• Riki Brown
    9
    Hello, I'm currently finishing my grad dip in OH&S through SIT. The course didn't have any papers focusing on the legal H&S framework, or the HSWA (and regulations) or past case law/precedents. This is all stuff I would like to learn more about.

    Does anyone know of any courses of study that cover this?
  • Margaret
    18
    The Massey Graduate Diploma does both OSH I 251.271 and OSH II 251.272
  • SafetylawyerNZ
    85
    I did a Masters paper in health and safety law at the University of Melbourne. It was really good, although obviously focused on the Australian law rather than NZ (which is largely, but not entirely, the same).
  • Chris Peace
    66
    Hi Riki
    Your question begs questions.
    Do you mean you are completing the diploma at undergraduate or postgraduate level?
    Do you want to study at undergraduate level or postgraduate level?
    Do you want to study face-to-face or online?
    Some thoughts.
    At Victoria University of Wellington one of our postgraduate students researched OHS decisions in the District Court over a 10-year period comparing prosecutions for traumatic injury with prosecutions for occupational health/disease. She added to a database of cases we have been developing and that needs completion. This was her research report for completion of part B of her Masters.
    Another student has completed part A of the Master's programme (= the postgraduate diploma) and, instead of carrying out a research report, is working on a Master's by thesis researching aspects of OHS law in NZ. He will also draw on the now-expanded database.
    A year ago we started exploring an option for a postgraduate paper to be developed jointly with the Law School for lawyers, managers and OHS practitioners to be run as a “summer school”. However, the project must wait until we have the staff, funding, and demand. Does this sound like what you want?
    Happy to talk on the phone (0274713723) or by Zoom
    Chris
    Lecturer in Occupational Health and Safety
  • Andrew
    340
    We ought not be doing what we do because the law says so.

    But I am stunned OP can be studying a Grad Dip and the law isnt mentioned at all in the course.
  • Riki Brown
    9

    Thanks Chris
    I am in my last month of the post grad diploma in occupational health and safety management at SIT.
    I am interested in more study at the post grad level, perhaps a masters.
    Online study is my preference.

    In my mind it fundamentally important for someone studying OHS and thus potentially working with specific OHS responsibilities to have good knowledge of the legal framework of OHA. So after nearly finishing my current course and not having developed that knowledge I feel that is a big gap in my knowledge.

    Perhaps there is another side to this that I'm missing, maybe its not fundamental..... What are your thoughts on law/legal frameworks/HSWA/regulations/case study/precedents in OHS study?

    thanks again
    Riki
  • Steve H
    265
    We ought not be doing what we do because the law says so.

    But I am stunned OP can be studying a Grad Dip and the law isn't mentioned at all in the course.
    Andrew

    Sadly, there are still dinosaurs out there who will ask "is there a legal requirement to do this or that", so personally I favour a prescriptive approach to a minimum standard, embellish all you want after achieving that..

    I look at it this way, the road rules could say, do a H&S assessment and then drive at the speed that your assessment tells you you will arrive safely- not really going to work is it (although in the absence of traffic enforcement, that is what happens frequently)
  • Delwyn Belcher
    1
    Hi Riki,
    I am on the last paper of NZ Diploma in workplace Health and Safety Management Level 6 at SIT. This study went through HS Act ISO, I also study on the Christchurch Earth Quakes, Pike River Mine, ect ... Have a look at SIT if you are wanting to distant learning.
  • Jade
    9
    That summer school idea sounds awesome!
  • MattD2
    288
    Sadly, there are still dinosaurs out there who will ask "is there a legal requirement to do this or that", so personally I favour a prescriptive approach to a minimum standard, embellish all you want after achieving that..Steve H
    Normal answer to that is - "yes, but it is vague that you have to manage the risks of your work" and then turning the question back to them with some vein of "could someone potentially get hurt? And is there anything we could reasonably do now, that we would wish we would have done if they did end up getting hurt)?"
    I look at it this way, the road rules could say, do a H&S assessment and then drive at the speed that your assessment tells you you will arrive safely- not really going to work is it (although in the absence of traffic enforcement, that is what happens frequently)
    Except if you are equating it to the HSWA approach each driver would be expected to make that assessment based on the relevant knowledge available regarding the risks - which would include considering the available knowledge regarding their own vehicle safety, the safety of other potential vehicles on the road, the engineering of road design, weather patterns, the maintenance schedule for the road they are driving to assess current condition of the road, notifications of damage to the roads (fallen tress, slips, etc.), work scope of any construction of maintenance road works, etc.
    Most people would never be able to spend the time/effort to be proficient in evaluation all this information before driving - and this is the reason we have prescriptive speed limits on our roads. Any person can look at that red 80kmh sign and consider - someone (or more likely a team of someones) has taken all that relevant information for this road and used their expertise to determine a suitable speed which this road should be driven at... so essentially every driver right is making that "H&S assessment", it's just based on the most efficiently communicated information they have (the speed limit sign).
    Wasn't there a case last year were police prosecuted a driver for reckless driving because he was traveling at 100+ kmh through a speed limited (unattended) road works site, and the judge sided with the driver that it wasn't reckless because an assessment of the actual risk was determined to be low - from memory; the road he was driving on was in good condition and hadn't been disturbed by the road works and there was no road workers present that he could have injured - so essentially at that time the risk assessment was that he was essentially driving on the normal road in that area and so 100 kmh was a reasonable speed to travel at.
  • Steve H
    265

    You misunderstood my meaning Matt, we have laws that control drivers behaviour on our roads, these laws are frequently ignored by drivers who think they know best. In effect, doing their own risk assessment. ie I can drive and talk on my cell phone, I can exceed the posted speed limit by 50Km, No one uses this road that I am about to intersect therefore I don't need to stop at this compulsory stop sign.
    In the case you cite, the beak sided with the driver, probably should have been appealed by the Police Traffic Prosecutor, but that's their call.
    My point is, even now, there are folk out there who will try and do less if they can get away with it, hence their question "is there a legal requirement for me to incur cost by having to do this"
  • MattD2
    288
    My point is, even now, there are folk out there who will try and do less if they can get away with it, hence their question "is there a legal requirement for me to incur cost by having to do this"Steve H
    Prescriptive standards in H&S are good in theory, but in practice do they not tend to exacerbating the problem? Since:
    1. They are typically used more as a justification of the maximum effort required rather than the minimum standard accepted (this is exactly what you are saying, the pushback of "where does it say I have to do more than this?"), and
    2. They push the conversation to start off as an interpretation of those rules rather than starting at the actual risks needing to be managed.
    My point, since the prescriptive standards will never cover 100% of all cases, is they are only beneficial if your risk management process is "I have a risk to manage, what knowledge is there that I can apply to my situation, and where does that general knowledge end and I need to start considering this on a case by case basis", but they can quickly become a hinderance if your process is "I've just got to do what the book says"

    Back to using the speeding example - no judge would side with the driver if their argument was just "I think it's perfectly safe for me to drive at 100kmh through a normal 50kmh residential street" as there is no real additional considerations to that case than what is already covered in the "rule book". But they would have to consider it in a case like the reckless driving prosecution example above, or if the argument was "that it would be reasonable that the speed limit on the road should have been set higher due to the expert opinion of X, Y and Z who is sufficiently experienced in determining the appropriate speed limit for NZ roads" (the trouble is you will likely never get someone that is suitably qualified to be your expert witness and side with you in this case).

    Back to the original topic (or more correctly, back to the comment on the original topic) - if the purpose of the tertiary education is to provide training and evaluation to gain competency in H&S risk management, then as per Andrew's comment - what the law says, and how it works shouldn't even factor into it.

    But if its purpose is for competency to manage legal compliance, then the law and how it is applied definitely needs to taught... but then you are more legal council than H&S advisor/manager and probably should actually be doing a LLB rather than a H&S cert/diploma.

    [Special case is would be the statutory powers of a H&S Representative in the act - but that is why they need to complete the Unit Standard which covers those part of the act].

    In my opinion this is actually one of the biggest issues in the H&S profession - we are not clear on what the role is and who we are there to support (or when we are clear is is somewhat illogical). Most H&S coordinators are generally dealing with legal compliance issues (or in a lot of cases, issues that we incorrectly deem as legal compliance), H&S advisors are generally supporting the workers to manage risks and navigate through the company's various H&S processes, and H&S managers are supporting management to develop those H&S processes to [cynically] keep the company out of court. While we may think there is a clear career progression up the ladder from Coordinator to Advisor to Manager, I would bet that there is no other "profession" where the "focus" at each step through their professional development process changes so drastically.

    (Maybe this rant is better in the "Why are we still killing our workers" thread... but I already need to finish my "The answer is capitalism, just ask Rasmussen" post for that one.)

    And back to the original question - I would start with self-education using the court summaries. http://www.nzlii.org/nz/cases/NZHSE/ is a reasonable central database for information on past court summaries, most judges are good provide context around the reason for their decisions for convictions or sentences. Regarding the law, these interpretations can be much more critical to understand how the legislation is actually applied in practice rather than what is actually written in the Act and secondary legislation.
  • Peter Bateman
    236
    but I already need to finish my "The answer is capitalism, just ask Rasmussen" post for that one.MattD2

    Looking forward to this post already
  • MattD2
    288
    In the case you cite, the beak sided with the driver, probably should have been appealed by the Police Traffic Prosecutor, but that's their call.Steve H
    I can't remember but I don't think the prosecution had any grounds to appeal - they can't appeal just because the don't like the judgement.
    Again from memory; They had would have had an open-and-shut case for speed in excess of the posted limit, but they pushed for a conviction of reckless driving based on the excessive speed. The defense was that the police by that stating the driving was reckless simply by the fact of the excessive speed alone did not met the requirement to "regard to all the circumstances" as required by section 7 of the Land Transport Act, and so had no case.
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