9.05.2018

Fact or Fiction: Health & Safety Edition

Health and safety reform: a lot of attention has been given, but what’s actually changing?

People’s concerns generally seem to be based around this type of argument: the new legislation (which will officially be known as the Health and Safety at Work Act, or ‘the new Act’ for the purposes of this article) is going to stop anyone having any fun, because if anything goes wrong, then both an entity and its directors will be prosecuted and face huge financial penalties and/or prison.  A recent example is the complaint raised by the Primary and Secondary Principals’ associations that things like camps, playgrounds, and sports could all be affected by the new Act.

With that in mind, it’s time to play everyone’s favourite game, fact or fiction!

Fact: the general health and safety obligation has not changed much

While the new Act does introduce some new obligations and increased penalties, the general obligation to provide a safe workplace has not changed much, if at all.  Compare the general obligation in the existing Health and Safety in Employment Act 1992 with that in the new Act:

Existing ActA duty holder (whether as an employer, employee, principal, contractor, a person controlling a place of work, and/or a person selling or supplying plant for use in a place of work) must take all practicable steps to ensure the safety of parties to whom those obligations are owed.  Also, “all practicable steps” means all steps to achieve the result that it is reasonably practicable to take.
New ActA person conducting a business or undertaking (a ‘PCBU’) is required to ensure, so far as reasonably practicable, the health and safety of workers employed, engaged, influenced, or directed by the PCBU, and the safety of any other persons who may be put at risk by work done by the PCBU.

While the passages above are relatively lengthy, the underlined wording does not represent a significant change.  Under both pieces of legislation, a duty holder is required to take only those steps which are reasonable and can be done in the circumstances (i.e. they are ‘practicable’) to ensure health and safety.  The matters required to be considered in determining what is “reasonably practicable” are similar to those under the current “all practicable steps”, however, “cost” has been relegated to a second tier consideration under the new Act.

In some respects, the new Act is cleaner and clearer – instead of artificially saying an entity owes separate duties as an employer, principal, or a person controlling a place of work (as the existing legislation does), the new Act simply imposes a broad overall obligation on a PCBU.

Fiction: there will be more prosecutions

The vast majority of PCBUs should not be afraid.  The reality is that those already complying with the existing legislation will almost certainly comply with the new Act.  Indeed, WorkSafe NZ has signalled that it does not want, nor does it intend, to prosecute more frequently when the new Act comes into effect next April.

As an aside, it is correct to say that penalties have increased.  However, the maximum penalties will only be imposed for the most serious offences, where the duty holder (i.e. a PCBU or an officer) has been reckless.

Fact: directors will now legally be required to take some responsibility

“Officers” of a PCBU (i.e. directors, partners, or those who occupy a position that allows them to exercise significant influence over the management of the PCBU, such as a CEO) will be required to exercise due diligence to ensure the PCBU complies with any duty or obligation it has under the new Act.

Officers will have to familiarise themselves with health and safety matters in much the same way they already do with financial matters.  At the very least, this will require officers to keep up to date knowledge of work health and safety matters and ensure the PCBU has, and implements, processes for complying for any duty or obligation imposed on the PCBU.  The best way to do this is for officers to constantly ask questions, and to put health and safety near the top of the boardroom agenda for discussion.

Fact: fun is encouraged.  But this is the time to take stock of health and safety practices

The reality is that people are still encouraged to have fun, and to participate in all the same activities they already do.  The new Act is not designed to stop people from doing things – what it does is require various duty holders to ensure they take proper account of health and safety, and consider the risks involved before proceeding.

To return to the complaints by the Primary and Secondary Principals’ Associations as an example, the new Act isn’t going to be the end of playgrounds, school camps, or sports.  Schools aren’t going to be prosecuted if someone slips and breaks their leg at camp or on a sports field, provided the Board of Trustees (the legal identity of the School and thus the PCBU) has ensured, so far as reasonably practicable, the health and safety of those who might be put at risk by that activity, or any other person (such as visitors).  This means they need to take reasonably practicable precautions in advance of events occurring or, in the case of a playground, ensuring that it is well maintained.  As long as principals and trustees exercise due diligence, they will have complied with their duties as officers (noting that trustees are exempt from prosecution if they fail to comply with their due diligence obligations).

As with most things, knowledge and planning is critical.  That’s what the new Act requires.  Now is an opportune time to take stock of health and safety practices and update them if needed.

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