Enfrceable Undertakings Practice guide
Enfrceable Undertakings Practice Guide Part 4, Health and Safety at Wrk Act 2015 Enfrceable Undertakings are an alternative t prsecutin when a duty hlder has breached (including an alleged breach) the Health and Safety at Wrk Act 2015 (HSWA). It is a way fr a duty hlder t vluntarily make a binding agreement with Maritime New Zealand t take actin fr the breach they have made. This dcument prvides additinal infrmatin n the prcess and shuld be read in cnjunctin with the Enfrceable Undertakings Operatinal Plicy. 1. Registering interest Any duty hlder seeking an enfrceable undertaking must first register their interest with Maritime NZ. This must be made t the Directr f Maritime NZ by sending an email t the Enfrceable Undertakings Team (the EU Team) via the enfrceable undertakings email address: EnfrceableUndertakings@Maritimenz.gvt.nz An expressin f interest can be submitted at any time fllwing the breach (including an alleged breach). It is nn-binding n bth parties. The registratin f interest must clearly state: that an enfrceable undertaking is being sught wh is seeking the undertaking, and the breach r event that the undertaking is being sught fr. The EU Team will acknwledge all registratins f interest by email within 3 business days. It is imprtant t nte that even if a duty hlder registers interest in pssibly pursuing an enfrceable undertaking: the enfrceable undertaking prcess will nt begin until the investigatin int the breach is cmplete, and legal prceedings will cntinue until the utcme f any enfrceable undertaking applicatin is finalised. 2. Sectin 47 review Once the investigatin is cmplete, Maritime NZ will cnduct a legal review f the file t cnsider whether we believe the breach amunts t an ffence under sectin 47 f HSWA. This is an ffence f reckless cnduct in respect f a duty that expses an individual t a risk f serius injury, serius illness r death. This is the mst serius ffence under HSWA and the maximum penalties include imprisnment. Enfrceable Undertakings Practice Guide. Nvember 2018 Page 2 f 11
Maritime NZ cannt accept an enfrceable undertaking if we believe that the breach amunts t an ffence against sectin 47 f HSWA. The EU Team will advise the duty hlder in writing via the enfrceable undertakings e-mail if Maritime NZ decides that the breach amunts t a sectin 47 ffence. The EU Team will nt cntact the duty hlder if the breach des nt amunt t a sectin 47 ffence. Instead, the file will autmatically prceed t the next step, the suitability assessment. 3. The suitability assessment The EU Team will apply the suitability assessment nce the sectin 47 review is cmplete. This assessment cnsiders whether an enfrceable undertaking is a suitable utcme given the specific circumstances f a breach. The EU Team will cnsider the breach against a number f measures. It is unlikely that an enfrceable undertaking will be accepted fr any breach that meets tw r mre f the fllwing measures: Did it result in a fatal injury r illness? A fatal injury is ne that causes the death f an individual. A fatal illness is ne that causes, r will cause, the death f an individual. Was there the ptential fr the breach t result in multiple fatalities r fr multiple victims t develp a fatal illness? The breach had the ptential t have fatal health and safety cnsequences fr multiple peple and may even have had the ptential t affect peple beynd the facility bundary. Des the breach have any aggravating factrs? These factrs include: The risk f and ptential fr, illness, injury, r death that culd have ccurred Whether death, serius injury, r serius illness ccurred r culd reasnably have been expected t have ccurred The degree f departure frm prevailing standards in the sectr r industry. This includes: what the persn cncerned knws, r ught reasnably t knw, abut the hazard r risk and the ways f eliminating r minimising the risk, and the availability and suitability f ways t eliminate r minimise the risk. The cst assciated with available ways f eliminating r minimising the risk, including whether the cst is grssly disprprtinate t the risk. Did it invlve ffending against a vulnerable victim(s)? Offending means that the breach has harmed a vulnerable persn (r peple) r put them at risk. A vulnerable persn is smene wh has little cntrl ver their situatin and may be mre easily Enfrceable Undertakings Practice Guide. Nvember 2018 Page 3 f 11
harmed, affected r hurt. Examples f vulnerable peple are children; members f the public; yung r elderly wrkers; pregnant r breastfeeding mthers and migrant wrkers. Des it demnstrate repeat cnduct by the persn? Recrds and/r evidence indicate that the persn has a histry f: related r similar harm and/r nn-cmpliance leading t frmal (statutry) enfrcement that is recent, relevant and/r significant. Is an enfrceable undertaking likely t be challenged by victim(s) (r their representative), unin r emplyer rganisatin? The victim(s), unin r emplyer rganisatin has demnstrated a strng view against an enfrceable undertaking. Culd accepting an enfrceable undertaking be received as cntrary t a stated gvernment pririty r plicy? This includes the Letter f Expectatins frm the Minister fr Wrkplace Relatins and Safety, and Maritime NZ s Statement f Intent and ur Strategic Pivts. After the EU Team applies the suitability assessment, it will advise the duty hlder in writing via the enfrceable undertakings e-mail that Maritime NZ is ready t cnsider an applicatin. If the EU Team has determined that the breach meets tw r mre f the measures, they will als advise the duty hlder in writing that it is unlikely an enfrceable undertaking will be accepted. They will als tell the duty hlder which measures were deemed t have applied. The duty hlder can still chse t submit an applicatin regardless f the utcme f this assessment. 4. Submitting an applicatin Submitting an applicatin des nt frm a cmmitment n the part f Maritime NZ t enter int an agreement. Duty hlders must submit their applicatin n the enfrceable undertakings applicatin frm. It must be sent t the EU Team via the enfrceable undertakings email. There is n applicatin fee. The EU Team will prvide written acknwledgement by email that they have received an applicatin within 3 business days. All applicatins fr an enfrceable undertaking must: Include cmmitments that wuld raise the bar r prmte prgressively higher standards f wrk health and safety in the given sectr r industry fr the benefit f ne r mre f the fllwing: Enfrceable Undertakings Practice Guide. Nvember 2018 Page 4 f 11
the wrkers and/r wrk and/r wrkplace the wider industry r sectr the cmmunity. 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 their sectr / industry abut the prpsed measures and what feedback was received. Include apprpriate amends fr any victim(s) (mnetary r therwise). Indicate whether the duty hlder has had cntact with the victim(s) abut the prpsed actins and measures and what feedback was received. Acknwledge the underlying cnduct r failures that have given rise t the breach. Examples f what culd be cnsidered a benefit culd include (but is nt limited t): Cnducting, facilitating r funding research int a safety issue relevant t the industry. Implementing specified prjects, such as special training prgrams t address particular needs fr wrkers, supervisrs and management. Prmtin and educatin campaigns targeted at varius sectrs. Targeted publicity regarding the breach and/r hw it culd have been prevented. Emplying and/r funding wrk health and safety expertise within the wrkplace and/r industry sectr. Cmmunity service cmmitments, such as implementatin f an industry-wide awareness prgram r publicatin f material dealing with the EU in relevant trade jurnals r newspapers. Dnating funds t a nt-fr-prfit rganisatin with a specific fcus n wrk health and safety including shrt, medium and lng term bjectives assisting in, r funding, the develpment f industry standards relevant t the persn s industry. Funding tertiary schlarships fr wrk health and safety students in cnsultatin with relevant universities. Irrespective f having received a registratin f interest r an applicatin, Maritime NZ will cntinue with its investigatin, the enfrcement decisin-making prcess and/r any legal prceedings as an independent but parallel prcess. This means that we will endeavur t determine an applicatin befre the 12-mnth time-frame fr filing charges, but if this is nt pssible we may prceed with filing charge(s). Any decisin t withdraw charges will be made when a decisin is made n the enfrceable undertaking applicatin. Maritime NZ will take all reasnable steps t adjurn any curt prceedings until such time as a decisin has been made. Hwever, adjurnments will nly be sught where there is a genuine Enfrceable Undertakings Practice Guide. Nvember 2018 Page 5 f 11
cmmitment t entering int an enfrceable undertaking. Adjurnments will nt be sught r agreed t where they are being used as delaying tactics. 5. Cnsidering an applicatin The threshld fr accepting a prpsed enfrceable undertaking is a high ne. The Enfrceable Undertakings Panel will cnsider the applicatin and make a recmmendatin abut it. T have any chance f being accepted, an applicatin must demnstrate that the prpsed enfrceable undertaking cnstitutes a prprtinate enfrcement utcme. This will be cnsidered using 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 This includes (but is nt limited t) - The value prpsitin f the applicatin. Hw the actins prmte prgressively higher standards f wrk health and safety. This means cmmitments that wuld raise the bar r prmte prgressively higher standards f wrk health and safety in the given sectr r industry. Which grups will realise the benefits f the prpsals The nature f the duty hlder s breach and hw serius it was This includes (but is nt limited t) - The significance and seriusness f the breach (including whether it is f a nature that requires the transparency f a curt hearing, in the public interest). The injuries, r risk f injury, as a result f the breach. The prevalence f the risks arising frm the breach. Infrmatin received frm any interested party in relatin t the alleged miscnduct This includes (but is nt limited t) - Infrmatin abut the incident, views n health and safety management at the wrkplace, the victim(s) recvery frm the injury and their likely future wrk prspects. Whether any ffer f amends has been made, r paid, in relatin t the harm suffered and the victim(s) views abut the adequacy f that ffer. Whether any ffer has been made fr the victim(s) t participate in a restrative justice type prcess, and their views abut this. Input frm wrker representatives (Health and Safety Representatives and unins) if applicable. Enfrceable Undertakings Practice Guide. Nvember 2018 Page 6 f 11
The victim(s) views as t whether an enfrceable undertaking wuld be an acceptable alternative t ther enfrcement alternatives. While they d nt have a right f vet, the views f the victim(s) are imprtant and will be actively cnsidered. Mitigatin and remedial actin already taken, r planned, by the duty hlder regarding bth the breach and any persn affected by it (including victims) This includes (but is nt limited t) - Steps taken by the duty hlder t ensure a further breach des nt ccur in future (ver and abve merely achieving cmpliance with the legislatin). Cmmitment that the behaviur that led t the breach has ceased and will nt reccur. Cmmitment t the nging effective management f wrk health and safety risks. Cmmitment t disseminate infrmatin abut the EU t wrkers and ther relevant parties. Financial payments made t the victim(s). Other help r supprt prvided t the victim(s). Infrmatin regarding the rehabilitatin prgrammes, and the victim(s) quality f life since the incident where relevant. Infrmatin regarding retraining f the victim(s) where relevant. Actins taken t address any deficiencies in health and safety management in relatin t the breach. The duty hlder s past perfrmance and histry f cmpliance with health and safety legislatin This includes (but is nt limited t) - The duty hlder s safety recrd. Any aggravating circumstances which exist (e.g. specific knwledge abut the hazard r risk). Whether the regulatr is satisfied with the prspects fr nging cmpliance based n the persn s past behaviur. Enfrceable Undertakings Practice Guide. Nvember 2018 Page 7 f 11
Any likely utcme if the matter were dealt with by legal prceedings This includes (but is nt limited t) whether the applicatin has accunted fr the benefits that accrue t the duty hlder by the prsecutin nt prceeding. This includes aviding: A cnvictin being recrded against the duty hlder. Any pssible fine that may have been impsed. Any ther csts that may have been awarded t Maritime NZ. Any ther sentencing utcme. Hw the prpsal prmtes Maritime NZ s bjectives and supprts its strategic pririties This includes (but is nt limited t) whether the applicatin supprts Maritime NZ s Statement f Intent and Strategic Pivts. Any ther matter which Maritime NZ thinks relevant This includes (but is nt limited t) - A cmmitment t participate cnstructively in all cmpliance mnitring activities f the undertaking. A cmmitment frm management t imprving the health and safety culture within the business. This can include, but is nt limited t: Defining health and safety respnsibilities. Sharing the health and safety visin acrss the rganisatin. Creating an envirnment that hlds everyne accuntable fr being visibly invlved, especially managers and supervisrs. Imprving wrker participatin within the rganisatin. Encuraging incident reprting. Creating and/r evaluating an incident investigatin system t make sure investigatins are cnducted in an effective manner. A cmmitment t put in place management strategies that will ensure the n-ging effective management f risks t health and safety in the future. This can include, but is nt limited t: Prcedures, plicies r standards. Assessment f health and safety perfrmance, including reviews f prcedures r plicies, cmpliance assessments and third party assessment. In additin, and amng ther cnsideratins, Maritime NZ will nt accept a prpsed enfrceable undertaking where it: Cntains a denial f respnsibility fr the breach. Enfrceable Undertakings Practice Guide. Nvember 2018 Page 8 f 11
Des nt cntain a statement acknwledging that harm was caused r risked by the breach. Cntains any clauses that may lead t pssible nn-cmpliance with the enfrceable undertaking. Omits t include, r dwnplays, relevant details f the cnduct which gave rise t the enfrceable undertaking, and Maritime NZ s cncerns abut the cnduct. 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. Cnsideratin Taking int accunt the abve factrs, the Enfrceable Undertakings Panel will recmmend an applicatin be accepted r declined. The Enfrceable Undertakings Panel can chse t refer the applicatin back t the duty hlder with feedback and a request they re-submit. Hwever, this is nt mandatry and is cmpletely at Maritime NZ s discretin. The duty hlder shuld nt assume that they will get an pprtunity t amend their applicatin and shuld submit their best applicatin the first time. The EU Team will advise the duty hlder in writing abut Maritime NZ s decisin via the enfrceable undertakings email. This will include the reasns fr the decisin. If the decisin is made t decline an applicatin, the duty hlder will have an pprtunity t make a submissin t Maritime NZ. This submissin must be made in writing via the enfrceable undertakings email and shuld nly address the reasns given by Maritime NZ fr the decisin. Any new r different terms prpsed by the duty hlder, r a new applicatin, will nt be cnsidered. Maritime NZ will then decide whether r nt t cnfirm the decisin t decline. If Maritime NZ accepts an applicatin, then any legal prceedings taken against the duty hlder will be discntinued. If the applicatin is declined, then legal prceedings will cntinue. Maritime NZ expects the duty hlder t c-develp and agree a cmmunicatins prtcl. This includes agreeing t a jint public statement t be released immediately fllwing the acceptance f an enfrceable undertaking. Further Infrmatin abut the decisin-making prcess is prvided in the Enfrceable Undertakings Plicy. Csts 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 Practice Guide. Nvember 2018 Page 9 f 11
6. Mnitring the enfrceable undertaking Mnitring Once an enfrceable undertaking is accepted, the EU Team will set up a mnitring schedule. This will include an agreed timeframe fr cmpletin f the enfrceable undertaking. The purpse f the mnitring schedule is t ensure the enfrceable undertaking is meeting its stated targets and bjectives. It enables Maritime NZ t make an independent assessment f cmpliance against the key milestnes thrughut the life f the undertaking. All prpsed enfrceable undertakings will be mnitred by the EU Team. The duty hlder will be respnsible fr satisfying Maritime NZ that they are fulfilling the terms f the agreement and by prviding timely reprts and ther evidence. Maritime NZ may als include its wn inspectins and versight int a schedule. Mnitring schedules and timeframes will be set n a case by case basis based n the specific circumstances f, and actins detailed in, an enfrceable undertaking. Maritime NZ may revise the mnitring schedule during the term f the undertaking if it receives infrmatin that wuld indicate different, r additinal, cmpliance mnitring is apprpriate. Fr example, in situatins where there are further ntifiable events r where rutine inspectins r assessments raise issues. If this ccurs, Maritime NZ will advise the duty hlder in writing via the enfrceable undertakings e-mail. Further Infrmatin abut mnitring is prvided in the Enfrceable Undertakings Plicy. Nn-Cmpliance Enfrceable Undertakings are legally binding. Failing t cmply with an undertaking is an ffence under sectin 126 f HSWA. If the EU Team believes an enfrceable undertaking has nt been cmplied with, Maritime NZ may investigate further. This may result in enfrcement actin. Details abut what culd happen if curt actin is taken can be fund in sectin 152 f HSWA and in the Enfrceable Undertakings Plicy. If a duty hlder breaches the terms f the enfrceable undertaking, Maritime NZ can chse t initiate legal prceedings fr the riginal breach as well as fr the breach f the undertaking. Variatin The duty hlder can apply t vary the terms f an apprved enfrceable undertaking. The applicatin must be made in writing via the enfrceable undertakings e-mail. The decisin abut whether t vary an enfrceable undertaking sits with Maritime NZ. Maritime NZ is nt bligated t accept a variatin request and will cnsider each n its merits. 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 Enfrceable Undertakings Practice Guide. Nvember 2018 Page 10 f 11
if cmpliance with the terms f the undertaking has been later fund t be impractical. Maritime NZ cannt vary an enfrceable undertaking t reflect a separate breach f the Act (shuld ne either later ccur r cme t light). This is prhibited by sectin 128 f HSWA. In such circumstances, it is very unlikely that a separate enfrceable undertaking wuld be accepted fr the subsequent breach. Shuld a request t vary an enfrceable undertaking be received Maritime NZ will cntact the victim(s) and their views will be actively cnsidered. Further Infrmatin is prvided in the Enfrceable Undertakings Plicy. Withdrawal The duty hlder can apply t withdraw frm an enfrceable undertaking. The applicatin must be made in writing via the enfrceable undertakings e-mail. Maritime NZ is under n bligatin t accept such requests, and will cnsider each n its merits. Withdrawal will nly be cnsidered in exceptinal circumstances. Where a withdrawal is agreed t, the persn will n lnger be bund by the terms f the enfrceable undertaking and Maritime NZ may decide t take legal actin in relatin t the riginal breach. Further infrmatin is prvided in the Enfrceable Undertakings Plicy. Shuld a request t withdraw frm an enfrceable undertaking be received Maritime NZ will cntact the victim(s) and their views will be actively cnsidered. 7. Cmpletin f the enfrceable undertaking The EU Team will decide when an enfrceable undertaking is cmpleted. This will be when they are satisfied that all f the agreed actins in the undertaking have been cmplied with. The EU Team will advise the duty hlder in writing via the enfrceable undertakings e-mail that the enfrceable undertaking has been successfully cmpleted. Enfrceable Undertakings Practice Guide. Nvember 2018 Page 11 f 11