Module One, Part H - WorkSafe as Regulator

WorkSafe as Regulator

This part of the module covers the following topics:

 

Role of the Regulator

WorkSafe New Zealand is New Zealand’s primary work health and safety regulator.

Other government agencies (called designated agencies – Section 191, HSWA) carry out health and safety regulatory functions for certain sector work areas.

For example:

  • Maritime New Zealand for ships as workplaces and work aboard ships.
  • Civil Aviation Authority for work preparing aircraft for flight and when in operation.

WorkSafe approach

As a new Regulator, WorkSafe approached its Role by explaining it will take a three-pronged approach – to:

  • Educate
  • Engage
  • Enforce

The education function includes WorkSafe and its inspectors working with duty holders to improve workplace health and safety. This can be achieved by:

  • advising Council officers, workers and others at workplaces of their responsibilities and rights under the Health and Safety at Work Act 2015 (HSWA) and regulations, and
  • providing guidance material on HSWA and regulations.

The engagement function includes:

  • working with industry associations and social partners
  • running workshops, seminars and other educational events and
  • carrying out duty holder reviews (e.g. reviews of health and safety systems)
  • WorkSafe Working collaboratively with PCBUs, workers and their representatives to embed and promote good health and safety practices.

WorkSafe will also use enforcement to:

  • promote and achieve compliance with the law,
  • make sure duty holders take appropriate action to manage risk and
  • make sure duty holders who breach health and safety requirements are held to account.

Worksafe inspectors

WorkSafe has warranted inspectors who visit workplaces. An inspector’s role is to ensure all duty holders comply with health and safety law.  They have broad powers of entry and inspection.

The main responsibilities of an inspector are to:

  • provide information and education - advise people at workplaces of their responsibilities and rights
  • assess workplaces - conduct planned inspections which have currently focussed on high risk industries, specific hazards that pose serious risk, and the causes of common injury.
  • investigate incidents -investigations may be conducted after a notifiable event enforce health and safety law

Inspectors may also visit workplaces to conduct examinations, undertake assessments and investigate events, review disputed provisional improvement notices (PINs) issued by health and safety representatives and help Councils, workers and others resolve health and safety issues (e.g. issues arising from ceasing unsafe work).

Inspector's powers of entry and inspection (Section 168 HSWA)

An Inspector has powers to do the following:

  • conduct examinations, tests, inquiries or direct a Council to do these things
  • take photographs or measurements, make sketches and recordings
  • require the workplace or specific things or space in the workplace to not be disturbed for a reasonable period pending investigation
    • require Council or the person who appears to be in charge to:
      • produce information about the work, workplaces or workers
      • produce information relating to the Council's health and safety compliance
      • permit the inspectors to examine to make copies of information
      • require a Council or the person who appears to be in charge to make or provide a statement

WorkSafe has developed a Duty Holder Review process. For further information, see below.

 

Enforcement tools

Inspectors have a range of measures that can be used to ensure remedy of unsafe situations should they reasonably believe that HSWA and regulations have been breached or there is immediate risk to health and safety. Where there is a breach of HSWA or regulations, notices can be issued or other actions can be taken by WorkSafe up to and including a prosecution. Professional judgement, guided by relevant policies and the details of each situation will be used to determine which enforcement option is appropriate. Tools available to inspectors for enforcement and compliance matters include:

  • An improvement notice (section 101):
    • Can be issued if an Inspector reasonably believes that a person is contravening a provision of HSWA or the regulations or is likely to do so.
    • Can require the Council to remedy the contravention, prevent a likely contravention from occurring or remedy the thing or activity causing the contravention or likely to cause the contravention.
    • Must contain details about how the relevant provision of the Act of HSWA or other regulations are being or are likely to be contravened.
    • Must set out a reasonable period within which the person is required to remedy the contravention or likely contravention;
    • Can include recommendations of measures that could be taken to remedy the contravention or prevent the likely contravention.  
    •  
  • Prohibition notices (which may be given orally and then confirmed by written notice) (section 105)
  • Non-disturbance notices (which require preservation of sites, including a thing associated with the site) (section 108)
  • Remedial actions (section 119)
  • Enforceable undertakings (section 123)
  • Infringement notices (section 138)
  • Enforcement action - Prosecutions (section 141)

Under certain circumstances, instead of taking enforcement action, an inspector may provide directive advice (e.g. a letter or verbal advice). WorkSafe will record letters and verbal directions to refer to if there is a similar breach in the future.

 

Duty Holder Reviews

Duty Holder Reviews are done when a Duty Holder is asked by an inspector to review an incident that has occurred. The process is intended to identify why the incident happened and what actions need to be taken by the Duty Holder to prevent it happening again.

Duty Holders are assisted in this by a specialist WorkSafe team, who oversee a Duty Holder to complete a review. They guide the Duty Holder to identify causes as to why the incident happened and what actions need to be taken to prevent it happening again. WorkSafe is interested in seeing that a Duty Holder has taken or will be taking the action/s detailed in the report as this provides assurance that improvements have been made or voluntary compliance action/s have been taken.

The ideal result from a Duty Holder Review is lessons have been learned and the improvements made to the workplace health and safety systems are sustainable. The Duty Holder is expected to fix not only the immediate problem, but also address the various factors that contributed to it to make sure that it will not happen again.

WorkSafe will review the Duty Holder report to ensure that the Duty Holder has completed a full analysis and found ways to make improvements where they can. A Inspector may visit the workplace to check that the improvements described in the report have been completed or are under way.

The following documents will help you understand WorkSafe expectations of the Duty Holder Review:

 

Offences and Penalties (including Sections 47 - 49 HSWA)

The range of penalties and associated penalties for breach under the HSWA and regulations vary.   The most serious penalties are for the offences found in sections 47 and 48 of HSWA which relate to offences of reckless conduct in respect of a duty or failing to comply with a duty that exposes an individual to risk of death or serious injury or serious illness.   Offences under those sections can result in imprisonment.Penalties depend on the offence and what type of duty holder the offender is:

  • PCBU
  • Officer
  • Individual

In addition to court-imposed penalties, infringement notices can be issued by a regulator for specified offences against HSWA or regulations. The person receiving the infringement notice is required to pay an infringement fee or may appeal against the notice in court.

Offences related to breach of duty

The most serious offences under HSWA are for failures to comply with health and safety duties under sections 36 to 46 of HSWA. These cover the duties of Councils, officers, workers and other persons at workplaces. WorkSafe, as the prosecutor must prove the offence beyond reasonable doubt.

The offences are:

  • Reckless conduct in respect of duty, without reasonable excuse, that exposes an individual to a risk of death or serious injury or illness (section 47 HSWA) )
  • Failure to comply with a duty that exposes an individual to a risk of serious injury, serious illness or death (section 48 HSWA)
  • Failure to comply with a duty set out in part 2 or 3 of HSWA (section 49 HSWA)

Volunteers cannot be prosecuted for failing to comply with a health and safety duty under sections 47-49 HSWA (Section 51 HSWA, unless it is a duty under section 45 (duty of workers) or section 46 (duties of other persons at workplaces.

Health and Safety offences that apply to other obligations

Depending on the offence and who has committed the offence there are a range of maximum penalties.

Refer to the WorkSafe Factsheet – Offences and penalties under the Health and Safety at Work Act 2015 for a more comprehensive outline of offences and the associated penalties

Prosecutions

WorkSafe, as the prosecutor must prove any offence under HSWA beyond reasonable doubt. Only WorkSafe can bring a prosecution under HSWA. However a private prosecution under section 144 HSWA can be brought if:

  • The person bringing the prosecution has notified the regulator of their interest
  • The person has been informed that:
    • The regulator has not and will not be bringing a prosecution or issuing an infringement notice under HSWA in relating to the same incident, situation or set of circumstances and
    • A regulator agency has not and will not be bringing a prosecution under any Act in respect to the same incident, situation or set of circumstances (sections 142 and 144 HSWA)

Under certain circumstances, the court may give leave to bring a private prosecution.

Sections 146 – 148 HSWA outlines time limits for prosecutions brought by WorkSafe or under a private prosecution.

Court Orders

When sentencing for offences (under sections 150-151 HSWA) the court can make a number of orders that are in addition to fines and imprisonment. Section 151 outlines the sentencing criteria that the courts must use to decide what the right sentence is.

These are:

  • Adverse publicity orders (section 153 HSWA)
  • Orders for restoration (section 154 HSWA)
  • Work health and safety project order (section 155 HSWA)
  • Court-ordered enforceable undertaking (section 156 HSWA)
  • Injunctions (section 157 HSWA)
  • Training orders (section 158 HSWA)

It is an offence not to comply with any of the court imposed orders (other than injunctions or court-ordered enforceable undertakings) (section 159 HSWA)

Under section 152 HSWA the court can order the offender to pay money towards t WorkSafe's cost in prosecuting the offence, including investigation and legal costs.

Insurance

Insurance cannot be used to pay fines or infringement fees imposed under HSWA. It is an offence under section 29 HSWA to offer or enter into an insurance policy to pay a fine or infringement fee. However insurance can be used to make reparation payments ordered as part of sentencing.

Rights of Appeal

Convictions under HSWA or regulations can be appealed.