Vicarious liability and health and safety (Part 2)

In Legal Lines, November 20196 MinutesBy NZ Trucking magazineNovember 11, 2019

I have been asked by a reader to discuss the relationship between the chain of responsibility provisions in the Land Transport Act 1998 (LTA) and the obligations on employers in the Health and Safety at Work Act 2015 (HSWA). Last month I gave a summary of the chain of responsibility principles and this month I will be focusing on the interface between this legislation and the new health and safety laws.

Health and safety
The HSWA imposes obligations on multiple duty holders including employers, principals, employees, and persons in control of a place of work to take “all practicable steps” to keep people safe from hazards in or near the workplace. These duties are framed around a “person conducting a business or undertaking”, which includes employers, principals and suppliers, but does not include employees. The primary duty of the new act is to ensure “so far as is reasonably practicable” the health and safety of people in the workplace. With this comes increased expectations around compliance requirements because businesses must now have systems in place to identify risk and take action to proactively manage it.

Reasonably practicable
“Reasonably practicable” means that which is, or was at the particular time, reasonably able to be done, taking into account relevant matters including:
• the likelihood of the hazard or the risk occurring;
• the degree of harm that might result from the hazard or the risk;
• what the person concerned knows, or ought reasonably to know, about the hazard or risk and ways of eliminating or minimising it;
• the availability and suitability of ways to eliminate or minimise the risk; and
• after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Duty of due diligence
Under the HSWA, directors and senior managers will have a positive duty to exercise due diligence to ensure that persons conducting a business or undertaking comply with their duties or obligations. This will include taking reasonable steps to be knowledgeable in health and safety law, in the operations of the person conducting a business or undertaking, and the nature of the attendant hazards or risks. In addition to this there is an obligation to ensure that the person conducting a business or undertaking has the appropriate resources and processes to discharge their duty and to receive and evaluate information regarding incidents, hazards, and risks, as well as responding in a timely way.

Interface with chain of responsibility provisions
Employers are obligated under the HSWA to take all practicable steps to keep people safe from hazards in or near the workplace. This means they must think about the ways in which someone could be harmed and take action to do what is reasonably practicable to ensure the safety of that person. It follows that employers who are responsible for employees who drive vehicles while working must ensure that their employees are able to drive and operate their vehicles safely. Concerns that have been identified within the transport industry include fatigue, fleet management, and a continuing high risk of accidents in loading zones.

Playing fair
So, what if one‘s employer does not seem to be abiding by their legal obligations? If you, as the employee, consider that you are likely to be caused serious harm, then you are entitled to refuse to do the work. The matter must be discussed with the employer as soon as practicable and then both parties are required to act in good faith to resolve it. If the matter is not resolved and the employee has reasonable grounds for continuing to refuse to do the work, then they can still refuse. However, while the matter is being resolved the employee must do any other work that is reasonably requested by their employer and within the scope of their employment agreement. A dispute over an employee‘s refusal to do work they believe is unsafe is considered an ‘employment relationship problem‘ and can be resolved using the employment mediation services available under the Employment Relations Act 2000. The Ministry of Business, Innovation and Employment provides free mediation services, but if the dispute cannot be resolved in this way, the next step is for the Employment Relations Authority to formally investigate issues and decide what the most appropriate course of action could be. Employees have the right to challenge a written decision of the Employment Relations Authority in the Employment Court if they are unhappy with it. For more free employment information, go to www.employment.govt.nz/resolvingproblems, or call 0800 20 90 20.

Please note that this article is not a substitute for legal advice and if you have a particular matter that needs to be addressed, you should consult with a lawyer. Danielle Beston is a barrister who specialises in transport law and she can be contacted on (09) 379 7658 or 021 326 642.