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Destination Wairarapa

Conferences & events –The Health and Safety at Work Act 2015

15 March 2016

Bronwyn HeenanSenior Associate

DDI: +64 4 924 3557Mob: +64 21 809 [email protected]

Duties of a PCBU• Primary duty of care is to ensure so far as is reasonably

practicable the H&S of – workers (a wider group than just employees) who work for

the PCBU – workers whose activities are influenced or directed by the

PCBU, while the workers are carrying out the work (eg contractors)

– other persons are not put at risk from work carried out as part of the business of undertaking

eg visitors, customers, members of the public

Notifiable event

• PCBU has duty to notify WorkSafe NZ of a notifiable event as soon as possible after notifiable event has occurred

• Notifiable event includes: – death of a person

– notifiable injury or illness (section 23)

– notifiable incident (section 24)

Notifiable incident

• A notifiable incident is an unplanned or uncontrolled incident in relation to a workplace

• Exposes worker or any other person to a serious risk to that person’s health or safety eg – escape, spillage, or leakage of a substance

– implosion, explosion, or fire

– electric shock

– collapse or partial collapse of a structure

Overlap of PCBU duties

Complex supply chains

Managing Risk• A duty imposed on a person, eg PCBU, requires the person to:

– eliminate risks to health and safety; or

– minimise risks to health and safety

so far as is reasonably practicable

• A duty holder’s obligations to manage risk are limited to doing what is in their ability to control and manage, along with what is reasonably practicable for them to do to manage the risk.

Managing Risk cont’d

• Hazards vs risks

• Identify and assess your critical risks and key controls

• Develop a plan for controlling these risks – what will prevent an event from occurring and what will stop or reduce the risk?

• Assess what controls you have in place or need to strengthen

You need to consider…

• Identification and management of risks and hazards, potential and actual, posed by: – the building/location itself

– security

– access

– catering and alcohol

– entertainment and/or attendee activities

– travel and transfers

Checklist before events

• Job Safety Analysis – what are the potential hazards, risk ratings and intended control measures?

• Contract management – who will be in the workplace and/or whose activities will be influenced or directed by you?

• How will you ensure the health and safety of other persons at the venue?

• Ensure you have a horizontal consultation policy (to consult, cooperate and communicate with other PCBUs)

Who does the PCBU owe duties to?

Meaning of WorkerIn this Act, unless the context otherwise requires, a worker means, an individual who carries out work in any capacity for a PCBU, including work as:

(a) an employee; or

(b) a contractor or subcontractor; or

(c) an employee of a contractor or subcontractor; or

(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e) a outworker (including a homeworker); or

(f) an apprentice or trainee; or

(g) a person gaining work experience or undertaking a work trial; or

(h) a volunteer worker; or

(i) a person of a prescribed class.

What about attendees?

• PCBU must ensure so far as is reasonably practicable that the health and safety of other persons is not put at risk from work carried out as part of the business of undertaking eg event attendees, visitors, customers, suppliers, members of the public

• Duties will not apply to anyone at the workplace for an unlawful purpose, eg no duty to trespassers

What about volunteers?

• PCBU has a duty to volunteer workers if they carry out work, in any capacity, for a PCBU:

– with the PCBU’s knowledge or consent

– on an ongoing and regular basis

– that is an integral part of the business or undertaking

What about volunteers? cont’d

• But the PCBU owes no duty to a volunteer if the volunteer: – participates in fundraising activities

– assists an educational institute, sports club or recreation club with sports or recreation

– assists with activities for an educational institute

– cares for other people in the volunteer’s home

Key messages for PCBUs• Duties capture workers not just employees - policies,

procedures and way of working must reflect this• Who are the workers the PCBU owes duties to? • Do these duties overlap with other PCBUs? • How do you identify the PCBUs you have overlapping duties

with?• Do you have a policy to meet obligations to consult, cooperate

and coordinate with other PCBUs (horizontal consultation)?• How do you document communications?

Officer

Definition of officer• An officer of a PCBU must exercise due diligence to

ensure that the PCBU complies with its duties

• Officer duties apply to: – Any person occupying the position of a director of the company; and

• those in senior governance roles

• with the ability to exercise significant influence over the management of the business or undertaking, eg a Chief Executive

• Duties will not apply to those who merely advise or make recommendations

Due Diligence Obligations

1. Keep up-to-date with health and safety matters

2. . Understand the nature of the business

and its hazards and risks

3. Ensure the PCBU has appropriate resources

and processes to eliminate or minimise

risks to health and safety

4. Ensure there are appropriate reporting and investigation processes in

place

5. Make sure there are appropriate processes -

monitor6. Verify

1. Keep up-to-date with health and safety matters

• Theory and practice of safety leadership and safety culture

• Legal obligations under the Act, regulations and relevant Codes of Practice

• Health and safety management principles and practices – risk management

– incident investigation

– auditing methodology

• Good processes in place for keeping up-to-date with health and safety developments

Practical steps

• Investigate current industry issues through conferences, seminars, information and awareness sessions

• Acquire knowledge from senior managers, experts, supervisors and workers

• Ensure knowledge management system in place

• Induction package and training programme

• Regular reviews of induction process and refresher training

2. Understand the nature of the business

• Contextualises knowledge acquired

• Critical risks and controls in place to address risks

• First-hand knowledge

• Take an active and personal interest in the nature of operations eg: – commission reports on critical risks

– operations map – what happens where?

– safety observations

Consider …

• Are the right people in the right place?

• Is information available at the right time?

• Does the PCBU have a proactive as well as responsive approach to health and safety?

• Responsibility and accountability?

• Regular verification of policies and practices?

• Active engagement – lead from the top

3. Appropriate resources and processes

• Assessments required to be made on the basis of need rather than budget or politics etc

• Ask – do I have sufficient understanding and information: – to understand what resources and processes should be implemented?

– to ensure the necessary resources and processes are available and are being used?

• Requires the safety impact of decisions to be considered in every operational decision

Practical application

• Use safety impact assessments for: – capital expenditure

– cost cutting programmes

– design of premises, system or plant

4. Reporting and investigation processes

• Monitoring of safety performance and driving improvement requires data

• Efficient, timely reporting systems

How regular should H&S reporting be?

• To be effective, reporting should be routine and regular

• Health and safety reporting should be provided to officers regularly

• But be wary of empty slogans – having health and safety as number one agenda item is not enough

What are lead and lag indicators?

Identify hazards and risks

Prevent and control incidents

LeadIncidents

How many people got hurt and how badly

Lag

How do I use lead and lag indicators?

• Balanced use of both lead and lag indicators required for effective health and safety reporting

• Lead indicators focus on prevention – will help drive continuous improvement

• Ensure you measure impact – not just numbers

5. Ensure the PCBU complies with the Act

• Regular legal compliance audits

• Measurement of Heath an safety management system against the Act

• Programme to monitor and review

6. Verify

• Ensure process in place to verify use of resources and processes: – Audits

– Benchmarking

– Safety observations

– Peer reviews

Guidance for meeting due diligence obligations

Policy & Planning

Monitor

Review

Good Governance Practices Guideline

• Good Governance Practices Guideline for Managing Health and Safety Risks (IOD and MBIE) – May 2013

• Is not a policy statement or a statutory document

• Advice to governing bodies on how to influence health and safety performance and compliance

• Aims to set out support in world of increased scrutiny

• Includes substantial management obligations

1. Policy and Planning

• A charter setting out the officers’ role in leading health and safety

• Publish a safety vision and beliefs statement

• Establish health and safety targets for the organisation

• Ensure there is an effective linkage between health and safety goals and the actions and priorities of senior management

2. Delivery

• Do you have an effective implementation of a fit-for-purpose health and safety management system?

• Is the organisation staffed with sufficient personnel with the right skill mix and support?

• Provide sufficient funding for the effective implementation and maintenance of the system and improvement programmes

3. Monitor

• Review serious incidents including serious non-compliance and near misses, and be personally satisfied with the adequacy of management actions in response

• Establish clear, reasonable and practical requirements for the regular reporting of health and safety performance results

• Review these reports for indications of trends, system breakdowns and improvement needs

4. Review

• Formal review of the organisation’s health and safety performance on a periodic basis to consider whether the policy and system are being effectively implemented and are still fit-for-purpose

• Include internal and external audits to seek independent and objective assurance

• Ensure that actions identified in the review are communicated and effectively implemented

Due diligence checklist

• Identify officers and develop due diligence framework policy

• Due diligence training programme for officers

• Safety observations programme for officers

• Critical risk review

• Safety impact assessment procedure

Due diligence checklist cont’d

• Key safety performance indicators report

• Legal compliance report

• Peer review programme

• Audit programme

• Due diligence framework review

Personal liability Section Notes Liability

47 Offence of reckless conduct – most seriousbreach duty: exposes individual to risk of death or serious injury or illness & is reckless as to the risk

Individual who is not a PCBU or officer5 years’ imprisonment &/or fine not exceeding $300,000PCBU or OFFICERS5 years’ imprisonment &/or fine not exceeding $600,000CorporationFine not exceeding $3million

48 Failure to comply & exposes person to risk of death or serious injury or illness

Individual who is not a PCBU or officerFine not exceeding $150,000PCBU or OFFICERSFine not exceeding $300,000CorporationFine not exceeding $1.5million

49 Failing to comply with duty Individual who is not a PCBU or officerFine not exceeding $50,000PCBU or OFFICERSFine not exceeding $100,000CorporationFine not exceeding $500,000

Case Study: CHEP/Brambles

Sample programme principles: CHEP1. Safe environment

– Hazards identified and addressed

2. Governance– Deliver a structured and assured safety system

3. Engagement– Encourage safety engagements at ALL levels

4. Improvement– Provide an environment of continuous improvement

Due Diligence Requirement Directors PCBU

Knowledge of WHS Matters Monthly board reports; WHS reports at board meetings; separate serious incident reports to Board; BU reviews with board to include statistics, incidents and initiatives; regular board site visits, periodic presentations on legislative environment

Monthly management reporting; WHS as agenda item at all meetings and forums; incident reporting; periodic training on aspects of CHEPSafe; regular site safety specific visits


Understanding of Hazards & Risks Regular board site visits; modify reports to board to incorporate changes to risk and hazard management post-incident with follow up on implementation

Regular site visits; risks and hazard management in capital approval processes; periodic training in risk assessment; participation in near miss program and site audits


Have & implement processes for complying with Act

Initial briefing on Act itself; incorporation of elements in annual management declarations; safety KPI’s for senior executives through RemCo; ongoing monitoring of key safety statistics; consider external safety review after 2 years and then ongoing

Management briefings on Act; identify requirements and gap(s) if any to current processes and practices; design and implement tracking process for work mapped to requirements of Act


Verify the provision & use of the resources and processes

Achieved through prior elements

Achieved through prior elements; physical participation in select activities (audits, site committee meetings, strategic formulation)

Management responsibilities

Worker engagement

and participation

Health and Safety representatives

• H&S representatives are elected by workers

• Functions:

- represent workers and promote their interests

- monitor actions taken by PCBU

• Broad powers

Election of representatives

• PCBU is not required to initiate the election of a health and safety representative, if the work of the PCBU

- is carried out by fewer than 20 workers; and- is not within the scope of any prescribed high-risk

sector or industry

• Similar provisions apply in relation to health and safety committees

Worker engagement and participation

• All PCBUs are still required to engage with workers and ensure there are appropriate ways for workers to participate in health and safety matters

We are very happy for you to make these slides available to attendees, but please do so on the basis they have a clear accompanying message that they do not constitute legal advice and are not intended to be provided as legal advice (legal advice should be sought if required).

Copies should be provided for personal use only.

Bronwyn HeenanSenior Associate

DDI: +64 4 924 3557Mob: +64 21 809 [email protected]

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