The biggest compliance ‘hotspot’ in 2018? The new hazardous substances laws
New regulations governing hazardous substances in workplaces came into force in late 2017.
ComplyWith reporting reveals a common theme – many people are not fully aware of the legal requirements. Here are some examples of issues we've seen:
- accessible and up-to-date inventories of hazardous substances and waste at every site
- safety data sheets for all hazardous substances (regardless of quantity) that are readily accessible to workers
- correct labelling of hazardous substances and waste in the workplace
- specific training requirements for workers working with hazardous substances and waste (from 1 June 2018).
All business with hazardous substances must make sure they comply with the hazardous substances requirements as a top priority.
If something does go wrong, you don’t want your people giving answers like these to WorkSafe investigators:
- “There are some substances that are not labelled, and staff do not know what they are!”
- “No additional information, training, or instructions have been given to staff in regards to work and disposal involving hazardous substances or waste”
Health and safety at work – other observations
Overall there’s good awareness of most of the compliance requirements under the health and safety at work laws.
A common area for improvement is managing the safety risks where a worker is isolated from the help of other people because of location, time, or the type of work they’re doing (remote or isolated work).
2018 has seen an increase in the number of successful WorkSafe prosecutions.
Penalties are larger than in the past and are increasing. Some potential prosecutions are being resolved by enforceable undertakings, however, it’s a brave business that would rely on this as a way of avoiding conviction.
On a note more comforting for business leaders, we aren’t yet seeing prosecutions of officers for breaching their due diligence duty.
Other compliance hotspots & emerging issues in 2018
2018 continued a theme we’ve seen for a while, of businesses not always properly understanding and complying with their obligations under the Privacy Act.
With significant privacy law reforms in the pipeline, the time is right to improve the security and management of all personal information.
New fire safety laws came into effect in mid-2018. These largely replicate the previous laws, however, there are some new requirements and some businesses are not yet on top of these.
We are seeing more enforcement activity by some regulators, including recent headlines about NZTA getting tougher on enforcing compliance requirements.
Interestingly there’s also an associated theme emerging in the media of regulators being criticised for not being proactive in taking enforcement action. For example, NZTA allowed dodgy brake tests to go on for years.
Another emerging issue is the damage caused by sub-contractors not complying. A recent high-profile case involved Chorus’s sub-contractors breaching minimum employment law requirements. While in that case, the buck might legally stop with the sub-contractor as the employer, the reputational damage for a business like Chorus is very real.
We are also seeing emerging risks arising from subcontracting out significant work, mainly in two areas:
- Health and safety at work compliance requirements where the principal party doesn’t have a clear understanding of its legal duties to the sub-contractor’s workers, or a robust system to make sure those duties are carried out.
- Contracting sub-contractors to do the work required to make sure a principal is complying with its legal duties (for example, the duties applying to a building owner or a network operator). In the past, businesses might have simply relied on provisions in their contract with the subcontractor requiring compliance with all applicable legal requirements, however these are legal duties that cannot be contracted out of.
When it comes to enforcement time the buck stops with the principal party.
A principal that can’t show it was doing more than putting a term in an agreement saying the subcontractor must comply with all legislation, risks being charged with recklessly disregarding its legal duties. We see this as a significant and emerging area of legal risk.