The Health and Safety at Work Act 2015 has been passed into law and comes into effect on 4 April 2016.
Currently a series of regulations are being developed to support the new Act. These include:
- General risk and workplace management
- Major hazard facilities
- Engagement, worker participation and representation
The formulation of these regulations mark a move to a more "prescriptive" approach with regards to health and safety in the workplace. Once the regulations are finalised Work Safe plan to issue formal guidance to support the Act and regulations.
In the meantime you can:
- Familarise yourself with the key concepts of the legislation (as set out below)
- Review your health and safety practices
- Identify health and safety risks in your business and take steps to prevent these from causing harm
- Lead by example
- Make health and safety part of your workplace culture, champion health and safety and make it a priority in the business
Key concepts of the legislation
The Act is based on the Australian Model Work Health and Safety Act 2011 with some modifications for the New Zealand context.
What are the key changes proposed and the likely impact of those changes?
There are a number of new defined terms such as:
Person Conducting a Business or Undertaking
A key aspect of the Act 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:
- Whether the person conducts a business or undertaking alone or with others; and
- Whether or not the business or undertaking is conducted for profit or gain
The PCBU is a broad concept, which will encompass the existing duty holder categories such as employers, principals, and persons in control of a place of work. A PBCU does not include employees or directors (directors are covered as officers) of PCBUs, volunteer associations and occupiers of a home who employ or engage another person solely to do residential work.
The Acts definition of "worker" is broad and designed to encompass a number of relationships in the work environment. 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 or an employee of a labour hire company, an apprentice or trainee, someone gaining work experience, a volunteer or a person of a prescribed class.
The current standard of "all practicable steps", will be replaced 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 saftey, taking into account and weighing up all the relevant matters including:
- The likelihood of the hazard or the risk concerned occuring;
- The degree of harm that might result from the hazard or risk;
- What the person concerned knows, or ought reasonably to know, about the hazard or risk and ways of eliminating or minimising risk;
- The availability and suitability of ways to eliminate or minimise the risk and;
- After assessing the extent of the risk and available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk
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 ways to eliminate that risk. The impact of this is that cost will only take precedence over safety when the cost of taking a step is "grossly disproportionate" to the risk.
The Act also imposes new duties, in particular the primary duty to ensure safety.
Primary Duty to Ensure Safety
There is a new general duty on 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 the workers are at work 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
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 placed on PCBUs in respect of:
- The management and control of fixtures and plant in the workplace;
- The design and manufacture oif plant to be used in a workplace; and
- The supply, importation and installation of plant to be used in a workplace
Duty on Officers
A key change in the new legislation is the introduction of a positive duty on officers to exercise due diligence to ensure that the PCBU complies with the primary duty to ensure safety. Under the Act officers can 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;
- Acquire and keep up-to-date, knowledge of work health and safety matters;
- Gain an understanding of the nature of the operations (of PCBU) and hazards and risks associated;
- Ensure that the PCBU has available for use (and uses) appropriate resources and processess to eliminate or minimise risks to health and safety;
- Ensure that the PCBU has appropriate processess for recieving and considering information regarding incidents, hazards abd risks and for responding to a timely way to that information;
- Ensure that the PCBU has and implements a process for complying with any duty or obligation of the PCBU under the Act and;
- Verify the provision and use of resources and processes
Duty of workers
Workers have a duty to;
- Take reasonable care for his or her own health and safety;
- Take reasonable care that his or her acts or omissions do not adversely affect the health and safety of others
- Comply as far as reasonable with any reasonable instruction that is given by the PCBU to allow the PCBU to comply; and
- Co-operate with any reasonable policy or procedure of the PCBU relating to health and safety at the workplace that has been notified to the workers
The Act creates 3 offence tiers relating to breaches of health and safety duties:
1. Reckless conduct
This covers cases where there is a duty and exposes any person to whom the duty is owed to risk of death or serious injury/illness and is reckless as to that risk.
Fines of up to $3million (for company) or $600k and/or up to 5 years for individuals
2. Failure to comply with a duty - with exposure to risk of death or serious injury/illness
Fines of up to $1.5 million (company) or $300k for individuals
3. Failure to comply with a duty - no exposure to death or serious injury/illness
Fines up to $500k (company) or $100k for individuals
In addition to fines and imprisonment, the following may also impose the following orders:
- Adverse publicity orders
- Restoration orders
- Health and safety project orders
- Court ordered enforceable undertakings
The Act ushers in a new regime whereby greater onus is placed on managers and company directors to pro-actively manage health and safety in the workplace. In addition there are harsher penalties and wider enforcement tools. As already mentioned the other major change is that New Zealand will move to a more prescriptive model (like Australias model). It will certainly be interesting to look at the detail provided in the regulations that are currently being developed.
In the meantime it would be best practice for employers to look over their policies and procedures in light of the new changes so you remain pro-active.