Health & Safety

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A summary of the new workplace safety regime due to the Health and Safety Reform Bill

The much awaited Health and Safety Reform Bill has now been introduced into Parliament. The Bill is part of the package of changes that have been introduced following the Pike River Coal Mine Tragedy and various subsequent reviews which have observed a poor health and safety record in New Zealand. The Bill is now before the Transport and Industrial Relations Select Committee.

chainsawThe Bill is based on the Australian Model Work Health and Safety Act 2011 with some modifications for the New Zealand context. So what are the key changes proposed by the Bill, and what will be the likely impact of those changes in practice?

To control the incidence of discomfort, pain and injury in the NZ workforce is paramount. A recent study in the US, found that the failure of their Federal and state workers' compensation systems, to provide effective health care to treat non-catastrophic injuries, has been largely overlooked as a principal source of permanent disablement and corresponding reduced labour force (Franklin, G. M., Wickizer, T. M., Coe, N. B., & Fulton-Kehoe, D. 2015)

New defined terms

Person Conducting a Business or Undertaking – if you are running a business, then this affects you...

A key aspect of the Bill is the creation of a new duty holder, known as a Person Conducting a Business or Undertaking (PCBU). A PCBU means a person conducting a business or undertaking:

WHY WILL THE NEW LAW HAVE PCBU's?

PCBU is a broad concept that reflects modern working arrangements.

The current Health and Safety in Employment Act 1992 primarily focuses on the employer and employee roles. It places duties on carefully defined participants – employers, principals, the self-employed, persons controlling a place of work, and suppliers of plant.

The PCBU concept replaces all of these duty holders. It better reflects the complex nature of the modern workplace where there can be multiple working arrangements for workers in the same location or for the same organisation. The PCBU concept recognises that a business or undertaking has an influence over the health and safety of workers, even where those workers may not be its direct employees

All PCBUs have a primary duty of care in relation to the health and safety of workers and others affected by the work carried out by the PCBU.

mechanic1The primary duty of care requires all PCBUs to ensure, so far as is reasonably practicable:

  1. the health and safety of workers employed or engaged or caused to be employed or engaged, by the PCBU or those workers who are influenced or directed by the PCBU (for example workers and contractors)
  2. that the health and safety of other people is not put at risk from work carried out as part of the conduct of the business or undertaking (for example visitors and customers).

The PCBU's specific obligations, so far as is reasonably practicable:

A self-employed person is a PCBU. In addition to the primary duty of care, they must also ensure, so far as is reasonably practicable, his or her own health and safety while at work.

PCBUs may also have other specific and ongoing duties, depending on what they manage or provide.

Worker – basically concerns everyone...

A "worker" is defined as a person who carries out work in any capacity for a PCBU, including work as an employee, a contractor or subcontractor, an employee of a contractor or subcontractor or an employee of a labour hire company who has been assigned to work for the PCBU, an outworker, an apprentice or trainee, a person gaining work experience or undertaking a work trial, a volunteer or a person of a prescribed class.

The Bill's definition is broad, and like the PCBU definition is designed to encompass a number of relationships that are typical in a work environment (such as employees, contractors, subcontractors, employees of contractors or subcontractors, volunteers and trainees).

Reasonably Practicable – if it could happen then it needs to identified and a process instigated to eliminate or minimise it...

The Bill will replace the current standard under the HSE Act ("All Practicable Steps") with a new "reasonably practicable" standard. "Reasonably practicable" is defined as: "...that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including:

mechanic2

The new standard is broadly similar to the existing concept of "All Practicable Steps", except that the assessment of costs must only be taken after the assessment of the risk and the ways to eliminate that risk. This means that costs will only take precedence over safety when the cost of taking a step is "grossly disproportionate" to the risk.

New duties

Primary Duty to Ensure Safety – concerns all...

The Bill introduces a new general duty on all PCBUs to ensure, so far as reasonably practicable, the health and safety of:

PCBUs must also ensure, so far as reasonably practicable, that the health and safety of other people is not put at risk from work carried out by the PCBU.

There are also specific duties imposed on PCBUs in respect of:

The Bill introduces a positive duty on officers to exercise due diligence to ensure that the PCBU complies with that duty or obligation. This is a key change from the HSE Act, where directors of a company can only be held liable where they have directly participated in, contributed to, or acquiesced in their company's failure. Under the Bill, officers may be convicted for a breach of due diligence regardless of whether the PCBU has been convicted of an offence.

Due diligence includes taking reasonable steps to:

Offences – it will be expensive if you get it wrong...

The Bill creates three offence tiers relating to breaches of the health and safety duties. The offences and the respective maximum penalties can be summarised as follows:

Where to next?

Progress of the Bill through to legislation is already well under way. The Government has indicated that the Bill will be passed into law by the end of 2014, with an expected start date of 1 April 2015. Regulations necessary to support the new legislation will also be released for consultation this year.

The implementation of the new regime will see more onus placed on managers and company directors to proactively manage workplace health and safety. Together with stronger penalties, and wider enforcement tools for non-compliance, it is hoped that this regime will see improvement to New Zealand's poor health and safety record.

Do you need help?

Are you worried that you may not understand the full implication of this Reform Bill? Remember if you are a PCBU, then it DOES concern you.

Here at WSP we have the necessary experience to help you through this legislation, and to help you identify the risks to you or your employee's health and safety.

Importantly we can also provide you with specific, cost-effective solutions that will ease your mind with a package of affordable solutions.

References

Health and Safety Reform Bill, Government Bill, as reported from the Transport and Industrial Relations Committee, House of Representatives—2015

Health and Safety Reform Bill Update – Worksafe NZ