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Health & Safety

6 December 2017

WorkSafe (the health and safety regulator) has recently announced that it has accepted enforceable undertakings from Zespri. These undertakings are in connection with a fatal quad bike incident, which occurred in May 2016 on a Tauranga orchard. The victim was a worker engaged by a contractor of Zespri.

Enforceable undertakings are a tool that Worksafe can use as a positive alternative to prosecutions under the Health & Safety at Work Act 2015.

This case highlights two interesting points: first, what are the overlapping duties between different parties particularly when you contract out certain activities; and secondly, whether there are steps you can take to increase the likelihood of this outcome rather than prosecution (an enforceable undertaking is not usually an accepted alternative to prosecute where a fatality is involved). Key points to take out from this case, and from other cases where WorkSafe has accepted enforceable undertakings, are outlined below.

Overlapping duties and collaboration with contractors

Practical steps you can take:

  • Leverage your influence during contract negotiation – this is when you can require appropriate standards.
  • Set clear expectations – where possible include KPIs and regular reporting against these.
  • Monitor performance – audit against KPIs, reward good results, and educate contractors where improvements are required.
  • Actively assist contractors to build their health and safety capability, particularly where your position enables you to do so.
  • Consult and engage with your contractors on key issues and procedures rather than imposing a solution. This will generally result in far greater buy-in.

What to do when an incident does happen

  • Be there (genuinely) for the victim’s family and work mates.
  • Identify lessons quickly and act on these.
  • Share these lessons with the wider industry.

Key theme

The key theme from the various cases where WorkSafe has not taken prosecution action is that the party in question has prioritised the moral obligation to protect people ahead of the company’s legal position. This is demonstrated by a:

  • Genuine concern for, and engagement with, victims and their families
  • Willingness to learn from the incident and make appropriate changes.
  • Willingness to share lessons widely and educate others (absorbing the cost of doing so).

The role of the CEO

CEOs play a pivotal role in establishing culture:

  • Demonstrate through actions that you genuinely believe good health and safety is beneficial for business.
  • Spend time talking to workers and contractors about health and safety.
  • Engage workers, contractors and their employees in the health and safety process.
  • Develop a fair culture where workers are encouraged to self-report mistakes and are not subject to criticism or penalties.
  • Engage your board and find ways to report all incidents (near misses as well as negative outcomes or a reduction in these).

Good health and safety practices are beneficial for business. They not only reduce the risk of incidents, but also enable you to “weather the storm” much better if an incident does happen.

Source: In Brief Summer 2017

Author: Sarah Leppard

InBrief Summer 2017 18

Please contact Sarah Davis if you would like further information on health and safety legislation.