Concordia News - Health and Safety Culture - October 2009
Published by Bill Rainey
Judges give us a wake-up call
In this issue of our H&S News, we want to bring to your attention what is happening with prosecutions in the H&S area, because that's the sharp end of getting it all wrong!
This is a bit of an epistle, but we think it's important for you to take the effort to read it.
The Courts in NZ have recently signalled they will be taking H&S breaches more seriously by substantially increasing the amount of fines and reparation ordered against employers. In one case, a company was ordered to pay nearly $200,000 in fines and reparation for safety breaches that resulted in an employee losing his legs. This is contrasted against a penalty of $40,000 in a comparable case in 2006. There are other recent examples of fines being increased by the Courts - in one case from $5,000 to $50,000, and in another case from $15,000 to $40,000.
It's sobering to remember that the maximum penalty for a person causing serious harm or failing to act to prevent a serious harm injury is a fine of $500,000, or two years imprisonment, or both. Reparation orders are on top of this.
Unlike other countries, in NZ the full weight of the law has yet to focus on the (in)actions of individual directors and senior managers. Instead, it has been companies or organisations that have so far borne the brunt of penalties.
The wording of our Act is clear. Section 56 states that where a body corporate or Crown organisation fails to comply with the Act, any of its officers, directors, or agents who directed, authorised, assented to, acquiesced in, or participated in, the failure is a party to and guilty of the failure and is liable on conviction to the punishment provided for the offence, whether or not the body corporate has been prosecuted or convicted.
Recent changes to legislation in the UK mean that the potential consequences for those prosecuted for H&S breaches are now more severe than ever with imprisonment available for a much greater range of H&S offences. A similar trend is happening across the Tasman. There, company directors have recently been held personally responsible even though they had no "hands-on" involvement with the company operations. Courts have found directors liable when they "had not specifically addressed safety issues at board meetings", or if they "did not monitor safety as an issue".
This all reinforces the fact that senior managers need to be "on guard" at all times. They should be aware of the "lead" indicators in their workplace that show the potential for accidents to occur. Mere compliance and knowledge of past, or lag, indicators is unlikely to be a good enough excuse. For example, if problems are occurring on hand-overs or shift changes, managers should know about this, and they should be doing something to fix the problem.
Courts have started to use an objective test in H&S cases against individuals...they look at what directors "ought to have known", rather than the subjective issue of their "actual" knowledge.
We think what this all means for directors and senior managers in NZ, is that increasingly they will have the finger pointed at them - personally. The regulatory and court processes will continue to focus on individuals as authorities here grapple with our poor H&S record. The best approach is to be proactive, not just with H&S systems and processes, but also with an understanding and improvement of the "people" side of the H&S equation.
Leadership - Best Practice
While we're on the topic of leaders, it's a constant theme in our work: H&S culture change has to be lead "from the top".
If senior managers don't take firm control of H&S improvement processes, they will most likely falter and fail.
The goal of Avsec is to lead the way with aviation safety and security for travellers - both in NZ and elsewhere. There is no room for error when safety of the travelling public is at stake. So General Manager Mark Everitt is taking a lead role in Avsec's workplace and H&S culture change programme. He's participating fully in the process and leading the charge both with his executive team, and regional managers.
Mark's special newsletter to staff is a good example of how to communicate what is happening - see it here. Mark's influence has ensured that this change initiative is given high priority, and is being driven by the operational side of the organisation. HR is used to provide support where and when needed.