Enforceable Undertakings Operational Policy

Transcription

1 Enfrceable Undertakings Operatinal Plicy Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 1 f 13

2 Enfrceable Undertakings Operatinal Plicy This plicy sets ut Maritime NZ s apprach t enfrceable undertakings under the Health and Safety at Wrk Act 2015 (HSWA). It will be used t guide Maritime NZ s decisin-making abut enfrceable undertakings under HSWA. Scpe f the Dcument This dcument utlines hw Maritime NZ will deliver enfrceable undertakings, specifically: when a duty hlder can apply fr an enfrceable undertaking the key stages f an enfrceable undertaking, including: hw Maritime NZ will carry these ut, and the criteria that will be applied at specific decisin pints. what happens if a duty hlder des nt cmply with an enfrceable undertaking what Maritime NZ s prcesses are fr variatins and withdrawals f an accepted enfrceable undertaking Out f Scpe This plicy is nt an peratinal guidance dcument. Fr that infrmatin, yu will need t read the enfrceable undertaking prcedures and guidance infrmatin n the Maritime NZ website. Related plicies and prcedures The enfrceable undertakings peratinal plicy shuld be read in cnjunctin with: Part 4, sectins f the Health and Safety at Wrk Act 2015 Maritime NZ s Cmpliance Operating Mdel Maritime NZ s Prsecutin Plicy Maritime NZ s Enfrceable Undertaking Practice Guide Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 2 f 13

3 The enfrceable undertaking What is an enfrceable undertaking? An enfrceable undertaking is an enfrcement pathway that is permitted under Part 4 f HSWA. It can be taken fllwing a cntraventin f the Act. It is ne f several enfrcement pathways that are available t Maritime NZ with decisins made in line with Maritime NZ s Cmpliance Operating Mdel. An enfrceable undertaking allws a duty hlder t vluntarily enter int a binding agreement with Maritime NZ and is generally used as an alternative t prsecutin. It utlines actins the duty hlder will undertake t address the cntraventin and is expected t deliver activities which meet the bjectives utlined abve. An enfrceable undertaking is nt impsed n a duty hlder. A duty hlder must first express an interest and submit an applicatin. Maritime NZ then cnsiders whether r nt it agrees with the value prpsitin f the actins detailed in the applicatin and whether it will accept r reject a prpsed undertaking. Maritime NZ is nt cmpelled t accept an applicatin fr an enfrceable undertaking. Hwever, nce accepted, it is legally binding the breach f an enfrceable undertaking is a stand-alne ffence under HSWA. What are the bjectives f an enfrceable undertaking? The key bjectives f an enfrceable undertaking are t: supprt prgressively higher standards f wrk health and safety in a given industry r sectr fr the benefit f the: wrkers and/r wrk and/r wrkplace wider industry r sectr, and cmmunity prvide acceptable amends t any victim(s) supprt Maritime NZ t meet its strategic pririties. When can a duty-hlder apply fr an enfrceable undertaking? A duty hlder can apply fr an enfrceable undertaking fr any cntraventin f HSWA that may lead t, r has resulted in, a prsecutin under the Act. Maritime NZ must nt accept an enfrceable undertaking fr any cntraventin that it believes wuld amunt t an ffence against sectin 47 f HSWA (ffence f reckless cnduct in respect f duty). Maritime NZ is unlikely t accept an enfrceable undertaking if it des nt pass the suitability assessment (refer t sectin 3, suitability assessment, fr details). Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 3 f 13

4 The 7-Step Prcess The enfrceable undertaking prcess has 7 brad steps. These are shwn in the diagram belw: 1. Registering interest with Maritime NZ 2. Sectin 47 Review 3. Suitability assessment 4. Applicatin submitted If accepted 5. Applicatin cnsidered If declined 6. Enfrceable undertaking mnitred Enfrceable undertaking prcess ends 7. Enfrceable undertaking cmpleted 1. Registering interest with Maritime NZ Any duty hlder seeking an enfrceable undertaking must first register their interest with Maritime NZ. A registratin f interest must be made in writing t the Directr f Maritime NZ, thrugh the Maritime NZ Enfrceable Undertakings Team (the EU Team). The EU Team: administers the enfrceable undertaking prcess prvides an advisry functin t the sectr and within Maritime NZ Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 4 f 13

5 mnitrs all accepted enfrceable undertakings. An enfrceable undertaking will nly be cnsidered fllwing a cntraventin f the Act that reaches the threshld fr legal prceedings. Interest can be registered at any time. Hwever, Maritime NZ will nly cnsider an enfrceable undertaking nce the investigatin f the cntraventin is cmplete. Irrespective f having received a registratin f interest, Maritime NZ will cntinue with legal prceedings as an independent but parallel prcess. 2. Sectin 47 Review Maritime NZ will cnduct a legal review t determine if the cntraventin amunts t an ffence against sectin 47 f HSWA (ffence f reckless cnduct in respect f duty). This will nly happen nce the duty hlder has registered interest and Maritime NZ has cmpleted its investigatin. If Maritime NZ believes the cntraventin wuld amunt t a sectin 47 ffence, then it must nt accept an enfrceable undertaking. If the cntraventin is deemed t nt be a sectin 47 ffence, Maritime NZ will apply the suitability assessment. 3. Suitability assessment Maritime NZ will apply the suitability assessment. This assessment cnsiders whether an enfrceable undertaking is a suitable enfrcement utcme given the specific circumstances f a cntraventin. Maritime NZ is unlikely t accept an enfrceable undertaking fr a cntraventin where it cnsiders tw r mre f the fllwing measures apply: Did the cntraventin result in a fatal injury r illness? Was there ptential fr the cntraventin t result in multiple fatalities r fr multiple victims t develp a fatal illness? Des the cntraventin have any aggravating factrs? Des it demnstrate repeat cnduct by the duty hlder? Did it invlve ffending against a vulnerable victim(s)? Is an enfrceable undertaking likely t be challenged by a victim (r their representative), unin r emplyer rganisatin? Culd accepting an enfrceable undertaking be perceived as cntrary t a stated gvernment pririty r plicy? The EU Team will review the cntraventin, cnsider it against the measures and make an interim assessment. The EU Team Manager will give final apprval f the assessment utcme. Once the suitability assessment is cmplete, the EU Team will then advise the duty hlder in writing Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 5 f 13

6 that Maritime NZ is ready t cnsider an applicatin. Fr any cntraventin where tw r mre f the measures are deemed applicable, Maritime NZ will als advise the duty hlder in writing that it is unlikely a prpsed enfrceable undertaking will be accepted. This crrespndence will include the relevant measures. The duty hlder can still chse t submit an applicatin, regardless f the utcme f the suitability assessment. Advising a duty hlder that Maritime NZ is ready t cnsider an applicatin is nt a cmmitment n the part f Maritime NZ t enter in t an undertaking. 4. Submitting an applicatin Any duty hlder submitting an enfrceable undertaking applicatin must d s in writing using Maritime NZ s enfrceable undertaking applicatin template. Receipt f an applicatin is nt a cmmitment n the part f Maritime NZ t enter int an undertaking. Applicatins must include cmmitments that wuld prmte the bjectives r purpses f health and safety legislatin fr the benefit f ne r mre f the fllwing: the wrkers and/r wrk and/r wrkplace the wider industry r sectr the cmmunity. Prmting the bjectives r purpses f health and safety legislatin means the cmmitments shuld raise the bar r prmte prgressively higher standards f wrk health and safety in the given industry r sectr. The prpsal must: Accunt fr the benefits that accrue t the duty hlder by the prsecutin nt prceeding. This includes aviding a cnvictin and ther sentencing utcmes. Indicate whether the duty hlder has undertaken enquiries with any applicable unin and within in their sectr/industry abut the prpsed measures and what feedback was received. Include apprpriate amends fr any victim (mnetary r therwise) Indicate whether the duty hlder has had cntact with the victim abut the prpsed amends and measures and what feedback was received. Acknwledge the underlying cnduct r failures that have given rise t the cntraventin. One f Maritime NZ s strategic pririties is t target risk. Therefre Maritime NZ: Will align its enfrceable undertaking decisins with any stated aim r strategy in a given part f the sectr. Expects duty-hlders frm high risk parts f the maritime sectr t d mre in their applicatin t prmte the bjectives r purpses f health and safety legislatin. Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 6 f 13

7 Sectin 123(3) f HSWA prvides that the giving f the enfrceable undertaking des nt cnstitute an admissin f guilt in relatin t the cntraventin. Hwever, a prpsal must acknwledge the underlying cnduct r failures that have given rise t the cntraventin and accept respnsibility fr these. Maritime NZ expects this t include details f the relevant steps/measures that the duty hlder shuld have taken. Irrespective f having received an applicatin, any legal prceedings Maritime NZ has initiated fr the cntraventin will cntinue until the utcme f the applicatin is finalised. 5. Cnsidering the applicatin When assessing an applicatin, Maritime NZ will cnsider whether the prpsed enfrceable undertaking cnstitutes a prprtinate enfrcement utcme, taking int accunt the fllwing factrs: The nature f the prpsals in the applicatin and the benefits that wuld be realised t the health and safety system frm them. The nature f the duty hlder s cntraventin and hw serius it was. Infrmatin received frm any interested party in relatin t the cntraventin. Mitigatin and remedial actin already taken, r planned, by the duty hlder regarding bth the cntraventin and any persn affected by it (including victims). The duty hlder s past perfrmance and histry f cmpliance with health and safety legislatin. Any likely utcme if the matter were dealt with by legal prceedings. Hw the prpsal prmtes Maritime NZ s bjectives and supprts its strategic pririties. Any ther matter which Maritime NZ thinks relevant. Maritime NZ will cntact victim(s) t either cnfirm any infrmatin they have prvided t Maritime NZ, r if they have nt prvided any infrmatin, t seek their views n the prpsal. Views f victim(s) are imprtant and will be actively cnsidered as part f ur decisin-making prcess. Vluntary actin taken by the duty hlder fllwing the cntraventin beynd what is required t meet their existing bligatins under Health and Safety legislatin can be included in the applicatin. Maritime NZ will nt accept a prpsed enfrceable undertaking where it: Cntains a denial f respnsibility fr the cntraventin. Des nt cntain a statement acknwledging that harm was caused r risked by the cntraventin. Cntains any clauses that may lead t pssible nn-cmpliance with the enfrceable undertaking. Omits t include, r dwn-plays, relevant details f the cnduct which gave rise t the enfrceable undertaking and Maritime NZ s cncerns abut the cnduct. Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 7 f 13

8 Cntains any terms that may impse an bligatin n Maritime NZ r any ther party withut that party s cnsent. Only cntains cmmitments that wuld equate t the duty hlder meeting their existing bligatins under Health and Safety legislatin. Applicatins will be cnsidered by the Maritime NZ Enfrceable Undertaking Review Panel (the EU Panel). The EU Panel will cmprise a Cmpliance Manager and tw managers frm ther business grups that participate in Maritime NZ s cmpliance interventin panel. T maintain cnsistency, Maritime NZ will aim t keep panel membership the same ver time. Hwever, Panel membership can change ver time t manage cnflicts and in respnse t staff absences and/r changes in circumstances. The Panel cannt include the enfrceable undertakings Decisin Maker, r any persn wh has been invlved with investigating, r prviding advice n, the cntraventin. Maritime NZ must be satisfied that Panel members d nt have any reasnably freseeable cnflict f interest with a given enfrceable undertaking applicatin. It may be that cnflicts f interest are inevitable in sme cntexts and where that is the case, Maritime NZ needs t be satisfied that the Panel member can apprpriately manage the cnflict. The EU Panel is nt a decisin-making bdy. It prvides advice t the Decisin Maker n whether r nt the prpsal shuld be accepted. The EU Panel will review a prpsal and determine whether: the EU Team will refer it back t the duty hlder with feedback and a request they re-submit recmmend t the Decisin Maker that it is accepted, r recmmend t the Decisin Maker that it is declined. It is nt mandatry fr the EU Panel t refer an applicatin back t the duty hlder with feedback and a request that they re-submit. If they chse t d s, it des nt frm a cmmitment n the part f Maritime NZ t enter in t an undertaking. T supprt their discussins, the EU Panel can request infrmatin frm subject matter experts n specific issues r questins relating t their areas f knwledge and expertise. Subject matter experts include (but are nt limited t): Maritime NZ s Legal Services the lead investigatin Inspectr and/r their Manager, and Maritime NZ technical specialists. There will be a written accunt f any advice prvided by a subject matter expert. This will be the respnsibility f the EU Team. The Deputy Directr Cmpliance Systems Delivery is the enfrceable undertakings Decisin Maker. The Decisin Maker will cnsider the EU Panel s recmmendatin and make a decisin t accept r decline a prpsal. Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 8 f 13

9 After receiving the EU Panel s recmmendatin, the Decisin Maker can: seek legal advice frm Maritime NZ s Chief Legal Advisr, and/r at their discretin, nminate that a decisin n a given prpsal is made by the Directr f Maritime NZ. If the decisin is t accept the enfrceable undertaking, Maritime NZ will: take all reasnable steps t discntinue any prsecutin that has been taken in relatin t the cntraventin as sn as practicable advise the duty hlder f the decisin and reasns fr the decisin wrk with the duty hlder t develp and agree a cmmunicatin prtcl abut the enfrceable undertaking ntify victim(s) f the decisin and reasns fr the decisin, and publish the accepted enfrceable undertaking in full, including the reasns fr the decisin. Maritime NZ expects the duty hlder t agree a jint public statement immediately fllwing the apprval f an enfrceable undertaking. Publicatin f an enfrceable undertaking will include details f any financial amends made t the victim(s). These details will nly be redacted in exceptinal circumstances. Any decisin t redact infrmatin will be made by the Decisin Maker. If the decisin is t decline the prpsal the Decisin Maker will, in writing: advise the duty hlder f the decisin, and reasns fr it, and prvide the duty hlder with an pprtunity t make a submissin addressing the reasns fr the decisin. The Decisin Maker will review the submissin and decide whether r nt t cnfirm the decisin t decline. If decisin-making has been deferred, this prcess will be undertaken by the Executive Leadership Team r a sub-set f that team. If the decisin is still t decline the enfrceable undertaking, Maritime NZ will: cntinue with any legal prceedings that have been taken in relatin t the cntraventin advise the duty hlder f the decisin and reasns fr the decisin, and ntify victim(s) f the decisin and reasns fr the decisin. Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 9 f 13

10 6. Mnitring the enfrceable undertaking Each enfrceable undertaking will be mnitred against key milestnes thrughut its life. This will allw Maritime NZ t assess whether r nt it is being cmplied with and whether the benefits expected frm the enfrceable undertaking have been realised. The EU Team will determine hw an enfrceable undertaking will be mnitred and will be respnsible fr mnitring it nce it is accepted. This may include directing inspectrs t carry ut site visits. A mnitring schedule will be develped and included as part f Maritime NZ s acceptance f a prpsed enfrceable undertaking. The schedule will specify the key milestnes f the enfrceable undertaking and hw these will be mnitred by Maritime NZ. This may include (but is nt limited t): scheduled site visits, and the duty hlder prviding: acceptable evidence f a key milestne being met interim prgress reprts, and a final cmpliance reprt. A timeframe fr cmpletin will als be set by the EU Team. Timeframes will be based n the details prvided by the duty hlder in the enfrceable undertaking applicatin and will be cnfirmed in the mnitring schedule. It is the duty hlder s respnsibility t satisfy Maritime NZ that they are fulfilling the terms f the enfrceable undertaking and t prvide reprts n time as detailed in the schedule. Maritime NZ will use the mnitring schedule and its wn inspectins and versight t ensure an enfrceable undertaking is meeting its targets and bjectives. 7. Cmpleting the enfrceable undertaking Once the enfrceable undertaking is cmpleted, the duty hlder must submit a final cmpliance reprt. Maritime NZ will cnfirm, t its satisfactin, whether r nt the enfrceable undertaking has been met. This culd invlve a number f activities, including (but nt limited t): reviewing the final reprt and cnsidering it against the mnitring schedule cntacting victim(s) and ther interested parties as detailed in the undertaking, and Maritime NZ inspectins. If Maritime NZ deems the undertaking t be met, it will: cnfirm in writing t the duty hlder that the enfrceable undertaking is cmplete and that it will be discharged ntify the victim(s) f the cmpletin f the enfrceable undertaking, and update the register. Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 10 f 13

11 Nn-cmpletin, variatins and withdrawals What happens if an enfrceable undertaking is nt cmplied with? Failing t cmply with an enfrceable undertaking is an ffence under sectin 126 f HSWA. If Maritime NZ believes a duty hlder has nt cmplied with any aspect f an enfrceable undertaking, it may investigate and pursue enfrcement actin in relatin t it. If the terms f an enfrceable undertaking have been breached, the Curt has a number f ptins available t it. These are detailed in Sectin 127 f HSWA. If an enfrceable undertaking is cntravened Maritime NZ may als bring prceedings fr the cntraventin f the safety legislatin the enfrceable undertaking relates t. What are Maritime NZ s prcesses fr variatins and withdrawals f an accepted enfrceable undertaking? Withdrawal f the enfrceable undertaking Sectin 128 f HSWA prvides that a duty hlder wh has an enfrceable undertaking may at any time, with the written agreement f Maritime NZ, withdraw the undertaking r vary the agreement. Requests fr withdrawal f an enfrceable undertaking must be made in writing t the EU Team. If Maritime NZ cnsents t a withdrawal, the duty hlder will n lnger be bund by the terms f the enfrceable undertaking. Withdrawal will nly be cnsidered in exceptinal circumstances. Maritime NZ will seek the views f the victim(s) fr any request t withdraw an applicatin. Views f victim(s) are imprtant and will be actively cnsidered as part f ur decisin-making prcess. If Maritime NZ has cnsented t a withdrawal, it may take legal actin in relatin t the riginal ffence r alleged ffence that the enfrceable undertaking relates t. If Maritime NZ cnsents t the withdrawal it will: advise the duty hlder in writing f the decisin and reasns fr the decisin ntify victim(s) f the decisin and reasns fr the decisin, and publish the decisin t withdraw an enfrceable undertaking. If Maritime NZ declines the withdrawal request, it will: advise the duty hlder in writing f the decisin and reasns fr the decisin, and cntinue t mnitr delivery f the enfrceable undertaking as per the mnitring schedule. If a request t withdraw an undertaking is declined, the duty hlder will be required t cntinue delivering the enfrceable undertaking as riginally accepted by Maritime NZ. If the duty hlder des nt cntinue t cmply with the enfrceable undertaking, Maritime NZ may pursue enfrcement actin. Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 11 f 13

12 Variatin f the enfrceable undertaking Requests fr variatin f an enfrceable undertaking must be made in writing t the EU Team. Maritime NZ will seek the views f the victim(s) fr any request t vary an applicatin. Views f victim(s) are imprtant and will be actively cnsidered as part f ur decisin-making prcess. Maritime NZ will nly cnsider variatins: that d nt alter the spirit f the riginal undertaking, and where there has been a material change in the duty hlder s circumstances, and/r if cmpliance with the terms f the undertaking is later fund t be impractical r can be achieved thrugh ther means. Sectin 128 f HSWA states that an enfrceable undertaking cannt be varied t prvide fr a different cntraventin. If Maritime NZ agrees t vary an enfrceable undertaking, it will: advise the duty hlder in writing f the decisin and reasns fr the decisin review the mnitring schedule and update as required t reflect the variatin ntify victim(s) f the decisin and reasns fr the decisin, and publish the decisin t vary the enfrceable undertaking. If Maritime NZ declines the request t vary an enfrceable undertaking, it will: advise the duty hlder in writing f the decisin and reasns fr the decisin cntinue t mnitr delivery f the enfrceable undertaking as per the mnitring schedule. If a request t vary an undertaking is declined, the duty hlder will be required t cntinue delivering the enfrceable undertaking as riginally accepted by Maritime NZ. What csts will be recvered by Maritime NZ in an enfrceable undertaking? N fee r charge applies t an applicatin fr an EU r where an Undertaking has been accepted. Maritime NZ is currently reviewing its apprach t cst recvery fr Enfrceable Undertakings. Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 12 f 13

13 Definitins The fllwing terms are used in reference t enfrceable undertakings: Cmpliance interventin panel (CIP) Cntraventin Decisin Maker Duty Hlder Enfrceable Undertaking Fatal Illness Fatal Injury The cmpliance interventin panel (CIP) is a crss-rganisatin panel that meets peridically t cnsider hw best t respnd t cmpliance issues that arise. An actin which ffends against the Health and Safety at Wrk Act 2015 and/r any Regulatins made under it. It includes bth health and safety cntraventins. Fr the purpses f this plicy, a cntraventin als includes an alleged cntraventin. The persn wh receives advice frm the Maritime NZ Enfrceable Undertaking Review Panel and makes the interim and final decisin abut whether r nt t accept a prpsed enfrceable undertaking. This is the Deputy Directr, Cmpliance Systems Delivery. The Decisin Maker can, at their discretin, defer decisin-making n any given enfrceable undertaking t the Maritime NZ Executive Leadership Team r a subgrup f that Team. The duty hlder wh prpses an enfrceable undertaking and against whm the prpsed enfrceable undertaking becmes an accepted enfrceable undertaking (if accepted). The term includes a reference t bdies crprate, the crwn and a public authrity. An enfrcement pathway that allws a duty hlder t vluntarily enter int a binding agreement with Maritime NZ. It generally used as an alternative t prsecutin. The agreement utlines actins the duty hlder will undertake t address the cntraventin. It is expected t deliver activities which benefit wrkers, the wider industry r sectr and/r the cmmunity as well as acceptable amends t any victim(s). One that causes, r will cause, the death f an individual. One that causes the death f an individual. HSWA Health and Safety at Wrk Act Suitability Assessment Maritime NZ Enfrceable Undertaking Team (EU Team) Maritime NZ Enfrceable Undertaking Review Panel (EU Panel) Vulnerable Victim An assessment t determine whether an enfrceable undertaking is a suitable enfrcement utcme given the specific circumstances f a cntraventin. A team within Maritime NZ whse functin is t: administer the enfrceable undertaking prcess prvide an advisry functin t the sectr and within Maritime NZ, and mnitr all accepted enfrceable undertakings. The team is als respnsible fr applying the suitability assessment. A grup that cnsiders enfrceable undertaking applicatins and makes recmmendatins t the Decisin Maker abut whether the prpsal shuld be accepted r nt. It is made up f three representatives, ne each frm: Investigatins and Planning Organisatinal Strategy and Systems Certificatin Smene wh has little cntrl ver their situatin and may be mre easily harmed, affected r hurt. Examples f vulnerable peple include, children; members f the public; yung r elderly wrkers; pregnant r breast-feeding mthers r migrant wrkers. Enfrceable Undertakings Operatinal Plicy. Nvember 2018 Page 13 f 13