Health and safety reforms following the Pike River coal mine tragedy highlight the importance of

good governance to improve New Zealand's health and safety record.

https://www.iod.org.nz/resources-and-insights/guides-and-resources/health-and-safety-
governance-guide/#

Safety and Health Director

All Directors should understand their legal responsibilities when it comes to health and safety. Their
roles should be supported by formal individual terms of reference.

Depending on the size, scale and nature of the business and the potential hazards and risks arising, it
may be prudent to nominate a Director to oversee and co-ordinate the safety and health governance
process. Remember that the establishment of such a role does not dilute other Directors’ safety and
health responsibilities.

Areas where this might be appropriate include those companies which control activities at many
workplace locations, for large construction and utility companies, high risk businesses where health
and safety management is critical to business continuity, e.g. the so called "major accident hazard"
workplaces, the mining, quarrying and chemical sectors.

Having regard to the safety and health risks that the business poses, the Safety and Health Director
role could be discharged on either an executive or a non-executive basis. For example, where safety
critical plant is used and the consequences of loss of integrity could be severe for the undertaking,
the role should be carried out by a person with the necessary competence to adequately understand
their role and responsibilities.

The person nominated may chair the safety and health sub-committee of the board, where one
exists. Such nomination will not mean that the board’s general safety and health responsibilities are
delegated to one person. However, such nominees should have the responsibility to ensure that
safety and health risk management issues are properly addressed at board level and throughout the
organisation as a whole. He/she will also keep the board informed of the relevant safety and health
issues, levels of performance etc.

Whoever is assigned to this role must have a clear understanding of what is expected of them.
He/she should receive the necessary safety and health training so that they can become comfortable
with the responsibilities. A significant way of demonstrating the board’s commitment to safety and
health management is for the nominated ‘Safety and Health Director’ to take a personal interest in
monitoring safety and health performance. He/she should talk to the workers and their safety
representative(s) about safety and health issues on the floor and set a good example by obeying in-
house safety and health rules, e.g. by wearing a hard hat and other PPE while on site.

The Safety and Health Director can look for evidence of the practical working of the board’s safety
and health policy and ensure that discussions on this issue at board meetings are focused and
effective. He/she could also liaise closely with the undertaking’s safety committee, where one exists.

https://www.hsa.ie/eng/Topics/Work_Safely/Roles_and_Responsibilities_for_Directors/

Directors and Officers under the Health and Safety at Work Act 2015

Employment |  Print Article

June 2016
The Health and Safety at Work Act 2015 (‘the Act’) came into force on 4 April 2016, bringing new
responsibilities for everyone in the workplace. The Act is part of a reform package aimed at reducing
the number of serious work-related injuries and deaths in New Zealand by at least 25 percent by
2020.

The Act has significantly changed how directors and other officers can be personally liable for a
health and safety failing. Under the Act, directors’ and other officers’ liability is no longer dependant
on the organisation’s breach. Directors and other officers will now be directly liable if they fail to
exercise due diligence to ensure their organisation complies with the Act.

Who is an officer under the Act?

An officer is a director, a partner (or a general partner in a limited partnership), or a person

occupying a position in a body corporate or an unincorporated body that is comparable to that of a
director (Section 18 of the Act).

An officer also includes a person who holds a position that allows them to exercise significant
influence and control over the management of the person who is conducting the business or
undertaking (known as a ‘PCBU’). In this regard, the Act provides the specific example of CEOs. It will
ultimately be a factual question as to whether someone is deemed an officer under the Act.

Who is not an officer under the Act?

Officers do not include:

 a minister of the Crown acting in that capacity;

 a person that merely advises or makes recommendations.

Due diligence duty

If a PCBU has a duty or an obligation under the Act, then an officer of that PCBU must exercise due
diligence to ensure that the PCBU complies with that duty or obligation (Section 44 of the Act).

When determining the extent of the due diligence that must be taken, the nature of the business,
the position of the officer, and the nature of the responsibilities undertaken by the officer will be
taken into account (Section 44(2) of the Act).

The due diligence duties that apply to officers include taking reasonable steps to (Section 44(4) of
the Act):

 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
PCBU and generally of the hazards and risks associated with those operations;

 ensure that the PCBU has available for use, and uses, appropriate resources and processes
to eliminate or minimise risks to health and safety from work carried out as part of the
conduct of the business or undertaking;

 ensure that the PCBU has appropriate processes for receiving and considering information
regarding incidents, hazards, and risks and for responding in a timely way to that
information;

 ensure that the PCBU has and implements processes for compliance; and
  verify all of the above steps.

The Institute of Directors has several useful reference guides on their

website – https://www.iod.org.nz/healthandsafety.

Offences and penalties

A breach of the duty is a criminal offence attracting a maximum penalty of $600,000 and up to five
years’ imprisonment for serious offences. These penalties are imposed on officers personally and are
over and above any penalty that is imposed on the PCBU arising from any incident (Note that
volunteer officers (section 51 of the Act) and elected members of a governing body or territorial
authority, local boards and community boards and a school board of trustees (section 52 of the Act)
are immune from prosecution as officers whilst still holding officer duties). Being criminal in nature
they cannot be insured against – nor can the officer seek an indemnity from the PCBU.

The best that one can do is ensure that legal costs associated with a defended prosecution are
covered by the relevant insurance policy or indemnity from the company in relation to those legal
costs and other expenses with defending a prosecution.

Summary

In summary, the officer’s duty is not the same as the PCBU’s duty. Officers do not have to ensure the
health and safety of the PCBU’s workers. Officers must exercise due diligence to ensure that the
PCBU is complying with their duty or obligation. This due diligence duty complements and supports
the primary duty of care of the PCBU – it does not replace it. The due diligence duty is a duty
imposed on officers personally and is separate from the duty imposed on the PCBU. Further, the
duty cannot be delegated, modified or transferred. It must be discharged by the officers themselves.

The key message is that the Act introduces a proactive approach to safety rather than a reactive
response after an accident has happened. These due diligence duties make officers safety leaders
which (it is hoped) will in turn promote a better culture of safety in New Zealand workplaces.

https://www.lawlink.co.nz/article/directors-officers-health-safety-work-act-2015/