Health & Safety Lesson From The Australian Courts

Thursday March 5, 2015 09:07

The first legal charge against a manager as an “Officer of a PCBU”, over the death of a worker under new occupational health and safety (OH&S) legislation in Australia has significant implications for New Zealand, says Frank Taylor GM for Securo.

New Zealand's proposed Health and Safety at Work Act is closely modelled on Australia's legislation and is intended to come into force in New Zealand in 2015.

One of the questions about this new legislation is; to what management level within a PCBU, can the term Officer be applied? The outcome of this case could assist us to answer this.

The Australian Capital Territory (ACT) recently became the first jurisdiction, to charge an ‘officer' under newly harmonised workplace health and safety legislation. A senior manager faces two charges for allegedly failing to exercise due diligence to ensure that the company (PCBU) complied with its workplace health and safety duties. The charges follow a workplace incident that resulted in the death of a 48 year old truck driver, Michael Booth. Mr Booth died from electric shock injuries sustained while he was operating a tip truck when the trailer made contact with a power line while off-loading gravel at a dumping station.

The senior manager has pleaded “not guilty” to the charges, and the preliminary question to be determined at a hearing this December, is whether the senior manager is indeed an ‘officer'. It appears that the senior manager was not a director of the PCBU but is a director of a related entity.

Under New Zealand’s proposed Health and Safety at Work Act, there is a similar personal due diligence duty on officers, to actively manage workplace health and safety and ensure that the ‘person conducting a business or undertaking' (a PCBU) complies with its health and safety obligations.

The concept of ‘officer' includes individuals with governance roles in an organisation (eg, directors or partners) and further extends to those who make decisions that affect the whole or substantial part of the business of the PCBU.

Due diligence duties under the proposed Health and Safety at Work Act will require an officer to be proactive in managing health and safety in their workplace, including taking reasonable steps to:

• Acquire and keep up to date with knowledge of health and safety matters relating to the business and its activities;
• Understand how the business operates and the hazards and risks associated with those operations;
• Ensure resources and processes are implemented to eliminate or minimise risks and hazards; Ensure appropriate processes are in place for receiving and considering information about health and safety matters and responding in a timely way;
• Ensure that there are processes in place for complying with the PCBUs health and safety duties; and
• Ensure that the above processes are verified, monitored and reviewed.

Putting it another way, the due diligence obligation means that officers will need to be proactive in managing health and safety and not just reactive - as has commonly been the practice in New Zealand.

This prosecution sends three very strong messages:

1. Workplace health and safety regulators are prepared to prosecute individuals if they fail to meet their “officer” obligations. We can expect a similar approach from the New Zealand regulator, WorkSafe NZ.
2. Liability for health and safety may not rest solely with directors but also with their senior managers.
3. Health and safety duties can and do overlap -in the Australian case, the PCBU has also been separately charged.