• Peter Bateman
    In the July/Aug edition of Safeguard magazine we pose three questions based on stories in the magazine. One of them arises from the Legal Roundup section.

    The feedback question is:

    Olivia Lund suggests one way to punish the worst offenders, and to prevent them escaping penalties by resuming operations under a new name, is for WorkSafe to lay charges against business owners as officers. Agree? Why, or why not?

    Feel free to respond here on the Forum, or privately here via a Survey Monkey form.

    An edited selection of responses will be published in the Sept/Oct edition, but with no names attached. One randomly selected person will receive a prize, namely a copy of the book Next Generation Safety Leadership by Clive Lloyd.
  • Aaron Marshall
    So, how does this idea work with a listed company?
  • Peter Bateman
    Good point. I think Olivia means SMEs only, ie: the type of small outfit that liquidates itself and then re-emerges trading under a new name, using the same equipment and owner/operator.
  • Chris Peace
    In the UK directors can be disqualified for a period of years and blocked from taking part in the management of a business. This has been used for serial or reckless offences under the UK HSWA.
    The NZ Companies Act section 383 is nearly the same but requires the offence to be one where a director can be imprisoned for 3 months. Only section 47 HSWA (reckless behaviour) would apply.
    Sections 137 & 138 of the NZ Companies Act require directors to discharge a duty of care and use reliable advice. If you line up these two sections with section 44 HSWA you see they are quite similar.
    Section 138A covers "serious breaches" of section 138.
    Sorry, this is written in haste. I'd love to see an article by a lawyer that draws together the above. It would also be good for section 383 to apply to directors under the HSWA for offences other than reckless behaviour.
  • Peter Bateman
    I'd love to see an article by a lawyerChris Peace

    Working on it ...
  • Chris Peace
    Glad to give an idea.
    I'm hoping a special edition of New Zealand Journal of Employment Relations will be published in the next week or two. It's open access and contains an article on OHS in young workers, the safe system of work and a preliminary report on an analysis of cases under the Health and Safety at Work Act 2015-now.
    More on this when it's out.
  • Aaron Marshall

    So, if I'm an investor in an SME, with no day-to-day participation, I should be liable?

    The problem here is that SME's run the whole gamut from single owner-operators to multi-million dollar businesses with many staff and investors. Exactly how do you define who is and who isn't liable under such a regime. What happens if an owner is an investment company?

    There are far too many opportunities for unintended consequences here.

    If someone has an active participation, and ability to influence H&S then they are an officer under the legislation currently aren't they?
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