WorkSafe has charged three individuals under section 44 of the Health and Safety at Work Act 2015 over the Whakaari/White Island eruption tragedy.
Section 44 imposes a due diligence duty on officers of an organisation. It was a new duty in the HSW Act when it came into force in mid-2016 and this is the first WorkSafe prosecution for a breach of it.
The honeymoon for officers is over, and these charges could be a frightening wake up call for many who govern or lead businesses.
Section 44 requires directors and other governors, plus chief executives, and possibly other senior managers, to exercise ‘due diligence’ to ensure the organisation is complying with all its duties and obligations under the HSW Act. A breach can result in a fine of up to $600,000 and imprisonment for up to 5 years, although the White Island charges appear to be for a ‘tier 2’ breach which has a maximum fine of $300,000.
While the facts of any given case will inform what might be construed as “the care, diligence, and skill that a reasonable officer would exercise in the same circumstances”, section 44 also makes some minimum requirements very clear. These include taking reasonable steps to:
- acquire, and keep up-to-date, knowledge of work health and safety matters
- gain an understanding of the nature of the operations of the business or undertaking of the organisation and generally of the associated hazards and risks
- ensure that the organisation has (and uses) appropriate processes to:
- eliminate or minimise risks to health and safety (and has and uses appropriate resources for this purpose)
- receive and consider information regarding incidents, hazards and risks and respond in a timely way to that information
- comply with any duty or obligation of the organisation under the Act
- verify that these processes are actually happening and resources are being provided.
While the due diligence legal duty rests squarely on the shoulders of all officers, there’s much that we’d recommend officers can do toward meeting their duties by asking management for answers to the following questions:
- Can you please give me the information and resources to enable me to clearly understand the nature of our operations and generally understand the associated hazards and risks? Can you also please keep me updated of any changes to our operations, hazards and risks?
- Please explain to me the resources and processes used by the business to eliminate or minimise risks to health and safety, and to receive, consider and respond to information about incidents, hazards and risks.
- What process do we have for identifying and complying with our legal obligations under the HSW Act and regulations? How do we verify that everything that should be happening, is happening?
A culture of health and safety needs to be driven from the top down in every organisation. The officers’ due diligence duty is squarely aimed at promoting and supporting health and safety leadership from the top, and also about reinforcing accountability in situations where that leadership is not happening.
Over the past year we've seen a big increase in directors and other officers engaging in assessing their own compliance with the section 44 duty. Also, more officers are seeking positive assurance that their organisations are identifying and complying with all their health and safety legal duties. No doubt recent events will serve to accelerate this trend.
If anything good can come out of the White Island tragedy we sincerely hope it will be to encourage all business leaders to double-down on improving workplace health and safety in New Zealand.