Your organisation is now likely to be a PCBU (Person in Control of a Business or Undertaking) and if you are a director, Chief Executive or you are able to exercise significant influence over the management of your business, you will be an ‘Officer’ under the Act. Anyone working for you or under your influence will be a ‘Worker’.
It is important to know that if your organisation is a PCBU everyone has duties under the Act and is, therefore, able to commit an offence and be prosecuted by WorkSafe if they breach one of their duties.
The new Act provides for higher maximum fines and prison terms, with up to a $3m fine and 5 years’ imprisonment for a reckless breach of duty.
As your insurance broker, we aim to transfer that potential liability from your business’ balance sheet to your insurer’s. The best way to do that is through a liability suite of policies which includes Statutory Liability and Directors & Officers Liability where you, your employees and your business are indemnified from the legal costs and any reparation award (compensation to the victim or victim’s estate) that you may face under the Act. Insurers are prohibited from insuring you for the fine so an adequate limit of indemnity and expert health and safety legal experts are vital in the event that you face the potential of jail time or up to a $3m fine.
Not every organisation is subject to the Act. If you are part of a ‘Volunteer Association’, as defined by the Act, then the Act does not apply to you or your activities and you have no duties under it. There are 3 questions to answer to find out if you are a volunteer association:
- Are you working for a community purpose? If ‘Yes’, carry on.
- Is everyone involved in your volunteer group acting on a voluntary basis? If ‘Yes’, carry on.
- Do you employ any person to carry out work for your volunteer group? If ‘No’, then you are a Volunteer association and the Act does not apply to your organisation or any individuals associated with it.
The most important point for you to take from this article is that if you ever call WorkSafe to notify them of an incident, please call us immediately afterwards.
We will notify your insurer who, depending on the seriousness of the circumstances, may appoint a solicitor to be present at the WorkSafe investigation and interviews at your premises.
Having your insurer involved from the outset is a requirement of your policies. It can assist you in a crisis situation during the WorkSafe investigation and avoids you prejudicing your cover under your policies.
For further information, or to review your current policies please contact Maree on 04 528 8088, or email maree@thorner.co.nz
