Overlapping duties under the HSWA: clarifying compliance obligations
Overlapping duties: address over-compliance due to overlapping health and safety duties by clarifying the boundaries between the HSW Act and regulatory systems that already manage the same risk.
The mention of ‘overlapping duties’ and ‘over-compliance’ suggests that reforms might clarify what is meant by shared duties and how businesses and organisations should implement these overlapping duties in practice under section 34 of the HSW Act.
This would be a welcome change, as many organisations and industry groups have requested such reform, and in my experience, it is the most misunderstood part of the HSWA. This confusion leads to unnecessary duplication of resources, wasted costs, and lost productivity, without any significant reduction in risk or improvement in health and safety outcomes for workers.
For example, look at the prequalification regimes introduced under HSWA for contractor management. Unfortunately, the second part of the Minister’s statement indicates that the proposed reform looks to be limited to removing overlaps between the HSWA and other regulatory systems.
While not as significant as a potential overhaul of the section 34 overlapping duties, this change is still likely to be well received. There have been many instances where I have seen the regulator unexpectedly intervene in sectors like health and disability, where other regulatory bodies, such as the Health and Disability Commissioner, are more appropriate for addressing issues related to the adequacy and quality of care provided.
Other examples of regulatory system overlaps include concerns about the relationship between the HSWA and the Building Act, particularly regarding the earthquake-prone buildings regime, and the management of hazardous substances under both HSNO and HSWA in the transport sector. Further clarification as to the application of these regulatory systems is welcome.
Special thanks to Partner Olivia Lund for preparing this article.
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.
