Multiple Duty Holders
One can no longer delegate responsibility for safety (if one ever could or should have!) to someone such as a safety officer.
There are also obligations to exert one’s influence over safety issues as much as is “practicable” and to consult, cooperate and coordinate actions with all the other PCBUs involved in a production. A failure to consult could result in a fine of $20,000 – another theme of the evening being the potentially very large fines on offer to punish (and discourage) lack of compliance.
This creation of ‘multiple duty holders’ appears to encapsulate the intention of the Act to not just spread responsibility for health and safety more widely, but specifically up the hierarchy as far as possible.
The second lawyer to speak, Andrew Berry, introduced the notion of processes for worker participation in risk assessment. How complex these processes should be is, once again, vague – but what seems to be clear is that the bigger the production, the more formal the processes expected. This time fines of up to $100,000 were mentioned.
Workers may ask for a health and safety representative to be appointed from their number. Such representatives can direct unsafe work to cease. If the body of workers is 20 or more, such a request for a representative must be agreed to. If there are fewer than 20 workers, it is not compulsory for a PCBU to agree to such an appointment, if a PCBU decrees the existing safety practices to be sufficient.
The Techos Guild has encouraged the election of a crew member on every production to be a crew representative, should an issue of any kind arise on the film set. There has been a reluctance on the part of many crew to take on the position, not least because of the risk of being labeled by the production company as ‘difficult’, with the potential consequence of not being hired for future work. Will the same thing happen with health and safety representatives? Will there be a reluctance on the part of workers to stand up and be counted on issues of safety, despite the encouragement to do so by the new Act?
A health and safety committee is a very different concept from that of a safety officer. Due diligence must be done by all PCBUs. The emphasis in the new Act is on those at the top of the hierarchy – the fines mentioned at this point rise up to $600,000 for individuals and $3 million for organisations! Prison terms of two to five years can also be imposed.
Liability and a duty to notify arise even if no harm occurs. A so-called near-miss is a notifiable matter. This means, in theory at least, that a cover-up is no longer possible.
Crucially, there is no ability to contract out of obligations towards health and safety, certainly not by delegating responsibilities to others. Nor is there any ability to insure oneself against failures or against any costs arising, such as fines.