Health and safety regulators to increase focus on ‘upstream’ duty holders

What is your level of influence and control over the way in which work is carried out at a workplace?

This question is set to take centre stage in 2022 – with our prediction that WorkSafe and the other health and safety regulators will increase their focus on ‘upstream’ duty-holders, including directors and officers. If you’re not paying attention to how your decisions influence the work carried out by others, there is a good chance that WorkSafe will instead.

As we are all getting to grips with managing COVID-19, it is important not to lose sight of broader health and safety obligations. WorkSafe appears to be facing resourcing pressures, but the range of those who owe duties under the Health and Safety at Work Act that it is focusing on is growing wider.

So, what are we likely to see in 2022?

  • A willingness by health and safety regulators to continue to investigate and prosecute directors and officers, where they consider there to have been clear and/or repeated failures in meeting their due diligence duties. With the trial of the directors of the entities associated with the ownership of Whakaari White Island set to take place in 2023 and the high-profile prosecution of a former CEO of a significant company working its way through the courts, the regulators have signalled a clear intention to prosecute those directors and officers who they consider to have breached their obligations.
  • A widening of the regulators’ focus on PCBUs with ‘upstream’ duties whose work or decisions may impact on those more proximate to the work being carried out. These PCBUs include businesses that design, manufacture, import, supply or install plant, substances or structures. In short, we expect the regulators to look closely at the work of upstream PCBUs, what they provide to others and their level of influence and control over the work being carried out.
    This anticipated targeting of upstream duty-holders reflects that they often have the ability to influence the way in which work is carried out by others, even if they are a step removed from the actual carrying out of the work.
  • The Health and Safety at Work Act has been in force for almost six years now. We are now well out of any grace period and the expectation of compliance and the risks of non-compliance are becoming increasing clear, particularly for officers and upstream PCBUs. Criminal liability cannot be avoided simply because you’re too senior, too far up the supply chain, or otherwise too far removed from the place where the actual work is carried out. Taking steps to consider how to keep all workers safe where you have a level of influence and control over a workplace is where the regulators want to see the dial shifted in New Zealand and that’s where we expect to see a significant focus from the health and safety regulators in 2022.

Read MinterEllisonRuddWatts' Litigation Forecast

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