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New guidelines charge directors with ensuring best practice in health and safety

25 June 2013

The damning Royal Commission report into the Pike River mining tragedy, issued in November 2011, found that Pike River’s directors had failed to pay sufficient attention to health and safety and that they had “exposed the company’s workers to an unacceptable risk”. 

The findings and the public outcry in response to them, led the New Zealand Institute of Directors and the re-branded Ministry of Business, Innovation and Employment (formerly Department of Labour) to formulate the Good Governance Practices Guideline for Managing Health and Safety Risks. 

These have been designed to provide a framework for company directors to maximise health and safety outcomes and improve company performance.

Who do the Guidelines apply to?

The Guidelines are intended to apply to all businesses, however they were designed to have specific relevance to directors of medium to large organisations with 20 or more staff.

The Guidelines are not legally binding, and the Health and Safety in Employment Act 1992 remains the primary mechanism detailing the workplace safety obligations of employers. In judicial proceedings however, a Court will likely assess whether the employer followed the best practice components in the guidelines and if so, this will reflect favourably upon them.


How are the Guidelines structured?

The Guidelines describe the obligations of Directors and Boards in four distinct phases, the initial policy and planning of a health and safety strategy and then the subsequent delivery, monitoring and review of that strategy.

Each phase is accompanied by a series of “diagnostic questions” which Directors ought to consider posing to ensure that the business’ health and safety practices are consistent with their Board’s values and mission statement.

A number of “Director actions” are laid out in each phase- these are a combination of baseline actions (the minimum health and safety standards which it is envisaged an organisation will follow) and recommended practice (which, as the name suggests, are recommended strategies which move the organisation closer to achieving best practice outcomes).

Phase 1: Policy and Planning
The Director’s responsibilities include:

  • Managing the health and safety performance of their CEO;
  • Determining the Board’s charter for health and safety;
  • Providing a mission statement, or statement of objectives which addresses this; and
  • Ensuring management are held accountable for non-compliance with health and safety objectives.

Phase 2: Delivery
The Director’s are responsible for ensuring that the company’s strategy addresses the following aspects:
  • Hazard and risk management- actual and potential hazards are identified and addressed;
  • Incident management- having clear and easy to follow processes for reporting and investigating incidents;
  • Emergency management- plans are in place to counter potential emergencies and that practice drills are carried out; and
  • Injury management- systems are in place to care for injured workers and, if necessary, to support their families.

Phase 3: Monitoring
The Director’s responsibilities include:
  • Specifying clear timeframes for reporting on the success or otherwise of the company’s strategy;
  • Reviewing any serious incidents or cases of non-compliance; and
  • Ensuring that goals for improvement are developed and that regular progress reports are received by the Board.

Phase 4: Review
The Director’s responsibilities include:
  • Ensuring that a formal review of health and safety processes takes place, for example a health and safety audit;
  • Ensuring that the outcome of the review is used to determine an action plan for future progress; and
  • Ensuring that staff are consulted for their individual feedback.

The Guidelines are not definitive and they are not intended to be. Whilst they are voluntary, they provide a useful starting point on how businesses can achieve best practice in the health and safety arena. Businesses which commit health and safety breaches are liable to face prosecution from the Ministry of Business, Innovation and Employment. Just this week, a Gore company was fined for failing to take all practicable steps to ensure the safety of an employee.

Logan Duthie, an employee of Livestock Supplies New Zealand Limited had three fingers amputated whilst operating a salt block press last year. Livestock Supplies was fined $30,000 and had to pay $6000 to Mr Duthie in emotional reparation after it was found that they should have installed a guard on the salt block press, which would likely have prevented the accident.

Andrew Little, list MP for Labour, has a private members bill in the ballot before Parliament which calls for a specific law in New Zealand for corporate manslaughter. At present, manslaughter is covered in the Crimes Act but corporate manslaughter is not. Little’s rationale for his bill is that having a specific provision for corporate manslaughter would address widespread and collective governance failures to adequately address health and safety.

Other jurisdictions have corporate manslaughter provisions, most notably the UK, where companies have been fined substantial amounts under the Corporate Manslaughter and Corporate Homicide Act 2007.

While we are still some way from having corporate manslaughter provisions in New Zealand, businesses of all shapes and sizes would be well advised to take heed of the guidelines and to use them to facilitate discussion about how health and safety could further be prioritised. Businesses ought to remember the warning issued in the Guidelines- that if their health and safety systems seem too good to be true, then they probably are.

 

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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