Tuesday, 27 April 2021 14:30

Legal Matters: Health and safety update

Written by  Jacob Smith and Charlotte Evans of Dentons Kensington Swan

The recent period has been dominated by a major health and safety concern – the Covid- 19 pandemic.

This has raised a host of fundamental issues for everybody, and introduced particular legal complexities and issues for those running businesses. At the same time, meeting general health and safety obligations has remained a key concern, with ongoing development of the law in this area.

Among other developments:

  • When demolition works went wrong, the High Court held that a project management company was a person conducting a business or undertaking (PCBU), even where there was no contractual relationship with the property owner or the earthmoving company which caused the damage. The court decided that the project management company being involved in managing or supervising the demolition was sufficient to make them a PCBU in relation to the work.
  • The High Court also considered a charge of “recklessness” in relation to an officer of a PCBU for the first time. The court found that a helicopter pilot (and officer of the relevant PCBU), recklessly failed to consider a number of safety critical factors before flying, including overloading the helicopter with weight. The pilot was ordered to pay $120,000 in financial penalties and was sentenced to 350 hours of community work and four months community detention.
  • A first sentence for an officer and worker of a PCBU in relation to exposure to risk of serious illness, injury or death was handed down, after a fishing charter that was grossly overloaded sunk off the coast of Kaikōura, even though no one was physically injured. The company, the sole shareholder and director (charged as an officer), and the skipper (charged as a worker) of the vessel were charged and pleaded guilty to failing to ensure the safety of the crew of the fishing vessel. The officer was fined $47,000, the worker was fined $17,500 and the company was fined $380,000. Reparations of $60,000 were also ordered.
  • The courts have confirmed that while the financial capacity of businesses to pay fines will be considered, they will prioritise financial penalties over payments to a company’s shareholders and directors. At the same time, businesses showing an inability to meet penalties immediately have had their fines ordered on the basis of the business meeting an instalment payment plan.

WorkSafe has also confirmed that it is enforcing minimum health and safety requirements connected to the Covid pandemic, and requirements for the use of masks, physical distancing and contact tracing may all be matters where businesses need to ensure they have proper systems in place to minimise the risk of any failure to comply.

Covid vaccinations?

A key issue moving forward for many businesses, perhaps particularly those working with seasonal and/or international travellers, is the extent to which they can insist on employees getting Covid-19 vaccinations. Businesses have an ongoing duty to ensure the health and safety of all those in the workplace, including by minimising the risk of exposure to Covid-19. However, employers cannot generally force staff to receive medical treatment or other interventions.

A key issue moving forward for many businesses, perhaps particularly those working with seasonal and/or international travellers, is the extent to which they can insist on employees getting Covid-19 vaccinations. Businesses have an ongoing duty to ensure the health and safety of all those in the workplace, including by minimising the risk of exposure to Covid-19. However, employers cannot generally force staff to receive medical treatment or other interventions.

For most New Zealand employers, who arguably have been managing safely enough without a vaccine (albeit with a range of new rules and restrictions), that justification is unlikely to exist. In limited circumstances, such a basis may apply in roles or sectors with a high risk of exposure to Covid-19, such as workers in border control, healthcare and managed isolation facilities.

There is more freedom to impose requirements upon potential new recruits, with businesses able to express a preference for those who are vaccinated. However, even then, employers should ensure that any policy of this nature takes into account that for some individuals there may be legally protected reasons under the Human Rights Act 1993 for not receiving a vaccine, for example, perhaps those suffering from immunosuppressed conditions.

Health and safety representatives

Businesses are already required to ensure workers’ views on matters that could affect their health and safety are sought and taken into account, and that they provide reasonable opportunities for workers to participate effectively in improving health and safety. However, currently businesses which employ fewer than 20 workers and are not in a prescribed high-risk industry are exempt from a requirement to elect a worker health and safety representative.

The Labour Government has promised to change this to ensure that all workers have the right to elect health and safety representatives, regardless of the size of the business. There is yet to be any indication of exactly when we can expect this change, which will require an amendment to the Health and Safety at Work Act 2015. But when it comes, it may mean a significant change in approach and the formality which needs to be attached to health and safety compliance for smaller employers.

It is an unfortunate irony for many businesses dealing with the pandemic that Covid pressures have diverted resources, and capacity has potentially reduced their ability to manage health and safety compliance. That may particularly be the case for those employers who have had to retrench and lose some of their specialisation and knowledge in the areas of human resources and health and safety. However, recent developments only confirm that there will need to be even greater investment in compliance going forward.

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