I did a Masters paper in health and safety law at the University of Melbourne. It was really good, although obviously focused on the Australian law rather than NZ (which is largely, but not entirely, the same).

Steve H is right that the legal standing and effect of safety terms/waivers will be an issue considered by the Court in the WorkSafe v Whakaari Management Limited & Ors prosecution in 2023.

For now, my take on the issue is:

1. The Health and Safety at Work Act is clear that duty holders can't contract out of their health and safety duties.

2. This doesn't mean that an acknowledgement form has no purpose. For example, a waiver can potentially protect an operator against civil claims (eg for damage to property or personal injury) Personal injury protection is not commonly needed in NZ because of our ACC system, but a waiver can still be useful for adventure activity operators because of the significant number of international visitors doing their activities (pre-COVID anyway).

I encourage everyone to read the consultation documents and submit on this. Reform is important and will likely be with us for a long time, so it's important the Government gets it right.

This is an area where things are changing fast and the answers are complex. The Government has expanded the scope of the Public Health Orders several times, and more organisations are now doing risk assessments and considering whether vaccination is a reasonable requirement for some (or all) roles. It is important for organisations to consult with their workers during the risk assessment process (you'd be surprised how many aren't, or are paying lip service) and, again, before any decisions are made that affect someone's employment status.

The PM confirmed a couple of days ago that the Government is not going to make vaccination compulsory. That passes the buck to businesses to decide whether they create a de facto national standard, based on customer concerns or broader health and safety risk assessments, and refuse to allow unvaccinated people to access goods and services.

Organisations doing this may create a new health and safety risk, as it isn't hard to imagine unvaccinated people getting violent when refused service.

When in doubt, my (not entirely self-interested) suggestion is that people should consult their lawyer :)

Hi Sandra

I see some landlords doing this and also wonder why, as they potentially expose themselves to risk (if they go to far) as it suggests they can influence or direct workers and hence have a duty under s36 of the Health and Safety at Work Act. That is bad for landlords, who should strive to limit their duty to s37 as a PCBU who manages or controls workplaces.

It is prudent for the landlord to want to tell you about hazards arising from the building (even if you just received a shell before fitting it out), and for the landlord to want to consult about potential hazards in tenancies that may have a wider impact on other building users. Steve is correct in his summary of the sorts of issues a landlord can be expected to share. I agree with Keith too, as the s34 duty applies to both landlord and tenant so there is definitely a need to communicate when there is an overlapping duty.

Cheers

Grant

Hi Rachael

From a health and safety perspective, the answer seems pretty simple to me. Once you know about Bob's late night activities and potential fatigue, your organisation has no choice but to deal with it.

Section 22 of the Health and Safety at Work Act defines the term "reasonably practicable". Relevantly, it requires PBUs to do "that which is, or was , at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including....(c) what the [PCBU] concerned knows, or ought reasonably to know, about the hazard or risk".

Fatigue is an obvious hazard, and the risk you have identified (even if inadvertently) is that Bob may be fatigued when he works because he is regularly not getting enough sleep. This means you need to consider - and do - whatever can reasonably be done to ensure health and safety for Bob and people who may come into contact with him while he works.

I often finds it helpful to turn the question around, so let's take a hypothetical situation. If Bob is involved in a serious traffic incident tomorrow, and WorkSafe and the Police investigate, they will likely ask to see the E-Roads data from his vehicle for the day and, potentially, a period like perhaps 1-3 months before, the incident. How comfortable are you that you can answer questions from them about Bob, and about what your organisation did to manage the risk of him working while fatigued? My guess is "not very", and that if WorkSafe or the Police ask why the organisation allowed Bob to work knowing he regularly had only three hours sleep, especially if he only had three hours sleep the night before my hypothetical accident, then you will struggle to persuade either regulator that your organisation did all that was reasonably practicable.

I should add, for completeness, that Bob's sleep pattern may not be a concern. Some people naturally sleep less than others, and others sleep a little during the week but catch up at the weekend without it having a material affect on their performance. These are issues you could usefully explore with Bob. Does E-Roads show any "red flag' issues about his driving and work performance?

I appreciate that initiating the discussion with Bob may be awkward, and that employment or privacy issues may arise. Others have made some good suggestions about that, and if in doubt I suggest you get some legal advice so the organisation follows due process and doesn't get itself in trouble. I don't work in those fields so don't know the answer.

Ultimately, you need to think about what your organisation can do to protect Bob from the risk of fatigue. Can support be offered to help him make better sleep choices (it sounds like that's what you're currently considering)? Can his shifts start later so he can sleep longer into the morning? Can a process be agreed with Bob so that if he has a late night he notifies a manager and doesn't come to work? Others smarter than me will have more ideas on this front.

Good luck!

The risk seems low to me. It is possible that WorkSafe could argue a consultant had a duty under s36(1)(b) HSWA, on the basis that he/she was a PCBU and "influenced or directed" workers, but the definition of PCBU excludes workers and officers (so would potentially only capture self-employed consultants) and far there is no relevant case law on the extent of what "influence" means.

Hi Riki

The term "health" is defined in section 16 of the Health and Safety at Work Act 2015 - "health means physical and mental health". You might also like to look at the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016, as they deal with health monitoring (but don't expand on the broad definition of 'health').

Cheers, Grant

Kirsty is right to raise this as an idea given its inclusion in the UK law, but it seems to me to be a terrible idea in practice.

Firstly, and perhaps most importantly, there is no correlation between business turnover and business profit, so turnover is the wrong metric to assess a business against when looking to ensure a penalty "bites".

Secondly, this type of model creates differential penalties for small and large businesses even when their respective culpability may be similar and reduces the flexibility courts have (and need) to customise a penalty to the circumstances of the offender and the offending.

Thirdly, this approach is open to abuse. For example, a large business will be incentivised to incorporate separate companies for every location or function, so the measurable turnover is reduced.

If there is a problem (and I'm not convinced there is), then the answer is to increase maximum fines and, perhaps, give the court guidance about how to assess different levels of culpability against those new maximums.

I'm not a fan of WorkSafe prosecuting company officers, primarily because history to date shows regulators (here and in Australia) seem to focus primarily on hands on working directors in small companies and not on the directors of large companies (which is who I believe the law was aimed at).

Also, in practice the focus of prosecutions appears to be largely that the PCBU did not adequately manage a risk so the officer must not have ensured a proper system of work. This conflates the role of the PCBU and the officer and ignores the difference between management and governance of a PCBU. I'm not saying officers shouldn't be charged when they fail to perform their governance responsibilities, but am saying that current investigation and prosecution practices are not properly dealing with that issue.

I'm not aware of any current requirement. I expect there will be orders made under section 70 of the Health Act.

Now that's a question above my pay grade! I haven't seen organisations using cost as a reason to cut corners on their response to the pandemic, but I expect it is happening. The societal cost of what we are doing is something I expect we will judge politically and academically for years to come.

While the word is the same, elimination means very different things in these two contexts. It seems to me you can reconcile them (as an academic exercise anyway) by importing the concept of what is reasonably achievable. That's obviously different when looking through a public health lens as opposed to an individual workplace.

It will depend on the circumstances (what a typical lawyer's answer!), but no. I don't expect WorkSafe to investigate a workplace based cluster unless there is some evidence to suggest a failure by that workplace to follow the Ministry of Health guidelines.

Fair point, as physical distance is the key health concern. In my bubble I feel socially distanced at times too, and that's something organisations need to be aware of. Creating check ins between managers and staff is important while people are working at home, but so is creating opportunities for team members to connect socially, especially if there are workers living alone. Who knew two months ago that "Zoom parties" were even a thing?

I'd like to hope there will be a lot of compassion and common sense. Ultimately though, there need to be consequences for people who are unwilling to follow the rules.

WorkSafe is being pragmatic and not expecting perfection, but equally is being clear that the pandemic is not an excuse to ignore health and safety duties. It is important that organisations consult with their workers and business partners about whatever changes they intend to make when resuming work, but this doesn't require bureaucracy or formality. You're right about things changing quickly, and this means consultation needs to be an ongoing process. As an example, while many businesses are planning for a re-start at alert level 3 next week, they will also need to plan for what changes (if any) they make when (I'm being positive and not typing if!) when we move to alert level 2 and then, even later, to alert level 1.

That's a really valid comment, especially as the number of new COVID-19 cases remains <10 each day. In the absence of any evidence of significant community infection, it seems to me that the risk of infection is more a matter of perception than reality at present. That's why when organisations resume work next week I'm encouraging them to focus a lot of their re-start energy on critical risks, not just on changes to deal with COVID-19.

That's a great question. The law generally focuses on the risks to individuals, but section 36 of the Health and Safety at Work Act is broad enough to require consideration of risks to the wider community as "other persons" potentially put at risk from work. In reality, as long as organisations comply with the Ministry of Health guidelines I expect WorkSafe will be satisfied they have done everything reasonably practicable to look after the wider public. In a public policy sense, it seems to me that the Government is "setting the rules" right now, so its unreasonable to expect organisations to do more.

I suspect many people around the country are struggling with this. When we move to alert level 3 next week people are still required to stay in their bubbles as much as possible, and parents have been asked to keep children home from school if they can. If a worker does not want to return to work in a business re-starting at level 3 then I suggest a proactive discussion with the employer about options - this might be working from home (when that is possible), performing alternate duties (again, if that is possible) or taking annual leave or special leave. When none of those options work though, I'm realistic that the need to keep a job and earn an income may take precedence. If that is the case, workers can and should ask questions about the steps being taken to keep them healthy and safe at work. The worker can also think about what additional precautions they might want to take to safeguard their health, over and above whatever their employer and workplace are doing. For example, if an employer is not providing masks (and I note that as recently as yesterday Dr Bloomfield was saying masks are not required for most people) a worker could still choose to wear one anyway, as long as it doesn't create a risk (eg entanglement, or impact on other PPE, or the ability to see, move and communicate).