The Health and Safety at Work Act 2015 does something unusual. It imposes a duty on officers of an organisation personally, separate from the organisation’s own duty, and that personal duty cannot be delegated, insured away or discharged by hiring a consultant.
A great many New Zealand directors are aware this duty exists. Considerably fewer could state what it requires.
Who is an officer
An officer is a director of a company, a partner in a partnership, or any other person occupying a position that allows them to exercise significant influence over the management of the business. The last limb catches senior executives who are not directors, and it is assessed on actual influence rather than job title.
Being a non-executive director does not reduce the duty. Being a director of a small owner-operated company does not either.
The six elements of due diligence
The Act sets out what due diligence requires, and it is a genuinely useful list because it describes actions rather than attitudes. An officer must take reasonable steps to:
- Acquire and keep up to date knowledge of work health and safety matters.
- Gain an understanding of the operations of the business and the hazards and risks generally associated with them.
- Ensure the business has appropriate resources and processes to eliminate or minimise risks to health and safety.
- Ensure the business has processes for receiving and considering information about incidents, hazards and risks, and for responding in a timely way.
- Ensure the business has processes for complying with its duties, and implements them.
- Verify the provision and use of those resources and processes.
The sixth element does the most work in practice. Verification means checking that what you were told is happening is actually happening. An officer who received assurances and accepted them has not verified anything.
What this looks like in a real board
Health and safety should be a standing agenda item with substance behind it, not a line confirming no incidents. The material that supports genuine due diligence tends to include:
- Leading indicators, not only lagging ones. Near-miss reporting, training completion and hazard close-out rates tell you more than an injury count of zero.
- The critical risk register, reviewed for the things that could kill someone rather than the things that happen often.
- Evidence of worker engagement, which is a separate statutory duty and frequently the weakest area.
- Site visits by directors, recorded. Verification is difficult from a boardroom.
- Contractor and subcontractor management, since overlapping duties apply where multiple PCBUs share a workplace.
Overlapping duties
Where more than one PCBU has a duty in relation to the same matter, each must consult, cooperate and coordinate with the others so far as reasonably practicable. You cannot contract out of a health and safety duty by engaging a subcontractor.
This matters most in construction, logistics, agriculture and any operation using labour hire. The principal retains duties in respect of work it influences, regardless of who employs the worker.
Penalties, and what actually happens
The Act provides tiered offences with substantial penalties, and officers can be prosecuted personally. Insurance against fines is prohibited, which is a deliberate design choice.
In practice, prosecutions of officers are less common than prosecutions of organisations, and they concentrate where there is evidence that risk was known and not acted on. The documentary trail is decisive: an officer who can show what was reported, what was asked and what was done is in a very different position from one who cannot.
The practical minimum
For a small company board, meeting this duty does not require a compliance department. It requires health and safety as a real agenda item, a risk register that reflects the actual work, someone accountable by name, a mechanism for workers to raise issues that they believe in, and directors who occasionally go and look.
WorkSafe New Zealand publishes guidance for officers and directors free at worksafe.govt.nz, including material written specifically for small business. It is the right starting point before engaging anyone commercially.
General information only, not legal advice.
