Health and Safety changes: What employers need to know
Times they are a-changin in New Zealand’s Health and Safety landscape.
Having received reports from the Royal Commission of Inquiry into the Pike River Tragedy and an Independent Taskforce on Workplace Health and Safety, the Government resolved to introduce new legislation to replace the aging Health and Safety in Employment Act. The new laws will be based on the recently implemented Australian Model Law.
The Government’s proposals have only just been introduced to Parliament so the changes won’t come into effect for some time. However it is never too early to start preparing so here’s an overview of what to look out for.
Person Conducting a Business or Undertaking (PCBU)
Perhaps one of the most significant changes is the introduction of the concept of a Person Conducting a Business or Undertaking (‘PCBU’).
PCBUs are the parties tasked with ensuring the health and safety of workers or other persons under the new law. It is a broad concept that is intended to capture all modern working relationships. Notably, PCBUs will also include upstream suppliers or manufacturers who provide machinery and equipment to a workplace.
Currently, anyone who has a health and safety duty is required to take ‘all reasonable steps’.
The new laws will instead require duty holders to take “all reasonably practicable steps”. While this may sound similar to the old wording, the old wording. has been criticised for its vagueness. The new definition, which will be accompanied by comprehensive guidance will ensure that duty holders are better informed about their obligations and responsibilities.
A significant introduction that has been signposted for quite some time now is the introduction of officer liability.
Currently, an officer, which includes Directors, Chief Executives and Senior Managers, can only be liable for a breach of health and safety if they individually contributed to or participated in the breach. Under the new law all Officers, regardless of their day to day involvement in health and safety breaches, will be under a positive duty to exercise due diligence to ensure that a PCBU meets their health and safety obligations.
To meet this new duty, officers will need to take active steps to manage their organisation’s health and safety performance, understand potential risks associated with their operations, and take appropriate steps to ensure that appropriate processes are in place to eliminate or minimise those risks.
The new law will see a significant increase in the penalties imposed for non-compliance.
Currently the maximum penalty that can be imposed is $500,000 for the most serious health and safety offences. Under the new rules, a body corporate can be fined as much as $3,000,000 while individuals who fail to meet their duties will face maximum penalties of up to $600,000 or five years imprisonment.
Regulations, Guidance & Approved Codes of Practice
A defining feature of the Australian Model Law is the use of health and safety regulations that apply to specific industries and fields of practice. This feature will be a central part of the new regime.
Already there is a considerable number of industry-specific regulations in Australia and many of these will be adapted and adopted in New Zealand. The result will be clearer and more comprehensive guidance for duty holders on how they can best ensure the health and safety of those they are responsible for.
All in all, the new law will see a much more comprehensive health and safety framework introduced, clearer guidance for employers, and much more stringent duties imposed on both PCBUs and their officers. Penalties will be higher and with the Government’s new health and safety watchdog, WorkSafe, already up and running, employers would be well advised to start preparing for the changes at the earliest opportunity.