This week, the Health and Safety at Work Amendment Bill (the Bill) was introduced to Parliament. Reform has been a priority for Workplace Relations and Safety Minister Brooke van Velden and follows the health and safety roadshow and announcement of reform last year. The Bill represents the biggest shake-up to New Zealand's health and safety framework since the Health and Safety at Work Act 2015 (HSWA) was passed over a decade ago.
What is changing?
Consistent with the government's desire to reduce red tape, the stated objectives of the Bill are to reduce unnecessary compliance costs, increase certainty for PCBUs, and support continued reductions in health and safety incidents in New Zealand. The key features are:
- "Critical risks": The Bill would create a new subset of PCBUs, being a "small PCBU". This is a PCBU with fewer than 20 workers (for at least nine of the 12 months of the year). Small PCBUs would be required to manage only "critical risks", and all other PCBUs would be required to manage all risk but prioritise critical risk. "Critical risk" is defined as a risk associated with a substantial number of specified hazards (listed in Schedule 1A of the Bill) and any other hazard that is "likely to result in" a death, or notifiable injury, illness or incident or an occupational disease (listed in the Accident Compensation Act 2001).
- Clearing things up: The Bill seeks to address several points of contention in the HSWA.
- Overlapping legislation: If a person complies with the relevant requirements under other legislation to manage a risk, they would be treated as having complied with the Act. The Bill specifically clarifies that where a building is earthquake-prone and the PCBU is meeting their Building Act 2004 obligations, there would be no further obligations.
- Recreational use of land: PCBUs who manage or control a workplace that includes open space would not owe any duties to those lawfully accessing the land for recreational purposes, unless the recreation is connected with the PCBU’s work or the PCBU has other work happening at the same place and at the same time as the recreational users are present.
- Officer due diligence: Officers of a PCBU would only have a duty over governance, not other activities they perform as a worker. Due diligence duties will be confined to those listed in the Act.
- Notification duties: The Bill provides additional guidance on what events need to be notified to WorkSafe under the Act
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Approved codes of practice: The Bill creates a "safe harbour" if a PCBU complies with an Approved Code of Practice. The Bill would now allow non-regulators to submit draft codes of practice to the regulator.
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Prioritising education: The Bill would set WorkSafe's main function as advisory, rather than regulatory. This applies to the other regulators under the Act, Maritime New Zealand and the Civil Aviation Authority.
How significant are the amendments?
Critical risk and small PCBUs
For many, the most significant change in principle will be limiting duties to the defined critical risks. Statistics NZ / MBIE show that 97% of all businesses in New Zealand are small businesses, being those with less than 20 employees. The proposed changes are therefore likely to impact a significant portion of New Zealand's workforce.
In practice, there may still be complexity for PCBUs to work through. Small PCBUs will need to identify which of the hazards arising from their work are "likely to result in" a death, or notifiable injury, illness or incident, or an occupational disease. In addition, it is possible that PCBUs may have contractual obligations based on the current legislation which could exceed their statutory duties under the proposed amendments.
Overlapping legislation
While this amendment essentially reflects WorkSafe's public position, many building owners will welcome the confirmation that they are meeting their obligations if they comply with the Building Act. More generally, the amendment should reduce uncertainty about the standard required where risks are addressed in other legislation.
Officers' duties
Officers' duties under the HSWA have been a hot topic, in particular following the prosecution of Tony Gibson as chief executive of Ports of Auckland (read more). The proposed amendment to officers' duties will be most relevant for smaller PCBUs where officers wear several hats. It does not change the definition of officer but it reverses the High Court decision in Sarginson v Civil Aviation Authority. Sarginson and other cases found that due diligence obligations extend to both an officer's governance obligations and to their role in the day-to-day operation of the PCBU. As such, this would be a significant change in the law.
Use of recreational land
The "recreational land" change follows another recent high-profile court decision, being the Whakaari Management Ltd decision (read more), and responds to concern from landowners about the scope of their duty.
This amendment is potentially significant. It confirms the existing position that landowners do not owe duties merely as a result of granting access to their land, but it also introduces a new element that the duty will only apply if the activity is "connected to" the PCBU's business, even if the PCBU is in fact exercising a high level of control over the recreational activity. It is not clear what effect this would have in practice, but it would seem to be a lesser standard than requiring the activity to be one of the PCBU's activities.
So, what next?
Following the First Reading of the Bill, it will proceed to the Select Committee, where there will be an opportunity for members of the public to submit on the Bill.
If you have any questions about making a submission or what the Bill means for you, please get in touch with one of our experts below.