This article was originally written for a SupportAdventure newsletter (July 2021)
A common issue that has been raised during audits and by WorkSafe is how participants are made aware of the hazards and risks in the activity they have booked onto. The traditional terms we use for the sign-in sheet our participants use can be 'Waiver' or 'Liability Release' but with HSWA and ACC legislation, we can’t really waive risk at all: Lots of operators still consider a 'waiver' or 'liability release' to be the way to go, but Section 28 of the HSWA says this:
No contracting out
A term of any agreement or contract that purports to exclude, limit, or modify the operation of this Act, or any duty owed under this Act, or to transfer to another person any duty owed under this Act--
(a) has no effect to the extent that it does so; but
(b) is not an illegal contract under subpart 5 of Part 2 of the Contract and Commercial Law Act 2017.
The Safety Audit Standard for Adventure Activities (a document all commercial adventure activity providers should be conversant with and need to comply with) requires: “The operator must have procedures for risk disclosure between the operator and participant, and subsequent acknowledgement”.
In other words, you have to tell your clients what risks they can expect to encounter and have them acknowledge that risk. Using a clear, concise “Risk Disclosure Form” could be a better way to meet requirements.
This can be a two-way form as you can disclose the reasonably foreseeable risks in the activity and also use the form to identify risks presented by the participants, such as medical and physical conditions, etc. It’s important that the risk disclosure, required by the Standard, isn’t diluted or lost in a long wordy 'waiver' that section 28 of the HSWA says:
“has no effect to the extent that it does so”.
When you review your waiver/liability release/risk disclosure ask yourself: If a WorkSafe investigator asked your client “What were you given and asked to sign before the activity?” would they say that they were informed of the likely risks or would they say it was a generic form to “sign their life away”?
Annual surveillance is coming up for a lot of operators soon.
One of the things you'll be asked is how you review incidents and analyse trends. Section 8.2 of the Safety Audit Standard for Adventure Activities 2017 (SAS) says this: "The operator must establish a process for investigating and reviewing incidents, understanding the underlying causes, identifying improvements to the SMS, and analysing trends.
Recommendations from incident reviews must be implemented and communicated to staff and relevant other parties."
It's pretty common for operators to report their incident pretty well and conduct comprehensive interviews with their staff. What isn't always done well is the second bit - understanding underlying causes and identifying areas for improvement.
We often see detailed records of events leading up to the critical moment of injury or incident but significantly less focus on why it happened. Often "human error" is concluded to be the root cause an no improvements are suggested - "these things happen in adventure activities, otherwise they wouldn't be adventures".
These things do happen, and will continue to happen, and lives will be enriched and tragically affected for as long as we continue to pursue adventure, and that shouldn't change.
But while we are providing adventure activities to paying customers in our incredibly beautiful "offices", we need to ensure that we are doing all that we can to ensure everyone goes home safely afterwards. "Human error" can cause incidents, as humans we're fallible. With that knowledge, in an investigation we need to ask why human error wasn't considered as a hazard when assessing the risks. We need to move away from "who" and focus on "what"; If we look at what circumstances or procedures were in place, we can start to identify what made it possible for that person to do the wrong thing. We can't prevent human error, but we should strive to improve processes where an error is less likely to lead to a significant event. Change (continual improvement) happens through learning. This is most likely to happen when we stop looking to blame a person, and start looking to improve the process that allowed the error to occur.
I learnt a new term recently - "fundamental attribution bias". This is the tendency to blame the situation or conditions if I make a mistake but to attribute human error to the same incident if it happens to someone else! The flip side of that coin is we accept success to be a result of our own hard work, but when others succeed, we attribute this to the opportunities they had, and not their hard work! - Feel free to forget the term, but there's an interesting lesson here.
"What if I haven't had any incidents?" Don't despair, if you're engaging with good technical advisors (Sections 4.2, 5.1 & 10 of the SAS), they should have a good idea of what incidents your sector has experienced and how the reviews/investigations went. It would be a waste if we didn't use previous incidents to minimise the chance of making a mistake that's already been made by someone else.
Remember, mistakes are much less likely to happen when we have systems in place that have considered human error and planned ahead for it.
Running a major outdoor event is a challenging business. Managing the safety of hundreds of people over challenging terrain is fraught with difficulties. Risk is an inherent part of running an event and part of the reason so many people in New Zealand enjoy participating in major events.
Although not all events in New Zealand are subject to the Adventure Activities Regulations, they are subject to the Health and Safety at Work Act (HSWA). At AdventureMark we offer our Green Certification Audit to give you confidence that your safety management system stacks up against the best in the industry. This full audit against ISO 21101 and/or the New Zealand Safety Audit Standard for Adventure Activities involves a comprehensive review of your documentation, with the Events Team working with you on-site on the day of the event. This helps identify issues that aren't always picked up in the documentation and provides an impartial perspective of the safety performance of your event.
Our Events Team has many years’ experience, competing in, running and assessing major events here in New Zealand and overseas. Our extensive reporting allows you to continually improve your safety systems and our internationally recognised certification will let your participants know that you take their safety seriously.
Please contact us to find out more.
Since the implementation of the Adventure Activity Regulation scheme, SupportAdventure.co.nz has been the one-stop-shop for outdoor/adventure tools, templates and good practice documents. Recreation Aotearoa and Tourism Industry Aotearoa have partnered to represent the interests of the Adventure Activity sector. RA and TIA have jointly provided the SupportAdventure website, published the SupportAdventure newsletter and led the development of the first Activity Safety Guidelines.
Both these organisations rely heavily on membership for funding and, since COVID hit our industry, these memberships are more important than ever. It's easy to say that without clients the first cost saving measure can be to drop an affiliation or membership but bear in mind that these organisations continue to work hard on all of our behalf. It's a "help us to help you" situation.
The Whakaari/White Island disaster has resulted in numerous investigations, reviews, and enquiries by various government departments. These include Coronial investigations, WorkSafe NZ’s 13 prosecutions, the Department of Internal Affairs' consideration of access to Whakaari/White Island, and Department of Conservation visitor risk management.
Currently a targeted review by the Ministry of Business, Innovation and Employment (MBIE) of the adventure activities regime is underway and representatives from these groups are involved and continue to provide perspectives to WorkSafe, MBIE and other government entities. As auditors who need to remain impartial, we have been specifically excluded.
If you want to have an opportunity to influence changes to the Adventure Activities regulatory regime, membership through these advocacy groups may be the best way to have your voice heard.
More about the review can be found on the MBIE website.
You can watch a webinar from Recreation Aotearoa on the review here.
2020 has been a strange year, to say the least. I can't help but be impressed by the resilience of the New Zealand adventure activity sector. As soon as lockdown first hit, we were the pinch point between operators and WorkSafe and JAS-ANZ, trying to ensure operators could maintain certification, during lockdown and then in planning for this busy recertification period.
As difficult and challenging as it was, it was heartening to hear from so many of you who had managed to find innovative ways to keep your businesses going through such tough times, from modifying activities to better suit the Kiwi market, to starting landscaping side-hustles to bolster income.
We've had some good learnings from audits, too:
Gregory Smith, a respected health and safety author writes: "For most organisations, the biggest source of legal liability is the level of non-compliance with their own documented procedures". We've definitely noticed that, as a Safety Management System evolves, it can easily lead to different sections specifying different requirements, leaving your staff unable to adhere to one or the other. It's important that a SMS is clear and succinct, so that staff are clear on their requirements. Duplication can lead to deviation.
Keep up-to-date with practicing emergency procedures. Most emergency test reports we've seen have recorded good learning opportunities which have led to improving emergency plans. If you don't test your plans properly, you could miss out on these learning opportunities. Talk to other operators, Coastguard, LandSAR, etc about their procedures. A real emergency is NOT the time to practice.
Sensible goals and objectives a a good idea. Think about Sensible, Measurable, Appropriate, Timebound (SMART) objectives that help you achieve your safety goals. Some good objectives include: Streamlining the SMS by removing redundant forms and duplication; Renewing 1st aid quals with an outdoor-specific course that is more appropriate for the location of activities; Engaging with other operators in the sector as external technical advisors (TA) to update currency in the wider industry.
Understand the requirements of the Safety Audit Standard for Adventure Activities. Stay up-to-date with the legislation, guidelines and bylaws relevant to your region and activities. If you're adhering to this document, you're well on the way to following good industry practice.
Continual improvement is real. The argument that "we've been doing it like this for 15 years and nothing has changed" is unsound. With this thinking internal combustion engines would never have replaced steam-power, which would never have replaced the original horse-power. We've never been as well-informed as we are today - and tomorrow we'll have more information to use to make our staff and participants safer than before. Opportunities to improve our activities and safety should be continuously sought.
Season's greetings and best wishes for 2021 to all.
Congratulations need to go out to all the rafting operators and everyone who worked so tirelessly to get the rafting across the line on 1 October.
Operators from other activities will remember their first round of certification audits and the doubts and stress that came with this new set of regulations. This was compounded for the rafting operators with all the unknowns presented by COVID rearing it's head in the middle of it all.
At AdventureMark we take pride in knowing that our auditors are also active in the outdoor industry and having such experienced, competent rafting auditors certainly helped give our rafting operators comfort that the people auditing them knew what they were talking about.
For the most part, the audits have identified well-qualified guides with plenty of competence. This really highlights the value of having a high-quality national qualification. Areas that needed work were more around updating systems and procedures. Several observations were made that the SMSs were often bulky and contained outdated information or duplication that could use a good "haircut".
This could be a good objective to include in your SMS to help make compliance with your own documented procedures more efficient.
The Adventure Activities Regulations will still be pretty new to some of you so please don't hesitate to contact Mike at AdventureMark if you ever have any questions at all.
Again, well done to everyone who put in the hard yards to get registered by the 1st October. Hopefully we'll have a bumper season getting Kiwis done our rivers and look forward to welcoming back international guests in the not-too-distant future.
For some operators, you'll be breathing a sigh of relief as your new certificate arrives in the post. Some operators are in the middle of recertification and others among you are just getting started.
The one common theme that we're hearing is that the cost of compliance is very high and a threat to some businesses.
We touched on this point in the last post.
The Adventure Activities Regulations require any business providing adventure activities to undergo a recertification audit every three years to be registered as an Adventure Activity Operator on the WorkSafe Register.
For AdventureMark to be accredited to provide these audits, we need to be audited by JAS-ANZ. It is the cost of accreditation that determines the cost of audits. Most of your auditors work in the adventure industry as well, and have to be audited themselves. We full-well understand the impact these expenses have to business, especially at this time.
The single-most effective way to keep costs as low as possible is to plan early and get your audit done as efficiently as possible. The most expensive audits are the ones where there is a scramble at the end to get everything completed just before certification expires.
Once you've had an auditor appointed you can discuss a suitable date that works for everyone. This will always be easier if there is more time for you to plan.
These really are extraordinary times. We wrote these words back in March and they ring as true now as back then.
When the first Lockdown hit AdventureMark started discussing and planning with industry bodies like WorkSafe, JAS-ANZ and TIA, among others, to try to find a way through these unprecedented circumstances.
We've been talking to many different organisations to try to find some form of compliance cost relief for operators. The truth is, for AdventureMark the cost of being accredited to provide audits dictates the cost of audits to operators. TIA understood this and used this information to petition government to provide financial relief to operators.
Below is the media release from TIA:
TIA offers helping hand to adventure tourism operators
TIA is offering adventure tourism operators a helping hand so they can complete safety audits.
Many operators covered by the Adventure Activities Regulations are due to undergo their full three-yearly safety audit in the next few months. Without an audit, which costs an average $4-5000, they are not permitted to operate.
TIA is concerned that some operators will struggle to cover their audit costs. TIA members facing hardship will be offered interest-free loans of up to 50% of the audit fee.
“This is an unprecedented step for TIA. We have explored the possibility of government funding but have been told by Ministers that none is available, so we are using our own balance sheet to support our members,” TIA Chief Executive Chris Roberts says.
Read our media release or email [email protected] for details.
These really are extraordinary times.
Events like the COVID-19 pandemic happen so seldom that we are very rarely prepared for them. The Adventure Activities Regulations certainly don't take this sort of event into account. When we read the Regulations or any audit standards, it seems that we need to continue audit activities (recertification, surveillance, etc) as per schedule. There's scope to use ICT- Information & Communication Technology- to avoid having to visit operators onsite. What isn't really considered is the fact that operators can't even conduct activities - so we can't audit them.
Taking this information into account, AdventureMark is working together with WorkSafe and JAS-ANZ to find a solution maintain certification until such time as operators can begin activities again.
Our thinking follows four points:
• Activities aren’t taking place.
• People cannot access their offices/places of work.
• Businesses aren’t receiving any income, making paying compliance costs difficult.
• Businesses and staff are under a lot of stress, adding audits for activities they cannot provide could exacerbate this.
We hope to hear back from WorkSafe soon to hear if we can maintain certification without the need for suspension or other measures.
We also understand that there is a lot of uncertainty at the moment. This is an uncertain time and we're working hard to keep communication lines open to reach a resolution soon. We will update our operators when there is news.
Please don't hesitate to contact us if you have any questions at all.
The Owl and the Peacock by Sally Duxfield from Makahika OPC
Loving being at home, treasure the silence and the lack of interaction or are you going completely stir crazy and desire cuddles, laughter and people?
Needing something different at this time will depend on your level of extroversion or introversion.
As leaders, we need to be agile in our support processes and know when to engage with our team and when to leave them in their 'my-sky happy place'.
The HAWK - driven, solo, competitive, low empathy,
doesn't need your approval, drives projects and teams,
essential in times where high energy and focus are
required - introvert.
The PEACOCK - vivacious, happy, funny (particularly in
their own minds), love entertaining, drawing with
brightly coloured pens (on themselves), maintain high
energy for teams however can be a little distracting -
The DOVE - quiet, kind, peace maker, loves being
around people but not necessarily speaking to them.
Hates conflict and happy to be led - quiet extrovert
who recharges around others
The OWL - process driven, low low low empathy,
technical, routine driven, fantastic at planning and
project management - strong introvert.
W H A T D O Y O U N E E D ?
The HAWK - Thank goodness - I don't have to talk to anyone and those annoying peacocks cannot disturb me - I don't need anyone else at this time, but need you to do what you've been told - quickly.
The PEACOCK - aaaahhh noooo, zoom me, message me, hello hello are you there, someone talk to me, desperately need you to speak to me, regularly, please make a time for us to message and drink coffee or gin together on a screen (quite large screen so you can see me properly)
The DOVE - I hate isolation, I don't know what to do as there are no Hawks to tell me; please don't forget about me. I don't have the courage to zoom you, but would love it if you remembered me and invited me for a coffee zoom call, please, thank you. and sorry for being a nuisance, sorry.
The OWL - the world is in order, we should all work in isolation. I'm about to go down into a rabbit hole and contemplate the end of the world. Constantly considering all things way way outside of my circle of influence and I probably need to be dragged into virtual social interaction so that I don't look up recipes for foxgloves just in case the end of the world is nigh.
SO it's time to nurture - explore the needs of your
team and consider the agility of your response to
your teams mental well-being.
Integra/AdventureMark Blue Certification is JAS-ANZ accredited. AdventureMark Blue certification is approved by WorkSafe NZ under the WorkSafe NZ Adventure Activities Certification Scheme.
New Zealand Adventure Tourism Safety Certification
Mobile (NZ): 0800 394 436
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4 Te Aute Road
PO Box 8940
HAVELOCK NORTH 4130