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7.7.1.1 – Charge: Employer’s Duty to Employees

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At the start of the trial, the judge should seek particulars from the prosecution regarding:

  • What the accused should have done to avoid creating a risk to the health and safety of employees; and
  • If it is in issue, the basis for establishing the employee / employer relationship.
  • If it is in issue, the facts necessary to support a finding that an employee or independent contractor relationship existed

These matters will inform the content of the charge.

If the prosecution relies on a breach of s21(2) to establish the offence, this charge must be adapted accordingly. See Employer's Duty to Employees and non-Employees for guidance.

If a person other than an employee was placed at risk, the judge may need to direct on the offence under Occupational Health and Safety Act 2004 s 23 as an alternative offence. See Charge: Employer’s Duty to Non-Employees.

NOA has been charged with failing to provide and maintain a safe working environment. This crime consists of four elements:

One – The accused was an employer at the relevant time;

Two – There was a risk in the accused’s working environment to the health and safety of employees;

Three – The accused failed to do something which would have eliminated or reduced that risk;

Four – It was reasonably practicable in the circumstances to have taken steps to eliminate or reduce that risk.

Before you can find NOA guilty of failing to provide and maintain a safe workplace you must be satisfied that the prosecution has proven all four of these elements beyond reasonable doubt.

I will now explain these elements in detail.[1]

The Accused was an Employer

The first element that the prosecution must prove is that on [identify relevant date(s)], the accused was an employer.

An employer is someone who employs at least one person under a contract of employment or training.

[Summarise evidence and arguments concerning the accused’s status as an employer.]

Risk in the working environment to employee health and safety

The second element is that there was a risk in the accused’s working environment to the health and safety of employees.

There are three parts to this element.

First – Risk. The prosecution says that there was a risk of [identify relevant risk].

Second – Working environment. The prosecution says that [identify location] was part of NOA’s working environment.

Third – Employees. The risk must be to the health and safety of the accused’s employees. That is, people under a contract of employment with NOA.[2]

[If the offence relates to an independent contractor, add the following shaded section.]

Because this case involves independent contractors, there are two additional matters that the prosecution must prove. First, they must prove that [identify relevant contractors] were hired by the accused to do some work.[3]

[If this matter is not in issue, add the following darker shaded section]

In this case, it is not disputed that [identify relevant contractors] were hired by the accused. You will not have any difficulty with this matter.

[If this matter is in issue, add the following darker shaded section]

In this case, this matter is in dispute. [Summarising prosecution and defence evidence and arguments]. In order to find that [identify relevant contractors] were hired by the accused to do some work, you must be satisfied that [identify facts necessary to prove contractor relationship].

Second, they must prove that the accused had sufficient control over the contractors that s/he could have directed them to [identify suggested measure, e.g., ‘use safety goggles while working’].[4]

In relation to this second matter, it is useful to note that employers generally do not control the way in which competent independent contractors perform their work. However, they may have control over certain aspects of the contractors’ work, such as where and when they undertake it. They may also have other rights to direct the contractor, based on their contract or the relationship between them.

[Identify relevant evidence and arguments on any parts of this element in dispute].

Failure to eliminate or reduce risk

The third element that the prosecution must prove is that the accused failed to do something that would have eliminated or reduced the risk.

The law requires the prosecution to identify a particular measure which the accused should have done to address the risk.

In this case, the prosecution say that NOA was required to [identify relevant measures, e.g. “install an isolation switch on the mulcher”].

The prosecution must prove that if NOA had done so, then the risk of [identify relevant risk] would have been eliminated or reduced. It is not enough to say that the risk might have been reduced if the accused had taken that measure.

[Summarise relevant evidence and arguments.]

Reasonable Practicability

The fourth element that the prosecution must prove is that [describe specific measure] was a reasonably practicable means of addressing the risk of [identify relevant risk].

Practicable is a word that is not commonly used. It means that something is able to be done or put into practice. This element requires you to determine whether [describe specific measure] was reasonably feasible or reasonably capable of being done.

To determine whether the proposed measure was reasonably practicable, you must consider matters such as:

• How likely it was that [describe relevant risk] would occur;

• What harm was likely to be caused if [describe relevant risk];

• What could be done to eliminate or reduce the risk;

• How suitable those options were, and how much they would have cost; and

• What the accused knew about the risk and the ways of eliminating or reducing it, or reasonably should have known.

You must consider these matters by reference to the position of a reasonably prudent employer. It is no answer for the accused to say that s/he did not know about the risk, or thought that things were unlikely to go wrong, or could not afford to do what was suggested.

You must also consider these matters without the benefit of hindsight. You must decide whether the proposed measure was reasonably practicable before [identify event which raised accused’s awareness of risk].

If the risk was reasonably foreseeable by a reasonable employer, then the accused may have been required to take steps to prevent it, even if s/he had no personal knowledge of the risk.

However, employers do not need to guard against risks that are unforeseeable. This is because it is not reasonably practicable to protect against unforeseeable risks.

[If it is necessary to direct the jury that the duty is non-delegable, add the following shaded section]

The law says that the employer’s duty to eliminate or reduce risks cannot be delegated to anyone else. This means that when you are deciding whether [identify relevant measure] is reasonably practicable, the accused cannot say [identify how the issue of delegation arose in the context of the case, e.g. “that they did not need to do anything further, because they had a health and safety officer and Mr Smith should have identified the risk”.]

Employers must proactively search for and address risks in the workplace. They must adopt an active, imaginative and flexible approach to workplace safety. They may need to protect against risks that arise where an employee acts inadvertently or carelessly.

However, the law does not require an employer to eliminate all dangers that could conceivably arise. That would involve imposing an unrealistic standard of perfection. The test is whether the accused failed to do what was reasonably practicable.

[If multiple measures are identified, add the following shaded section]

The prosecution has identified [number of measures] things NOA should have done to eliminate or reduce the risk. These are alternatives. For each of them, you must ask “Would it have eliminated or reduced the risk” and “Was it reasonably practicable”. If all of you answer yes to both questions for a particular measure, then you are satisfied of both the third and fourth elements of this offence. If half of you say [first measure] was not reasonably practicable, but [second measure] was and half of you say [second measure] was not reasonably practicable but [first measure] was, then you have not reached agreement on this fourth element.

[If evidence is led of an accident involving the workplace, add the following shaded section]

You have heard evidence that [describe circumstances of accident]. NOA has not been charged with causing that accident, or causing NOV’s [death / injury]. Instead, NOA has been charged with failing to address a risk.

You might wonder “how can I use the evidence of the accident then?”

The evidence that [identify relevant accident] may help you decide:

• Did a risk exist?

• How likely was this risk to occur?

• What would happen if this risk occurs?

• Did NOA taken all reasonably practicable steps to eliminate the risk?

But don’t use the benefit of hindsight. Remember that just because an accident has happened it does not mean that this was due to a relevant failure on the part of the employer. Sometimes accidents happen and no one is to blame.

You do not need to decide whether [identify relevant measure] would have prevented [describe relevant accident]. There are two important questions. “Would [identify relevant measure] have eliminated or reduced the risk of [identify relevant risk]?” and “Was it reasonably practicable to [identify relevant measure]?” If you answer yes to both questions, then you are satisfied of both the third and fourth elements of this offence.

[If the case concerns a hidden risk, add the following shaded section]

In making your determination, you must consider the fact that hidden risks are sometimes more dangerous than obvious risks. While people will often be aware of the need to avoid obvious risks, they may overlook the need to avoid hidden risks.

[If the offence relates to an independent contractor, add the following shaded section.]

In this case, the defence argued that NOA had met his/her obligations by hiring NOC, a specialist contractor, to [describe work]. It is for the prosecution to prove that this was not sufficient, and that it was reasonably practicable for NOA to have gone further and [identify measure].

When deciding whether it was reasonably practicable for NOA to have taken other measures in these circumstances, you must consider:

• The nature and seriousness of the risks involved;

• NOC’s competence and expertise;

• NOA’s expertise in relation to [describe the tasks engaged in by the contractor] and his/her knowledge of the risks involved;

• The nature of the precautions NOC was taking, and whether NOA was aware of any defects in NOC’s safety practices; and

• The size of NOA’s business.

Ultimately, determining what is reasonably practicable is a balancing exercise that requires you to use your common sense. Consider the danger posed by the risk and the difficulty of addressing the risk. Using that, decide whether the measure(s) posed by the prosecution were reasonably practicable.

[Summarise relevant evidence and arguments.]

Summary

To summarise, before you can find NOA guilty of failing to provide and maintain a safe workplace, the prosecution must prove to you, beyond reasonable doubt:

One – The accused was an employer at the relevant time;

Two – There was a risk in the accused’s working environment to the health and safety of employees;

Three – The accused failed to do something which would have eliminated or reduced that risk;

Four – It was reasonably practicable in the circumstances to have taken steps to eliminate or reduce that risk.

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of failing to provide and maintain a safe workplace.

Notes

[1] If an element or part of an element is not in issue it should not be explained in full. Instead, it should be described briefly, followed by an instruction such as: “It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this [element / matter] proven.”

[2] Where the risk extends to independent contractors who are treated as employees under OHSA 2004 s21(3), this direction should be modified accordingly and the shaded text added.

[3] This statement should be modified if a different form of engagement is alleged.

[4] If the accused would have had sufficient control over the contractor, but there was an agreement to the contrary, this part of the charge will need to be modified to reflect the fact that the agreement is not operative for the purpose of this element.

Last updated: 27 March 2019

See Also

7.7.1 – Employer’s Duty to Employees and non-Employees

7.7.1.2 - Checklist: Employer's Duty to Employees

7.7.1.3 - Charge: Employer’s Duty to Non-Employees

7.7.1.4 – Checklist: Employer’s duty to non-employees