In New Zealand there are three main regulators, WorkSafe New Zealand, the Civil Aviation Authority and Maritime New Zealand. Each has a raft of tools available to it aimed at making workplaces safer.

The purpose of this paper is to give the reader a better understanding of the enforcement measures and the sentencing options if you are unfortunate enough to face a prosecution.

Knowing what follows may provide a better outcome to you and your workers. 

For simplicity, the focus of this paper will look at the various enforcement options available to WorkSafe New Zealand (“WorkSafe”).

Notices

Let’s start with the obvious. What is a notice and what is its purpose?

There are several types of notices that WorkSafe can issue after a random site visit or after a more formal investigation has been completed.

These include:

1. Infringement Notices – where the duty holder has allegedly violated the law by failing to act or even worse, has a history of non-compliance. In other words, not doing something that it ought to have done. It acts like a strict liability offence and usually carries a penalty in the form of an instant fine.  

2. Improvement Notices – where the duty holder is required to improve a health and safety concern in the workplace. It’s aim is to make the situation better and safer for workers by remedying the problem.

3. Prohibition Notices – where the duty holder is instructed to stop and desist from carrying out or continuing with certain activities in the workplace. These are health and safety breaches that could cause serious harm or injury to workers.     

All of the notices have a common theme – they prescribe what needs to be done to correct the situation. 

In addition, WorkSafe can also issue directive advice in the form of a warning. This can be done either verbally or in writing. It’s used to deal with minor infringements where immediate action can be undertaken to resolve the  problem straight away. 

Nevertheless, we strongly urge our clients to take these sorts of warnings seriously because while a single direction alone might amount to nothing, it is still recorded on your file and, if it is not dealt with immediately could have an accumulatively effect further down the track which could result in either an infringement notice or a prohibition notice being issued.    

In our experience sometimes even WorkSafe inspectors apply the “good practice guidelines” inconsistently. So make sure you take the time to understand what the warning relates to and how it can impact on your business activities. As a general rule of thumb, any directive issued by WorkSafe should sound a note of caution. 

You may be asking yourself around about now, how does WorkSafe decide when to issue a statutory notice? Well, let’s take a moment to look at the process (briefly).

In most cases, WorkSafe might consider the following (please note that this is not an exhaustive list):

a) The duty holder’s record (which was alluded to above);

b) Incidents of non-compliance (i.e historical data);

c) The level of harm and whether an incident has already occurred;

d) Did the duty holder deliberately breach the law to obtain a commercial advantage in the marketplace by taking short-cuts and ignoring good practice guidelines in the workplace?

e) Allowing vulnerable workers to be put at risk or at harm of serious injury.