Health and safety reforms: What you should know

Introduction

After the Pike River Mine tragedy and the subsequent Independent Taskforce report, the Government embarked on reviewing the current Health and Safety in Employment Act 1992.  As a result, the Health and Safety Reform Bill was introduced to Parliament on 10 March 2014 and passed its first reading a few days later.  The Bill provides for many changes to the current Act with key changes including:

• New duty holder definitions;
• New obligations on all parties, with increased worker participation requirements; and
• Increased enforcement and penalties.

New duty holder definitions

The Bill seeks to define the parties that will be affected by the new Act.  The newly defined duty holders include:

• A person conducting a Business or Undertaking (“PCBU”) who is a person or company conducting a business or undertaking whether working alone or with others.  A PCBU may or may not conduct a business or undertaking for profit or gain;
• Officers who may be directors of companies or equivalents, and partners of partnerships.  Officers may also include any person occupying a position in a body corporate that is comparable to a director of a company and any person who is in a position of making decisions that will affect the whole or substantial part of the PCBU; and
• A worker who is a person who carries out work for a PCBU which may include employees, contractors, subcontractors or their employees, apprentices, trainees, persons on work experience, volunteers, employees of labour hire companies.

New obligations on all parties

There is a shift from the current obligations of employers to take “all practicable steps” to the new standard of PCBUs, officers and workers taking “reasonably practicable” steps to ensure the safety of workers.  While on the face of it, the obligations appear to be the same however the new obligation means that the PCBU must do what is (or was at a particular time) reasonably able to be done in relation to ensuring the health and safety of workers.  This means that cost can no longer be relevant consideration, unless it is grossly disproportionate. 

PCBU

It is the general duty for all PCBUs to ensure, so far as reasonably practicable the Health and Safety of:

• Workers employed or engaged or caused to be employed or engaged by the PCBU, while in the business or undertaking; and
• Workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work. 

In addition to this, the PCBU must also take all reasonably practicable steps to ensure that the health and safety of others is not put at risk from work carried out as part of the conduct of the business or undertaking. 

Officers

Under the Bill, Officers will also have duties to exercise due diligence to ensure that the PCBU complies with its duties.  Among other matters, Officers are required to:

• Acquire and keep up-to-date knowledge of work health and safety matters;
• Gain an understanding of the nature of the operations of the PCBU and the associated hazards and risks;
• Ensure that the PCBU has and uses appropriate resources and processes to eliminate or minimise risks;
• Ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks;
• Ensure that the PCBU has and implements processes to comply with the duty the Act will imply; and
• Verify the provisions and use of the resources and processes by the PCBU. 

Workers

There is a shift to putting more onus and obligations on workers (formerly employees) in relation to taking care of their own health and safety.  Under the Bill, workers must:

• Take reasonable care of their own health and safety;
• Take reasonable care of their own acts or omissions so that they do not adversely affect others; and
• Comply with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with the Act. 

Worker participation

The Bill puts further focus on worker engagement as it is believed that effective worker participation can reduce accidents and as a result improve safety.

Increased enforcement and penalties

Under the Bill, there will be number of enforcement mechanisms that are available to the Health and Safety Representatives within a PCBU.  The Health and Safety Representatives would be able to issue notices if they believe a person is in breach or is likely to breach the provisions of the Act or regulation.  If a party is issued with one of these notices, the party can apply to WorkSafe for an internal review into the actions and for recommendations on how to improve. 

A party can be convicted for breaches relating to the Health and Safety namely for the following:

• Reckless conduct exposing an individual to risk of death or serious injury with a maximum conviction of $3million fine or imprisonment term not exceeding 5 years;
• Failing to comply with a health and safety duty that exposes an individual to risk of death or serious injury or illnesswith a maximum conviction of $1.5million fine; and
• Failing to comply with a health and safety duty with a maximum fine of $500,000.

What this means for you

Overall the Health and Safety Reform Bill seeks to improve the workplace health and safety culture within New Zealand.  While the concept of protecting employees and workers is not new, the obligations have increased and so have the penalties.  The good news is that by ensuring your business has the correct processes and procedures in place to effectively manage and mitigate any health and safety concerns, you are able to protect yourself against maximum exposure.  Similarly, if you are a worker, you are able to personally reduce your exposure by ensuring you follow correct procedures and by bringing any health and safety concerns to the attention of your PCBU. 

If you would like further information please contact Renika Siciliano on 07 958 7429.