The New Health and Safety at Work Act

Commenced on 4 April 2016, the new Health and Safety at Work Act ("the Act") replaced the Health and Safety in Employment Act 1992 which overhauled the way businesses and organisations must implement their health and safety policies.  The HSWA also put in place a new statutory regime to enforce compliance obligations.

This article summarises the key changes and suggests which aspects of your workplace health and safety policy may need modernising.

What has Changed?

At the fundamental level, the Act shifts from an old reactive compliance framework to a proactive one.  This shift in approach is characterised by the way the Act treats three key parties:

   
1. The Person Conducting a Business or Undertaking (or "PCBU") - this is the primary entity being regulated under the Act and marks a shift away from previous "relationship based duties" under the old law (namely employer-to-employee duties and principal-to-contractor duties).
   
2.  "Officers" - covers any natural persons who represent the PCBU including directors, partners, any liquidator or receiver and further extends to any other person who occupies a position capable of exercising significant influence over the management of the PCBU, such as a CEO.
   
3. "Workers" - any employee, volunteer worker, contractor or sub-contractor of the PCBU; and any employee of a contractor or sub-contractor.

Duties of PCBUs

PCBUs are regulated as per their statutory duties:

   
• Under the old law, employers and principals are required to "take all practical steps to ensure the safety of employees while at work".
   
• Under the Act, PCBUs have a core duty to ensure "so far as is reasonably practicable" the health and safety of Workers at work in the business or undertaking.

The "so far as is reasonably practicable" duty is weighed up in reference to the following factors:

   
1. The likelihood of hazard or risk occurring;
   
2. The degree of harm that might result from the hazard or risk;
   
3. What is known/or ought to have been known about the hazard or risks and the methods of eliminating or minimising that hazard or risk;
   
4. The availability and suitability of ways of eliminating or minimising the hazard or risk; and
   
5. Whether the costs associated with the available methods of mitigation are grossing disproportionate to the hazard or risk identified.

Multiple PCBUs that operate in the same workplace must "consult, cooperate with, and coordinate activities" with another PCBU who have duties in relation to the same matter.

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Due Diligence of Officers

All Officers of the PCBU must equally exercise care, diligence and skill that a reasonable Officer would in the same circumstances, taking into account the nature of the business or undertaking, position of the Officer and the nature of responsibilities undertaken by the Officer.

Officers are now required to take reasonable steps to:

   
1. Acquire knowledge;
   
2. Understand the nature of operations and associated hazards and risks;
   
3. Ensure use of appropriate resources and processes within the business and/or undertaking to eliminate or minimise risks to health and safety;
   
4. Ensure timely reporting of and response to incidents, hazards, and risks;
   
5. Ensure processes for compliance with PCBU obligations; and
   
6. Verify/audit (internally and externally) the resources and processes within the business and/or undertaking.

The Act requires PCBUs to fundamentally change their governance as there are fewer ways to contract out of Officer liability and fewer ways to indemnify for criminal liability if an Officer breaches his/her duties.

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Compliance

Worksafe NZ, New Zealand's health and safety regulator, has been granted statutory powers under the Act to oversee the compliance of PCBUs and Officers and has the power to issue notices, enforceable undertakings, and adverse publicity orders on any PCBU and/or Officer in breach of the Act.  The Act further sets out the maximum criminal penalties, which are significantly heftier than those imposed under the old law.

The table below sets out the maximum statutory penalties:

The Act heralds a new age in health and safety regulation for workplaces in New Zealand.  As any organisation affected the by new Act, it is critical to adjust the existing structures you have in place.

Please kindly direct any enquiries to James Turner, Partner, and any member of the Albany Litigation Team.

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