Licensed to investigate?

A bombshell legal decision has ruled that consultants offering workplace investigation services must be licensed as private investigators unless they hold another equivalent form of accreditation.

After hearing a complaint about the way a consulting company handled an investigation into alleged workplace misconduct, the Private Security Personnel Licensing Authority, Trish McConnell, found the company had been in breach of the Private Security Personnel and Private Investigators (PSPPI) Act because neither it nor its investigators had been appropriately licensed during the 2019 investigation (NZPSPLA, 4 June 2020).

She ruled, however, that this failure did not warrant prosecution because it had been inadvertent and was the result of a widespread belief among employment investigators that they were not required to comply with the legislation. The two investigators who did the work now both hold practicing certificates as lawyers, and McConnell concluded that this was sufficient to exempt them from any additional licensing requirements.

Under the PSPPI Act, any person or business that takes money to obtain and supply information (other than that in public records) relating to the character, actions or behaviour of others, is deemed to be a private investigator, McConnell said. The work done by the consultant company was of this nature, with most of it relating to allegations of bullying, sexual harassment and other inappropriate workplace behaviour.

Responding to submissions from the company that the legislation was not intended to apply to work of this type, she acknowledged that employment investigators may not have been specifically considered when the law was enacted, but said the definition of private investigator in the act was “clearly intended … to cover all people in the business of carrying out investigations into a person’s character, actions, or behaviour [which] is an integral part of an employment investigator’s work.”

She also rejected the company’s claim that because employment investigators do not use covert surveillance, they should not be regarded as private investigators.

“Covert surveillance is not part of the definition of the work of a private investigator as set out in the act,” she said, noting that the term “private” was intended to distinguish the investigators covered by the act from those employed by the police and other government agencies.

She concluded that at the time of the investigation the company should have held a private investigator’s licence, and its failure to do so was a breach of the PSPPI Act.

The two individuals conducting the investigation should also have had certification under the act, but she accepted the company’s argument that the practicing certificates they now hold under the Lawyers and Conveyancers Act are enough to exempt them from the need for future certification, because the act allows exemptions for those authorised to carry out security work under alternative professional frameworks.

McConnell said a legal practicing certificate meets the stipulated requirements for such regimes in that it has a robust complaints procedure and requires appropriate levels of training and ethical standards of behaviour. “Even if [the company] had not become an incorporated law firm, I would not have recommended prosecution … but would have allowed them time to rectify the situation.”

 

Investigators: no quick fix?

Employment lawyer Kathryn McKinney agrees that there are as yet no clear-cut answers as to the types of professional accreditation that will satisfy PSPPI Act requirements, and says further case law may be the only way to provide certainty about which professional accreditations qualify for exemptions under the act.

McKinney, who heads the employment team at Anthony Harper, told Safeguard she has had a number of clients raise questions about what the determination means for them, and advises those in doubt to err on the side of caution.

“Firstly, it must be remembered that employers can always conduct their own internal investigations, as long as they can do so with sufficient independence,” she says.

Those wanting to use external providers must understand that any individual or organisation that seeks or obtains information relating to the character, actions or behaviour of others in exchange for payment must hold a licence under the act, unless their work is done in accordance with a practicing certificate issued under a different enactment.

The challenge, it seems, lies in determining what alternative practicing certificates are acceptable.

As a starting point, McKinney notes the three characteristics that the Private Security Personnel Licensing Authority considered when determining that those accredited under the legal practitioner system are exempt from the PSPPI Act licensing regime. These were:

• The availability of a strong, comprehensive complaints process;
• Training and ethical requirements comparable to those of private investigators; and
• The presence of ethical guidelines for the management of any conflicts of interest.

“If we apply these tests to practitioners in industries such as health and safety, it will be a circumstantial test, depending on the professional body concerned and its internal policies.”

She notes the fact that there is, as yet, little subsequent case law dealing with the issue, makes it difficult to provide general advice on how the tests should be interpreted.

“We would advise independent investigators to err on the side of caution. If they are not confident that the exemption applies to them they should seek legal advice or submit an application for a licence under the PSPPI Act.”

According to the PSPLA website, those seeking a licence must supply evidence of training and/or competency and pay a fee, which will not be refunded if the application is withdrawn or rejected. The fee is $750 for an organisation, plus an additional $200 for each employee who carries out investigations. Employee certification is renewable every five years. A sole trader must pay a licence fee of $600.

McKinney says an individual found to be conducting investigations without an appropriate licence can be fined of up to $40,000, while a similar breach by an organisation has a possible fine of up to $60,000. Investigations conducted by those without appropriate licences may also be open to challenge on the grounds of invalidity, she says.

 

Investigators: seeking answers

NZISM president Robyn Bennett says the PSPLA decision has significant ramifications for the health and safety industry because it leaves a lot of unanswered questions around the legal status of those who undertake investigations and audits on behalf of others.

These questions, she says, not only pertain to those providing health and safety investigations as part of a consultancy service, but also to organisations seeking support from external auditors and assessors.

“When might private investigator licensing be required by those whom they wish to engage?” she asks.

Complicating matters is that fact that the work history, membership, training and evidence requirements for those seeking to be licensed as private investigators don’t align well with professional standards for health and safety, she says.

“As this not only affects NZISM but all related associations, we’ve asked HASANZ to take the lead in this to provide some definitive answers that will assist all parties.”

She says HASANZ will seek a legal opinion and will look to clarify aspects of the PSPLA decision with Minster of Justice Kris Faafoi.

“We don’t think we should try and interpret this for ourselves, given that the work health and safety people do is varied and complex.”

CEO’s Report

Welcome to our March 2021 newsletter and I trust that you are keeping safe and well.

The news that we were going back into lockdown restrictions (Level 3 for Auckland and Level 2 for the rest of the country) necessitated a quick re-write of this commentary given my earlier draft had celebrated the easing of restrictions!

Everyone has their personal views on the “go hard go fast” strategy and the effectiveness of closing off the extended Auckland region in response to localised positive tests, however there is no escaping the economic cost to the country when locking down the commercial hub that generates in excess of 40% of our GDP.

It is very apparent that border closures will be with us for some time and that there will be a long-lasting and severe impact on sectors such as tourism and hospitality and the industries that service them. Thankfully, most of our members have reported strong demand for their services and have come through the pandemic without significant impact, however we are very aware that some are still doing it tough and remain in survival mode.

Given that we are in our annual process of renewing membership, we appreciate that cost control will be an issue for some and remind members that the annual fee can be paid over equal monthly instalments, but also welcome members to give me a call and discuss options, such as deferred membership, that may assist financially.

 

Launch of SkillsVR Security Training Platform

We are very pleased to announce that the SkillsVR Security Training Platform has successfully completed the moderation process and can now be delivered to candidates seeking to complete the mandatory training required for obtaining a Certificate of Approval (COA). The training will be delivered by an approved and accredited training provider that we are partnering with however the delivery model also provides flexibility for delivery by other accredited training providers who wish to utilise the platform.

The SkillsVR Security Training Platform has been jointly developed by JBA (Joy Business Academy) and NZSA in partnership with MSD and will form a key component of the wider SkillsVR offering being developed in conjunction with MSD. As part of this offering, MSD clients will soon be able to visit a number of Connected MSD offices where they will be able to use the virtual reality headsets to experience real life work scenarios across a range of industries and identify roles that fit their future employment aspirations. There will be 38 face-to-face Connected drop-in centres across the country that will include website and communication access and aim to make it easier for New Zealanders to find employment, education and training services and types of support offered by government agencies.

Prior to the formal launch of the SkillsVR Security Training Platform with MSD, we will commence delivering the COA training to our MSD clients through the Skills for Industry programme and NZSA members during March. This will be delivered via a combination of e-learning for Unit Standards 27360 and 27364 and virtual reality for Unit Standard 27361. The e-learning modules provide total flexibility with regards to location, venue and timing from a learner perspective and the virtual reality is delivered from a simple headset that can either be purchased or hired at low cost with a one-day turnaround.

For further information on the SkillsVR Security Training Platform or to arrange a live or online demonstration, please contact Chris Thomas on 021 771 173 or [email protected].

 

MSD Skills for Industry programme – inclusion of COA training

In conjunction with the implementation of the SkillsVR Security Training Platform, we are pleased to advise that within the next month all MSD candidates referred to our members for employment under the Skills for Industry (SFI) Work Broker programme will have completed the COA training via the SkillsVR Security Training Platform and will have their COA’s when commencing employment.

The NZSA will cover the cost of the training and our members will further benefit from being able to interview and employ well trained and work ready candidates.

 

Crowded Places Security Special Interest Group (CPSSIG)

Late last year the New Zealand Government Protecting our Crowded Places strategy documents were released.

The strategy has been developed to protect people working in, using and visiting crowded places and with the intent of preserving the public’s use and enjoyment of these places while making them more resilient.

There are four overarching strategies:

• Building stronger partnerships
• Implementing effective protective security
• Establishing better sharing of information and guidance
• Increasing resilience

It has been recognised that the private security industry has a key role to play in the implementation and delivery of these strategies – both through participation in the to-be-established Business Advisory Group and also in an advisory role to the owners and operators of venues, events and other crowded places when seeking guidance on protective security and building resilience.

The NZSA recently hosted a Crowded Places Security Forum involving specialist consultants and security providers, venue and event operators and the NZ Police to discuss how we can further strengthen and professionalise the services offered and create career pathway opportunities for those looking to specialise in this area.

As an outcome, we have established the Crowded Places Security Special Interest Group (CPSSIG) which will provide specialist industry representation and guidance on matters such as determining the competency criteria that should be utilised when determining those parties who are qualified to provide expert advice on crowded places security.

Participation in the CPSSIG is open to those who have a strong interest and expertise within the crowded places arena (and including non NZSA members). If interested plase contact Gary on [email protected] for more information.

 

Covid-19 vaccine rollout

Whilst the Covid-19 vaccine rollout is underway for security staff working at the MIQ’s and other frontline roles, the government has yet to publish any formal rollout plan for other essential service workers.

With the assistance of the association representing commercial cleaners in New Zealand, we have been able to establish a relationship with the Ministry of Health that will allow us to have cleaning and security staff recognised as priority essential service workers on the regional rollout plan.

We are currently in the process of establishing and providing indicative staff numbers across the 14 District Health Board regions that will oversee the vaccine programme and once we receive indicative plans and timelines we will be able to communicate these to our members.

 

Security career pathway website

Thank you to all those members who have provided feedback on the new website www.securitycareers.co.nz.

The feedback has been extremely positive and our viewing statistics have continued to increase – including a surprisingly high number of views from overseas.

Over the next few months we will be launching an initiative targeting school career advisors and using both the security careers website and the virtual reality training platform as key differentiators from other industries when looking to encourage new entrants into the security industry.

 

Security Technician Level 4 qualification

It is very pleasing to advise that not only is the New Zealand Certificate in Electronic Security (NZCiES) Level 4 qualification in place and being delivered, but also the uptake of registrations has exceeded expectations.

Those gaining this qualification will be recognised as qualified security technicians able to supervise staff on mid to large sized projects, create electronic security solutions for customers as well as provide site-wide leadership and manage relationships with stakeholders.

Learners doing the core certificate in electronic security also have the option to enrol in one of the following strands:

• Electrical appliance service person (endorsed)
• Electrical installer

The qualification covers topics such as:

• Professional and technical knowledge for emerging and converging technologies
• Advanced health and safety
• Installation and cable support systems
• Theory of electronic security system design
• Theory and development of data networking to support electronic security systems
• Advanced application of stakeholder engagement principles
• Diagnosis and repair of faulty electronic security systems
• Develop solutions for electronic security intruder alarm systems

This course also qualifies for the Government Fees Free policy until December 2022 for New Zealand residents – refer www.feesfree.govt.nz.

For more information please contact Carine Vaccari at ETC on 022 568 6671 or [email protected].

 

End of copper network

Telecommunication providers have been providing advance warning that copper phone lines are going to be removed, and with many exchanges already operating VOIP circuits for subscriber “analogue” phone lines, this will impact on a significant number of parties who still have their alarms monitored via copper. Chorus have recently confirmed that they will start shutting down its copper phone network from September this year.

We would recommend that monitoring providers should have plans in place for alternative communication pathways prior to cessation of the copper network.

 

New Zealand Register of Security Professionals

In our last email we mentioned that the NZSA is conducting a feasibility study on the implementation of a Register of Security Professionals that could sit alongside our licensing authority or potentially even replace the PSPLA.

As part of the feasibility study we have consulted with a range of stakeholders including service providers, training providers, unions and industry customers and as the final part of the process we will also seek input and feedback from our Registrar and Ministry of Justice.

Key factors for us in determining the long term viability of the proposal will centre around the need to provide quantifiable benefits for those who utilise the register (the “what’s in it for me” question) and the ability of industry to effectively and efficiently self-manage the administrative processes required.

We expect to finalise the feasibility study within the next month and will provide an update within the next newsletter.

 

Increase in minimum wage

A reminder that the minimum wage increases to $20 per hour effective 1 April 2021.

 

As always, we welcome all comments and feedback on NZSA or industry issues and activity.

Keep safe and well.

Gary Morrison

CEO

 

NZSA – 1972 to 2022 – 50th anniversary!

Calling for members prior to 1984. We will be celebrating the 50th anniversary of the NZSA in 2022 and we would like to obtain some memorabilia, photos and also some stories about the early members. As our records don’t go back prior to 1984 it would be great if you could contact us and let us know if you were an early member or have access to memorabilia and photos from 1972 onwards. Please contact [email protected].

 

Face masks available

The NZSA has obtained from the Ministry of Health face masks from government stocks. These masks are Ministry of Health approved for essential services.

The masks are available to order in boxes of 50. The price of one box is $50 + gst plus the cost of delivery to your premises.

If you would like to place an order can you please email us at [email protected] with your requirements.

 

Member Benefits

NZSA Speak Up Line

The NZSA Speak Up Line is free to members and provides access to a confidential service where staff can report issues such as bullying, sexual harassment, poor employment conditions, illegal practices such as theft or drug dealing and other matters of concern that may be occurring in the workplace and not being reported.

Phone                 0800 775 775

Online reports     www.integrityline-nz.org

The NZSA will provide posters, business-sized card to go into wallets, stickers and introductory letters for your staff. They are designed for members to include their own corporate branding prior to distribution.

The service is particularly valuable where employees may be reluctant to speak up or report matters due to fears that by doing so it may affect their employment or risk further victimisation.

It is also important to note that such services meet government procurement requirements around providing a voice for staff.

This service is provided by Crimestoppers who obviously have considerable experience in handling sensitive calls in a confidential manner. They log the calls or online reports and forward to the NZSA for further investigation if required. The staff member can remain anonymous if they wish to do so.

Register for the NZSA Speak Up Line by emailing [email protected]. If you have any questions please don’t hesitate to contact us.

 

NZSA HR Advisory Service

NZSA is partnered with Livewire HR to provide access to free HR advice as well as templated key documents and policies.

There are testimonials below from some members who have utilised the service:

“We have used Livewire for a while now and the documents are great to use and easy to download and save. We have implemented some policies based on the designed ones here and have good responses from our team. We will continue to use them for a long time to come. Would highly recommend.”

“I had a very good experience with Livewirehr, especially with Rebecca. She was approachable and patient with our questions. The advisory service is a big help and I would recommend using this great service”.

“When we had inquiries the response was very quick and super helpful. Some the security companies do not have a big HR team or Lawyer team and this is such a great service to use if something out of the ordinary appears and you want to be sure you are working within the regulations.”

Call           HR LIVE (0800 475 483)

Email         [email protected]

 

Business Continuity Planning

NZSA is partnered with BCP Builder to provide access to a free Business Continuity Plan Template.

Members who join BCP Builder will be able to create their own personalised Business Continuity Plan following the simple instructions and training available through the BCP Builder website.

BCP Builder is based on the Business Continuity Institute Good Practice Guidelines and the requirements of ISO 22301. This means you can write your plan with confidence, knowing that you are meeting all requirements.

Members can request a BCP Builder discount code by emailing [email protected]. This will give you access to a free BCP Builder subscription to prepare your business continuity plan. Please note that this benefit is available for corporate and associate company members only.

 

90 day trials – an NZSA HR Advisory Service update

90-day trial periods can be useful for both employees and employers in ensuring that the role and the organisation’s culture are a fit.

If an employer correctly dismisses an employee during a valid trial period then the employee cannot bring a personal grievance for unjustified dismissal or other legal proceedings in respect to that dismissal.

For more information about 90-day trials please see the LivewireHR blog.

If you have any workplace questions, the NZSA HR Advisory service can assist.

Phone:     HR LIVE (0800 475 483)

Email:       [email protected]  

 

Membership

We welcome the following new Corporate Members:

GRM Consulting Ltd

October Protection Christchurch Ltd

 

and the following new Associate Individual member:

Samitha Kodikara

 

Events

A values-based journey towards patient and staff safety at Auckland District Health Board

Webinar – 22 April 2021

This webinar, presented by Sue Ramsay (Director of Security Services at Auckland DHB) and Kimberley Newman (Workplace Violence and Aggression Prevention Advisor at Auckland DHB) will describe the journey that Auckland District Health Board undertook in improving patient and staff safety with the implementation of Crisis Prevention Institute Management of Actual and Potential Aggression Foundation Program (MAPA).

The webinar will highlight the positive impact the program had on the reduction of restraints and incidents through clinical data and testimonials by staff and patients.

When:  Thursday 22 April at 12.00-12.45pm

To register click here

 

NZSA CEO regional visits

The regional visit programme was introduced four years ago as a way to ensure our members and non-members had the opportunity to meet with the CEO on a regular basis, to keep up with industry developments and to provide feedback on pertinent issues. The regional visits originally comprised breakfast or After 5 collective meetings but have evolved to the current one-on-one meetings at the member, or non-members, place of business. If you would like to meet with Gary please contact him on 021 122 9606 or [email protected].

23 April                 – Wellington

5-7 May                – New Plymouth, Whanganui and Palmerston North

23-24 June           – Hawkes Bay

7-8 July                – Rotorua and Taupo

18-19 August        – Christchurch

9-10 September   – Whangarei and Northland

6-7 October         – Blenheim and Nelson

10-12 November – Dunedin, Invercargill and Queenstown

7-8 December     – Hamilton and Tauranga

 

New Zealand Security Awards

20 August 2021

Christchurch Town Hall

This year’s Awards ceremony will be held in Christchurch on Friday 20 August. Make sure you save the date!