New Zealand: Across the ditch – Resignations from director/officer roles in response to new WHS laws

New Zealand has adopted Australia's model work health and safety (WHS) laws (with minor changes). The Health and Safety at Work Act 2015 (NZ) (HSWA) commences on 4 April 2016.1 The response of business to the HSWA provides us with some important reminders about key aspects of the Australian model WHS legislation.

Early reaction suggests that corporate New Zealand (NZ), and in particular its directors and officers, are taking the new laws very seriously, particularly in relation to personal liability. For example, Sir Peter Jackson has resigned as a director of Weta Workshop, the Wellington design company in which he owns a major stake and has worked with on many of his best known films, including The Lord of the Rings trilogy. The resignation was reportedly in direct response to the new WHS laws.2

By contrast, some of Australia's directors and officers found it hard to believe they could be personally liable under WHS laws for some time. Early disbelief by Australian Boards and very senior executives that they had personal WHS liability has been replaced, three years into the new laws, with an acceptance that they must be 'safety literate'. This means they need to be able to sign off, on an informed basis, on safety initiatives and robustly interrogate their executives about safety – in much the same way that they must be financially literate in order to sign off on financial matters.

As in Australia, NZ directors and other officers are required to ensure that the 'person conducting the business or undertaking' (PCBU) for which they are a director or other officer, complies with its WHS duty. So for example, if John Smith is a director of ABC Pty Ltd, then John Smith must exercise due diligence to ensure that ABC Pty Ltd fulfills its WHS duty. Due diligence is defined to include taking reasonable steps in six specific areas including:

  1. Acquire - to acquire and keep up-to-date knowledge of work health and safety matters; and
  2. Understand - to gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations; and
  3. Provide Resources and Processes - to ensure that the PCBU 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 or undertaking; and
  4. Monitor - to ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and
  5. Comply - to ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under the HSWA; and
  6. Verify - to verify the provision and use of the resources and processes referred to in paragraphs 3-5 above.

Breach of the officer's duty attracts a maximum penalty of NZ$600,000 and/or imprisonment of up to five years.

Interestingly, the NZ Institute of Directors chief executive Simon Arcus is reported as saying that Peter Jackson has made an "excellent, considered choice" and "the sleeping director had obviously looked into what the legislative changes were going to be...the age of the sleeping director is absolutely dead and this reinforces the need for directors to be across all aspects of their role, with health and safety being a key consideration".3

It would seem that in NZ, as in Australia, it has been difficult to convey the fact that although directors/officers do indeed have personal WHS duties, those duties are WHS corporate governance duties and they are not 'hands on' WHS duties. The WHS officer's duty is very much about:

  • receiving reliable and accurate information about the adequacy of WHS systems and resources;
  • acting on reliable advice about what needs to be done in relation to those systems;
  • then verifying that action has been taken.

In the same way that directors/officers need to be financially literate and make financial decisions, they are also required to be safety literate and make decisions (informed by experts) about safety investment and related issues. However, just as officers with financial accountability are not required to "do the accounts", officers are not required to perform hands-on safety roles – although they may be required to ensure that such roles are adequately resourced.

Recognising these features of the director/officer's duty, Michael Woodhouse, the NZ Minister for Workplace Relations and Safety has said: "any suggestion that directors need to resign because of new requirements under the new Health and Safety at Work Act is an unnecessary overreaction".4

The relatively low rate of officer prosecution in Australia during the first three years of operation of the model WHS laws suggests that Minister Woodhouse is correct, and certainly, those Australian officers who actively engage in compliance with their WHS duty appear relatively comfortable with the duty.

There is little doubt that in Australia the model WHS laws have had a significant impact on investment in safety, with Boards and senior executives engaged in training about their personal WHS duties and liabilities as well as those of their PCBU's – most medium to large organisations developed and implemented 'due diligence' frameworks to help facilitate their officers' compliance with the officer's duty under the WHS Act.

Those due diligence frameworks vary from the very prescriptive (that is, defining the actions required by officers against compliance schedules), to the more laissez-faire (that is, providing guidance about how to fulfil the officer's duty and relying on a high degree of individual officer input and responsibility for their compliance). This new-found safety literacy has in turn led to an increased interest in the concept of 'safety culture' by officers who are seeking ways to measure safety culture, and identify deficiencies in it so that rectification action can be undertaken. There is an emerging recognition that 'safety culture' can operate as a safety hazard or a safety enabler and, therefore, has to be proactively managed.

NZ has tightened up the definition of "officer" under its legislation having learnt from Australia's difficulty in identifying who is included within that term. In Australia, this difficulty has meant that from a practical perspective, those that sit on the cusp of the officer definition tend to be asked by their organisations to comply with the officer's duty. There are some concerns that the question of 'who is an officer' will be relevant if the WHS regulator is considering a prosecution. In order to deal with this issue, some commentators have suggested the Australian legislation be amended to provide that a person, who would not otherwise be an officer under the WHS laws, does not make themselves an officer simply by complying with the officer's duty.

Generally, our experience suggests a growing acceptance of officer liability and a belief that the due diligence provisions have created an increased focus on health and safety with the potential to achieve improved outcomes in the workplace. It will be interesting to test the position of corporate NZ and its directors/officers after the new HSWA has been in operation for three years.


1 See:
2 3NewsNZ, 'Sir Peter Jackson Resigns as Weta Director', 18 January 2016, at:
3 See:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions