Check before you roll – compliance with health and safety regulations
All persons conducting businesses or undertakings (PCBUs) ought to be familiar with their obligations under the Health and Safety at Work Act 2015 (“Act”). The consequences for breaching those obligations can be costly.
However, the health and safety legislative regime is broader than just the Act. Many different regulations supplement the general duties under the Act. The regulations set out processes for dealing with specific hazards and high-risk businesses and workplaces. According to WorkSafe, the regulations support businesses to understand what they need to do to comply with the general duties of the Act.
Importantly for PCBUs, breaches of the specific regulations carry with them financial penalties. In most cases, a charge under the regulations is punishable by a maximum fine of $10,000 for an individual, or $50,000 for a legal entity (such as a company, trust, or incorporated society).
Since the Act came into force, WorkSafe has not frequently prosecuted individuals or entities for breaches of the regulations.
In previous cases, WorkSafe has charged regulatory breaches alongside breaches of primary duties under the HSWA. In WorkSafe New Zealand v Crafar Crouch Construction Ltd, the Court noted that in most cases, a breach of a duty under the Act will also amount to a breach under one of the various regulations. It was concerned that sentencing a defendant on both breaches could risk punishing them twice for the same conduct. In another case, WorkSafe New Zealand v Essential Homes Ltd, the Court treated a regulatory breach as an aggravating factor for the purposes of sentencing.
In a recent case, we assisted a client who was charged with a breach of the Health and Safety At Work (Asbestos) Regulations 2016. Our client was charged with a breach of regulation 26, which refers to failing to identify asbestos and take all reasonably practicable steps to remove it prior to commencing refurbishment work. The maximum penalty under this charge was a fine of $10,000 for an individual.
At sentencing, neither party could identify a previous case where a charge under Regulation 26 was brought. Accordingly, the Court had to proceed with sentencing on a novel basis. A starting point for a fine of $1,800 was selected, placing the offending at the low end of the “moderate”. This was based on the same bands adopted by the High Court in East By West Company Limited v Maritime New Zealand. It is likely that a similar approach will be adopted in future cases involving breaches of the Regulations.
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Our team of Health and Safety and Employment lawyers can assist you with all aspects of health and safety advice, from helping you to understand your duties, through to defending WorkSafe prosecutions. Talk to us today about how we can assist you or your business.
