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HSWA
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POLIC
September 2020
How WorkSafe regulates under
the COVID-19 Public Health
Response Act 2020
ACT 1982
Purpose
health requirements for New Zealand. Section 11 Orders
aren’t static. They’re likely to be revised or superseded
This policy sets out the regulatory approach our
by new Orders.
inspectors will take as authorised enforcement officers
under the COVID-19 public Health Response Act 2020
As authorised enforcement officers our inspectors
(the COVID Act).
can enforce a section 11 Order. Under the COVID Act
INFORMATION
they can:
The policy outlines:
– enter premises without a warrant if they have
– the background to our enforcement powers under
reasonable grounds to believe that a business or
the COVID Act
service is failing to comply with any aspect of a
– how we manage our Health and Safety at Work Act
section 11 Order
2015 (HSWA) and COVID Act powers
– direct a business or service to stop an activity or take
– our regulatory approach to our COVID
an action if they have reasonable grounds to believe
Act responsibilities
that a person is contravening or likely to contravene a
– principles for using COVID Act powers.
section 11 Order
More detail is available in the COVID Act guidance.
– if they’re acting under the authority of a constable,
totally or partially prohibit or restrict public access to
Background
any road or public place
– direct a person to give their identifying information
The Director-General of Health has authorised all
(including full name, full address, date of birth,
WorkSafe inspectors as enforcement officers under
occupation, and telephone number)
the COVID-19 public Health Response Act 2020 (the
– direct a business or service, or part of one, to close
COVID Act).
and cease operation for up to 24 hours, where
The COVID Act’s purpose is to support a public health
they have reasonable grounds to believe that the
response to COVID-19 that:
business or undertaking, or part of one, is operating
in contravention of a section 11 Order or contrary to
– prevents, and limits the risk of, the outbreak or
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any conditions imposed on its operation by a section
spread of COVID-19
11 Order
– avoids, mitigates, or remedies the actual or potential
– take enforcement action when offences are committed.
adverse effects of the COVID-19 outbreak
– is co-ordinated, orderly, and proportionate
HSWA and the COVID Act
– has enforceable measures, in addition to the relevant
voluntary measures and public health and other
Our inspectors already have a number of powers under
guidance that also support that response.
HSWA. How they use those powers is guided by our
operational policies and guidance.
The Minister of Health can issue an Order under section
11 of the COVID Act. Section 11 Orders set out the public
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We need to be clear:
We’ll take our intelligence and insights into account when
we decide where and how to deploy our inspectors.
– when, where, and how our inspectors use the powers
under the COVID Act1
When we choose to act we’ll take an education and
– how our inspectors should navigate any potential
enforcement approach. enforcement will begin with a
overlap between HSWA and the COVID Act.
verbal or written directive.
Section 11 Orders set the legal requirements we
This approach is in line with the all-of-government
can enforce. We can encourage mitigations and
(AoG) Graduated Response to COVID-19 enforcement,
controls above and beyond what is required in an
which is to educate, warn, then infringe. For WorkSafe,
Order, but we cannot enforce these.
the verbal or written direction forms the warning.
There is an overlap in our powers under HSWA and
Our inspectors will be doing a mix of remote work and
the COVID Act. We’ll take enforcement relating to
site visits, depending on circumstances.
a COVID-19 matter under the COVID Act. The only
exception to this is where controlling the risk of COVID
Principles for using COVID Act powers
infection is, or has become, central to the purpose of
We’ll use our powers to direct a business or service to
the business (such as quarantine facilities [MIQFs] or
close in very limited circumstances
border operations). In these situations, HSWA may be
more appropriate.
The power to direct a business or undertaking to close
ACT 1982
is a significant power. We’ll only use this power in very
At times a business may be in breach of both HSWA and
limited circumstances, after appropriate consultation.
a COVID-19 Order. In these situations, we may need to
take enforcement under both the COVID Act and HSWA.
We’ll only direct a business or service to close using
When this happens, we’ll clearly distinguish between
our powers under the COVID Act in cases where there
breaches of HSWA and breaches under the COVID Act,
is a high risk of harm and/or repeat or deliberate
and keep our response(s) to each separate.
contraventions, and clear evidence of this.
When we take action under HSWA, we’ll continue to
Before an inspector directs a business or service to
apply the eDM.
close they will:
INFORMATION
When we take action under the COVID Act, we won’t
– consider if other interventions would be
use the eDM. We’ll consider the interventions we could
appropriate, including asking the business
take – directives, infringement notices, fines, prosecution,
or service to close voluntarily
or business closure – and choose the intervention that’s
– consider whether all or part of the business needs
proportionate to the issue and risk.
to close
– consider how long the business or service needs
Our approach to our COVID
to be closed to enable it to become compliant
Act responsibilities
with an Order (noting the maximum is 24 hours)
We’ll focus our COVID Act enforcement powers
– consider what actions may be needed after the
on the risk of COVID-19 transmission through work.
closure period finishes
Specifically, our focus is:
– consult with their manager/chief inspector to discuss
whether closing the business or service is appropriate
– the health and safety of workers in higher risk
in the circumstances.
activities, such as working at managed isolation
or quarantine facilities (MIQFs)
If closing the business or service is the confirmed
– whether businesses and services are meeting COVID
approach, then the inspector will:
Act requirements, including displaying QR codes and
– consider if police support is needed
ensuring physical distancing
– make sure the written notice clearly and fairly explains
– working with other COVID Act enforcement agencies
and sets out the decision and grounds for it
to support them when required and to ensure our
– record in their notebook the actions taken under
RELEASED UNDER THE OFFICIAL
approach is aligned where possible
section 24 and the reasons for them
– supporting the All of Government response to
– have ready a copy of any other evidence e.g. photos
COVID-19.
and statements taken at scene.
We’ll do this by:
These actions are important as the recipient of a closure
– responding to COVID-19 complaints or concerns
notice can appeal to the District Court to revoke the
– addressing COVID-19 issues while carrying out
direction to close. Any appeal would be dealt with
business as usual
within the 24 hour period.
– responding to patterns or behaviours of concern.
1 We may decide that we do not want all our inspectors to have these powers, but might instead select some inspectors to enforce
a section 11 Order.
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We’ll make sure we act in accordance with the practice
Note issued by the Chief District Court Judge on 22 May
2020. Our guidance sets out what we need to do.
We’ll clearly distinguish between breaches of HSWA
and breaches of the COVID Act
We’ll only take enforcement relating to a COVID-19
matter under the COVID Act. The only exception to this
is where controlling the risk of COVID infection is, or has
become, central to the purpose of the business (such as
quarantine facilities [MIQF’s] or border operations). In
these situations, HSWA may be more appropriate.
At times we may need to take enforcement under
both the COVID Act and HSWA, if there are both
COVID-19 breaches and work health and safety
breaches. When this happens, we’ll clearly distinguish
between breaches of HSWA and breaches of the
COVID Act, and keep our response(s) to each separate.
ACT 1982
We’ll record and report on when we’ve used our
powers under the COVID Act
We’ll accurately record when we use powers under the
COVID Act, and do so in a timely way. This will help us to:
– report on our use of the section 20 power of entry, as
required under the COVID Act
– contribute to the Government’s understanding of
how people in New Zealand are responding to what
INFORMATION
is expected of them
– be accountable for our actions
– share information with others, when appropriate.
We’ll ensure our approach aligns with other
enforcement agencies
It’s important that businesses and services have an idea
of what to expect from enforcement officers. We’ll do our
best to ensure our approach is aligned with that of other
enforcement agencies. To do this we’ll work alongside
other enforcement agencies whenever possible.
We’ll apply our normal regulatory principles
The general principles in our operational policies apply
to our regulation under all applicable legislation and
regulations, including the COVID Act. This means:
– our responses will be proportionate
– we’ll be transparent
– our approaches will be consistent
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– we’ll be accountable for our actions.
We’ll apply our existing operational policies to what we
do, including the actions we take under the COVID Act.
We’ll look after our own health and safety, and that of
people we interact with
In doing all of this we’ll try to keep our people, and
people we interact with, healthy and safe. We’ll manage
our own health and safety risks, and make sure we
comply with section 11 Orders.
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