Viewpoints | Legal
Workplace health and safety update Scott Wilson heads the Christchurch division of Duncan Cotterill lawyers’ employment law team. Visit www.duncancotterill.com
Three important documents have been released recently relating to workplace health and safety. Directors’ guidelines The Institute of Directors and the Ministry of Business, Innovation and Employment (MBIE) has released the Good Governance Practices Guidelines for Managing Health and Safety Risks. These are a set of practical guidelines on good governance in health and safety, primarily aimed at directors of medium to large sized organisations (more than 20 employees). The guidelines set out four key elements of a director’s role in health and safety: • Policy and planning • Delivery • Monitoring • Review.
liability to a corporation in a wider range of circumstances • Stronger penalties - in line with those found in the Australian legislation of five years imprisonment or fines of up to $600,000 for individuals or fines of up to $3 million for companies. Canterbury Rebuild Safety Charter The Canterbury Rebuild Safety Charter sets out 10 aspirational commitments aimed at reducing harm, injuries and illness, and creating a consistent and collective approach to health and safety on all rebuild worksites. Signatories to the Charter agree: • Our leaders demonstrate a visible commitment to health and safety • We have systems in place to encourage and support worker engagement in health and safety • All critical risk activities are identified, managed and mitigated
• We implement and monitor site specific Directors are encouraged to set the tone for safety plans creating a healthy workplace safety culture • We have robust, proactive and accurate in their organisations. They are expected to health and safety reporting make an active commitment, not only to the • All our workers receive health and development of health and safety policies safety training and to the monitoring of their organisation’s performance, but also to ensuring engagement • Everyone is made aware of hazards so at every level of their organisation. they can look after themselves and keep others safe Taskforce recommendations • PPE is worn at all times by everyone. No After extensive consultation, the Independent exceptions. No excuses Taskforce on Workplace Health and Safety • The safety of our people isn’t compromised has released its Report on Workplace Health by anyone under the influence of drugs, & Safety in New Zealand. The Taskforce found alcohol or fatigue that New Zealand’s workplace health and • We actively promote the health, safety and safety performance is poor and recommended wellbeing of our people. a number of significant changes. In particular: • The Charter has been signed and endorsed • The establishment of an independent health by over 50 businesses, government and safety agency agencies and other organisations who are • A new Act to replace the Health and Safety involved in the Canterbury rebuild. For in Employment Act 1992, which would be more information visit: based on the similar legislation recently www.safetycharter.org.nz enacted in Australia This update provides general information • Increased emphasis on worker participation and is not intended to be comprehensive or and occupational health a substitute for legal advice. Legal advice • Separate regulation and monitoring of major should be sought before applying it to hazard industries particular circumstances. Whilst care has been taken in the preparation of this update, • Revision of the corporate liability no liability is accepted for any errors. framework to allow attribution of criminal
8 | September/October 2013
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To lockout or not to lockout
John Shingleton is the general manager and partner responsible for employment law at Malley & Co. Visit www.malley.co.nz
During the past two and a half years, Christchurch’s business environment has challenged many assumptions and contracts, including what employers should do when a workplace is no longer safe. When Christchurch business were damaged on February 22, 2011, many of them severely, Christchurch employers had to work out what to do with employees who could not access badly damaged workplaces. It is a principle of employment law that an employer must provide work to and pay any employee who is ready, willing and able to work. So, imagine employees were working in a restaurant in Cathedral Square and on February 23 they were ready, willing and able to work but could not because the building had collapsed. According to the general principle, the employer would have to pay the employees for their usual rostered hours until the workplace was up and running. As you know, this scenario played out in many Christchurch workplaces. But it may surprise you to know that it did not trigger many employment disputes. I believe this was due to the wage subsidy the Government provided, all round goodwill within Christchurch and exceptions to that general principle. One exception arises from sections 84 and 96 of the Employment Relations Act 2000. Section 84 says a lockout is lawful if the employer has reasonable grounds for believing it is justified on safety or health grounds. The courts have made clear in past decisions that as well as providing this reasonable belief, employers must prove on the balance of probability that a health hazard actually exists. Section 96 of the Employment Relations Act 2000 provides that where employees are locked out by their employer, they are
not entitled to any remuneration for the period of the lockout, unless the employer’s participation in it is unlawful. There are several scenarios where New Zealand employers might invoke sections 84 and 96. For instance, if a building is declared to be below the new minimum earthquake standards, then a health hazard may well exist. This could then mean that a business owner who leases premises in that building might be entitled to lockout his or her employees on safety or health grounds. The employer would have to prove on the balance of probability not only that it reasonably believes it is justified on safety or health grounds but that there is an actual health or safety hazard. It was not difficult for Christchurch employers to establish the health and safety threshold when their premises were damaged or destroyed. However, a building being below the required earthquake standards does not necessarily equate to a health and safety reason under the Employment Relations Act 2000. The Employment Relations Act threshold for health and safety is arguably higher than that under the Building Act and regulations. So what should employers do? They could consider having a clause in employment agreements stipulating that if an event such as an earthquake, fire, volcano, riot, civil unrest or a government cordon prevents access to the workplace, then the employer’s contractual obligations are suspended. As long as they act in good faith at all times, employers could then trigger the contractual clause rather than rely on sections 84 and 96.