ISNZ Seminar Health & Safety Law/ Search &

ISNZ Seminar Health & Safety Law/ Search &

ISNZ Seminar Health & Safety Law/ Search & Surrender Legislation September 2013 Shan Wilson Partner DDI: +64 9 977 5114 Fax: +64 9 977 5083 Mob: +64 275 322 737 [email protected]

Introduction Overhaul of Health and Safety Bullying: Organisational obligations for staff Organisational obligations for students Legislation update: surrender and retention Health & Safety Update and Current Obligations of a Board of Trustees

Overview Boards of Trustees - obligations under the current Health and Safety in Employment Act 1992 Working Safer - NZ Workplace health and safety reforms Australian Model on Health and Safety Boards responsibilities in bullying Health and Safety in Employment Act 1992

A Board of Trustees of a School is considered to be an employer under the current Act Employer is defined under the Act as a person who or that employs any other person to do any work for hire or reward Obligations for Directors under the Act do not apply as a school is not considered to be a body corporate under the legislation and so a corporate director is not seen as equivalent to a Board Trustee Providing a Safe Workplace

School Boards, as employers, have a general duty to: take all practicable steps to ensure the safety of employees at work; and to ensure that no action or inaction of any employee at work harms any other person, ie students All practicable steps is really that which is reasonably practicable

Department of Labour v The Orewa Board of Trustees (2010) Boiler explosion, two workers injured, one fatally. MBIE (DoL) prosecuted Board for failing to take all practicable steps to ensure hazard in workplace did not harm employee/contractor. Board ordered to pay $81,100 to deceased workers family and $55,729 to injured contractor.

Department of Labour v The Orewa Board of Trustees Important reminder from DoL: Boards have overall control of school. While they may delegate on a day-to-day basis, they still retain responsibility for health and safety of people working at, attending or visiting the school. This includes making sure that systems are in place so that hazards are identified and managed. Unfortunately, the Orewa College Board of Trustees did not ensure the schools boiler facilities were repaired,

modified and maintained in a safe and effective manner. The Report of the Independent Taskforce Taskforce set up in June 2012 to evaluate whether the workplace health and safety system in New Zealand is fit for purpose The Taskforce addressed the recommendations of the Royal Commission on Pike River Findings released on 30 April 2013 Current workplace health and safety laws

not fit for purpose Taskforce Findings Key weaknesses confusing regulation weak regulator poor worker engagement inadequate leadership lack of management capability insufficient knowledge of risks and requirements ineffective deterrents to drive compliance

(low likelihood of inspector visits and prosecution) Working Safer A Blueprint for Health and Safety at Work The Governments response to the recommendations of the Independent Taskforce released in August 2013 Government has broadly accepted its recommendations Expects this package of changes to deliver a new,

high-functioning system for health and safety at work Target: 25% reduction in serious workplace injuries and fatalities by 2020 Package of Changes Overhaul of the law Creation of WorkSafe New Zealand Stronger penalties, enforcement tools and court powers New legislative framework Health and Safety at Work Act based on Australian Model Law

Adopt duty holder concept of persons conducting a business or undertaking (PCBU) Primary Duty Holder PCBU Designed to allocate duties to those people in the best position to manage health and safety risks in the workplace It will require the PCBU, so far as is "reasonable practicable", to ensure the safety of workers engaged by the PCBU or workers whose activities in carrying out the work are influenced or directed by the PCBU Whether a person conducts a business or undertaking will be a

question of fact to be determined in the circumstances of each case No distinction as to whether operated for profit or gain In Australia, the law does say that a person does not conduct an undertaking to the extent engaged solely as worker in or as officer of that undertaking Reasonably Practicable What could reasonably be done at a particular time to ensure health and safety measures are in place Australia Model Law requires the weighing up of all relevant

matters including: The likelihood of a hazard or risk occurring; The degree of harm that might result if the hazard or risk occurred; What the person concerned knows, or ought to reasonably know about the hazard or risk and ways of eliminating or minimising it; The availability of suitable ways to eliminate or minimise the hazard or risk; and The cost of eliminating or minimising the hazard or risk. Impact of PCBU concept for Boards of Trustees

A Board of Trustees as employer, conducting an undertaking, will likely have a duty as a PCBU Under the potential new Act contractors, subcontractors, employees and volunteers may all be covered by a new broad duty and duties will also flow upstream Proposing to increase cost of poor health and safety performance Stronger penalties and cost recovery Due diligence obligation report and investigation processes

Legislation Update Health and Safety (Pike River Implementation) Bill had its first reading on 27 June 2013 the Bill introduces WorkSafe the new regulating agency We expect the first Health and Safety at Work Bill to be introduced to Parliament in December 2013 and to come into force by December 2014

Bullying and Health & Safety Bullying: Organisational obligations for staff Organisational obligations for students Overview What is bullying/harassment? Governing legislation Distinguishing genuine bullying behaviour from other potential underlying issues Investigating and responding to complaints

Developing a policy Bullying obligations for the Board in light of the new Health and Safety duties What is bullying/harassment? No standard definition of bullying or harassment Commonly accepted theme behaving in a negative, unwanted and persistent manner to another person Intent a factor: to cause fear and distress

to control behaviour or actions of another Behaviours usually include elements of personal denigration and disdain of the person subject to it Governing legislation Health and Safety in Employment Act 1992 (HSEA): obligation to provide a safe workplace, and to take all practicable steps to remove hazards from the workplace

hazard includes where a persons behaviour may be an actual or potential source of harm to the person or to another person definitions of harm and hazard expressly cover physical or mental harm caused by work related stress and physical or mental fatigue Governing legislation Human Rights Act 1993 employee can make a complaint of unlawful discrimination

Employment Relations Act 2000 employee can pursue personal grievance Distinguishing genuine bullying behaviour Clear cases of bullying Tanner v Todd & Pollock Haulage (2006) Limited reducing hours to less than the guaranteed 40 hours specified in agreement giving her the worst loads to deliver continuing to abuse and humiliate her on numerous

occasions using foul language Distinguishing genuine bullying behaviour Clear cases of bullying (contd) McCullough v Otago Sheetmetal and Engineering Ltd

spoken to in rude manner unhelpful in responding to appropriate work inquires told other staff that she would not last long refused to allow her to speak with her son other staff had difficulties with alleged bully Distinguishing genuine bullying behaviour Performance management Causer v Gleeson & Cox Transport Limited

performance issues reprimanded for incorrect work criticised work Distinguishing genuine bullying behaviour Personality conflict Greenwood v Vodafone New Zealand Limited

tone and body language hostile and argumentative uncooperative said little, avoided eye contact, folded arms Investigating and responding to complaints McGowan v Nutype Accessories Ltd Employee: obligation to bring bullying concerns to the attention of the employer Employer: duty of reasonable employer to

properly investigate the concerns and to take any necessary steps to protect its employee Investigating and responding to complaints Investigating and responding to complaints Balance competing interests: Have to support the complainant, treat the complaint seriously and fully investigate the complaint

BUT also have to keep open mind and give the respondent the opportunity to respond and consider his/her explanation Ensure respondent sees all information gathered Assessment of different accounts Decisions about credibility Balance of probabilities test Investigation outcomes Escalate to a disciplinary or undertake counselling

Responsibilities of decision maker in disciplinary process Mitigating factors remorse and/or insight opportunities for training Facilitating parties to work together again (eg. mediation) Developing a workplace policy MBIE critical of organisations without process for addressing bullying

Make it clear what behaviour is expected of employees Include a definition of what employer considers bullying: "a workplace bully can be described as someone who knowingly abuses the rights of others to gain control of a situation and the individuals involved. To do so, the bully deliberately and persistently uses intimidation and manipulation to get their way" Developing a workplace policy Include a list of examples to illustrate

definition Outline the process for dealing with bullying: what employees should do in the event they are bullied the procedure for dealing with allegations Bullying issues with students Health & Safety in Employment Act 1992 School Boards, as employers, have a general duty to ensure that no action or inaction of any employee at work harms any other

person, ie students Investigations by the Ombudsman The Ombudsmen are authorised to investigate complaints about the administrative acts, decisions, recommendations and omissions of school boards of trustees. If a school failed to respond satisfactorily to incidents of bullying, a complaint could be made to the Ombudsmen. If Ombudsman concludes school responded in an inadequate manner, they could make recommendations or try to resolve the issue between the different parties.

These recommendations are not enforceable and so the school could ignore them, although the Ombudsman could then report that to Parliament. Obligations for safety of students from bullying Schools have a duty to both the victim and the bullying student Schools should develop a policy on bullying Policies will differ between primary and secondary schools

Bullying policy guidelines Primary school policies tend to focus on reinforcing positive behaviour Secondary schools tend to have policies specifically aimed at bullying and harassment Consider social media dynamics outside school yard but within school relationships zero tolerance policies Caution around a zero tolerance approach

Such a policy should be aimed at violent bullying Schools must maintain flexibility as it has a duty to both victim and to the bully Schools have an obligation to listen and attempt to rehabilitate the bully Teachers must be provided with guidance as to procedures Implementation of the policy No legal requirement to consult pupils and the parents implementing a bullying policy

However, effective policies show increased level of consultation with parents and pupils increases buy in and effectiveness Oyston v St Patrick's College

Duty of care liability for negligence Sydney school was successfully sued for negligence Girl repeatedly bullied resulting in psychiatric injury Court found school's response inadequate School did implement anti-bullying policies - even went so far as to hire an expert to help them formulate the policies and also surveyed the students However, it was acknowledged by the school that there were discrepancies in what the policies said and the practice of the staff

Oyston v St Patrick's College School was extremely careful but failed to implement policies and communicate expectations to staff It is possible that a New Zealand school could be held liable for negligence in the same way Although ACC covers personal physical injury, a negligence case could potentially be brought in respect of mental injury It is important that schools ensure what is written in the policy is what happens in practice. A well drafted, balanced policy will not be enough if no attention is paid to it when

incidents of bullying occur Education Amendment Act 2013 Powers of surrender and retention of property Education Amendment Act 2013 In force from 1 January 2014 Provides a legal framework for surrender and retention of student property by teachers Limits certain invasive and intrusive methods

of search and seizure Only applies to State, integrated and partnership schools Education Amendment Act 2013 Private schools should draft their own policy Any policy must adhere to New Zealand law, including: contract law the Privacy Act 1993 the Human Rights Act 1993

the New Zealand Bill of Rights Act 1990 Surrender and retention of property s139AAA A teacher may require a student to produce and surrender an item if the teacher has reasonable grounds to believe a student has hidden or in clear view on or about the students body, or in any bag or other container under the students control, an item that is likely to (a)Endanger the safety of any person; or (b)Detrimentally affect the learning environment. The teacher may either retain the item for a reasonable period or dispose of the item, if appropriate

Non teaching staff may carry out these powers but must be receive authorisation from the Board and in writing Surrender and retention powers s 139AAA If the item is stored on a computer or other electronic device, the teacher may require the student to reveal the item and/or to surrender the computer or electronic device A teacher may retain a computer or other electronic device for a reasonable period although it must be stored in an appropriate manner

If the item, computer or electronic device is not to be disposed, it must be returned to the student or passed to another person or agency, as appropriate Surrender of clothing and bags s 139AAB The teacher may require: the student to remove outer clothing (except where the student has no other clothing under that outer clothing) removal of head covering, gloves, footwear or

socks the student to surrender the bag or other container Restrictions on searches s 139AAC A teacher who carries out a search must do so with decency and sensitivity and in a manner that affords the student the greatest degree of privacy and dignity Unless impracticable, a search must be carried out:

by a teacher who is of the same sex; and in the presence of another teacher who is of the same sex out of view of any other person Limitations on powers s 139AAD A teacher is not permitted: to search any student to use physical force to require a bodily sample

A teacher is not permitted to have a dog with him or her when they exercise their surrender and retention powers Note contractors exempt for dog searches. Limitations on powers s 139AAD A teacher may not exercise these powers in relation to two students or more unless they have reasonable grounds to believe that each

student has an item in question None of these limitations affect the provisions in the Crimes Act 1961 relating to: preventing suicide or certain offences (section 41) self-defence and defence of another (section 48) parental control (section 59) Searches by contractors S139AAE Schools may now hire contractors to bring trained dogs onto the premises for the purpose of searching school property (lockers,

desks etc). A contractor may not exercise any power of surrender and retention or search a student Schools may not use the dogs to search a student's person or their belongings. Further rules made by Secretary of Education - s 139AAF Teachers must also comply with rules made from time to time by the Secretary of Education regulating the practice and procedure about, but not limited to:

providing for the keeping of records relating to the use of the surrender and retention powers specifying the circumstances in which items may be disposed setting out requirements for the storage of items, computer and other electronic devices making provisions for the return of items, computer and other electronic devices Student refuses to surrender If a student refuses to reveal, produce or surrender an

item, computer or electronic device a teacher may take any disciplinary steps, or steps to manage the student's behaviour, that the teacher considers reasonable Explain inferences may be drawn, if refuse to comply None of the surrender or retention powers limit the power to search any locker, desk or other receptacle provided to students for storage purposes Other provisions Schools will be able to encourage students to participate in a voluntary drug treatment programme

that involves testing of bodily samples. However, they still may not require them to give bodily samples. Draft rehabilitation agreement to include random testing of student. Testing and rehab agreement as a condition as part of disciplinary outcome and decision not to exclude/ expel student

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