Module One, Part D - Duties of Officers

Module One - Part One - Duties of Officers

This section contains information on the following topics:

It also contains the following tables and checklists:

 

Who is an Officer?

In relation to a PCBU, officers are:

  • company directors;
  • any partner in a partnership (other than a limited partnership);
  • any general partner in a limited partnership;
  • any person who holds a position comparable to a director in a body corporate or an  unincorporated body; and
  • any person who exercises significant influence over the management of the business or undertaking (e.g. the Chief Executive), but not including a Minister of the Crown acting in that capacity.

Every officer has a personal duty – it cannot be transferred to another person.

Officers have a duty to ensure that their business or undertaking complies with its health and safety duties and obligations.

Hi Viz Fact # 1

In Councils, Officers WILL include Mayors, Councillors and Chief Executives.  Whether any other senior employee is deemed an officer will depend on the extent of their influence over the whole business or undertaking.

 

Who is not an Officer?

Unless they fall into one of the officer categories above, for the purposes of HSWA the definition of officer does not include:

  • Health and Safety Managers, officers or advisors;
  • team leaders, line managers and supervisors;
  • people that have officer in their job title, such as Administration Officer; or
  • people who merely advise or make recommendations to those who come within the definition of officer.

 

Duties of an Officer Section 44, HSWA

This part of the guidance speaks to the role of officers in the Local Government environment who are either elected members or chief executives.

An officer (of the PCBU) must exercise due diligence to ensure that the PCBU complies with all its duties or obligations under HSWA.

An officer of a PCBU must exercise the care, diligence, and skill that a reasonable officer would exercise in the same circumstances, taking into account (without limitation)—

  • the nature of the business or undertaking; and
  • the position of the officer and the nature of the responsibilities undertaken by the officer.  

 

Hi Viz Fact #2

In exercising the duty of due diligence, an officer must meet at least the following six elements of the duty:

  • know about work health and safety matters and keep that knowledge up-to-date with health and safety matters;

  • understand the nature of the business and its hazards and risks;

  • ensure the PCBU has appropriate resources and processes to eliminate or minimise risks to health and safety;

  • ensure there are appropriate reporting and investigation processes in place;

  • make sure there are appropriate compliance monitoring processes in place; and

  • verify that resources and processes are fit for purpose and are being used.

 

 

Some good practice examples of how to meet these six obligations are shown in Table 4.

Table 4 - Due Diligence Obligations of an Officer

Keep up-to-date with health and safety matters

Understand the nature of the business and its hazards and risks

Ensure the PBCU has appropriate resources and processes to eliminate or minimise risks to health and safety

due diligence includes taking reasonable steps— to acquire; and keep up-to-date, knowledge of work health and safety matters.

S44(4)(a), HSWA

due diligence includes taking reasonable steps— to gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations.

S44(4)(b), HSWA

due diligence includes taking reasonable steps— to ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking.

S44(4)(c), HSWA

Good Practice Examples

Obtain general and industry-specific health and safety information from key organisations, industry specific associations and publications, and health and safety websites.

Undertake training in the principles of risk management and the legislative framework for health and safety at work.

Monitor health and safety reports – an agenda item at Council meetings, and review these with management to include health and safety statistics, incidents and initiatives.

Attend legal briefings.

Good Practice Examples

Review health and safety risks and how these are controlled.

Talk with workers using various methods such as focus groups, committees, health and safety representatives and surveys.

Weigh it up - determine what is reasonably practicable - consider the health and safety implications, monitor resource allocation, consider safety as a factor in all budget allocations.

Consider whether there is a proactive as well as reactive approach to managing health and safety.

Ensure appropriate risk management plans in place for events.

Good Practice Examples

Strive for continuous improvement – create, review and monitor health and safety budgets to ensure resource availability when needed.

Strive for an optimum mix of staff health and safety experience to enable safe, efficient and effective workplace activity.

Put in place processes such as safety impact assessments to control health and safety risks especially with respect to procuring plant, substances and structures and for capital expenditure and cost cutting programmes.

Ensure there is a corporate structure within the PCBU to manage the risks, and that the reporting process provides timely and accurate information to officers.

Ensure there are appropriate reporting and investigation processes in place

Ensure there are appropriate compliance monitoring processes in place

Verify that resources and processes are fit for purpose and used by the PCBU

due diligence includes taking reasonable steps— to ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards, and risks and for responding in a timely way to that information.

S44(4)(d), HSWA

due diligence includes taking reasonable steps— to ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under this Act.

S44(4)(e), HSWA

due diligence includes taking reasonable steps— to verify the provision and use of the resources and processes referred to in S44(4) (c) to (e).

S44(4)(f), HSWA

Good Practice Examples

Set up processes to enable workers and others at the workplace to report near misses, incidents, hazards and risks.

Establish robust processes for responding to information received in a timely manner and ensure that action is taken and recorded.

Ensure the risk assessment process is thorough, covers all work activities and workplaces and that everyone follows this process.

Put in place emergency response plans, test and review regularly.

Be confident matters are investigated by the Council in a timely and effective manner.

Good Practice Examples

Choose the right people in the council who will have health and safety management responsibilities that they are well trained for. Outline what these responsibilities will be and the reporting functions.

Set up an accessible health and safety management system and ensure there is compliance. Systems need to include matters such reporting of notifiable incidents, consultation, acting on improvement notices, training, and requirements for any use of personal protective equipment.

Putting in place (and on-going review of) effective worker engagement and work participation practices

Undertake regular legal compliance audits against the Act.

Good Practice Examples

Establish processes to review leadership and delivery of health and safety policy in all Council contacts.

Periodically commission independent reviews and audits of health and safety systems, processes and resources.

Review systems and processes after incidents.

Implement a system of peer reviews and utilise as an opportunity to gain first hand understanding of risk and extent of legal compliance.

 

Roles of Officers who are local authority elected members

This part of the guidance refers specifically to the role of officers who are local authority elected members.  It is helpful for elected officers and chief executives to understand this difference and for chief executives to be familiar with the steps they can take to support their elected officers to perform their duties.

A key role for officers (both elected and appointed) in local authorities is to be clear about the differences and boundaries between governance and management roles.  This clarity will help ensure good working relationships and enable a well-lead and improved health and safety framework.

The legislation places a positive duty on elected members – as officers of a PCBU – to exercise due diligence to ensure that the organisation complies with its health and safety duties and obligations.

While elected members will not commit an offence under sections 47-49 HSWA for a failure to comply with the due diligence duty in section 44 in their capacity as an elected member of a Council they must nonetheless exercise the duty of due diligence.  The exclusion from liability does not extend to their officer function when acting as a director of a CCO.  For the avoidance of doubt:

  • elected members will have the duties of an officer when acting in their capacity as an officer (e.g. Director) of a CCO;
  • elected officers will not otherwise have due diligence obligations for that CCO;
  • All officers may also be liable for other offences such as failure to comply with an improvement notice.

It would be unwise for an elected member to rely simply on the fact there is a health and safety management system in place. They need to understand how the system works and take reasonable steps to make sure it is working.

 

Key areas for elected officers to work with management

There are four key areas where elected members can have an influential role and work with management to ensure that the PCBU is meeting its health and safety obligations and that the officers are exercising due diligence and taking steps to understand the PCBU's operations and health and safety risks.   These four areas are:

  1. Policy and Planning
  2. Delivery
  3. Monitoring
  4. Review

These areas form a framework on how to lead, plan, review and improve health and safety. The responsibilities of elected members and managers with respect to each area will vary however together these steps tend to demonstrate that reasonable steps are being taken to understand and manage health and safety risks.

Below is a summary of suggested steps elected members and management can take in each of these four areas.

These are adapted from the Health and Safety Guide: Good Governance for Directors, prepared by NZ Institute of Directors. We recommend that all officers read and work through this publication in its entirely.  In depth guidance is linked as highlighted after each summary.

Table 5 - Steps to assist Elected Officers to meet their due diligence obligations

Governor/Director (elected member)

Management

1. Policy and Planning

Determine a charter setting out the elected members’ role in leading health and safety.

Determine high level strategy and policy, including providing a statement of vision, beliefs and policy.

Establish health and safety targets for the organisation with the CE that will enable the elected members to track performance.

 

Hold management to account for implementing strategy.

Manage the health and safety performance of the CE, including specifying expectations and providing feedback.

Determine and implement business and action plans to give effect to the strategy.

Determine targets that will enable management to track their performance.

Implement performance review processes for workers that specify health and safety expectations, and provide feedback on performance.

Further information  Health-and-Safety-Guide-Good-Governance-for-Directors.pdf pp 15-18

2. Delivery

Set a clear expectation that the organisation has a fit-for-purpose health and safety management system.

Exercise due diligence to ensure that the system is fit-for-purpose, effectively implemented, regularly reviewed and continuously improved.

Be sufficiently informed about the generic requirements of a modern, ‘best practice’ health and safety management system and about the organisation and its risks to know whether its system is fit-for-purpose, and being effectively implemented.

Ensure sufficient resources are available for the development, implementation and maintenance of the system – including staff expertise and sufficient funding to ensure effective implementation.

Lead the implementation of health and safety management systems.

Identify resource requirements for the development, implementation and maintenance of the health and safety system, obtain approval for their provision, and secure and allocate resources accordingly.

Allocate responsibility and accountability to managers and workers for implementing the system.

Monitor the effectiveness of the system and implement continuous improvements.

Further information Health and Safety Guide - Good Governance for Directors pp 18-22

  3. Monitoring

Monitor the health and safety performance of the organisation.

Outline clear expectations on what should be reported to elected members and in what timeframes.

Review reports to determine whether intervention is required to achieve, or support organisational improvements.

Be familiar with processes such as audit, risk assessment, and incident investigation, sufficient to enable proper evaluation of the information before them.

Seek independent expert advice when required to gain the necessary assurance.

Give effect to the direction of elected members by implementing a health and safety management system using the ’plan, do, check, act’ cycle.

Provide elected members with reports on health and safety management system implementation, and performance as required.

Implement further actions following review of reports.

Ensure root cause investigations are carried out using independent investigators in the case of serious incidents.

Further information Health and Safety Guide - Good Governance for Directors  pp 23-25

  4. Review

Ensure the elected members conduct a periodic (eg annual) formal review of health and safety to determine the effectiveness of the system and whether any changes are required.

Ensure the elected members consider whether an external review is required for an independent opinion.

Organise regular audits and reviews of the health and safety management system (internal and external) and its implementation.

Take remedial actions as required arising from any audit or review.

Report on the outcomes of audits and reviews.

Assist with the formal health and safety review by providing information and other input as required.

Further information Health and Safety Guide - Good Governance for Directors pp25-26

 

Elected officers can use this checklist of questions as a means of exercising and assessing their performance of their due diligence obligations.

 

Checklist 2: Useful questions for Elected Officers

Adapted for Elected Members from the Health and Safety Guide: Good Governance for Directors, Appendix A: Directors Health and Safety Checklist

This Checklist provides key questions elected members can ask to provide leadership, hold management to account, and create a healthy and safe workplace culture.

 Question

How do elected members demonstrate their commitment to health and safety?

 How do elected members ensure that the organisation’s risks are assessed and appropriate mitigation measures put in place?

 How does the organisation involve its workers in health and safety?

How do elected members ensure that the organisation’s health and safety targets are challenging, realistic and aren’t creating unintended consequences?

 What data is elected members receiving on health and safety? Is this sufficient?

How connected are elected members to what happens at the organisation’s work sites? What measures are in place to inform them?

Does the organisation have a schedule of audits and reviews to ensure the health and safety management system is fit for purpose?

How does the organisation ensure all workers are competent and adequately trained in their health and safety responsibilities and accountabilities?

Does the organisation have sufficient resources (people, equipment, systems and budget) for its health and safety programme?

Does the organisation have processes in place to ensure that actions identified in incident reports, audits and reviews are communicated to the appropriate level within the organisation and effectively addressed?  How do elected members know?

Does the organisation have policies and processes in place to ensure contractors used by it have satisfactory health and safety standards?

How does the organisation’s performance compare with other comparable organisations and how do elected members know?

How is health and safety related success recognised and celebrated?