Module One, Part D - Duties of Officers
Module One - Part One - Duties of Officers
This section contains information on the following topics:
- Who is an Officer?
- Who is not an Officer?
- Duties of an Officer
- roles of officers who are local authority elected members
- key areas for elected officers to work with management
It also contains the following tables and checklists:
- Table 4 - Due Diligence Obligations of an Officer
- Table 5 - Steps to assist Elected Officers to meet their due diligence obligations.
- Checklist 2: Useful questions for Elected Officers.
Who is an Officer?
In relation to a PCBU, officers are:
- company directors;
- any partner in a partnership (other than a limited partnership);
- any general partner in a limited partnership;
- any person who holds a position comparable to a director in a body corporate or an unincorporated body; and
- any person who exercises significant influence over the management of the business or undertaking (e.g. the Chief Executive), but not including a Minister of the Crown acting in that capacity.
Every officer has a personal duty – it cannot be transferred to another person.
Officers have a duty to ensure that their business or undertaking complies with its health and safety duties and obligations.
Hi Viz Fact # 1 In Councils, Officers WILL include Mayors, Councillors and Chief Executives. Whether any other senior employee is deemed an officer will depend on the extent of their influence over the whole business or undertaking. |
Who is not an Officer?
Unless they fall into one of the officer categories above, for the purposes of HSWA the definition of officer does not include:
- Health and Safety Managers, officers or advisors;
- team leaders, line managers and supervisors;
- people that have officer in their job title, such as Administration Officer; or
- people who merely advise or make recommendations to those who come within the definition of officer.
Duties of an Officer Section 44, HSWA
This part of the guidance speaks to the role of officers in the Local Government environment who are either elected members or chief executives.
An officer (of the PCBU) must exercise due diligence to ensure that the PCBU complies with all its duties or obligations under HSWA.
An officer of a PCBU must exercise the care, diligence, and skill that a reasonable officer would exercise in the same circumstances, taking into account (without limitation)—
- the nature of the business or undertaking; and
- the position of the officer and the nature of the responsibilities undertaken by the officer.
Hi Viz Fact #2 In exercising the duty of due diligence, an officer must meet at least the following six elements of the duty:
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Some good practice examples of how to meet these six obligations are shown in Table 4.
Roles of Officers who are local authority elected members
This part of the guidance refers specifically to the role of officers who are local authority elected members. It is helpful for elected officers and chief executives to understand this difference and for chief executives to be familiar with the steps they can take to support their elected officers to perform their duties.
A key role for officers (both elected and appointed) in local authorities is to be clear about the differences and boundaries between governance and management roles. This clarity will help ensure good working relationships and enable a well-lead and improved health and safety framework.
The legislation places a positive duty on elected members – as officers of a PCBU – to exercise due diligence to ensure that the organisation complies with its health and safety duties and obligations.
While elected members will not commit an offence under sections 47-49 HSWA for a failure to comply with the due diligence duty in section 44 in their capacity as an elected member of a Council they must nonetheless exercise the duty of due diligence. The exclusion from liability does not extend to their officer function when acting as a director of a CCO. For the avoidance of doubt:
- elected members will have the duties of an officer when acting in their capacity as an officer (e.g. Director) of a CCO;
- elected officers will not otherwise have due diligence obligations for that CCO;
- All officers may also be liable for other offences such as failure to comply with an improvement notice.
It would be unwise for an elected member to rely simply on the fact there is a health and safety management system in place. They need to understand how the system works and take reasonable steps to make sure it is working.
Key areas for elected officers to work with management
There are four key areas where elected members can have an influential role and work with management to ensure that the PCBU is meeting its health and safety obligations and that the officers are exercising due diligence and taking steps to understand the PCBU's operations and health and safety risks. These four areas are:
- Policy and Planning
- Delivery
- Monitoring
- Review
These areas form a framework on how to lead, plan, review and improve health and safety. The responsibilities of elected members and managers with respect to each area will vary however together these steps tend to demonstrate that reasonable steps are being taken to understand and manage health and safety risks.
Below is a summary of suggested steps elected members and management can take in each of these four areas.
These are adapted from the Health and Safety Guide: Good Governance for Directors, prepared by NZ Institute of Directors. We recommend that all officers read and work through this publication in its entirely. In depth guidance is linked as highlighted after each summary.
Table 5 - Steps to assist Elected Officers to meet their due diligence obligations |
|
Governor/Director (elected member) |
Management |
1. Policy and Planning |
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Determine a charter setting out the elected members’ role in leading health and safety. Determine high level strategy and policy, including providing a statement of vision, beliefs and policy. Establish health and safety targets for the organisation with the CE that will enable the elected members to track performance.
Hold management to account for implementing strategy. Manage the health and safety performance of the CE, including specifying expectations and providing feedback. |
Determine and implement business and action plans to give effect to the strategy. Determine targets that will enable management to track their performance. Implement performance review processes for workers that specify health and safety expectations, and provide feedback on performance. Further information Health-and-Safety-Guide-Good-Governance-for-Directors.pdf pp 15-18 |
2. Delivery |
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Set a clear expectation that the organisation has a fit-for-purpose health and safety management system. Exercise due diligence to ensure that the system is fit-for-purpose, effectively implemented, regularly reviewed and continuously improved. Be sufficiently informed about the generic requirements of a modern, ‘best practice’ health and safety management system and about the organisation and its risks to know whether its system is fit-for-purpose, and being effectively implemented. Ensure sufficient resources are available for the development, implementation and maintenance of the system – including staff expertise and sufficient funding to ensure effective implementation. |
Lead the implementation of health and safety management systems. Identify resource requirements for the development, implementation and maintenance of the health and safety system, obtain approval for their provision, and secure and allocate resources accordingly. Allocate responsibility and accountability to managers and workers for implementing the system. Monitor the effectiveness of the system and implement continuous improvements. Further information Health and Safety Guide - Good Governance for Directors pp 18-22 |
3. Monitoring |
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Monitor the health and safety performance of the organisation. Outline clear expectations on what should be reported to elected members and in what timeframes. Review reports to determine whether intervention is required to achieve, or support organisational improvements. Be familiar with processes such as audit, risk assessment, and incident investigation, sufficient to enable proper evaluation of the information before them. Seek independent expert advice when required to gain the necessary assurance. |
Give effect to the direction of elected members by implementing a health and safety management system using the ’plan, do, check, act’ cycle. Provide elected members with reports on health and safety management system implementation, and performance as required. Implement further actions following review of reports. Ensure root cause investigations are carried out using independent investigators in the case of serious incidents. Further information Health and Safety Guide - Good Governance for Directors pp 23-25 |
4. Review |
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Ensure the elected members conduct a periodic (eg annual) formal review of health and safety to determine the effectiveness of the system and whether any changes are required. Ensure the elected members consider whether an external review is required for an independent opinion. |
Organise regular audits and reviews of the health and safety management system (internal and external) and its implementation. Take remedial actions as required arising from any audit or review. Report on the outcomes of audits and reviews. Assist with the formal health and safety review by providing information and other input as required. Further information Health and Safety Guide - Good Governance for Directors pp25-26 |
Elected officers can use this checklist of questions as a means of exercising and assessing their performance of their due diligence obligations.