Failure to comply with the directions contained in a prohibition notice may constitute an offence under the Health and Safety at Work Act 2015
Tools down! Stopping unsafe work under the HSWA – By Jennifer Mills and Jess Greenheld
As a result of the new Health and Safety at Work Act (HSWA), organisations have been required to prioritise the issue of their workers’ health and safety so that they are compliant with the stricter obligations placed upon them. While some have taken a diligent and proactive approach, others have been more resistant to change.
Statistics issued by the regulator, WorkSafe, disclose that 53 work-related fatalities have occurred in the past year. The count for non-fatal notifiable injury incidents places in the thousands. Against this background, attention inevitably turns to the tools of enforcement which are contained in the HSWA. How can unsafe practices by a duty holder be addressed and, more importantly, stopped?
Duties under the HSWABy way of quick recap, the HSWA places the primary duty of care for health and safety on a person conducting a business or undertaking (a PCBU). This duty requires the PCBU to ensure, so far as reasonably practicable, the health and safety of its own workers, any other workers whose work is influenced or directed by the PCBU, and other persons who may be affected by the work which is being carried out.
The HSWA also assigns a range of specific duties to ‘upstream’ and ‘downstream’ PCBUs, and attributes personal responsibility to ‘officers’, being persons in a position which allows them to exercise significant influence over the management of the PCBU to ensure that the PCBU complies with its duties. In reflection of the inclusive nature of the HSWA, workers and the general public are also responsible to some degree for the health and safety of themselves and others. As such, everyone has a role to play.
Enforcement methodsTo ensure that these duties are performed, the HSWA contains a number of enforcement measures, which may be driven internally or externally. Generally, these focus upon the identification and cessation of unsafe practices.
First, a worker may stop or refuse to carry out work if they believe the work is unsafe or would expose them to a serious health and safety risk. If this path is taken, the worker must notify the PCBU that they have ceased work and attempt to resolve the matter with the PCBU as soon as is practicable.
The worker may then continue to refuse to carry out the work if the matter is not resolved between the two parties and the worker reasonably believes that carrying out the work would expose them or any other person to a serious risk to health and safety.
In addition, a health and safety representative within the organisation is empowered to direct any worker who is in that representative’s work group to cease work if that representative reasonably believes that carrying out the work would expose the worker, or any other person, to a serious risk to health and safety.
Generally, the health and safety representative ought not to give such a direction unless the matter is not resolved within a reasonable time after consultation with the relevant PCBU. However, a direction may be given without consultation if the risk is so serious, immediate or imminent that it is not reasonable to require those steps to take place.
If a worker chooses or is otherwise required to cease work under these provisions, the PCBU is entitled to direct the worker to carry out alternative work at the same or another workplace, if that work is safe and appropriate. The worker must remain available to perform this alternative work until they are able to recommence their original duties. Any disputes which arise in this context may be referred by the worker, the health and safety representative or the PCBU to WorkSafe.
Prohibition noticesSimilar actions may be taken by safety inspectors or WorkSafe itself, who have the power to issue prohibition notices if they reasonably believe that an activity which involves or may involve a serious risk to health and safety is occurring, or may occur, at a workplace.
This notice may prohibit the performance of work, or a certain kind of work activity, or the performance of work in a specified way – for example, the use of a certain tool, piece of equipment or machine. It may continue to apply until the inspector or WorkSafe is satisfied that the matter or activity that gives rise to the risk has been remedied.
Whilst a prohibition notice may be given verbally by the issuer, it must be followed up in writing as soon as is practicable. The notice must state the belief that grounds for the issue of the prohibition notice exist, and the basis for that belief. It must then further describe the matter or activity that the issuer believes gives rise, or will give rise, to the risk to health and safety. The notice may also contain non-binding recommendations in relation to the performance of the work.
Failure to comply with the directions contained in a prohibition notice may constitute an offence under the HSWA, attracting a fine not exceeding $100,000 for individuals and $500,000 for any other person on conviction. It is therefore extremely important that the notices are complied with, despite the potential disruption or cost to the organisation.
Next stepsWith this in mind, we turn to outline some steps which may assist an organisation in managing their operations, and minimising disruptions, upon being issued a prohibition notice.
Identify the scope of the prohibition noticeProhibition notices may attach to a particular operation, machine, process, tool, activity or, in some cases, the entire workplace. Each organisation ought to become familiar with the exact scope of the notice so that it can identify whether the work can continue in an adjusted, safer form.
For example, if the safety inspector prohibits the carrying on of an activity in a specified way – for example, by using a certain tool – the organisation ought to check whether the activity can be performed using a different tool or with the addition of more safety equipment. These clarifications ought to be obtained in writing from the issuer.
Stop the work which is covered by the prohibition noticeAn organisation ought to tread carefully if it has been issued with a prohibition notice. Under no circumstances should it continue to perform work which is covered by the notice, even if the organisation does not agree with the notice. As mentioned above, deliberately ignoring or disobeying a prohibition notice may open the organisation up to prosecution and significant fines.
Remedial action may also be taken by WorkSafe if a person fails to take reasonable steps to comply with the requirements of a prohibition notice. This involves taking action to ensure that certain operations, or the workplace itself, are safe. WorkSafe is entitled to recover the cost of such action which it considers necessary from the organisation.
Decide whether to appeal the orderIf an organisation considers that it was not reasonable to issue a prohibition notice in the circumstances, it may challenge the notice under the HSWA. In particular, the organisation may apply to WorkSafe for an internal review of the decision to issue a prohibition notice or appeal the decision in the District Court.
However, it is important to note that commencing these processes does not automatically act as a stay on the notice. Therefore, the organisation ought to wait for a specific direction before they continue the prohibited activity. It may be that only a few steps are required before the prohibition notice is lifted, or downgraded to an improvement notice, which allows the continued performance of the work at issue.
It is also important to recognise that the grounds of appeal are limited to the reasonableness of the decision. As such, an organisation will not get anywhere by arguing technicalities. The HSWA specifically states that a notice is not invalid merely because of any defect, irregularity, omission, or want of form. Such errors are able to be changed by the inspector or WorkSafe at a later date.
Moving forwardAn appropriate response to the ‘warning signals’ issued by safety inspectors or WorkSafe may protect an organisation against burdensome financial and productivity costs, as well as against risks to the health and safety of its workers and other persons.
Ultimately, the best way to deal with a prohibition notice is to take it seriously, and seek to minimise or eliminate the risk associated with the hazard. In doing so, the organisation is able to take notice of its obligations under the HSWA before an accident actually occurs.
Jennifer Mills is a partner and Jess Greenheld a law clerk at Anthony Harper, a leading New Zealand commercial law firm with offices in Auckland and Christchurch