Now, Here is the Problem….
We are now one year on from the introduction of the Health and Safety at Work Act 2015 (HSWA 2015), but there are still no answers as to how Governing Bodies of Volunteer Organisations will be viewed by WorkSafe NZ.
The problem is that most governing bodies that support volunteers have paid staff, making them a PCBU.
These bodies provide frameworks (let’s use sporting events as an example) for what’s to be undertaken. They provide rules related to Health and Safety, a framework to follow that helps to ensure, as far as reasonably practicable, safer events (given the context of the sport).
These bodies are seen by WorkSafe as ‘parties of influence’ (HSWA Part 2:30) and therefore, as PCBUs, can be prosecuted.
This is currently the situation with at least one organisation. A year on from the fatality, no outcome has been forthcoming.
It has been a year of confusion, investigations, legal costs and uncertainty, not only for this organisation but the many others that will be affected by any outcome.
This leaves only one conclusion: governing bodies are viewed as PCBUs and MUST, amongst many other requirements, report all serious injuries to WorkSafe NZ.
Fair enough, but can Worksafe manage this process?
Based on 2015 ACC statistics, 711 sport-related reports would need to be lodged with WorkSafe every week. Then there’s the next process of investigation – all 711 per week are injuries that require surgery.
To narrow this down to a practical example: rugby
The NZ Rugby Football Union is rugby’s governing body in New Zealand.
The NZRFU employs staff and therefore is a PCBU, required to notify WorkSafe of reportable injuries, agreed upon and confirmed by WorkSafe.
Now each Monday morning, NZFRU must collect ALL data from injuries from the weekend, meeting the requirements(concussion/head injury/loss of body function etc.) and go online and notify each individual incident.
They must also conduct their own investigation of each individual incident. (All forms are on the WorkSafe website)
Does the NZRFU have the resources available to fulfil its legal obligations? Is it currently fulfilling this obligation?
Now before we go further, know that WorkSafe has an internal process (it’s only internal according to correspondence received) called ‘threshold’.
However, what constitutes ‘threshold’ is not known by anyone other than WorkSafe and is certainly, in my experience, inconsistent.
If you’re at a loss, you wouldn’t be alone in feeling that way – especially if you’re not sure as what to do next.
This issue – the lack of clarity – has been raised with WorkSafe and the Minister of Health and Safety, with absolutely no guidance given, other than what was stated earlier; that they are PCBUs.
To recap the situation as it stands:
ALL Governing Bodies that employ staff are PCBUs and therefore NOT exempt from any part of the HSWA 2015. (Unlike volunteers/organisations who are exempt from Part 3 of the ACT.)
Therefore, they MUST (amongst other requirements):
- Notify WorkSafe of Reportable injuries and or events
- Undertake an investigation into the reported event
- Provide outcomes and recommendation’s that come out of the investigation
- The members of the Board must be informed
As is currently happening, investigations with the view to prosecute the governing body are being undertaken by WorkSafe NZ.
Their paid officials are therefore part of the prosecution process as people of influence. WorkSafe NZ have already determined the Volunteer Organisation/Club cannot be held accountable via the HSWA 2015.
Scared? Confused? What’s next?
The solution is rather simple, if you’re not a law maker/politician:
- Governing bodies can only be held accountable under the legislation ‘for the workers they employ’ and their ‘workplace’ (in most cases, offices)
- Governing bodies, in other words, are given the same status of the volunteer organisations they support.
- There is and always has been a process to investigate via the law related to negligence
Simple as that.
In making this clear, relating to the HSWA 2015, governing bodies can continue to concentrate on enabling the sport(s) to be safe ‘as reasonably practicable’ (in accordance with the HSWA 2015), given the context of the event.
They can continue to seek solutions to identified safety issues and, if necessary, develop strategies to manage risk. This is something that the clear majority of Governing Bodies currently do.
Now here is another problem:
- Do the Minister, Government and WorkSafe clearly understand that the often-limited resources these governing bodies have would be consumed by reporting ‘ambulance bottom of the cliff’ events?
- In doing so creates a barrier that stops them from continuing to focus on enabling the implementation of ‘fences at the top of the cliff’ strategies?
The HSWA 2015 is an excellent tool, but only if it’s utilised as it was intended.
It’s not a tool designed to ‘hamstring’ volunteer organisations or their governing bodies by soaking up valuable and hard-to-source resources to fulfil a legislative, paper-based requirement at the expense of continued improvement.
At the end of the day: doing what they do based on ‘reasonably practicable’ applications related to safety, in the context of what they do, must surely be their focus?
Contact Graham Roper Here to implement a plan for your organisation