Health and safety reform – critical risks and reasonably practicable steps

Health and safety reform – critical risks and reasonably practicable steps The Government has made a series of announcements recently to signal upcoming changes to the Health and Safety at Work Act 2015.  The devil will no doubt be in the detail, and there will be challenges capturing the proposals in workable legislation, but the announcements give a clear indication that significant change is on the horizon. Our health and safety team has summarised the key proposals and offers some insight about what this all means.

Focus on critical risks

In the first announcement, the Government promised a range of initiatives to reduce costs, the burden of compliance, and provide greater certainty for businesses in ensuring health and safety. As part of this, the primary purpose of the Act will be re-cast to focus on critical risk. In addition:

• Small, low-risk businesses (yet to be defined) will be exempt from general requirements under the Act, needing to only focus on managing critical risks that could cause death, serious injury or illness. Further, these businesses will only need to provide workers with supervision, training, and instruction for critical risks and provide only basic facilities for worker welfare (such as first aid kits, emergency plans, suitable lighting, and ventilation).
• WorkSafe will need to be notified of only “significant” workplace events – these are yet to be defined but are likely to be deaths and serious injuries, illnesses and incidents.
• Where there is overlap between the Act and other regulatory regimes that manage the same risk, these boundaries will be clarified to avoid duplication of efforts and “over-compliance”. This change in particular will be welcomed by a range of businesses, as we’ve seen WorkSafe take quite an expansive approach to its jurisdiction over the past few years with some unexpected efforts to regulate sectors and activities that are already subject to quite comprehensive oversight by different regulators.  Partners Duncan McGill and Edwin Boshier successfully defended charges in the case of WorkSafe New Zealand v Te Roopu Taurima o Manukau Trust which reflected WorkSafe’s effort to reach into the disability care sector.
• In an attempt to reduce the number of road cones, there will be a hotline implemented to report “overzealous road cone use”. The concern appears to be that when there are too many road cones, often with no road works being undertaken at the time, drivers become complacent.  The intention is that having fewer road cones, only when actually needed, will hopefully mean that drivers will pay more attention and workers will be safer.

Recreational activities

The health and safety duties of landowners has been brought into the spotlight by the recent High Court decision overturning the conviction of Whakaari Management Ltd in relation to Whakaari White Island (see our article here). The Government has now announced the Act will be amended to clarify that landowners will not be responsible if someone is injured on their land while doing recreational activities.  Instead, health and safety will be the responsibility of the organisation running the activity.  The change will apply to both public and private land, covering farms and forestry blocks, and also school grounds, local council land, and regional and national parks. We expect this will give some welcome clarity to a raft of landowners.  While ultimately unsuccessful, the prosecution of Whakaari Management Ltd suggested a complex imposition of duties on landowners that in some cases would have been very onerous having regard to the influence and control that landowners have over events on their land.  A tighter focus may well see better health and safety outcomes as well as reduced ambiguity.

Governance and operational management

Similarly, the health and safety duties of directors and officers has been a topic of discussion since the conviction of the former CEO of the Port of Auckland in Maritime New Zealand v Gibson (see our article here). The Government has announced that it will clarify the distinction between governance and operational management health and safety responsibilities.  This change will specify that the day-to-day management of health and safety risks is to be left to managers so that directors and boards can focus on governance and the strategic oversight of the business.

Reducing ambiguity about what is reasonably practicable

The “primary duty” in the Act is to “ensure, so far as is reasonably practicable, the health and safety of” workers and other persons.  The question of whether a particular action is “reasonably practicable” often falls to be determined by the courts, by which time it is typically too late. The Government has announced an intention to expedite approval of more Approved Codes of Practice (ACOPs) as a way of giving that primary duty some content.  ACOPs are intended to be practical guidelines to help people in specific sectors and industries understand how to comply with their health and safety duties.  There is already provision for ACOPs in the Act, but their development has been slow and in our view they are a much-underutilised tool for promoting better health and safety and making the Act more certain. The Minister has signalled an expectation that ACOPs may be created by WorkSafe or by other individuals and groups, such as industry organisations.  It is intended that this will allow the development of ACOPs to be faster and help ensure they will reflect what works in practice, drawing on the experience of those who deal with certain risks every day.  Each ACOP will need to be approved by the Minister of Workplace Relations and Safety. ACOPs are expected to be developed especially for new and emerging industries where regulations may not yet be necessary.  They may also replace or supplement existing health and safety regulations, which are often considered to be outdated, not fit for purpose, and overly complex.

Conclusion

There will be more detail to come about these changes once the amending legislation is released.  We will provide further updates as more information becomes available. The direction of travel is one of significant change, with potentially far-reaching consequences.  We encourage businesses and others with an interest to follow developments and get engaged in the development of the legislation.  Our health and safety team is ready to help you navigate these changes and welcomes a discussion about how we can assist. Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.