• Should fines be based on PCBU turnover?
    Kirsty is right to raise this as an idea given its inclusion in the UK law, but it seems to me to be a terrible idea in practice.

    Firstly, and perhaps most importantly, there is no correlation between business turnover and business profit, so turnover is the wrong metric to assess a business against when looking to ensure a penalty "bites".

    Secondly, this type of model creates differential penalties for small and large businesses even when their respective culpability may be similar and reduces the flexibility courts have (and need) to customise a penalty to the circumstances of the offender and the offending.

    Thirdly, this approach is open to abuse. For example, a large business will be incentivised to incorporate separate companies for every location or function, so the measurable turnover is reduced.

    If there is a problem (and I'm not convinced there is), then the answer is to increase maximum fines and, perhaps, give the court guidance about how to assess different levels of culpability against those new maximums.
  • Laying charges against officers: a useful strategy?
    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.
  • Grant Nicholson on Covid-19 and the law

    I'm not aware of any current requirement. I expect there will be orders made under section 70 of the Health Act.
  • Grant Nicholson on Covid-19 and the law

    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.
  • Grant Nicholson on Covid-19 and the law

    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.
  • Grant Nicholson on Covid-19 and the law

    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.
  • Grant Nicholson on Covid-19 and the law

    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?
  • Grant Nicholson on Covid-19 and the law

    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.
  • Grant Nicholson on Covid-19 and the law

    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.
  • Grant Nicholson on Covid-19 and the law

    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.
  • Grant Nicholson on Covid-19 and the law

    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.
  • Grant Nicholson on Covid-19 and the law

    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).
  • Grant Nicholson on Covid-19 and the law

    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.
  • Grant Nicholson on Covid-19 and the law

    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.
  • Grant Nicholson on Covid-19 and the law
    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?
  • Compliance with other enactments
    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.
  • National to promise 'common-sense' legal test for workplace safety rules
    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.
  • Passing on fines
    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.
  • Compliance with other enactments
    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.
  • Educating your board
    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.