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The Health and Safety Reform Bill (Bill) passed its first reading in Parliament. It is presently with the Transport and Industrial Relations Committee, which was due to issue its report on 13 September 2014. However, the Select Committee did not complete its work and the “item of business” will be carried into the next parliament.
The Bill is an “omnibus” bill designed to completely overhaul New Zealand’s workplace health and safety law. It proposes a whole raft of changes which we have summarised in previous articles Safety Snapshot and Health and Safety Changes – Directors Need To Act Now! In this article, we focus on the following particular duties that the Bill imposes on PCBUs:
- The duty to notify the regulator of ‘notifiable events’;
- The duty to keep records of ‘notifiable events’;
- The duty to ensure that the site where a ‘notifiable event’ has occurred is kept undisturbed until otherwise authorised by an inspector.
To recap, PCBUs will be ‘Persons Conducting a Business or Undertaking’. PCBUs will include employers, principals and persons in control of a place of work. Employees are not PCBUs.
The ‘regulator’ will be WorkSafe, or, as the case may require, a designated agency.
What happens currently?
At the present time, employers and principals must report “serious harm” injuries to WorkSafe (formerly MBIE, formerly OSH!) as soon as possible, and provide written notification within 7 days. The difficulty for many companies is in knowing what “serious harm” is. Although it is defined in the Health and Safety in Employment Act 1992, there are a number of grey areas which often prompt debate. In addition, employers, self employed contractors and principals must keep a register of accidents and incidents that harmed or might have harmed persons in the place of work.
What is a notifiable event?
Under the Bill, a notifiable event will mean:
- The death of a person; or
- A notifiable injury or illness; or
- A notifiable incident.
Notifiable injury or illness will include an injury/illness that requires immediate treatment, hospitalisation, and/or medical treatment within 48 hours of exposure. It will also include any infection to which the carrying out of work is a significant contributing factor.
In general terms, a notifiable incident will mean an incident in relation to a workplace that exposes any person (be they a worker or otherwise) to a serious risk to that person’s health and safety arising from immediate or imminent exposure to external physical influences that are listed in the Bill, like electric shocks, structural collapse, inrush of water, interruption in ventilation, collision of vessels etc. This will include situations where no injury occurred but workers were nevertheless exposed to a serious risk.
Notifiable injury or illness and notifiable incidents will also include those expressly prescribed by regulations made under the Bill, should it be passed into law, and exclude those that are declared by the regulations not to be notifiable injuries/illnesses/incidents.
The duties
The duty to notify the regulator of notifiable events
As soon as a PCBU becomes aware that a notifiable event arising out of the conduct of the business/undertaking has occurred, the PCBU will be required to immediately notify the regulator. The notification must be by the fastest possible means in the circumstances, which may be by telephone. The regulator may additionally require written notice of the incident within 48 hours of the initial notification. Alternatively, the regulator may waive written notice and instead give the PCBU an acknowledgement that the notice has been received, and details of what information the PCBU has told it.
If the PCBU fails to notify the regulator immediately after becoming aware that a notifiable event has occurred, the person (either a natural person i.e. an individual, or a legal person like a company) who contravened the duty commits an offence and will be liable on conviction:
- For an individual, to a fine not exceeding $10,000;
- For any other person, to a fine not exceeding $50,000.
The duty to keep records of notifiable events
A PCBU will be required to keep a record of all notifiable events for at least 5 years commencing with the date that the PCBU notifies the regulator of each event (in accordance with the duty to notify as outlined above).
A failure to keep this record will mean that the person in contravention of the duty will be committing an offence, and liable on conviction:
- For an individual, to a fine not exceeding $5,000;
- For any other person, to a fine not exceeding $25,000.
The duty to ensure that the site where a notifiable event has occurred is kept undisturbed
As is the case under the present Act, the Bill will impose a duty on the person who manages or controls a workplace at which a notifiable event has occurred, to, so far as is reasonably practicable, ensure that the site is not disturbed until authorised by an inspector. This is commonly known as “freezing” the scene. The site includes any plant, substance, structure, or thing associated with the notifiable event.
The person who breaches this duty will be committing an offence and will be liable on conviction:
- For an individual, to a fine not exceeding $10,000;
- For any other person, to a fine not exceeding $50,000.
In our view
The recording and reporting obligations are being clarified and increased. The time frames are shorter, and the onus is clearly on the PCBU to ensure that WorkSafe knows about serious accidents very quickly so it can commence its investigation. The recording of all notifiable incidents will also be a priority for the PCBU.
We suggest that all businesses make sure that they are ready for these new requirements now, ahead of the Bill coming into force. There will be no time to prepare afterwards. In our experience, reporting usually “falls through the cracks”, when a supervisor, foreman, or manager who is notified or “on the scene” of an accident is unaware of the reporting requirements, and fails to report it to either to WorkSafe or his/her managers. The employer (soon to be ‘PCBU’) has then failed to meet its obligations due to the employee’s ignorance. To avoid this possibility, it is vital that all managers, supervisors and others who have some authority are made aware their obligations in the event of an accident: to freeze the scene, notify WorkSafe, and record it.
If you need any help in understanding your current reporting obligations or the proposed ones, please contact us.
