaders don't have to know everything about everything, but good leaders know they have a responsibility to find out.
  • Jan-Ulf Kuwilsky
    Who was it who wrote that any action, in hindsight, can be made to look foolish?
    My answer to your question, Peter, is a firm NO. My opinion only, of course.
    It may be the right strategy to satisfy the 'public' requirement to hold someone accountable, but is completely the wrong approach to enabling trust, honesty, transparency and hence safer organisations. The more focus is placed on legal liability, the less information will be forthcoming, legal privilege will be invoked and details will get lost, that may otherwise be used to learn.
    A far more positive way would be to follow the airline industry, with its ASRS https://asrs.arc.nasa.gov/index.html where the focus is on learning. The three words there are: Confidential, Voluntary, Non-Punitive.
  • MattD2
    One of the senior managers fall back response was "I only know what I know" Very frustrating and I should have barked back louder and told him to get off his backside and "go find out what he didn't know"Jim at SAMs
    If by senior management you mean part of the c-suite maybe if he just knew his due diligence included to gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations then maybe that would have prompted him to pull his head out of the sand...
  • Jim at SAMs
    Absolutely correct
  • SafetylawyerNZ
    I'm not a fan of WorkSafe prosecuting company officers, primarily because history to date shows regulators (here and in Australia) seem to focus primarily on hands on working directors in small companies and not on the directors of large companies (which is who I believe the law was aimed at).

    Also, in practice the focus of prosecutions appears to be largely that the PCBU did not adequately manage a risk so the officer must not have ensured a proper system of work. This conflates the role of the PCBU and the officer and ignores the difference between management and governance of a PCBU. I'm not saying officers shouldn't be charged when they fail to perform their governance responsibilities, but am saying that current investigation and prosecution practices are not properly dealing with that issue.
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