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Directors will be watching the Whakaari/White Island court proceedings closely to see how the court interprets their responsibilities – and liabilities – under the Health and Safety at Work Act 2015.
The Act places a positive duty on directors - as “officers” under the legislation – to exercise due diligence to ensure that workers are protected as far as “reasonably practicable”. But what this means has yet to be widely tested in court.
In the Whakaari/White Island case, 13 organisations or individuals are facing prosecution including tour operators, helicopter companies, government agencies and the directors of the trust that owns the land.
The duties these organisations have under the Act overlap, making it difficult to predict how the court will judge individual cases.
WorkSafe CEO Phil Parkes says the Act is deliberately not prescriptive on what “due diligence” and “reasonably practicable” should look like. This gives courts the flexibility to take unique circumstances into account.
For the regulator, the bottom line is that directors and managers need to be able to show they exercised good judgement in any health and safety environments and ensured all reasonable precautions were taken to protect their staff.
“I acknowledge that the way the legislation is framed doesn’t provide clear boundaries. So my guidance to directors is to apply that ‘reasonableness’ test,” Parkes says.
And when health and safety duties overlap, directors need to take extra care.
“Understanding overlapping duties is about understanding that the modern workplace is not linear. A good example is in construction where you could have a plumber, electrician, main contractor, subcontractor and concrete deliveries all operating in the same footprint.
“It is not enough for a director to say ‘well, I’m only looking after my concrete truck’. It is not reasonable to say ‘it’s not my site so I am not responsible’ because you are putting your employees into that environment.”
Instead of trying to second guess deliberately vague law, directors should ask themselves what they need to do to make sure their people are looked after, he says. If they do that, they can improve health and safety outcomes in their organisations and reduce the risk of prosecution by WorkSafe in the event of an accident.
Parkes says the obligation for directors to undertake due diligence is key to understanding how health and safety legislation should work in practice. The regulator expects directors to take positive actions to understand risks and develop mitigation strategies.
For Parkes, positive action means more than simply having policies in place and receiving regular reports. The way work is represented in company policy documents, health and safety procedures and board reports does not always match what WorkSafe sees on the ground, he says, and this gap between intention and reality can lead to harm.
“The expectation from WorkSafe is that directors are checking for that gap. And if there is a gap, they will ask management to fix it.”
This requires a shift from thinking about health and safety as a compliance issue – and rigidly defining obligations as boxes to be ticked off – to applying a health and safety lens to all business activity, he says.
One of his priorities for this year will be shifting WorkSafe’s focus from “what’s happening on a particular site when we visit” to getting directors and senior managers to think about how they plan work, Parkes says.
“One of the biggest challenges for New Zealand is we tend to treat health and safety as if it is something separate from everyday work. We talk about productivity, culture, business models… and then have a separate conversation about health and safety.
“Health and safety should be integral to every work conversation. This means thinking about it when we develop strategy, when we do business planning and when we develop new business models. At the moment I don’t think that is where the country is at.”
This will require a mindset change for some leaders, he says, from viewing health and safety obligations as compliance to seeing them as an opportunity to create positive cultural change and improve business operations.
“I’m confident that by changing their mindset to a value proposition rather than a liability not only will directors reduce the risk of action by WorkSafe, they will also improve the productivity of their organisations.”
Parkes stresses that this is not just an issue for boards. Management and workers also need to think about health and safety in a positive way.
“We don’t want the worker to put his hard hat on because a director is coming to do a safety walk. They should because they don’t want to get injured at work, because they have family responsibilities, because it is the right thing to do.”
As the Health and Safety at Work Act applies to work activity rather than to a workplace, the shift to more working from home (WFH) raises new challenges around ensuring the wellbeing of staff.
One of the potential pitfalls is not being able to stop at 5pm. People work late into the evenings because the laptop is there on the dining table. Another is maintaining connectivity to the workplace and not feeling isolated.
“COVID-19 has changed the landscape forever,” Parkes says. “People are coming back into offices but it happens less often and on a more flexible basis. Practically, the types of issues we have seen come through from COVID-19 and working from home are with things like isolation and fatigue.”
The challenge for directors in this new environment is to lock in the productivity gains and benefits to staff, such as ease of childcare or reduced commuting time, that WFH can deliver while exercising control to manage workloads and ensure people are connected to their teams when working remotely.
Daily check-ins for remote workers, ensuring staff have appropriate equipment and furniture, or that the organisation has sufficient technological resources might all be things for boards to enquire about.
“COVID-19 has given us the chance to rethink how we work. A health and safety lens should be about organisations thriving and workers prospering. Start by asking how you can get benefits for both individuals and the organisation?”
Through this approach, directors can signal a cultural shift that health and safety on WFH is about caring about their people and wanting them to be healthy and productive – rather than being about compliance and ensuring directors are not prosecuted.
“My preference is strongly that directors use the opportunity to signal a social purpose and benefit rather than compliance requirement.”
The historical focus of a health and safety policy has been on preventing physical injury or death, but these are only part of the total burden of harm, Parkes says. The majority of the impact is in occupational health harm such as hearing loss, respiratory illness and musculoskeletal disorders.
“What we now know is that more than 80% of the total burden of harm for New Zealanders is in occupational health – and that 17% is in mental health impact.”
As a consequence, WorkSafe is evolving its priorities – and its capability – to deal with wellbeing issues.
“Our ability to deal with builders on a construction site or forestry workers will remain important but we are going to have to be much more sophisticated and focussed on creating a work environment where organisations prosper and workers thrive. That’s about culture. That’s about leadership. That’s about diversity and inclusion. And that’s not traditionally core work for a regulator.”
Political and public expectation are for WorkSafe to do more in that area, he says.
“The work pressure issue is at the core of health and safety. We can’t deal with health and safety separately to day-to-day work,” Parkes says.
“For directors, that may mean they need to do more than receive a report once a month that includes health and safety KPIs. That’s too passive. My expectation is that directors are asking questions about resourcing and about how work is being undertaken on the front line.
“That might mean getting out of the boardroom and talking to staff about how they do their work. I would expect them to go beyond health and safety questions – have you got PPE? are you following correct procedures? - to ask productivity questions – are you under pressure? have you got the tools you need to do the job? This will give them richer insights into health and safety in their organisations.”
The article is featured in the Autumn 2021 issue of Boardroom magazine