Law firm MinterEllisonRuddWatts reflects on what have been the dominant features of 2020 and looks back on the trends we have seen develop over the past 12 months
This year, COVID-19 has obviously dominated workplace health and safety. Aside from the risk of contracting the virus, COVID-19 has presented new and increased risks for PCBUs as business models and practices have had to adapt to new ways of working.
For many businesses that have had reduced access to migrant workers, COVID-19 has meant taking on workers who have moved into completely new areas of work, some with limited training in their new field. For these businesses, it has been essential to have the necessary training in place to mitigate the heightened health and safety risks associated with new workers.
Increased levels of remote working have also led to businesses and WorkSafe placing a greater emphasis on the mental health of workers and managing fatigue/wellbeing risks.
With increased levels of remote working, WorkSafe has reminded businesses that a “workplace” for the purposes of the Health and Safety at Work Act is anywhere that work is carried out, including at home. As this trend is set to continue, worker engagement and representation duties are a key way of understanding the needs of workers to ensure that the associated risks are effectively managed.
Businesses have also had to think carefully about their culture and policies relating to sickness – usually it would be common for workers to attend work with minor cold symptoms, but this may now be a material health and safety risk. We have also seen many businesses grapple with protecting workers who are in the high-risk category, or have vulnerable people in their household, or workers who simply refuse to attend work due to fear of exposure.
New Zealand’s progress towards improving overall workplace health and safety is stalling, with WorkSafe reporting that only around one in five workplaces has a “mature” health and safety culture. This suggests the majority of businesses still have a legal compliance “check box” mentality, and there is a lot of work to be done to motivate change.
Since its creation at the end of 2013, WorkSafe has had four key system targets designed to measure its performance.
Reviewing New Zealand’s health and safety statistics, two are particularly notable:
- The target of zero catastrophic events was not met in 2019/20 because of the Whakaari eruption in which 22 people died: WorkSafe has said that it will be developing its approach to catastrophic harm prevention and progressing its review of the Adventure Activity Regulations.
- The target of a 25% decrease in work-related fatalities by 2020 was met four years ago: We first achieved this target in 2016 and although it was an important milestone, the rate of decline has since stalled.
Two other measures reflect that our health and safety performance remains moderately poor:
- our rate of serious injury has risen in the past two years; and
- our ‘week away from work’ injuries have stayed the same, or risen, since 2011.
In 2020/2021, WorkSafe will be working with MBIE to refresh its system targets.
What trends have developed?
WorkSafe is set to focus on the agriculture and utilities sectors
In 2019 and 2020, ‘Agriculture’ and ‘Arts and Recreation Services’ had the highest number of fatalities (25 each from October 2019-September 2020), although the recreation figure is skewed by the deaths arising from the Whakaari eruption. When converted to a rate of per 100,000 full-time equivalent workers, the ‘Electricity, Gas, Water and Waste’ sector represents the highest rate of fatalities in the last year. With such statistics, we can expect WorkSafe to focus on PCBUs in these sectors.
Vehicle-related incidents remain high
Across all industries, vehicle incidents have been the leading cause of fatalities (29 from October 2019-September 2020). This is in line with data in WorkSafe’s 2018/2019 Annual Report showing that 73% of New Zealand’s work-related fatalities are linked to vehicles.
The number of investigations is declining
WorkSafe has faced criticism this year in relation to the declining number of investigations it is conducting. As illustrated by the graph to the right, over the last five years, the average number of investigations per month has steadily decreased.
We suspect that the decline is linked to resourcing issues, which were heightened this year under Alert Level 4, during which WorkSafe’s inspectors were largely working from home. WorkSafe also diverted significant resources to focus on the Whakaari eruption. The investigation into issues surrounding the eruption in December 2019 is the largest investigation that WorkSafe has ever undertaken – at its peak, 25 WorkSafe personnel were involved in the investigation. This is to be viewed in the context of WorkSafe having only around 185 inspectors.
The number of prosecutions remains steady
Despite a reduced number of investigations, prosecution rates have remained steady, suggesting that PCBUs under investigation face a higher risk of prosecution.
We are also still seeing numerous successful prosecutions relating to PCBUs:
- not putting in place proper procedures once risks have been identified;
- installing machinery without guards or removing guards once installed;
- providing insufficient training to workers; and
- not ensuring workers at height are wearing sufficient fall protection equipment.
We haven’t seen WorkSafe bring strategic litigation in 2020 to clarify uncertain areas of the law such as the scope and meaning of “so far as is reasonably practicable”.
Officer prosecutions – the start of a trend?
At the end of 2019 and in 2020 we saw the first officers sentenced under the Act for failing to meet their due diligence duties, albeit in relation to closely held companies.  It signalled the start of a trend by regulators, including Maritime New Zealand and the Civil Aviation Authority, to look more closely at officer compliance with their due diligence duties. In addition to the prosecutions of three directors of a PCBU associated with the ownership of Whakaari, we understand that there are other prosecutions involving officers currently working their way through the Court system.
The level of average fine is tracking down
We have tracked the level of fines since the Act came into force in April 2016. Surprisingly, given the rate of workplace fatalities and serious harm incidents, we have identified an overall decrease in the average fine imposed from 2018 to 2020, not taking into account reductions for financial circumstances.
It seems unlikely that this is because the breaches giving rise to prosecution are less serious, particularly given that the rate of serious harm incidents is not decreasing. While the level of fine will depend on the circumstances in each case, and there is a risk of over-simplification when analysing the data, the final fines imposed are not at the levels generally anticipated when the Act came into force in 2016.