A recent WorkSafe New Zealand prosecution is a timely reminder that notices issued by inspectors under the Health and Safety at Work Act 2015 (HSWA) are not optional. Where a notice is issued, a person conducting a business or undertaking (PCBU) must act promptly and comply with its terms. Failure to do so can expose individuals and organisations to significant fines, and more importantly, can put workers and the public at serious risk.
What notices can inspectors issue under the HSWA?
Under the HSWA, inspectors have powers to issue notices. These include:
- an improvement notice: a notice issued when an inspector reasonably believes that a PCBU is breaching, or is likely to breach, a provision of the HSWA or its associated regulations. It includes a description of the breach, the action required to rectify the breach (or potential breach) and a deadline to make the improvement.
- a prohibition notice: an urgent notice issued when an inspector believes a workplace activity involves, or will involve, an immediate and serious risk to the health or safety of any person. This notice specifies that an activity is to be stopped, or stopped from being carried on in a specified way, until the serious health and safety problem is fixed.
- a non-disturbance notice: a notice requiring an area to be left undisturbed whilst an inspector carries out their functions.
- a suspension notice: a notice issued by a health and safety medical practitioner to a worker directed at stopping work for health-related reasons, such as conditions that may expose a worker to unsafe or health-compromising situations.
- a subsequent notice: a further notice of any of the types noted above.
What are the implications of notices?
Where a notice is issued, it must be complied with in accordance with its terms. Failure to do so may result in a fine ranging from $5,000 to $500,000, depending on the type of notice. Except for suspension notices, a notice must be prominently displayed as soon as practicable in the area to which it relates. It is also an offence to fail to display a notice at the relevant workplace, or to remove, destroy, deface or damage a notice displayed by an inspector or by the person to whom it was issued while the notice remains in force.
A cautionary tale
The recent sentencing of a Palmerston North property owner, Sanal Lonappan, comes as a reminder that property owners and those doing building works should not ignore inspectors’ notices, as this is against the law and can put people in danger.
The work on Mr Lonappan’s property came to WorkSafe’s attention in May 2022 after concerns were raised that the building contained asbestos. WorkSafe issued a prohibition notice requiring activity at the site to stop immediately. Despite this, inspectors later became aware that the work had continued in breach of the order. This work included removing asbestos contaminated material directly over a public footpath, which had the potential to release fibres into the air, endangering workers and the public.
Mr Lonappan was given multiple opportunities to engage with WorkSafe and remedy the issues raised with him. He did not do so.
This resulted in Mr Lonappan being convicted for breaches of the HSWA, including breaching a prohibition notice to stop work on a building containing asbestos, failing to assist inspectors and intentionally removing official notices at the building’s entrance. Mr Lonappan was fined $32,000.
Key takeaways
Ultimately, the key takeaways are simple:
- WorkSafe notices have legal force and should be treated as mandatory directions, not informal guidance.
- PCBUs should act promptly when a notice is issued, including stopping work where required and taking steps to remedy the identified risk.
- Failure to comply with a notice can have significant impacts, including fines.
If you have any questions about the notices issued by WorkSafe or obligations under the Health and Safety at Work Act 2015, please get in touch with our Employment Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
