Model Act: the good, the bad and the ugly

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Under the new health and safety legislation workplaces can expect an enforcement regime that focuses not on incidents, but on failures to assess and manage risks, according to an Australian expert in OHS law.

Michael Tooma told delegates to the Auckland edition of the LegalSafe conference series that he has an answer when a client tells him that despite having "done everything possible", if something should happen the courts will still find the company liable. "Now I can say that's not how it works any more. It's not about the incident any longer."

The Sydney-based head of occupational health, safety and security for Norton Rose Fulbright was sharing what he called "the good, bad and ugly" aspects of Australia's new OHS legislation, which became law a little over two years ago and is the template for New Zealand's own reforms. He said three significant benefits have arisen from Australia's new law, but there are also some major problems.

"Undoubtedly the greatest achievement of the legislation has been the introduction of the proactive due diligence obligation. It's done a marvellous job of raising health and safety issues to the boardroom agenda and has also realigned the legal duties around what we as safety practitioners understand as safety leadership."

The law spells out exactly how this is to be exercised. "[Officers] need to know what it is that they are dealing with, get an understanding of the risks at the coalface, and mobilise the resources, tools and systems to discharge those obligations, then monitor how effective they have been," he said.

"All of that is bread and butter stuff for a company executive. They do the same in relation to the myriad of other corporate governance issues that they are expected to manage, so the key achievement of the legislation has been to make safety an issue that can be dealt with in exactly the same way, and have the same level of acceptance."

As a result of these changes, he said, harder questions are now being asked of health and safety professionals, and they in turn are more able to request extra resources.

Another positive outcome is the obligation to have horizontal consultation where there are overlapping duties. "It's a wonderful thing because it forces people to think through the safety issues right at the beginning. It is bringing safety to the contract negotiations table in a way that I had not anticipated at the time the legislation was drafted." The third benefit of the new law is that it has moved away from an employer-centric focus, he said.

"We have moved from thinking about employer liability to consider which entities are responsible. This is a good thing because the further up the duty holder chain you go, the better the safety outcomes. Dealing with designers, manufacturers and suppliers, and controllers of plant and premises, has a far more remarkable effect on health and safety than prosecuting one employer after another."

The fact that Australia's first category 1 prosecution - the most serious type of offence - is against the company that maintained a concrete mixer involved in a fatal accident reflects this broader approach to liability, he said.

Among the negative aspects of the new regime, however, is the amount of time wasted on what Tooma regards as peripheral matters. Despite lengthy debate, confusion remains about who is or isn't a PCBU, and the definition of worker is also unnecessarily complicated.

"Someone went to a lot of trouble to come up with the broadest definition humanly possible, but because workers are excluded from the definition of PCBU one could argue that in a multi-level contract the developer is the only PCBU, which is nonsense. We have spent too much time talking about definitions, which is just spinning the wheels."

He is also critical of the time taken to begin taking prosecutions under the new law. "In the first six months it was like the regulators had been taken by surprise - nothing happened."

Subsequently regulators made full use of their two year limitation period, he said, with the result that the first case law is only now appearing. "Why is that bad? Because people are waiting to see what the courts say before they start taking any of this seriously."

The worst problem with the new Australian regime, however, are the inspectors who behave as if nothing has changed. "There is a whole bunch [of them] doing just what they did under the previous act, never mind that the sections they're relying on don't exist. One group even made up and issued their own notice, unbeknown to their bosses." Compounding this problem is the fact that some prosecutions, including those of officers, still relate to incidents.

"If that continues, and the courts permit it, all the good work around the proactive nature of duties will be undone. If the focus is on what happened on the day rather than the proactive manner in which the officers have ensured compliance, every officer in the country will take the view that this is a stitch-up. If law is enforced in an ugly way it will be ugly, and our experience on the ground in the first two years has been real ugly."

Tooma had five recommendations for New Zealand workplaces ahead of the law change:

• Look closely at contractual arrangements, especially those coming up for renewal.
• Identify your officers and introduce a due diligence regime using the criteria in the Australian legislation.
• Review your systems and be prepared to amend them, as none of the Australian companies Tooma works with was fully compliant, despite believing they were.
• Look beyond the workplace, as the legislation has a broad focus that includes things like public safety and product liability.
• Investigate incidents and - even more importantly - near misses, as these provide the best opportunities for prevention at least cost.

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source: alert24, 31/10/14, www.safeguard.co.nz