The Health & Safety at Work Act: The Aftermath – By Nicola Oldridge, Solicitor
The Health & Safety at Work Act 2015 (Act) (which came into effect on 4 April 2016) caused businesses across New Zealand to review their health & safety practices and put in place regimes to ensure ongoing compliance with the Act.
Although the Act significantly increased the maximum penalties for a breach, at the time the Act came into force it was unknown as to what level of fines the Court might impose.
Three years on, we can see that Worksafe has actively investigated and prosecuted offences under the Act and, from a summary of those prosecutions, we can see the level of penalties that both businesses and individuals (being Directors or other Officers of a company who meet the “Persons Conducting a Business or Undertaking (PCBU) definition) are receiving.
Worksafe advise that decisions to prosecute, or not to continue with prosecutions, will be made fairly, consistently and proportionately to the seriousness of the behaviour. A range of sentencing options is available to the Court if a charge is proven or the defendant pleads guilty. The maximum fine available under the Act generally is $1,500,000.00 for a company or $300,000.00 for an individual PCBU but a fine of up to $3,000,000.00 for a company or $600,000.00 for an individual PCBU and/or up to five years imprisonment is possible for persons convicted of the more serious ‘knowledge based’ offending.
In addition to a fine (which is paid to the Ministry of Justice), a Court can order that reparation is paid to a victim. This may compensate the victim for physical or emotional harm, damage to property or consequential losses.
Taking the agriculture and the building and construction industries as an example, below is a summary of the most recently published prosecutions by Worksafe, highlighting the varying degree of penalties imposed.
The above summaries are only a small section of prosecutions by Worksafe since the Act came into force; however they highlight the significant fines that can be imposed for a breach under the Act. These fines can cause significant financial burden for businesses.
The summaries also highlight the need for businesses to review and implement health & safety practices. As a PCBU, it is the businesses’ responsibility to ensure that workers are protected. Further, the PCBU’s primary duty of care, as described in the Act, is to ensure, as far as is reasonably practicable, the health & safety of its workers and those whose activities in carrying out work for the PCBU, are not put at risk from work carried out as part of the conduct of the business or undertaking. If a PCBU fails to review and implement necessary changes to its health & safety practices, it may soon be facing prosecution and significant financial penalties as highlighted above.