The Health and Safety at Work Act 2015 (“the Act”) will come into effect on 4 April 2016. We are awaiting the release of Work Safe’s formal guidance document in early 2016 which will set out its views on compliance with the Act and its associated regulations. In the meantime, the existing Health and Safety in Employment Act 1992 remains in force.
A significant new duty that will become part of the law is that an officer of a Person Controlling a Business or Undertaking or PCBU (see the previous article published on 14TH October 2015, must exercise “due diligence” to ensure that the PCBU complies with its duties under the Act, that is to control risks to health and safety at work.
An “officer” is a director, partner, board member or other persons who have a very senior governance role in the organisation, for example, a Chief Executive Officer.
The officer’s due diligence duty will only apply to persons who hold roles in the business or undertaking that exercise a significant influence over the management of the business or undertaking. The Act now expressly recognises that an officer does not include a person who merely advises or makes recommendations to an officer of the organisation. That said, this distinction is fine, and so management will want to carefully consider who is responsible for implementing the health and safety policies of the PCBU.
“Due diligence” means that an officer must make sure he/she performs certain functions to ensure the PCBU complies with its duties, to the extent that the officer has the ability to influence and control the management of the risks.
The duty is wide ranging, and will include taking reasonable steps to acquire and keep up-to-date knowledge of relevant work health and safety matters, and ensuring and verifying that the PCBU has, and implements, processes for complying with any duty or obligation that the PCBU has under the Act.
The officer’s due diligence duty is not the same as the PCBU duty. An officer does not have to ensure the health and safety of the PCBU’s workers, and instead the officer must exercise due diligence to ensure that the PCBU is meeting its obligations.
While there was a similar but more narrow provision at section 56(1) of the Health and Safety in Employment Act 1992, the officer’s due diligence duty brings the obligations of persons at the governance level of a business or undertaking to the fore. The new legislation aims to reinforce the idea that health and safety at work is everyone’s responsibility, but especially those in leadership roles.
Officers beware! It will be no excuse to say that you had no knowledge of health and safety matters, and there is risk in claiming that you did not play an active role in the management of the company if you occupy a role in management.
We are able to prepare or review your health and safety policies, and advise you in respect of your business’ compliance with the new Act. Sam Houliston, Associate at our Highbrook office, has previously worked as a health and safety prosecutor for the Department of Labour. He can be contacted direct on 09-969-6640 or firstname.lastname@example.org to discuss your requirements or any concerns.