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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

Legal viewpoint — Reviewing the Act

The HSW Act 2015 will be reviewed next year after five years in operation. KIRSTY McDONALD suggests some issues to look at.

Arguably the biggest question is whether New Zealand should allow prosecutions for industrial manslaughter. This has been available in the United Kingdom for more than a decade and is now being adopted in various states in Australia. Given the potential for companies to currently be fined up to $3 million, and receive up to five years imprisonment, it is questionable whether an industrial manslaughter charge would result in any greater penalty. However, it could be argued that simply using the word manslaughter lends more gravity to a prosecution.

A review could potentially also see WorkSafe consider whether it should be taking prosecutions for reasons other than breaches of section 36, the primary duty of care. There is a plethora of more specific duties within the HSW Act and its regulations. Using these would make prosecutions a more “educative” process and may also result in fines that better reflect the nature of the breaches.

DETERMINING FINES

A review could also consider how the level of fines is determined. Many fines have been assessed according to the usual criteria and then reduced dramatically as a result of financial incapacity. We should consider whether to adopt the UK’s approach, where sentencing bands are based on a defendant company’s annual turnover. This may be far more suitable for a country like ours with a high proportion of very small companies. It would allow for the equal treatment of a sole trader who is operating under their own name as opposed to a sole trader operating as a one-person company, who would currently receive very different levels of fines for the same offence.

A review could consider adding as a penalty a banning order for directors and officers who are convicted of a breach of the HSW Act, preventing the director or officer from holding these positions for a specified period.

REPARATION

Although reparation is dealt with under the Sentencing Act, there have been concerns raised that reparation awards now seem out of step with fines imposed. The review could consider incorporating the reparation part of sentencing into the HSW Act. This could provide some standardisation to amounts awarded for emotional harm and ACC coverage issues.

It could also answer some judicial criticism that has started to arise on the amount of reparation awards. Under the previous legislation, generally the greater amount of the overall penalty went to the victim, as the reparation for a fatality was often two to three times the amount of the fine. Under the HSW Act, most of the penalty goes to the Government, as the fine is often three to four times the amount of the reparation.

REGULATOR RESOURCING

WorkSafe’s resourcing is a wider issue but it has consequences that affect the review of the HSW Act. There have been calls for the extension of the time permitted for charges to be laid, based on WorkSafe not having the resources to conduct the investigation and reach a decision on prosecution within the specified time. This was increased from six to twelve months by the HSW Act; any further increase would have implications for victims waiting for their day in court. Improving resourcing, to allow for speedier investigations and decisions around prosecutions, would be a far preferable alternative.

INFORMATION SHARING

Many of us will know someone who has injured themselves at work and needed time off to recover, but who has not notified WorkSafe of the incident because they don’t want to get their employer into trouble or think that H&S laws aren’t really about their type of workplace.

Information sharing from ACC (or from other relevant “regulatory agencies” under the HSW Act) to WorkSafe whenever someone has claimed for being off work for, say, longer than a fortnight, would provide information to WorkSafe of incidents which are not otherwise notified.

Many of these topics may not result in changes to the HSW Act, but their consideration in a review may prompt discussion about how the legislation is being used. Hopefully, the long-term effect of the review will not be increased prosecutions and fines, but instead a healthier and safer workforce.

Kirsty McDonald is a partner with Duncan Cotterill specialising in employment law and health & safety.

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