Visit from WorkSafe NZ

Principal Legal Advisor, Sue Petricevic, and Senior Solicitor, Lucy Moffitt, both of WorkSafe NZ, recently visited the ADLS Employment Law Committee to speak about WorkSafe NZ and how it is working to achieve its mission statement: “Everyone who goes to work comes home healthy and safe.”

Mere King

On 19 November 2010, 29 men lost their lives in the Pike River Mine Tragedy. A Royal Commission of Inquiry was convened to examine and report on the circumstances and cause of the tragedy. The Royal Commission found serious problems with the way health and safety was regulated in New Zealand. An Independent Taskforce was established to examine, on a broader scale, whether New Zealand’s workplace health and safety system was fit for purpose and to recommend practical strategies for reducing the high rate of workplace fatalities and serious injuries by 2020. The Taskforce recommended significant changes to New Zealand’s workplace health and safety systems including the introduction of new legislation and the establishment of a new stand-alone Crown agency responsible for New Zealand’s health and safety regulation.

On 16 December 2013, WorkSafe NZ was established. WorkSafe NZ is a stand-alone Crown agency with its own governance board. WorkSafe NZ has taken over the health and safety functions of the Ministry of Business, Innovation and Employment (previously the Department of Labour). WorkSafe NZ has been given a target of reducing workplace death and serious injury rates in New Zealand by at least 25 percent by 2020.

WorkSafe NZ has approximately 500 staff and it continues to grow. This includes two legal teams located in Auckland and Wellington which provide legal services on the regulation and enforcement of health and safety legislation throughout the country. WorkSafe NZ is working on increasing its presence in New Zealand workplaces. To achieve this, it has significantly increased the number of health and safety inspectors and is in the process of increasing the number of investigators.

Early intervention
WorkSafe NZ operates in three areas – education, engagement and enforcement. It has recently settled on a new intervention approach which will move the focus from harms and incidents to a risk- and intelligence-led approach, where systemic and root cause issues are a principal component of its work. WorkSafe NZ has identified priority sectors where it believes its work can have the greatest impact – forestry, agriculture, manufacturing and construction. It has targeted intervention programmes in each of these sectors and early evidence shows the combination of its proactive assessment programme, education and enforcement are bringing fatality and serious harm rates down. WorkSafe NZ is also building new work programmes in the occupational health field.

Health and safety and bullying
Reform of New Zealand’s health and safety legislation was another key recommendation of the Independent Taskforce. The Health and Safety Reform Bill was introduced into Parliament on 10 March 2014. The Bill will create a new Health and Safety at Work Act, which will replace the Health and Safety in Employment Act 1992. The government had indicated that the Health and Safety at Work Act is planned to come into effect after April 2015.

In February this year, WorkSafe NZ released guidelines on “Preventing and Responding to Workplace Bullying”. The guidelines provide advice and guidance to employees and employers on how to prevent and respond to issues of workplace bullying. The guidelines are intended to provide a systems-related approach to workplace bullying issues. Where employers and employees are unable to resolve workplace bullying issues with the assistance of these guidelines, WorkSafe NZ encourages parties to take full advantage of the Mediation Service offered by the Ministry of Business, Innovation and Employment. WorkSafe NZ has indicated that prosecution of a duty holder for workplace bullying could occur, in the absence of other appropriate outcomes. However, if WorkSafe NZ received a notification of serious harm resulting from workplace bullying, it would investigate the matter.

Utumapu v Bull (Court of Appeal)
In Utumapu v Bull [2013] NZCA 175, the Court of Appeal reaffirmed investigators’ powers of entry and inspection as set out in section 31 of the Health and Safety in Employment Act 1992. It also confirmed that investigators may require employers and “persons in control of a place of work” to answer questions and make a statement in relation to an enquiry, subject (of course) to the right not to self-incriminate. Inspectors are not required to provide a list of questions prior to an investigation meeting. However, inspectors will often provide a list of topics which they will investigate prior to meeting. This is to allow the employer/person in control of a place of work to collect information in preparation for the investigation meeting. WorkSafe NZ advised that where the employer is a corporate entity, an inspector may nominate a person to make a statement on behalf of a corporate employer. Other persons, such as health and safety representatives, may also be questioned by an inspector as part of his or her enquiries. If this person is neither an employer nor a “person in control of a place of work”, he or she cannot be compelled to answer questions or make a statement.

Representation issues
WorkSafe NZ has noticed an increasing number of lawyers who are instructed to represent an employer also electing to be present as a support person (or as counsel for the employee) when an employee is being interviewed by an inspector. Employers and employees do not necessarily have the same interests in a health and safety investigation. While prosecutions of employees for health and safety breaches are relatively infrequent, there is still a risk (no matter how small) that an employee could be prosecuted for failing to take all practicable steps to ensure his or her own safety at work or for causing harm to another person. This may create a potential conflict of interest between the employer’s interests and the employee’s interests. Other issues may arise including issues around the protection and disclosure of confidential client information arising during an investigation, uncertainty over for whom the lawyer is acting and questions over the independent nature of the lawyer’s advice. These issues may call into question whether a lawyer is complying with his or her obligations under the Lawyers and Conveyancers Act 2006 and the Conduct and Client Care Rules 2008 in such circumstances.

WorkSafe NZ is currently considering the approach of other jurisdictions to this increasing trend. For example, the United Kingdom has specific non-mandatory ethical guidelines to guide lawyers when they are instructed to act on health and safety in employment matters: http://www.sra.org.uk/solicitors/code-of-conduct/guidance/employer-s-solicitors-attending-hseinterviews-with-employees.page. The guidelines provide that: “[I]t is generally inappropriate for the employer’s solicitor to attend such interviews as the employee’s nominee, or to seek to obtain the employee’s consent to being present at the interview.” In support of this statement, the guidelines refer to many of the risks WorkSafe NZ has identified and concerns about the potential conflict of interest between an employer and its employee(s) in health and safety matters, potential issues around the passing on and protection of confidential client information arising during an investigation, and the public interest in employees not being inhibited from speaking during an investigation due to fear of adversely affecting their ongoing employment.

On this basis, WorkSafe NZ encourages lawyers to consider all potential ethical issues and conflicts of interest before accepting instructions to act for an employer and any other party in an health and safety investigation.

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