Health and Safety – getting its Act together at last?

The Independent Taskforce on Workplace Health and Safety has recommended sweeping changes to just about every aspect of health and safety in New Zealand. The recommendations are for a new agency (which the Minister of Labour has just announced will be known as WorkSafe New Zealand), new obligations and shiny new legislation to match. So what form can we expect the new legislation to take? And when can we expect to see it?

In a nutshell, the New Zealand Taskforce has recommended that the current legislation (the Health and Safety in Employment Act 1992) is beyond repair, that we should scrap it, and adopt the Australian Model Work Health and Safety Act with some tweaks to adapt it to the New Zealand environment. This Australian Act was a major piece of legislation that involved national consultation, and was finally passed in 2011. It provides the basis for workplace health and safety law across Australian state jurisdictions – in other words, the states have their own legislation, but based on the Model law.

The New Zealand Taskforce has recommended:

A new “object” for the new Act

  • focussing on the positive (“securing” health and safety, rather than “preventing harm”).
  • clarifying who will be protected and how (as per the Model law which identifies “workers and other persons” who will be protected “through the elimination or minimisation of risk arising from work”).
  • adopting the Model law’s principle that “workers should be given the highest level of protection against harm to their health, safety and welfare…”.

Expanding the categories of those who owe duties

  • extending duties to all “upstream participants in the supply chain” (including, for example, designers, manufacturer, importers and suppliers of plant, substances and structures, and commissioners of plant and structures).
  • Adopting the Australian concept of a “PCBU” – ‘a person who conducts a business or undertaking’, who holds duties to all workers engaged by the PCBU, or who may be influenced or directed by the PCBU. The idea is to recognise that employer/employee relationships are only one way in which work is carried out, and that others (e.g. taxi licence owners and franchisors) should also be responsible for the health and safety of those people who are working for the PCBU. The concept of “workers” would be similarly expansive to cover employees, contractors, subcontractors, self-employed persons, outworkers/homeworkers, apprentices or trainees, work experience students, labour hire employees, and volunteers.
  • Imposing duties on Directors and other Officers (e.g. senior managers and CEOs) to undertake “due diligence” to ensure that health and safety matters are being addressed. The Taskforce also recommends mandatory reporting requirements be investigated – perhaps along the lines of the UK system of including health and safety practices and performance in a company’s annual reports.

Changes to the Duties

  • Adopting an explicitly ‘risk based’ structure – that is, decisions on actions must take into account the likelihood and consequences of an adverse event (an accident) occurring, and both the benefits and costs of mitigation.
  • Adopting the test in the Model law of “reasonably practicable”, together with its definition “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 the likelihood of hazard or risk occurring, the degree of harm that could result, what the person knows (or should know!) about the risk or hazard and how to manage it, availability and suitability of ways to control the risk and the costs.
  • Increasing certainty for duty-holders by adopting more technical regulations, Approved Codes of Practice, guidance and advice, without becoming, in the Taskforce’s words, “over prescriptive”. This is obviously a tough line to walk.

Enhancing and Encouraging Worker Participation

  • Avoiding a ‘one size fits all’ approach to worker participation by giving customised advice and guidance for different industries and situations.
  • Adopting the Model law’s approach of having stronger obligations for PCBU’s to support worker participation, expanded powers and responsibilities for worker health and safety representatives, and stronger protections for workers who raise workplace health and safety matters.
  • Ensuring that PCBUs have specific obligations to consult health and safety representatives and workers who are likely to be affected by matters relating to health and safety; have issue-resolution procedures in place to deal with health and safety matters, indentifying workplace-specific health and safety matters in employment agreements, and identifying workplace-specific health and safety issues in induction processes.
  • Adopting parts of the Model law with regard to the powers, functions and rights of health and safety representatives (including giving representatives the paid time and facilities reasonably necessary to perform their functions, giving trained representatives the power to issue provisional improvement notices, and the power to direct that dangerous work cease).

Rewarding compliance, and punishing non-compliance

  • While this does not appear to be part of the proposed health and safety legislation, the Taskforce proposes extending the existing law relating to manslaughter to allow companies to be convicted of this criminal offence, and, at the same time, revising the rules relating to corporate liability so that the company’s decision can be attributed to more than one person.
  • Increasing the penalties for non-compliance, even where that would mean putting a small or impoverished company out of business.
  • Creating three levels of offence (as per the Model law): Reckless conduct, Failure exposing to serious risk, and Failure. The Taskforce also wants to investigate whether a further category with more severe penalties should be created where death results from non-compliance.
  • Allowing Judges to make “adverse publicity orders” to ‘name and shame’ companies and individuals that do not comply with their duties.
  • Allowing for “enforceable undertakings” as an alternative to prosecution – this is where an agreement is reached between a PCBU and an inspector, to rectify a health and safety breach. If the PCBU does not comply, the agreement could be enforced in the District Court.
  • Allowing for civil procedures under the Criminal Proceeds (Recovery) Act 2009 to address ill-gotten financial benefits from non-compliance with health and safety legislation.
  • Introducing higher penalties to be attached to Infringement Notices, and removing the requirement for prior warning.
  • The Taskforce has also mooted the idea of a smaller group of judges hearing health and safety matters, and for the Employment Court’s jurisdiction to be expanded to incorporate workplace health and safety. The Employment Court already determines health and safety where it arises as a breach of an employment agreement.

Obviously, this is a comprehensive re-work of workplace health and safety law (and practice). The Minister for Labour announced in a speech on 30 May 2013 that the legislation is being prepared now and should be introduced into Parliament in June, with the aim of having it become law in October. Work on establishing the Ministry of Justice’s preferred Corporate liability framework would commence by July this year, with draft legislation expected by July 2014.
So, we wait for draft legislation, but with a reasonably good idea of what that legislation will look like. We can expect the new law to be a bit more prescriptive, to strengthen the duties for those at the top of the management tree, have a stronger emphasis on worker participation, and be focused on proactive and preventative work with New Zealand workplaces.
As usual, we will keep you updated on developments!

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