WorkSafe’s enforcement reset: new tools, new priorities, and what it means for your organisation

WorkSafe’s enforcement reset: new tools, new priorities, and what it means for your organisation

WorkSafe New Zealand’s approach to enforcement is changing significantly.

A combination of ministerial direction, updated enforcement policies, and the passage of the Health and Safety at Work Amendment Act 2026 means that by 1 April 2027, the enforcement landscape will look materially different from what organisations have experienced under the Health and Safety at Work Act 2015 (HSWA).

WorkSafe’s new direction

Minister for Workplace Relations and Safety, Hon Brooke van Velden, has driven much of this change.

In May 2025, the Minister issued a Letter of Expectations to WorkSafe, which set out the Government’s reform priorities and reset expectations.

In this letter, the Minister outlined three key shifts she was seeking from WorkSafe: that it is proportionate, practical, and consistent and clear in its enforcement decisions, actions, and advice.

These changes were informed by feedback the Minister received from her health and safety roadshow, where concerns were raised that WorkSafe could be “heavy handed in punishment when something does go wrong, but not always sufficiently supportive in providing advice on how to manage risks in the first place.”

Since May 2025, many more changes and announcements have been introduced by the Minister, this includes marked changes to the ACOP model and changes to the management of WorkSafe’s funding.

In February 2026, the Minister announced that WorkSafe had updated its enforcement policies and processes to give organisations more clarity about how it makes enforcement decisions.

The policies (outlined further below) demonstrate a clear expectation that WorkSafe will actively consider other enforcement options before recommending prosecution.

WorkSafe’s refreshed strategy, published in late 2024, acknowledged that the regulator “cannot be everywhere” and signalled a preference for early engagement over reactive enforcement.

Its Statement of Performance Expectations 2025/26 emphasised that WorkSafe had undertaken a strategic reset to support the Minister’s priorities, with a key focus on reshaping its enforcement function so that it “engages early and well to proactively assist and support businesses and individuals”.

Updated enforcement approach:

As part of this enforcement reset, WorkSafe introduced three key policies which together set out the framework for how WorkSafe will intervene, enforce and make decisions.

WorkSafe’s Our Regulatory Approach policy sets out when WorkSafe will intervene and how it will choose between engagement and enforcement.

The policy includes ‘intervention decision-making criteria’.

WorkSafe will only intervene in response to health and safety concerns when all criteria are met;

1. The risk or harm sits within WorkSafe’s responsibilities:

Other government agencies can be designated to carry out health and safety regulatory functions for certain work, including Maritime New Zealand and the Civil Aviation Authority.

In some instances, a risk or harm may sit outside WorkSafe’s mandate, as set out in HSWA.

2. WorkSafe is best placed to intervene if there’s an overlap with another agency’s responsibilities:

Where there is an overlap with another agency that also has health and safety responsibilities, WorkSafe will consider which agency is best placed to intervene.

Matters that may be considered include the severity of the risk or harm, whether the underlying issues are likely to involve work activities and which agency has the most effective regulatory tools to ensure health and safety is improved.

3. The significance of the risk or harm means WorkSafe should consider intervening:

WorkSafe will assess the significance of the risk or harm when determining whether to intervene.

Factors that will be considered include whether the risk or harm is one of WorkSafe’s priorities, involves death, severe or catastrophic harm, involves poorly managed extreme or substantial risk, or presents an immediate risk of severe harm.

Even where there is a lower level of harm or risk, WorkSafe may consider intervening due to other factors, such as the duty holder’s attitude to compliance and compliance history.

4. Intervention is an effective use of WorkSafe’s resources:

WorkSafe is likely to intervene when doing so will allow WorkSafe to make the biggest difference to heath and safety outcomes, help ensure regulatory risk is managed and is considered the best use of WorkSafe’s resources.

Where WorkSafe has decided to intervene, it will select the engagement or enforcement response, or combination of responses, it considers most appropriate.

WorkSafe’s response will be guided by the “risk gap” being the difference between how work is being carried out and how it should be carried out.

WorkSafe’s How We Make Prosecution Decisions policy sets out WorkSafe’s approach to prosecutions and alternatives to prosecution.

In deciding whether to prosecute a duty holder, WorkSafe will prioritise;

• Specific high-risk sectors and high-risk work, as listed on WorkSafe’s website, including; agriculture, construction, forestry and manufacturing.

• Offending that results in death, severe injury or illness, or catastrophic harm, as well as poorly managed extreme or substantial risk.

The policy follows the Solicitor-General Prosecution Guidelines, which include a two-part test for prosecution, the evidential test and the public interest test.

1. The Evidential Test:

Is there enough evidence to prove the proposed charges beyond reasonable doubt?

2. The Public Interest Test:

Does the public interest require a prosecution to be brought?

The guidelines emphasise that the public interest assessment is fact-specific and that no single factor is determinative.

However, four key categories of public interest factors that may be considered are the circumstances of the offending, the duty holders’ circumstances and conduct, the effect on victims, and whether an alternative to prosecution is appropriate.

WorkSafe’s enforcement-decision making model (EDM) is a framework that assists WorkSafe inspectors in deciding what action should be taken once a breach has been identified.

The purpose of this framework is that inspectors will reach enforcement decisions that are proportionate and consistent.

When applying the model, inspectors will first identify and prioritise any potential legislative failures, consider whether these failures directly expose people to health and safety risks or whether the failures relate to administrative breaches.

Inspectors will then consider the ‘risk gap’ between the level of risk created by the organisation’s current practices and the level of risk that would remain if the organisation

may be used where the breach is corrected before an improvement notice is issued or where a serious risk is removed before the inspector leaves the site, meaning that a prohibition notice is no longer required.

were complying with the required standard.

Benchmark standards organisations’ practices will be compared to may include legislation, regulations, approved codes of practice or WorkSafe guidance.

An enforcement response will be determined based on the size of the risk gap and other factors such as an organisation’s compliance history, the level of harm actually caused, and the overall quality of the organisation’s health and safety system.

New enforcement tools

WorkSafe’s updated framework places greater emphasis on a range of enforcement tools that sit between the existing notice regime and prosecution.

In practice, there has been a significant increase in WorkSafe’s use of these tools, reflecting a shift towards proportionate enforcement measures as genuine alternatives to prosecution.

Examples of enforcement tools WorkSafe will consider before prosecution are set out below.

Verbal directions –

A verbal direction is an onsite direction given by an inspector. They generally will be used for lower-level compliance failures, provided the inspector has confidence that the duty holder will comply.

Formal Warnings –

WorkSafe may formally record conduct it considers likely to constitute an offence without progressing to prosecution, where the circumstances warrant it.

A formal warning is a deliberate enforcement response that takes the form of a written document.

Directive letters –

An inspector may provide a duty holder with a directive letter that sets out the steps the recipient must follow to comply with HSWA or its regulations.

A directive letter is a non statutory measure that may be used when an inspector determines that the non compliance does not warrant a statutory notice.

Sustained compliance letters –

A sustained compliance letter records that a duty holder was non-compliant when inspected but rectified the issue before formal enforcement action was taken.

Infringement notices –

The prosecution policy expressly identifies infringement notices as an alternative to prosecution.

WorkSafe may issue an infringement notice where an assessment, investigation, or audit indicates serious non-compliance, or where there is a history of non-compliance.

Infringement notes will be accompanied by an infringement fee which can be an instant fine from $500 for an individual to $3,000 for a body corporate.

Pre-charge enforceable undertakings —

WorkSafe’s updated practice guide, establishes a clear pathway for pre-charge enforceable undertakings (EUs).

These allow a duty holder to enter into a legally binding agreement with WorkSafe to address health and safety issues and make improvements without charges being filed.

A pre-charge EU is available where WorkSafe is satisfied that a prima facie case exists, but the breach does not amount to an offence under section 47 of HSWA (reckless conduct).

These alternatives are available where an organisation accepts responsibility and commits to tangible improvements.

Importantly, WorkSafe may still prosecute and prosecutions remain for cases involving significant or negligent disregard of health and safety law, repeated non-compliance, or serious harm where deterrence is necessary.

The Health and Safety at Work Amendment Act 2026, which received Royal Assent on 9 July 2026, reinforces this enforcement direction.

It refocuses WorkSafe’s statutory functions to prioritise “critical risks” and reorganises the regulator’s mandate to emphasise guidance, engagement, and enforcement – in that order.

What the prosecution data shows

WorkSafe’s prosecution data reflects this change in approach.

Total charges fell from 94 in 2022 to 30 in 2025, while the number of unique defendants prosecuted declined from 81 to 23.

Although prosecution volumes fluctuate from year to year, the overall reduction is consistent with WorkSafe’s shift towards earlier engagement and proportionate enforcement, with prosecution increasingly reserved for cases where it is the only appropriate response.

This does not necessarily mean less regulatory scrutiny, but rather a more targeted approach that uses a wider range of tools to secure compliance and prioritises the most serious risks.

What this means for organisations

The key takeaways for duty holders are:

1. Critical risks will be the enforcement priority.

From 1 April 2027, WorkSafe’s attention will be squarely focused on risks that can cause death or serious harm. Organisations should identify and prioritise their critical risks now.

2. Expect a more targeted approach.

WorkSafe will consider the significance of the risk or harm, whether it is the right agency to respond and whether intervention is an effective use of its resources.

Lower-level risks may still attract attention, particularly where an organisation has a poor compliance history or is unwilling to address identified concerns.

3. WorkSafe’s enforcement approach will depend on the risk gap and the organisation’s conduct.

Before taking enforcement action, WorkSafe will consider the gap between an organisation’s current practices and the applicable standard.

The response will also be influenced by any actual harm, the organisation’s compliance history, the quality of its health and safety systems, and its willingness to put things right.

4. Engage early and take concerns seriously.

If WorkSafe raises an issue, organisations should respond promptly, provide accurate information, and take practical steps to address any non-compliance.

Acting quickly may influence the enforcement response and in some cases avoid the need for a statutory notice or prosecution.

5. More engagement does not mean less enforcement.

The decline in prosecutions does not mean that WorkSafe is stepping back.

Instead, WorkSafe has a wider range of responses available and may use engagement and enforcement together.

Prosecution remains available for serious harm, reckless or negligent conduct, repeated non-compliance, or where deterrence is required.

6. Watch for further guidance.

WorkSafe will publish further policies, guidance, and approved codes of practice ahead of 1 April 2027.

Organisations should keep an eye on WorkSafe’s website for updates as the commencement date approaches.

If you have any questions, please contact a member of our national health and safety team at Duncan Cotterill.

Special thanks to Partner Olivia Lund for preparing this article.