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There are three changes in the wind that affect OSH & everyone

Published 01 Mar 2010

Here comes the National Party's first three Tsunamis
(Editors comments)

The Govt has decided that the successful prosecution of senior managers and business owners regarding OSH compliance is way short of their expectations.

Here comes another move by a Government to place compliance obligations onto employer's already badly - bending backs, please read on because there are three very significant issues here.

The 1st Tsunami is the Minister of Labour, Kate Wilkinson, is embracing an old policy suggestion from the Helengrad regime of 2008 referring to 'Serious Harm' in regard to 'reporting' under the OSH laws. This change is absolutely critical for employers and businesses to get their heads around because 'Serious Harm' is the level or criteria when the law requires the incident/accident or 'happening' to be reported to the Labour Department. The proposed change means the '2 days hospitalised' in place now will be changed to 'unable to perform duties for 10 days or more' and this should send a chill deep into the hearts of business people. Simply put, there are many accidents that occur where the injured employee will be off work for more than 10 days. It is a lot easier for an employee to toddle off to a doctor and obtain a medical certificate insisting on 10 days off work rather than where employees spend 2 days or more in hospital. The Govt is suggesting employers will have less reporting to do and reduce time spent on 'minor matters' – but we feel this will create more reporting because it is a lower level.

The 2nd wave (Tsunami) – which is often bigger than the first apparently and has more force and volume - is that business people and employers will soon have to incriminate themselves. Let's explain that. Current law deems individuals or companies do not have to give evidence that would incriminate them. People and companies do not have to answer questions or give evidence during an investigation that might incriminate them even if they are fully aware of the circumstances causing an OSH issue to go pear shaped. Under the proposed change to law, individuals and companies will not be able to (legally) maintain silence even if the evidence or information incriminates them, their employer or the company. One side effect of such a change will be the very confidential information that entities do not wish to be publicised will then be used against them and will be out into the open public arena.

Senior managers and company directors will need to consider their positions because without very careful handling, training and systematised – being prepared in other words – staff will be required legally to fully divulge information during an investigation of any deficiencies that might have arisen over the last two or three years. Please take note: If it is proven an employer/manager etc. 'KNOWINGLY' exposes an employee to a significant hazard and an accident (serious harm) occurs this moves the decimal point a couple of places to the right when judges determine a fine and an award. Please also know 'the liability is personal'. Be very afraid.

Up to the passing of the new law it might well have been that OSH inspectors will have experienced difficulties in ascertaining facts of events and what was in place (and what should have been in place) prior to the accident and subsequent injury occurring when there have been deficiencies in the OSH systems and procedures. This will no longer be the case.

The third Tsunami involves employers inheriting specific responsibility (by the change in law) for those in a multi-business complex (same building complex) to meet and work together to manage their OSH programmes. There is uncertainty about the detail required but EAL can assist with some ideas of how to prepare.

Can we respectfully suggest that those of you who would like a hand with OSH compliance please e-mail or phone Darryl Voss on 0800 15 8000

Can we also respectfully suggest that those businesses without comprehensive and robust OSH systems in place are exposed to a tsunami that will require a surfboard of biblical proportions to ride out an OSH investigation by the Labour Department.