“They just don’t have a plan,” he said.
“They say they’ve never had an accident but when you inquire further you find that almost all of them have come off their farm bikes.”
Findlay’s long-established business has focused more on health and safety in the last six months as he’s warned clients about what will be required of them under the Health and Safety Act 2015. But he said with last-minute wins heralded by Federated Farmers there were farmers who felt the pressure was off to improve their compliance levels. Farming was deemed not to be a high-risk activity, a health and safety officer wasn’t required where 19 people or fewer were employed and farmers were deemed not responsible for health and safety in staff homes or for that of people trespassing on their property.
He estimated only about 10% of farmers had a health and safety plan as required under the new legislation.
“A lot have a warning sign at the gateway,” he said.
“That’s good but it’s not a health and safety plan.”
They required a health and safety manual, signed employment agreements with all their staff, a detailed hazards register at the dairy which was continually updated, and a comprehensive handbook. This should include, for example, details of farm operations and specifications of vehicles and machinery used on the property.
“It’s quite an exercise in itself,” he said.
For example manufacturers’ recommendations needed to be known and noted when it came to wearing helmets because farmers needed to operate to best-practice standards.
There needed to be clear reporting instructions and information in the event of injury, which must be reported within 48 hours. For immediate help there’s a requirement for easy access to emergency numbers and the property’s rapid response number and GPS co-ordinates.
Findlay has been working with lawyer Ray Harris who has had considerable involvement with Accident Compensation Corporation (ACC) claims as an advocate. They’ve updated previous policy advice and information given to farmers so they will comply with the new act which, with yet-to-be-finalised regulations, comes into operation on April 4.
Findlay usually visits farmers who want health and safety help for half a day so he can view hazards and collect the information required for their handbook. Then Harris puts the required paperwork together, making sure all the documentation is correct and specific to that property. Findlay visits again 10 days later to run an induction course for all staff. While farmers are able to do this last step themselves he said it was a lot safer for them to get an independent person in, especially if there were questions later about how well employees understood what was required of them.
This costs less than $1000 but Findlay said it could be more if there was extra mileage or signage required. Once it’s put in place there needs to be a review every nine months to note any changes, which costs $500.
He said it was no excuse for farmers to say they couldn’t afford a health and safety plan, and Harris supplies all the evidence needed. A recent court case because of a workplace accident saw the employer of a digger driver fined $40,000 for not giving him ongoing training, despite the fact the worker had more than 10 years’ experience.
“You can insure against litigation but you can’t insure against fines,” Harris warns.
“And directors weren’t so involved in the past.”
Now all directors of farming companies, no matter how connected they are to the day-to-day running of the business, can be potentially liable over any onfarm accident. While a person conducting a business or undertaking (PCBU) must ensure the health and safety of all their workers and provide a workplace that’s without risk, there are specific duties placed on officers of the PCBU. These officers can be company directors, partners in a partnership or anyone exercising significant influence over the business’s management. They now need to acquire and keep up-to-date knowledge of health and safety matters and understand the risks and hazards of the business. They have a responsibility to make sure the PCBU uses appropriate resources to minimise risks, can respond to information about incidents and hazards in a timely way and can carry out their duties under the act.
This changes the previous situation where those loosely involved with operational decisions could be held liable but not others.
“This extends the liability of people involved in trusts and companies,” he said.
They needed to ensure there was a viable health and safety plan then each person on the farm needed to know the hierarchy of responsibility among staff members.
He points to wording in the act that it’s not necessary to prove intention of failing to comply with duty that exposes individuals to risk of death, serious injury or illness. It’s also not necessary to prove intention not to take an action where failure to do that is an offence.
Fines can range from up to $50,000 to up to $600,000 and if a finding of reckless conduct in respect of duty is found fines of up to $300,000 and a prison term of five years can be imposed for a PCBU or an officer of a PCBU.
There’s also a range of new orders which can be imposed at sentencing such as requiring the offender to publicise in a particular way the offence, consequences and penalty imposed. Restoration orders can also be made to take steps towards a remedy or project orders under which the offender undertakes work to improve work health and safety. Proceedings can also be adjourned for two years for the offender to comply with certain conditions.
“Farmers need to start with proper employment agreements covering their drug policy and health and safety,” Harris said.
As part of signing such an agreement workers needed to acknowledge that they have seen the farm’s health and safety plan as the two are interlinked.
Findlay said the first thing a WorkSafe inspector would want to see when they visited would be the hazard register. Guides are available on its website that show where hazards can be found onfarm and what policies need to be placed around them.
“It’s a best practice guideline but doesn’t constitute a health and safety plan,” he said.
Farmers needed to identify all hazards, isolate or minimise them and make certain that possible risks were updated throughout all the seasons of the year. At induction farmers needed to walk around their property with employees and point out to them any potential problems.
The definition can be very broad because Worksafe’s interpretation is this can be anything that could cause an accident, even down to something as minor as a rabbit burrow. Findlay said there wasn’t a good understanding of what hazards were, because often farmers were so familiar with their surroundings they didn’t see potential dangers.
“If a farmer lists 25 hazards an independent person coming on to the farm will likely double that number,” he said.
There was also a risk of farmers not including potential hazards because they intended to fix them, but regularly updating the hazard list would protect against this happening.
“It’s a living document so farmers should be updating it every day,” he said.
“It’s got to be reviewed, just like the ability of staff to ride farmbikes or different terrain.”
While farmers could check it themselves regularly they needed to be able to show they’d taken the time to do so.
“But if it’s done by an outside, independent person that always holds more weight.”
It was a good idea to have health and safety on the agenda for every staff meeting. This allowed staff to mention any new hazards they may have seen on the property and could be a good forum to which to invite, for example, a farmbike dealer to speak about good safety practices.
The definition of a place of work had caused some issues because if duck shooters went to a paddock by a lake on a farm that was regarded as a recreational area, but when fertiliser was spread there it was seen as part of the farm and a workplace. The wide definition of a workplace in the new act is anywhere where someone was likely to be at work. Findlay said it was a good idea to padlock gates so access could only be through one gateway where signage was clearly visible.
Contractors coming on to farms should have their own health and safety policy, but this needed to be confirmed before any staff arrived. A hazard identification list should be included and a reporting plan for any incidents.
“And if a farmer sees one of their staff not doing something correctly they have a responsibility to go to the contractor and say something isn’t right,” he said.
The contractor should also be asking the farmer for their health and safety plan and hazards register before any work begins.
Findlay said WorkSafe had been cold-calling farmers but seemed to be taking a softly, softly approach. However, farmers needed to remember WorkSafe wasn’t there to educate them but to review health and safety provisions they had in place and prosecute if there was a breach.
“It’s up to farmers to put plans in place,” he said.
“I talked to a lot of farmers when the Resource Management Act came in and there was a lot of gnashing of teeth. But farmers were more up-to-date with their effluent plans than they are now with health and safety. The next on the list is animal welfare.
“Farmers are going to have to comply with statutory requirements and regulations.”
Five steps to being health and safety compliant
- Get a health and safety policy drawn up.
- Manage that policy.
- Put correct signage in place around the farm.
- Ensure you are complying with employment agreements with staff.
- Make sure you do ongoing training.
