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First, do no harm: Navigating health and safety regulations

The New Zealand workforce’s health and safety scene is launching into a new era. Legislation now impacts everyone in the work environment, no matter who you are, what you are doing or where you are working. Catherine Murray looks at what health and safety means for retailers.

By Catherine Murray | June 7, 2016 | News

Paul Munton, executive general manager, broking branches at Rothbury Insurance Brokers.

New Zealand is following in the legislative footsteps of the UK and Australia, reforming the focus on health and safety in an attempt to control our nation’s poor health and safety record, and ensure that everyone gets home healthy and safe.

For a sector that is considered ‘low-risk’ by the Accident Compensation Corporation (ACC), retail still manages to produce some pretty impressive stats. ACC reports that in the 2014 calendar year there were 220,588 new workplace claims, of which 13,956 were from the retail trade. In the year 2013, these numbers were slightly lower, with 211,582 claims with 13,781 claims from the retail trade. In both these years, then, retail accounted for just over 6 percent of claims.

WorkSafe reports that serious harm notifications in the retail trade numbered 220 during 2014, 166 during 2015, and 29 in the 2016 year-to-date.

So what are the steps being taken to improve these statistics – and what are some of the elements of health and safety that retailers need to be aware of?

New Act takes centre stage

Health and safety in New Zealand is undergoing a period of change, with a brand new Act coming into effect on 4th April 2016. The Health and Safety at Work Act 2015 impacts nearly all work and workplaces, not just those that are traditionally considered high risk, such as forestry and mining. In fact, a search of the online Act does not reveal the word 'retail' even once - yet the legislation absolutely applies to those involved in the retail sector.

The aim of the Act is to reduce the number of serious work-related injuries and deaths in New Zealand by at least 25 percent by 2020. There are now four parties responsible for health and safety - the business itself, the officers, the workers, and other people who come into the workplace such as tradespeople, and in retail, the customers.

The changes signal the most significant reform to New Zealand's health and safety laws in the past 25 years, says Paul Munton, executive general manager, broking branches at Rothbury Insurance Brokers. The Act means that businesses need to be proactive in their health and safety obligations, with the responsibility being placed on the 'person conducting a business or undertaking' or a PCBU. In most cases the PCUB will be an organisation, for example a business entity such as a company, or alternatively, an individual.

"PCBUs need to be safety literate in the same way that they are financially literate," Munton says.

Following the chain of responsibility, next in line are the ‘officers’. The definition of an officer is wide, and includes directors, partners in a partnership, any person occupying a role that is comparable to that of a company director, and any person occupying a position in relation to the business that allows the person to exercise ‘significant influence’ over the management of the business.

As Munton explains, officers now have a ‘due diligence’ duty to ensure compliance with health and safety duties and obligations, in addition to a new ‘reasonableness’ standard that has been introduced.

Due diligence duty includes taking reasonable steps to:

  • Acquire – to acquire and keep up-to-date knowledge of health and safety matters.

  • Understand – to gain an understanding of the nature of the operations of the business and generally of the hazards and risks associated with those operations.

  • Provide resources and processes - to ensure that the business has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business.

  • Monitor - to ensure that the business has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information.

  • Comply - to ensure that the business has, and implements, processes for complying with any duty or obligation of the person conducting the business under the Health and Safety Work Act.
  • Verify - to verify the provision and use of the resources and processes referred to above.

Conducting the duty of due diligence requires the officer to exercise the care, diligence and skill that a reasonable officer would exercise in the same circumstances, taking into account the nature of the business, the position of the officer, and the nature of their responsibilities, says Munton.

While external parties and consultants can be enlisted to review health and safety, implement change and monitor performance, it is ultimately the PCBUs, the directors, and the workers who are responsible.

"It's about doing what is 'reasonably practicable' and proportional; balancing the level of risk, the chance of an incident happening, the severity of the impact on people, and how much influence and control an organisation has in preventing it,” says Guy Worsley, senior commercial broker at Rothbury Insurance Brokers.

David Walton, senior technical advisor at Rothbury Insurance Brokers.

Engaging the workers

It is now a legal requirement for businesses to engage with their workers who are, or may be, directly related to a health and safety matter, says Munton.

“The views of workers have to be taken into account by the business and workers need to be advised of the outcome of the engagement in a timely manner,” says David Walton, senior technical advisor at Rothbury Insurance Brokers.

He gives the example of using a hazard identification form, where the Act will facilitate a move away from the perspective of “I, the business have to do all of this, or this is only relevant to forestry, construction etc,” to one of “My staff need to complete this, the definition of the workplace is now expanded, and this affects all industries not just those with the perception of high risk.”

Now even workers can be fined up to $6000 for something as straightforward as failing to wear appropriate safety gear that is provided.

In a retail context, Munton says that hazards may include things like storage of stock at height, with the Act specifically referring to the scenario with the clause ‘associated with work being done under any object that has been raised or lifted by any means’. Likewise, substances hazardous to health such as cleaning products, are also mentioned in detail.

“There are specific sections in the legislation relating to safety in the use of machinery, forestry industry, boat building, construction etc – all the occupations with a perceived high risk – but these are ‘in addition’,” says Worsley. “The base legislation is applicable to us all – even if we are flower arranging in a padded cell.”

The cost to business

The maximum imprisonment term for a breach of the Health and Safety at Work Act has increased from two to five years, with fines now from $500,000 to $3 million.

“The legislation presents quite a minefield for businesses, but a successful defense funded by your insurer can legitimately reduce this personal penalty,” says Walton. “It will also allow your business to continue operating and maintain its employment to those who work in it and the communities it supports.”

Ryan Clark, national manager liability for NZI

Keeping yourself covered

This year the statutory liability, employers’ liability and directors’ liability cover will become more important than ever as the changes to the Act come into effect, says Ryan Clark, national manager liability for NZI.

“Both businesses and people in managerial positions will be held accountable and responsible for their actions and non-actions in providing a safe work environment for their staff.

“With this in mind, careful consideration should be given to transferring the potential financial risk of defending an allegation or investigation away from the company’s balance sheet, by having the right kinds of insurance policies. Defending a prosecution for a workplace injury can be expensive and time consuming and has the potential to affect the ongoing viability of a business.”

Clark says that NZI’s statutory liability policy provides cover for a company and its directors and employees. If someone is self-employed, a sole trader, or operates a business as a partnership, then the policy will also cover their employees.

Responses from the sector

As the impending legislation changes reached the radar of governance groups late last year, Chris Wilkinson, managing director at First Retail Group, has been observing some shifts in retail sector's approach to health and safety.

The mandate of boards is transforming, from the traditionally strategic and non-operational body, to one that must understand what the business they govern does. It’s now not enough just to be a name on a board – there has to be a depth of understanding about the business and across the sector.

"In a retail context health and safety has always been prioritised," he says. "However, the new legislation has seen many businesses want to rebuild their strategies, and look to external assurance as a further way to ensure they meet or exceed the new laws."

Some trends Wilkinson has noticed are:

  • Fresh eyes. There is a demand by boards for extra levels of scrutiny and external assurance that their company is proactively managing risk.

  • Rewriting past practices. There is a need to cross some previously-established thresholds (from governance to operational) in understanding and questioning practices across the businesses.

  • No fudge factor. Mechanisms are being put in place to immediately suspend operations should risk appear at any stage.

  • Scrutiny. Health and safety is achieving a greater priority and focus in board risk registers, reporting and accountability.

  • Awareness. Board members are familiarising themselves with all aspects of business, not just the top-line or public-facing elements.

  • Empowerment. New mechanisms are being introduced to let employees alert decision makers to risk, without reproach, or through confidential, third-party channels.

In the past, the personal responsibilities of the smaller retailer often centred around financial guarantees with the bank and landlord. But not now, says Wilkinson.

"Now you have a guarantee on your people, and you can't insure out of it, which has been the case before."

Awareness is the key thing, he says, with conversations about health and safety now being part of the weekly meetings for managers. There is also the introduction of a culture where everyone has some degree of responsibility for health and safety, which Wilkinson says is really important.

He expects to see landlords taking more of an interest in what is going on with their tenants, with a lot more questions and interventions put to the businesses on their sites.

There is also a heightened awareness regarding tradespeople who enter a retail premise to perform a task. Plumbers, electricians, suppliers and others who enter a retail site are now the responsibility of the PCBU. The result, says Wilkinson, will be things like terms and conditions of site entry on the outside of entrances to warehouses and stores, with the understanding that a person will abide by these while they are on the premises.

One of the biggest dangers in retail is complacency, says Wilkinson, especially in those retail areas that are considered to be at a lower risk of causing harm. "Familiarity breeds contempt, and for those retailers who think they don't need to worry about health and safety - well, in fact, you do." 

Alistair Penny, head of property and asset management at Jones Lang LaSalle (JLL)

Were all in this together

As managers of property, the focus on health and safety now requires collaboration, communication, and engagement from everyone involved, says Alistair Penny, head of property and asset management at Jones Lang LaSalle (JLL).

JLL is finding that clients now want to be – and need to be - more informed about health and safety matters, with far more detailed reports and updates than before.

In terms of shopping centre management, Penny says reports to a client need to be accurate – a client can’t be expected to deal with something that they do not know about. However, it’s just as important for the client to make sure that their requests for information are specific.

It’s also about making sure that all the contractors who come onto a site are inducted with a site-specific induction. This includes being talked through the risk register and potential hazards, and being fully up-to-date with health and safety policies of the shopping centre.

Penny says that retailers, who by definition deal in very public spaces, need to be very proactive in implementing health and safety measures. In the shopping centre environment, he recommends retailers tap into the resources of the property management team, and making sure that they are aware of all obligations and responsibilities.

Gathering intelligence prevents crime

Health and safety is about taking all practicable and reasonable steps to mitigate risk and reduce harm. Crimes against retailers have a massive impact on businesses financially, often with a high emotional cost to staff. The unpredictable nature of theft and robbery means that retailers need to have policies and procedures in place so if an event does unfold, the safety of staff and customers is preserved.

Being able to manage and de-escalate a crime as it happens is key to ensuring the safety of everyone involved, says Bruce McKinnon, head of retail at Auror.

Rather than go into a situation with guns blazing, confrontation can be avoided when retailers have systems in place. For example, using software such as Auror enables retailers to log in online and report a theft in under 10 minutes, alerting local police and allowing direct reporting to the police crime reporting line. The need to confront a suspect is removed, as staff know that there is a process in place to record all details and notify police.

McKinnon says that recording crime intelligence helps police and retailers understand patterns of crime in individual stores and centres, and also in the wider community.

A partnership with New Zealand Police and Auror has seen the software rolled out across the nation in an effort to solve retail crime. Following pilots with Canterbury and Counties Manukau Police, there have been encouraging results.

Me, myself and I are we safe?

The New Zealand police say a person should think about his or her own safety at all times. In the situation where a retailer believes a theft has occurred, staying a safe distance from the suspect is a good idea, while also ensuring that, where possible, another staff member is there to assist.

While the thrill of a chase may be enticing, it’s no surprise the police do not recommend this kind of pursuit. They say it is better to let the suspect go, than risk being assaulted. If it is considered safe to follow the suspect from a distance, only do so if you are able to advise another staff member to call the police, remember to take a phone with you to call 111 yourself, and note a clear description of the suspect.

Lizzi Hines, CEO and creative director at Spaceworks.

Managing fire risk

All retail buildings need to comply with the Fire Safety and Evacuation of Buildings Regulations 2006.

“In short, this means that all retail outlets need to ensure they have a procedure to evacuate people if there is a fire and that they must follow safe practices to control the risks of a fire starting,” says Todd O’Donoghue, national advisor fire risk management at the New Zealand Fire Service.

This includes managing things like open flames, appliances, safe packing and unpacking of goods, and how products are stored inside and outside the building which may contribute to a fire spreading.

For larger complexes, an evacuation scheme approved by the New Zealand Fire Service may be required, O’Donoghue says.

“Predominantly these are premises with more than 10 employees or where more than 100 people can gather. If they are part of a larger complex, such as a mall, the approved evacuation scheme should be put in place for the entire mall covering all of the retail outlets.”

Its not enough just to look good

Retailers can mitigate many of the health and safety risks by taking into consideration some key points when designing their store, says Lizzi Hines, CEO and creative director at Spaceworks Design Group. Design elements that need to given some thought include:

  • Shelving fixtures and fittings need to be the right height to reach without using a ladder, and designed with the merchandise in mind.
  • Flooring should be designed to avoid any tripping hazards, with transition heights clearly indicated and non-slip surfaces.
  • Work surfaces and computers need to be at the correct height for staff.
  • Artwork and wall fittings must be fastened to the wall securely.
  • Aisles should be wide enough for customers to walk down and pass each other easily.
  • Back of house kitchen areas must be designed so that they do not become a dumping ground for stock, leading to tripping hazards.

Better health means better performance

Work-related diseases are those conditions that can impact a worker's quality of life, ability to work, and level of productivity. In fact, workplace health and safety regulator WorkSafe New Zealand estimates work-related diseases cause 600-900 people to die prematurely each year.

Musculoskeletal disease is thought to be the highest incidence of occupation-related disease, followed by diseases of the ear; skin disorders; chronic respiratory disease; diseases of the digestive system and cancer. Psychosocial disorders can also occur, with the most common being work-family conflict, burnout, stress and sleeping problems.

While the retail sector may be seem immune to some of the more serious diseases, the risk is still very real.

Occupational overuse syndrome (OOS) affects people in a wide range of occupations, and retail is no exception. WorkSafe suggests looking at the following areas:

         •        Design of equipment and tasks. Operators should be able to avoid holding tense and undesirable postures, with joints free and able to move without strain. Breaks and micropauses are essential, especially with repetitive tasks, such as scanning products and stocking shelves.

         •        Job design. Look at the rotation of tasks, automation and task modification to see if they can reduce the effects of sustained postures and repetitive movements.

         •        Work environment. Stressors such as lighting, ventilation, humidity, temperature and noise levels need to be addressed. Stress can also be a precursor to OOS, so monitor and manage workloads, interpersonal relationships, supervision styles and changes in the workplace in order to minimise negative impact.

         •        Training and education. Increase the understanding of OOS and its risk factors, and ensure all staff are aware of the symptoms.

Stress and fatigue are factors that are commonplace in the retail sector, exacerbated by the highly variable nature of retail's highs and lows. Employers and employees have obligations to manage and address the issues around stress and fatigue, and to, where possible, improve the situation. Worksafe suggests that primary prevention is the better alternative to stress management, although it is likely that both will need to be in place.

Making sure that you eat enough during working hours to maintain mental and physical performance is also important, says Anna Williams, consultant nutritionist at Mission Nutrition.

“Simply aiming to eat a nutritious snack or meal every three to four hours at work will not only have you feeling better, but you will become much more efficient in your role, and actually end up wasting less time overall.”

Having a healthy eating policy in place for shared morning teas and lunches can help create the right environment for change, and if you’re a manager, simply taking an interest in your staff’s wellbeing will have a positive impact on their professional and personal health. This can, in turn, improve performance.

Where do I start?

To help get a business’s health and safety process tracking in the right direction, WorkSafe recommends:

  • Identifying hazards and risk and taking steps to prevent them.
  • Making sure that health and safety is led from the top, with understanding from staff together with regular reviews.
  • Holding training on health and safety matters on a regular basis.
  • Supporting officers in keeping up-to-date with issues and risk factors
  • Reporting and monitoring goals.
  • Reviewing incidents.
  • Carrying out frequent health and safety audits.

We’re all in this together – and that’s something that hasn’t changed. Health and safety is the responsibility of everyone in the workforce, with the community at large working together to ensure that workers all make it back home, safe and sound.

This story originally appeared in NZRetail magazine issue 743 April / May 2016

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