2020 Compliance trends and emerging issues

COVID-inspired compliance challenges

Managing New Zealand’s COVID response included many law changes. Most of these were short-term and were enabling rather than creating new legal compliance obligations. We haven’t observed many non-compliances being reported as a direct consequence of the COVID law changes. 

From a legal compliance perspective more issues have arisen because of the practical challenges of the new-normal during the COVID pandemic. The main areas of law were health and safety, and privacy concerns. 

COVID – Health and safety 

The most commonly reported COVID-related health and safety compliance issue was that many employers didn’t recognise that when people start working from home their home becomes a workplace for the Health and Safety at Work Act (HSW Act). Not making sure workstations in the home were adequately set up to meet minimum health and safety requirements was a commonly reported issue. 

Failing to meet minimum PPE demands for working in a pandemic environment, particularly earlier in the year, was another common health and safety compliance issue for many operational organisations. Issues about inadequate PPE training and fitting of PPE were also reported. 

COVID – Employment law

Some front-line operational businesses struggled to meet minimum employment law requirements for managing shift-workers. Also, we observed more non-compliances for properly granting and managing annual leave requests, due largely to COVID-related operational demands. 

COVID – Privacy 

Some businesses reported that people working from home faced increased challenges to maintain the privacy of work-related personal information. Issues included: the physical environment where others might be able to see what’s on a screen, security of physical documents, and working on a personal device as they didn’t have a suitable mobile work device for working from home.  

Health and safety legal compliance 

The trend of WorkSafe bringing more health and safety prosecutions continued in 2020. Penalties and reparation orders imposed by the Courts for successful prosecutions seem to be steadily tracking up in value as well. 

A very recent example is a prosecution in Nelson where a farmer failed to make sure that the safety features on a side-by-side vehicle were properly maintained, including a faulty seat belt. An accident happened and a volunteer worker (WOOFER) was killed. 

The farmer was convicted of failing to safely maintain the side-by-side vehicle (vehicles are plant under the HSW Act) and fined $275,000 plus ordered to pay $110,535 in reparation.  

In November, WorkSafe announced its first prosecution of company directors under the HSW Act as a result of its investigations into the Whakaari/White Island tragedy. Here’s a link to our article about this prosecution. 

Other observations about health and safety compliance: 

• People are increasingly taking mental health and wellbeing into consideration, as well as physical health and safety
• Concerns have been raised in some organisations about paid leave and training for health and safety representatives. 

Privacy compliance

Publicity around the new Privacy Act, which came into force on 1 December 2020, has driven more interest in privacy compliance. The new duty to notify privacy breaches and the Privacy Commissioner’s new enforcement powers, which we get the sense he will proactively use, and increasing concerns about data security, will see privacy continue to be a hot topic into 2021. 

The Privacy Commissioner’s website has some good resources to help organisations improve their privacy compliance. 

In the past year we’ve observed organisations struggling with the following privacy compliance obligations: 

• Having at least 1 designated privacy officer
• When collecting personal information directly from individuals, taking reasonable steps to make sure they are aware of the matters in Privacy Principle 3 (for example: the purpose of collecting the information, details of who is collecting the information, and their rights to access and correct the information) 
• Keeping personal information for longer than it was needed for the purposes for which it can be used. 

Other legal compliance observations in 2020

Last year’s trend of governance becoming more engaged with compliance has continued, with more directors asking to be included in the legal compliance reporting process. The priority areas here are their Companies Act (or other governing legislation) and HSW Act duties.

The Holidays Act continues to create challenges. These include the correct calculation of leave payments, particularly where staff work on public holidays. It also appears that there has been an increase in non-compliance with the duty not to unreasonably refuse annual leave requests during the past year.